Consumer Turns the Table on Debt Collector, or “How a Law Firm Turned a Debt of $3,000 into a Judgment of $300,000”

A North Dakota law firm learned the hard way that, if you are not careful, suing on a stale debt can come back to bite you. Johnson, Rodenburg & Lauinger (“JRL”) regularly collects consumer debts and in this case it was attempting to collect a debt on behalf of Collect America Ltd., a debt buyer. Collect America is just one of many companies who regularly buy and sell consumer debts purchased for pennies on the dollar from national firms. In this case, Collect America wanted JRL to collect on a credit card account purchased from Chase Manhatten in the name of one Tim McCollough. Tim had opened the account in 1990 but had run into hard times in the late 90s when he was injured at work and his wife had to undergo surgery. As a result, Tim paid what he could and then ceased payment altogether in 1999. And this is where the problems begin for JRL.

It appears that by the time JRL received the file the statute of limitations to collect on Tim’s debt had run. The details of what happened are rather complicated, probably too complicated for a short blog post, so suffice it to say: JRL sued Tim on an uncollectible debt and it appears that JRL had knowledge of that fact. JRL only dismissed the case after Tim hired an attorney who fought JRL in court on that issue. After JRL dismissed its case, Tim’s attorney brought suit against the firm under the Fair Debt Collection Practices Act (FDCPA). FDCPA is designed to prevent debt collectors from engaging in false, misleading or abusive practices against consumers, such as what JRL engaged in by knowingly suing on a debt that was uncollectible. After a trial, Tim was awarded actual and punitive damages of $311,000 on a debt originally totaling $3,000. OUCH! JRL appealed the verdict but the appeals court upheld the verdict and so Tim’s victory is likely final.

JRL operates a large volume practice and routinely files thousands upon thousands of cases against consumers a year. What makes this practice work is that 95% of consumer debtors do not contest the case and a default judgment is entered against them, even if the debt is not otherwise collectible. JRL had knowledge that the debt was stale but it sued the debtor regardless likely hoping for another default judgment. This time, however, the mouse roared and maybe next time JRL will listen.

You can read the whole opinion here: http://cdn.ca9.uscourts.gov/datastore/opinions/2011/03/04/09-35767.pdf

My attention was brought to this case by a blog post by Cathy Moran of the Moran Law Group. You can read her post here: http://www.bankruptcysoapbox.com/debtor-bites-collector-over-stale-debt/

Omitted Tort Claim in Bankruptcy Leaves Debtor with Coal in Her Stocking

Sometime in July, 2010, the debtor, Shawnna Pitts, was injured while leaving a CVS store in Ferndale, Michigan. As Shwanna was exiting the store, an automatic door closed on her and she was injured. Shawnna later filed suit against CVS and in 2013 she was able to reach a settlement with CVS. At the time, Shawnna had not filed suit against the manufacturer of the door, Stanley Access Technologies, LLC (“Stanley”) so Shawnna still had a potential claim against Stanley. Instead of filing suit against Stanley, Shawnna instead filed for bankruptcy protection under Chapter 7. As part of filing for bankruptcy, the debtor must list all of his or her assets, to include any potential lawsuits. In her petition, Shawnna did not mention her settlement with CVS (Shawnna signed the settlement agreement days after filing bankruptcy) or the potential claim against Stanley. At no time, after filing her petition, did Shawnna amend the petition to disclose either lawsuit.

Three days after receiving her bankruptcy discharge, Shawnna filed suit against Stanley. It is not clear how Stanley found out about Shawnna’s omission, but find out it did and in response the company filed a motion asking the court, among other things, to dismiss the case against Stanley because Shawnna was “judicially estopped” from arguing she had a viable claim. Judicial estoppel is a device used by the court to force parties to “play fair” which in this case means not taking inconsistent positions in different court proceedings. The court found that Shawnna did not inadvertently omit the personal injury claim and as such Shawnna should have to stand by her position taken on her bankruptcy petition – that she had no potential tort claims. No claim means no viable lawsuit and so the court dismissed her claim. Now Shawnna is barred from recovering anything from Stanley.

While the debtor’s stocking may have been a bit empty this year – except for the coal that is – her creditors may find a bit extra in theirs. Where a debtor omits assets, the Chapter 7 trustee may be able to step into the debtor’s shoes and sue Stanley on behalf of the bankruptcy estate. Judicial estoppel only affects the party who is taking inconsistent positions so other parties are not similarly barred. When Shawnna filed bankruptcy, all of her assets became “property” of a bankruptcy estate which is administered by a trustee. The trustee’s job is to marshal all of the debtor’s assets that are not exempt and sell non-exempt assets for the benefit of creditors, such as the tort claim against Stanley. So in the end, Shawnna’s creditors may be able to benefit from her mistake.

Unfortunately, the omission of personal injury claims is sadly too common. I know of several cases in Maine and I have read about many more nationwide. I imagine these debtors think that no one will be the wiser if such a claim is left off the petition. Defense attorneys know to check the bankruptcy court website as part of preparing their case and often this is how the omissions come to light. What makes this case more tragic is that in many states the debtor can exempt all or a portion of a personal injury claim – so she might have been able to keep all or some of any proceeds from the lawsuit. Worst of all, Shawnna could face possible criminal bankruptcy fraud charges, all because she tried to get one over on her creditors.

This case highlights the maxim often used in bankruptcy: bankruptcy is for the honest but unfortunate debtor who is seeking a fresh start. Honesty, in bankruptcy as in life, is the best policy as Shawnna found out to her dismay.

You can read the full opinion here at Google Scholar: http://scholar.google.com/scholar_case?case=12015280686927367958&q=bankruptcy&hl=en&scisbd=2&as_sdt=10000003

It is Not Enough to Prevail – You Still Have to Collect Your Judgment

“Jane Doe” was a fifth-grader when she was sexually assaulted by her teacher, Wayne Manson. Subsequently, in 2000, Jane was awarded a quarter million dollars after filing a civil lawsuit against Manson. Almost fifteen years later, Jane has only collected a small portion of the judgment and with interest the judgment has blossomed to over four hundred thousand dollars. Manson, now over sixty-five, does not work and lives off a teacher’s pension and has no assets to speak of – chances are that Jane will never fully collect on her judgment. Jane’s situation is all too common. In many cases, the plaintiff will get a judgment fit to frame but not much else. This story is about Jane and her quest to make Manson pay, literally and figuratively.

One spring afternoon, in 1988, Jane was waiting for her father to pick her up after school; Jane had stayed after classes ended to rehearse for a school talent show. Manson, who was Jane’s teacher, asked her if she wanted to wait in his classroom, located at the end of a long annex. Jane took a seat on a beanbag to watch TV while Manson sat at his desk behind her. Minutes later the television program changed to a pornographic presentation; Manson then came around from his desk and forced himself on Jane, while the pornographic presentation continued to play in the background. When he was finished, Manson told Jane that if she told anyone what happened he would have her held back a year in his class. With that threat in the air, Manson walked out of the room, leaving Jane alone. Jane, crying since the assault began, put herself back together as best she could and went outside to await her father. She never told anyone what happened that day until many years later. Jane was only eleven.

In 1998, after years of bottling up her emotions inside, Jane told her husband what happened that spring afternoon. The revelation started a chain reaction of events which resulted in Manson pleading no contest to unlawful sexual conduct in 1999, as part of a plea deal and for which he was sentenced to four years in prison, with all but nine months suspended. After being released from prison, Manson was required to register as a sex offender and prohibited from interacting with children under 16 or enter school property. Beyond the criminal penalties, Jane brought suit against Manson and after a bench trial in federal court, she was awarded $250,000 – $150,000 in compensatory damages and $100,000 in punitive damages[1]. Jane must have felt, to some extent, vindicated by the verdict but, as later events would prove, obtaining a judgment was the “easy” part, now she needed to collect on the judgment.

In Maine, once judgment is rendered, a plaintiff can begin to use certain legal tools to collect on the judgment; one of these tools, and for most the primary means of enforcing a judgment, is called a disclosure hearing. What may surprise many people is that the defendant is not required to provide information to the court or to the plaintiff unless required to by the court. In a disclosure hearing, the plaintiff serves the defendant with a summons to appear and testify in court about his or her financial circumstances, to include information about income, expenses, assets and liabilities. If necessary, the plaintiff can also subpoena other parties to appear and testify. The burden, however, remains with the plaintiff and he or she must bring the issue regarding the defendant’s ability to pay before the court.

Disclosure hearings are conducted rather informally, both the plaintiff and defendant often meet on the proverbial courthouse steps to discuss the defendant’s financial situation. The goal is to agree to some sort of payment arrangement that suits both parties. Thankfully most plaintiff attorneys are smart enough to know that a payment arrangement that crushes the defendant will almost certainly fail. If no agreement is reached then the parties will proceed to a hearing before the court where the debtor will be examined under oath about his or her assets, income, liabilities, and expenses. It will be up to the court to determine if an installment order is proper or if other remedies should be used, such as the turnover of some of the defendant’s assets.

In Jane’s case, her attorneys requested four such disclosure hearings: in September 2000, June 2003, April 2006, and most recently January 2011. Initially, Manson had some assets that were available to pay the judgment and the court ordered him to turn over some funds held in a savings account and in an investment fund. Otherwise, Manson was not required to make any payments to Jane until June of 2003 when Manson was ordered to begin make monthly payments. At first, the payments were only $50 a month, though often paid sporadically. In 2006, after another disclosure hearing, the payments increased to $113 a month where it stayed for almost five years until 2011 when after the most recent disclosure hearing the monthly payments increased to $320. While payments have steadily increased, at $320 a month, the principal, and indeed most of the accrued interest, will never be paid off.

It is the lack of any assets that really hampers Jane’s ability to fully collect on the judgment. If Manson had assets of any value he might have been able to pay the judgment in full or in part. Manson is an only child and he has no children of his own. His mother, before her death, owned a piece of real estate in Kittery, estimated to be worth about $160,000 in 2000, but before she died she transferred the property into a trust for Manson’s benefit. Likely Manson will never inherit the property and thus it will be unavailable to be sold for Jane’s benefit. Manson may never own the property but under the terms of the trust he can live there for very little, his only obligation to the trust is to pay utilities and upkeep on the home. Additionally, Manson does not own a car, and thus expose it to seizure and sale, he instead leases his vehicle. So without a house or car, Manson owns very little else but some home furnishings.

While Manson does not have any assets, Manson receive a monthly pension check from his years as a teacher; in 2011, Manson received around $25,000 for the year. Other than the pension, Manson had no other source of income. While he worked as a volunteer at a local museum, he argued that a medical condition prevented him from holding down stable employment. Unfortunately, a defendant who is not working full time, or at all, cannot be ordered to work, unless child support is involved. The reason for this is to avoid running afoul of the prohibition in the constitution against indentured servitude. While the purpose served is noble, it certainly has a hollow ring to it in this case. Returning to the case at hand, with only a teacher’s pension, Manson argued that after living expenses he did not have much left over to pay on the judgment.

This is where a creative lawyer can make a difference in a hard case like this, where the debtor has limited income and very little in the way of assets. Jane’s attorneys examined the debtor under oath and went down through his expenses and identified expenditures that were not necessary for Manson’s support or which were inflated over what was reasonable. For example, Manson was in the habit of leasing a new vehicle every couple of years and as of 2011 the defendant was spending over $430 a month. Manson argued that while this amount seemed high, it was necessary as he needed a vehicle large enough to fit his frame; he also said that the lease removed the need for out of pocket expenditures on repairs and maintenance which he would have on a car that he owned. Jane’s attorneys combed through the Portland Press Herald and found numerous lease offers that were substantially less than the one the defendant currently had. The court agreed and ordered Manson to acquire a lower cost lease, when the current lease ran out, and to pay the difference, $200.00, to Jane.

While Jane may never fully collect on her judgment, and at this point that seems more and more likely the outcome, had she been less willing to pursue the remedies available to her, she might have collected far less than what she has. I am sure that at times this whole process must have been frustrating to her as payments were made in drips and drabs; I imagine it felt like her abuse were taking advantage of her once again. For the most part, the defendant has been able to live life relatively untouched – he has little in the way of expenses, as he lives virtually rent free at his home. Jane should take some solace knowing that her attorneys refused to let Manson off the hook and their continued persistence has, over time, forced him to live up to his obligations, even if he does so fitfully and unwillingly. By utilizing the disclosure hearing to force Manson to prove up his financial situation, her attorneys have maximized Jane’s recovery even in this tough case. Small victories are still victories.

[1] According to the last filing with the court, as of January 2011, Manson owed roughly $400,000, including interest on the judgment. Prior to January 2011, Manson made several large payments in 2000 (roughly $35,000), followed by a few small sporadic payments between 2000 and 2006, when finally, in 2006, Manson was ordered to make monthly payments of $113, which he did so faithfully until April 2011 when the court ordered Manson to make a larger monthly payment of $320 a month.