By Jamie Smith Hopkins, The Baltimore Sun
5:00 PM EDT, July 24, 2011
Marquis Jones doesn't believe she owes money on a credit-card account that a debt-buying company sued to collect from her.
More importantly, though, the firm never proved she did.
But because the Severn woman wasn't given notice of the lawsuit — the company's process server claimed her nonexistent "wife" accepted the summons — she wasn't in court to point this out. So an Anne Arundel County judge approved a $992 judgment against her last fall.
The scene has been repeated in courtrooms throughout Maryland and across the country. Companies that buy past-due consumer debts and sue to collect have won judgments against Marylanders even though, advocates and regulators say, the documentation to prove those cases often has been very thin.
"This is a $100 billion-dollar-a-year industry … the sale of 'accounts receivable,' " said Peter A. Holland, who runs a University of Maryland law school clinic that specializes in debt cases. "It's created a crisis in our small-claims courts. There's tens of thousands of cases filed without proof just in Maryland. Nationwide, it's in the tens of millions."
Debt buyers say problems are unusual. But as nationwide pressure for reform has mounted, an industry group has begun to call for original creditors to hang on to defaulted-account information longer.
Now Maryland's highest court is about to consider a change in the rules that would make it clear that debt buyers cannot expect a judgment against a no-show defendant without presenting sufficient evidence to back up their claims.
A court committee recommended the move in June at the urging of the Maryland Attorney General's Office and the Department of Labor, Licensing and Regulation.
The chief judge of Maryland's District Court, where almost all these cases are filed, believes reform is urgently needed. Judge Ben C. Clyburn said small-claims courts sign off on more than 200,000 judgments in contract cases each year. Probably two-thirds, he said, are debt-collection matters.
Clyburn said some debt-buying companies have treated the courts as an extension of their collections offices, counting on the fact that unsophisticated consumers won't stand up for themselves and judges — hearing no defense — will sign off on claims without realizing they're deficient.
"They're just playing the odds," Clyburn said. When Marylanders do contest the lawsuits, he said, "generally these debt collectors have dismissed the cases because they know if they go to trial, then they can't provide the necessary evidence of their claim."
When debt buyers purchase defaulted accounts from credit-card firms and other creditors, they pay a cut-rate price for what usually amounts to "only minimal information regarding each debt and debtor," the Maryland Court of Appeals' rules committee concluded.
They then swear in affidavits that the information is accurate, though they frequently don't pay to acquire documents — such as signed agreements or a list of purchases — to verify the details in the databases they have purchased, the attorney general's office said.
Consumer attorneys, regulators and other officials — here and elsewhere — say these are not minor matters. Consumers, they say, have been sued twice on the same debt by different debt buyers. They've been sued on debts discharged through bankruptcy. They've been sued on debts they'd already paid off. And some have been sued for debts incurred by other people with similar names.
Wanda Brown, a federal attorney from St. Mary's County, says a debt buyer sued her in April over a credit card she never had.
"I spoke with somebody and I asked, 'What is this debt?' " said Brown, 44. "They said, 'Well, we don't have any other information. We only buy the name and the amount of the debt.' "
Brown said she was never served notice of the suit — the affidavit claiming she had been served describes her as black, where she's white. A letter from a debt solutions company shortly before the court date clued her in. A judge scheduled a trial for August after she showed up to object.
Nancy Hall, who filed for bankruptcy after her husband died and she was unable to find work, was sued by a debt buyer for $8,200 in the late stages of her case last year — in violation of bankruptcy law.
This spring a different debt buyer sent the Anne Arundel County woman a letter demanding she pay up on another debt discharged by the bankruptcy court.
"I thought this was all taken care of," Hall said. "The court says it's over. Why can't they keep track of all of this?"
A trade group for debt buyers, DBA International, says such problems are the exception.
"It is very easy to paint the little-known debt buying industry negatively," the group said in a statement. "But the work that our members do on a daily basis is a vital part of the American credit economy."
The Federal Trade Commission declared last year that debt-collection litigation was a "broken system" in need of significant reforms. The nonprofit Consumers Union followed up this year with its own call for change. Lawsuits — many against affiliates of Encore Capital Group, one of the largest debt buyers in the country — are further ratcheting up the heat.
Encore's Midland Funding agreed in March to dismiss more than 10,000 cases in Maryland as part of a class action settlement in which it admitted no wrongdoing but promised not to refile the suits or sell the accounts.
When Maryland's court system took up the issue of debt-suit evidence, debt buyers and collectors alike weren't happy. The Association of Credit and Collection Professionals, which represents collection agencies, creditors and debt buyers, said it had concerns about requiring original records such as signed credit applications or account statements.
"The above documentation is often unattainable for a variety of reasons, the most important of which is that the original creditor no longer has the information or did not have it when selling an account or turning the account over for collection," two officials with the trade group wrote in a January letter to the committee.
Consumer attorneys saw this as an admission that many debt lawsuits are based on little evidence.
"Imagine if you went into court and said, 'Your Honor, he owes me the money, but it was a real pain to gather up the documents to show you. Can't you just give me the judgment?' " said Scott C. Borison, a Frederick attorney who represents consumers.
Industry players are pleased that the rules committee took their suggestion to allow the "charge-off balance" — the dollar figure the original creditor wrote off as uncollectable — as one piece of evidence (though not the only one). And the collections trade group, which goes by the name ACA International, has begun pressing for original creditors nationwide to retain account information longer.
"There's been some issues with how do you show who that consumer is and whether that consumer owes the debt," said Valerie Hayes, ACA's vice president of legal and government affairs.
Lindsay Warnes, a staff attorney for Maryland Legal Aid, suspects lack of information helps explain why she's seen a lot of lawsuits filed more than three years past the point of default, which makes them too late for court action.
"They may not know the date of default — they might have no idea," she said. "So they just file it and hope nobody notices."
Of the approximately 400 debt cases Middletown attorney Douglas Bowman has defended on behalf of consumers since January 2009, the plaintiffs won judgments in just 14, he said. Rarely, the Frederick County attorney said, do the debt buyers offer anything "that even starts to look like documentation."
But consumer attorneys are few and far between, and most people hit with a debt lawsuit don't get one.
In nearly 90 percent of the Maryland small-claims contract cases that end with a judge's ruling in favor of the plaintiff, the people who were sued don't show up to defend themselves. Most of those cases are about debt collection.
High rates of uncontested debt suits are the norm nationwide. Debt collectors say that's because the consumers know they owe the money. Advocates argue that the targets of suits are rarely in a position to afford a day off work, let alone a lawyer — and some aren't notified of the suit.
Whatever the cause, it means there's no trial. Judges — asked to make a decision based on paperwork provided by the plaintiffs, including affidavits swearing it's all accurate — have entered hundreds of thousands of judgments in favor of debt buyers and other creditors in the past five years. The companies can use those judgments to garnish wages, put liens on property and freeze bank accounts.
Clyburn, the chief judge of Maryland's District Court, said judges took debt-buyer affidavits at face value until evidence began mounting that all was not as it seemed.
Alarmed, he issued a checklist to judges last year to help them determine if requests for judgment are in order. Top of the list: "Has the debt buyer proved that it really owns the account?"
Clyburn said the checklist and the proposed rule changes — which the Maryland Court of Appeals could vote on as soon as September — should make a difference.
"It will put judges in a better position, able to focus on what is wrong with the pleadings," he said.
In the case filed against Marquis Jones, the Severn woman, the debt buyer's evidence consisted of several statements from the company that she owed the debt; part of a credit-card agreement with no identifying account information; and a one-page bill of sale showing the company's purchase of 569 accounts from another debt buyer — with no mention of whether her alleged account was among them.
Jones said she didn't realize she'd been sued until the company's law firm left a cryptic note on her front door. At that point, a judgment had already been entered against her for $992, plus about $150 in attorneys' fees.
The company's process server supposedly delivered notice of the suit to Jones' wife. But she's not married, let alone to a woman. She says there's no one at her home who fits the description given of the 5-foot-11, 200-pound "Shaniqua Jones" — she herself is 5 feet tall — and she doesn't know anyone by that name.
Hearing this, a judge struck the judgment and scheduled a trial. The University of Maryland law school clinic helped Jones get the case dismissed in March.
"It was a big mess — real big mess," said Jones, 56, who works in customer service and doesn't believe the debt is hers. "They were obviously just looking for anybody. Not the correct person, just anybody."
Copyright © 2013, The Baltimore Sun