A Debtors Dilemma

By: Tiffany Setters

Having successfully trekked through the long, arduous years of law school, an attorney is most likely aware of what constitutes basic debtors’ rights.  For instance, they likely know that a creditor should refrain from showing up at a debtor’s door while ostentatiously handling a baseball bat, cracking his or her knuckles, and throwing around phrases like, “break-your-legs”.  In high-level legalese, this situation would be known as a definite no-no.  Not just a no-no; a definite no-no.  That term has not yet been included in Black’s Law Dictionary, but we can only hope it will be deemed the “Legal Phrase of the Year” in the next edition.

So how do creditors get debtors to “pay-up”?  As you may know, the remedies for nonpayment of debt are often frustrating for creditors.  Repossession, for example, is probably not the “brass ring” outcome that secured creditors were hoping for.  Similarly, an unsecured creditor may ascend to Cloud Nine after obtaining a judgement- only to hit the ground when they have to jump through more legal hoops to execute that judgement.  And wouldn’t you know it?  The debtor turns out to be insolvent and much of the creditor’s collection efforts have been wasted.

And don’t even get started on the Fair Debt Collection Practices Act[1]; a mere mention of the Act rings like an expletive in some creditors’ ears.  The FDCPA was passed due to “abundant evidence of the use of abusive, deceptive, and unfair debt collection practices by many debt collectors,”[2] and has limited debt collection in numerous ways.  Among other practices, the FDCPA is supposed to put a halt to such things as overly harassing phone calls[3]; use of deceptive information to intimidate a debtor into paying[4]; and simply ignoring a debtor who disputes the amount of the debt owed[5].  In large part due to the FDCPA, the Federal Trade Commission gets more complaints about debt collection than they do about any other industry.[6]  And they are not sitting on such complaints. The FTA has recently stepped-up enforcement against creditors who engage in debt collection violations.[7]

For many creditors, this is a big pill to swallow.  Not only do they have less tools in their debt collection tool-box, they are now more likely to get a whack on the hand when they reach for one prohibited under the FDCPA (until the new administration takes over, that is).  Many creditors believe that they have enough trouble collecting a debt; must they “mollycoddle” a debtor too?!

But, despite this long lead-up, this post is not about lamenting the plight of creditors.  Stating the obvious, yes, creditors need to have legal means through which they can collect on a debt (even the FDCPA says so[8]). However, such means must be carefully defined.  Creditors cannot be given free rein to collect in any way that they please; as stated earlier, baseball bats and knuckle-cracking are not particularly worthy aspirations of a well-ordered society.  As such, debtors, like creditors, also need legally enforceable rights, particularly those designed to protect them from predatory collection practices.   In short, there are two sides to every story.

In debtor-creditor proceedings, which side of the story actually prevails depends primarily on how it is presented, and by whom.

That is the point of this post; that, more often than not, the creditor’s side of the debtor-creditor story is literary and leather-bound, while the debtor’s is written in crayon on a cocktail napkin.  While both sides have rights in our system, one side is much less likely to present theirs in a way that carries the day.  Though debtors have rights such as those under the FDCPA (again, often much to many creditors’ chagrin), debtors are less likely to understand such rights, or hire an attorney to help them do so.  Debtors have rights, yes, but due to limited legal sophistication and precarious financial status, millions upon millions of consumer debtors cannot take full advantage of them.

The nature of our current system, therefore, is such that when a debt gets dragged into court, debtors systematically stand in a severely disadvantaged position against their creditor opponents.  It leads us to ponder; is this social justice?  If not, how can we inject some social justice into the debtor-creditor legal arena?

The Debtor’s Dilemma

This post posits that average debtors often fall prey to social injustice.  Many debtors are on unequal footing in collection proceedings not because their legal position is weak, but because they very often do not have the legal knowledge or financial means to represent their case effectively.

It is safe to say that the average debtor has not taken “Secured Transactions” or “Bankruptcy and Debtor/Creditor Law”.  Average debtors are not lawyers.  They fulfill other careers that society needs to function; they are 2nd grade teachers, mechanics, convenient store clerks, sonogram technicians, small business owners (the list goes on and on).  Their job training never covered such topics as “adhesion contracts” or “default” or “statute of limitations”.

Yet, we all need food, shelter, water, clothing, and transport.  So, despite not having full-fledged training in all of the pitfalls surrounding debt agreements, the average debtor signs on the dotted line and hopes for the best.  This is not to say that all debtors do not read the paperwork they are signing, or even have a decent understanding of what they are getting into.  But let’s face it- if you had never been to law school, would have you known exactly how devastating a triggered acceleration clause can be?

The legal system has recognized that the average debtor lacks legal sophistication.  Most courts, for example, determine whether collection communications meets the standards of the FDCPA by applying the “least sophisticated debtor” standard.[9]  So the average debtor is not armed with knowledge necessary to ride into court battles against their creditors; that is, without being felled in the first onslaught.  But can’t she or he just hire a lawyer?  A champion to fly her or his flag, and who can face creditors with a proper sword rather than a rusty old pitchfork or the like?

Not to be flippant, but newsflash: the typical outstanding debtor is likely not flush with cash.  Though it is naïve to finish that last line with, “otherwise they would be paying their debts”, much of the time that is true.  Yes, some outstanding debtors choose not to pay their debts; but the fact remains that a significant portion of such debtors cannot pay their debts AND keep food on the table. For example, one third of those who file bankruptcy (ostensibly to discharge debts) are below the poverty line.[10]  The leading causes of bankruptcy do not including profligate spending, but rather situations the debtor never saw coming and which nonetheless deliver devastating financial blows; medical issues, unemployment, and family break-ups.[11]  Consumers typically do not choose to end-up in such situations, suddenly facing huge bills with no bump in income.

And only a fraction of indigent debtors actually file for bankruptcy, possibly because they cannot even afford to pay the filing fee.[12]

The annual growth rate of consumer debt has outstripped the annual growth rate for household income for many years now, leaving millions of Americans on precarious financial ground.[13]  Because the debt-to-income ratio is so large, the middle class is eroding at an alarming rate, and the poor are sinking even deeper into the quicksand of debt.[14]  A huge swath of the American citizenry is “debt poor”.  “Debt poor” debtors are not counted as “poor” under the poverty measure, because their incomes are technically above the poverty threshold; yet, thanks to interest payments on their consumer debt, they cannot afford basic necessities.[15]   When a debtor cannot afford basic necessities, obligations like credit card bills, medical bills, and mortgage or car payments take a back seat.  And so does the payment of an attorney’s retainer.

If you need more evidence that millions of outstanding debtors are facing poverty, and are not likely to seek out a lawyer to assert their debtor’s rights, consider this: in recent years, there has been growth in the number of citizens who are jailed due to their inability to pay certain debts owed to the state.[16]  It seems that, in these cases, if the debtor had the money to pay debts for which they could be incarcerated, they would; jail time is arguably the ultimate motivator to do so.  If they do not have the money to keep out of jail, they most certainly do not have it to pay an attorney.

This entire section adds up to an obvious conclusion: the average debtor often cannot adequately represent themselves in legal proceedings because one, they probably are legally unsophisticated, and two, they very well may be too indigent to pay an attorney.  So how can we resolve this problem? How might we put the average debtor on equal footing with the typical major creditor?  How can we make the average debtor-creditor legal proceeding a “fair fight”?

Calling in the Cavalry: How Attorneys Can Help Level the Playing Field

Which brings us back to the opening paragraph of this post.  Lawyers are likely familiar with basic debtor’s rights.  That is, unless they took the bar and quickly repressed all of the studying leading up to it, which actually may be the case considering how traumatic the bar can be.  But even if lawyers are not 100% on debtor-creditor relations, they know where to look to get their questions answered.

It does not take a stretch of the imagination to conclude that attorneys may have forgotten what it is like not to know these things- or in other words, to stand in the average debtor’s shoes.

Yet, that is an important thing for attorneys to remember.  Despite what all the lawyer jokes say, attorneys are not simply practitioners out to make a buck; they are officers of the court.  Not only must they recognize deficiencies in the administration of justice in our legal system, they must actively seek to defeat those deficiencies.  They must promote equal access to justice for all, regardless of inability to pay. Every lawyer has an obligation to provide pro bono legal services to the indigent precisely for this reason.

77 million consumers- 1 in 3 Americans- are undergoing debt collection.[17]  And as stated earlier, many of these consumers may not have equal access to justice because of legal unsophistication and/or minimal funds.  A lawyer, therefore, has ample opportunity to offer pro bono services for this cause.  What is the best way to provide as much pro bono help to as many as possible?  Many jurisdictions have ideas.

One such idea recognizes where debtor’s need the most help; at their Court date.  The Utah State Bar handles a creditor-debtor pro bono signature project with the cooperation of judges and pro bono attorneys alike.[18]  Collection actions involving pro se debtors with debts less than $20,000 are placed on one designated calendar.[19]  Firms or other organizations, such as the Attorney General’s Office, offers to “cover” the calendar by providing pro bono attorneys.[20]  Such attorneys are covered by malpractice insurance provided by the Bar.[21]

A staff member of the Utah State attends the calendar with the pro bono attorneys, and asks each pro se debtor if they would like to speak with a pro bono attorney prior to their case being called.[22]  If the debtor answers in the affirmative, a pro bono attorney provides the debtor with a specially-designed, one-page limited representation agreement.[23]  The agreement, in accordance with ethical rules, limits an attorney’s conflict check to known conflicts.[24] Once the debtor signs the agreement, the pro bono attorney advises the debtor and, with the debtor’s permission, negotiates settlements on their behalf.[25]  The program has been hugely successful[26], and is ripe to be picked-up by other jurisdictions.

Another idea has been executed by the Faculty of Federal Advocates, supported by the Colorado State Bar, which assists debtors in adversary bankruptcy proceedings involving discharge or dischargability claims.[27]  The debtors are pro se, or essentially so since the original fee agreement with their bankruptcy attorney does not cover adversary proceedings.[28]  Pro bono attorneys who take such cases are covered by the program’s malpractice insurance.[29]  A similar program exists in Minnesota, created by the Minnesota State Bar Association Bankruptcy Section, in cooperation with U.S. Bankruptcy Court for the District of Minnesota and the Volunteer Lawyers Network in Minneapolis.[30]

Some debtor pro bono programs utilize the efforts of law students to tackle the problem of unrepresented debtors.  Rutgers University School of Law-Camden Bankruptcy Pro Bono Project does just that, with pro bono attorneys supervising law students in an effort to provide debtors with full pro bono bankruptcy representation.[31]  Other programs assisted by other law schools have a similar structure.

Pro se help desks, clinics or pro se filing preparation[32] are the old standbys of pro bono services for consumer debtors, and most states offer such services.  An attorney can contact their state bar as a starting point to find out how they might spend a little or a lot of time providing short consultations to debtors in need of a little direction.

And of course, an attorney may help struggling debtors the old-fashioned way; by offering them full representation on a pro bono basis.

Conclusion

Struggling debtors get called to the legal mat every day; and that is perfectly fine.  What is less “fine” is the fact that debtors very often do not have the know-how or financial chops to face creditors on an even playing field.  Attorneys can help level the playing field by providing pro bono services to consumer debtors, fulfilling their duty to promote justice for all.

 

 

 

 

 

 

 

 

 

 

 

[1] 15 U.S.C. § 1692 (1978).

[2] 15 U.S.C. § 1692(a) (1978).

[3] 15 U.S.C. § 1692(d) (1978).

[4] 15 U.S.C. § 1692(e) (1978).

[5] 15 U.S.C. § 1692(g) (1978).

[6] Debt Collection, Fed. Trade Comm’n, https://www.ftc.gov/news-events/media-resources/consumer-finance/debt-collection (last visited Jan. 15, 2016).

[7] FTC and Federal, State and Local Law Enforcement Partners Announce Nationwide Crackdown Against Abusive Debt Collectors, Fed. Trade Comm’n (Nov. 4, 2015), https://www.ftc.gov/news-events/press-releases/2015/11/ftc-federal-state-local-law-enforcement-partners-announce.

[8] 15 U.S.C. § 1692(a) of the FDCPA provides that, “Means other than misrepresentation or other abusive debt collection practices are available for the effective collection of debts.”

[9] Christian Stueben, Judge or Jury? Determining Deception or Misrepresentation under the Fair Debt Collection Practices Act, 78 Fordham L. Rev. 3107, 3127 (2010).

[10] Andrew P. MacArthur, Pay to Play: The Poor’s Problems in the BAPCPA, Emory Bankr. Dev. J. 407, 410 (2009).

[11] Id.

[12] Christine Dugas, Only a fraction of those in need file for bankruptcy, USA Today (June 9, 2010, 4:58 PM), http://usatoday30.usatoday.com/money/economy/2010-06-09-bankruptcy09_CV_N.htm (last updated

[13] Steven Pressman & Robert H. Scott, Consumer debt and poverty measurement, 27 Focus, no. 1, 2010, at 9, 9.

[14] Heather Long, America’s poor are still heavily in debt, CNN Money, (Dec. 1, 2015, 12:23 PM), http://money.cnn.com/2015/12/01/news/economy/america-poor-in-debt/.

[15] Pressman & Scott, supra note 13, at 10.

[16] The new debtors’ prisons, The Economist (Nov. 16, 2013), http://www.economist.com/news/united-states/21589903-if-you-are-poor-dont-get-caught-speeding-new-debtors-prisons.

[17]Jeanne Sahadi,1 in 3 U.S. adults have ‘debt in collections’, CNN Money (Aug. 7 2014, 11:49 AM), http://money.cnn.com/2014/07/29/pf/debt-collections/.

[18] Mark T. Andrus, I Came, I Saw, I Made a Difference: Pragmatic Pro Bono Programs for the Twenty-First Century, Consumer Fin. Servs. Committee Newsl. (A.B.A. Bus. L. Sec., Chi., IL), December 2015, at 7, 7, http://apps.americanbar.org/buslaw/committees/CL230000pub/newsletter/201512/pro_bono.pdf.

[19] Id. at 9-10.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Allyn M. O’Connor, Bankruptcy Assistance: Creative Strategies, A.B.A., http://www.americanbar.org/publications/blt/2010/12/pro_bono.html (last visited Jan. 15, 2016).

[31] Id.

[32] Id.

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