www.baltimoresun.com/business/bs-bz-debt-collection-affidavits-20111003,0,5940915.story

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Consumer advocates want affidavits pulled in Md. debt-collection cases

Ohio class-action settlement has implications for Maryland consumers, attorneys say

By Jamie Smith Hopkins, The Baltimore Sun

7:30 PM EDT, October 3, 2011

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The University of Maryland School of Law's consumer-protection clinic is trying to get key documents stricken from potentially hundreds of debt-collection cases over an issue more commonly thought of as a foreclosure problem — robo-signing.

Midland Funding, which buys old consumer debts and sues to collect, filed affidavits signed by representatives who swore they had personal knowledge of the debts even though they did not, a federal court in Ohio found as part of an August class-action settlement.

Midland employees daily signed 200 to 400 of such "false and misleading" affidavits for years, according to an order by U.S. District Judge David A. Katz.

Though it insisted the facts in the affidavits were accurate, Midland agreed as part of the settlement to change its practices. But the University of Maryland consumer-protection clinic says the company and affiliate Midland Credit Management have more than 400 active cases in Maryland that rely on affidavits filed during the period covered by the class-action settlement — January 2005 through mid-March of this year.

Some of the cases have not been ruled on by a judge, while others are still active because Midland was awarded a judgment that hasn't been fully paid off.

Midland's parent, the publicly traded Encore Capital Group, said it would stand by its affidavits in Maryland. The company said it made its affidavit process "more robust" in late 2009 while the Ohio class-action suit was under way and — in response to a separate class-action settlement — agreed to drop 10,000 Maryland cases filed by Midland before mid-January 2010 because the firm did not have a state collections license until that point.

"We are confident that the affidavits submitted by our employees are prepared appropriately and properly identify consumer and account information," Encore spokesman George Durham said.

Robo-signing came to national attention as a result of the long-running foreclosure crisis. But consumer attorneys say the lack of personal knowledge underlying the practice is also common in collection lawsuits brought by debt buyers, no matter how much time they take to prepare the paperwork.

Industry critics say the companies typically purchase scant information about the debts and are sometimes several purchasers removed from the credit-card company or other creditor that originally sold it.

"A fifth-generation purchaser of debt cannot possibly have personal knowledge of what happened when the account was created and what happened with each prior generation of debt buyer," said Peter A. Holland, an attorney who runs the University of Maryland clinic.

Last week the clinic began filing motions in several Midland cases to get the affidavits stricken from the record in those lawsuits. The clinic also asked the District Court to take note of "fraudulent, robo-signed" affidavits in all of Midland's 2005 through mid-March cases in Maryland.

Affidavits, the written equivalent of court testimony, are critical in debt-collection cases because many suits are decided without ever going to trial. If the consumer doesn't defend himself, a judge decides the case based on filings — including the affidavit — by the company suing to collect.

But a case won't necessarily crumble on the spot if the affidavit is pulled. A judge could allow new affidavits to be filed or could simply schedule the case for trial, Holland said.

Maryland has turned up the heat on debt buyers in recent years. Regulators have targeted companies without state licenses, and last month Maryland's highest court approved rules requiring more proof from debt buyers before judges can OK judgments in cases that don't go to trial. The rules take effect in January.

Terri Bolling, a spokeswoman for the Maryland Judiciary, said Monday that the District Court was referring the affidavit matter raised by the consumer-protection clinic to the state's financial regulators.

Lindsay Warnes, a staff attorney for Maryland Legal Aid, which represents low-income Marylanders, said she has been seeing debt-buyer affidavits that seem to dance around the lack-of-knowledge problem.

"Some of them say, 'I have been told … that this piece of information is accurate,' and then they swear," she said. "They're trying to get more creative in the way they write them. But there's still no personal knowledge whatsoever."

jhopkins@baltsun.com

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