We’ve done the whole mistaken identity debt collection rant here plenty of times, but a judge in New York delivered a blow for the good guys this week.
Mark Hoyte was contacted by a law firm representing a debt-collection agency. He had the same name as the person they were looking for, but had a different SSN, a different age, and have never had the type of credit card (Sears-Citi card) that the debt was for.
Despite him telling all of this to the law firm’s rep over the firm, they summonsed him to court anyway. At the courthouse, the collections lawyer finally conceded he had the wrong person, and agreed to a stipulation that this was the case.
But when they took this agreement to the judge, the judge didn’t just let it slide:
Awesome.
Many of these debt collection law firms act like assholes, and this sort of thing needs to happen to them more often when they fail to do the necessary legwork and go after the wrong people.
Every month I get one of those invoices…MyLastName vs MyLastName mediation for $300. But…I’m not married and I have no relatives in this state and have never been in mediation or hired that law firm. The invoice includes no phone number or email address. There should be some form of punitive damages for false invoicing!
Heh…I know that law firm. They (and dozens of others like them) buy debts for around .02 cents on the dollar, frequently barred by the statute of limitations or otherwise completely unproveable, and sue people by the thousands hoping they either (1) won’t answer at all (2) won’t be able to find a lawyer to answer for them (the cases are usually so small and such a nuisance that most lawyers won’t take them, or it’s cost prohibitive to do so), or (3) people will answer the cases themselves pro se and screw it up. Either way the firm gets get a default or summary judgment, which is all they want. If a lawyer does answer and ask for dicovery of their proof of the validity of the debt or claim the statute of limitations, they’ll frequently drop it and move on to the next one. Lots of times when I’d answer on one they were shocked - they’d never seen so much as an answer.
In a case like this, what would one have to do in order to screw it up? I realize that non-lawyers acting for themselves in most cases is a bad strategy, but if no lawyer will take your case, you might have no option.
For example, say i was in the shoes of the guy in the NYT story, and this mob of shysters was claiming that i owed them $900. What would i need to do, once i got to court, i order to ensure that i didn’t have to pay the money? Is the procedure for small civil cases like this rigorous and difficult enough that the deck would be stacked against me from the start, or would it be relatively straightforward for a non-lawyer to prove, to the court’s satisfaction, that he or she was not the person who owed the money?
True, although it seems likely that they’ll pay up, given that the cost of preparing and sending someone to the hearing would most likely be considerably more than $115.
Yeah, i do my best not to jump on the lawyer-bashing bandwagon, and have defended lawyers in general from unwarranted slurs, but guys like that don’t do the profession any favors.
I can’t tell you about NYC, just my jurisdiction, but here there are a couple of things I can think of you could do to screw it up right off of the top of my head (the usual caveats apply here, BTW; I’m not your lawyer, consult a lawyer in your jurisdiction for advice specific to your case):
Fail to verify your denial, which is basically attach a sworn and notarized affidavit verifying the truth of your answer. If you fail to do so, they can seek to have your answer struck and force you to refile it correctly. Some might do so, some might figure they’re in over their heads and give up.
Fail to answer their discovery promptly and correctly, particularly a Request for Admissions. If you’re served a petition and given 10 or 20 days to answer, you might send an answer correctly to the court and plaintiff and fail to realize that it had some crucial discovery in it that had to be responded to withing certain timeframes or you’ve just eviscerated your case. The Request for Admissions is a series of questions that are supposed to narrow the issues of the case:
Admit that you are the above named defendant.
Admit that the debt claimed is true, correct and just, and within the statute of limitations.
Admit that the 12 assignments leading to the current plaintiff are genuine.
Admit that $5000 attorneys fees are reasonable and owed to the plaintiff.
Admit that you have no defense whatsoever to this case.
Admit that you smell like dog poop, and the plaintiff are teh awesomes!!see fig 1
And so on. If you answer the case but not the discovery, the plaintiff will smile and mark his calendar for the end of the discovery date, after which any request you have not denied is deemed admitted for all purposes, giving the plaintiff the right to seek summary judgment, since you indirectly admitted you had no case. An attorney can unscrew this situation by seeking to have the admissions withdrawn, but it takes some slick maneuvering and most folks are in over their heads by this point. It’s not rocket science, but it’s easy to trip if you don’t know where the traps are set.
Slightly more than that, but you get the idea. There are costs to the plaintiff; they’ll spend a good bit of unrecoverable money on filing fees and hiring process servers for claims that they may ultimately win by default but can’t recover due to judgment proof defendants, so it’s a numbers game. They may not catch every fish they cast for, but they catch enough to make it lucrative.
Missed the edit: nevermind, I see my math mistake and your joke now. Wasn’t there a thread about a customer service rep doing this same thing a week or so ago?
pravnik, can you please reexplain post 8 with zero lawyerspeak? I realize it’s difficult to speak about your field of expertise without using the appropriate language, but the question here is being asked by people to whom that “proper language” is alien.
The “failure to verify your denial” means that someone would have to submit a document in writing stating “I am not the debtor the seek” and why, but it has to be stamped by a notary public, i.e., someone who doesn’t know the people involved from Adam but who has the fancy stamp?
And the other part means that someone would have to submit a document (also notarized?) with their answers to a series of questions? Are those questions given to the person being sued or would they need to find them somewhere? Or are they given as affirmations and the person has to decipher the lawyerspeak to figure out what is it exactly he is being “accused” of?
Sorry, I’ll try. It’s easy to lapse into jargon after a long day.
Right - put really simply, some pleadings have to be sworn to under oath, or “verified,” and the notary just affirms that you were the guy swearing to the truth of them. The verification is just a simple affidavit repeating the facts of the pleadings, or swearing that you have personal knowledge of the facts in the pleadings and swear that they’re true. It’s supposed to make it more difficult to allege or deny certain types of cases; you may disagree that you were negligent in an auto crash, but you can’t just deny that you opened a credit account if you did.
Basically, it’s discovery included (or hidden) among the pleadings. You can file a simple answer denying the plaintiff’s pleadings, but discovery is separate - it’s the procedure by which each sides discovers the facts, documents, and witnesses the other side knows, alleges, or has in their possession. There are many different types of discovery that can be in their initial pleadings, such as Interrogatories (demands to answer certain questions), Requests for Production (demands to turn over certain documents), and Requests for Admissions (demands to admit or deny certain facts about the lawsuit). The Request for Admissions is just a way of asking what they are willing to admit and what they wont, usually phrased as “Admit that…” or “Admit or deny that…” Imagine if it were a sitdown conversation:
Q: Admit that you are the party that owes the debt.
A. Denied. That’s not me.
Q: Admit that you reside in Parker county.
A: Admitted.
Q: Admit that we are the valid holders of the assignment.
A: Denied. How the hell should I know that? I’ve never heard of your company.
Q: Admit that 5 grand is reasonable attorneys fees.
A: Denied; more specifically, ha ha, you’re dreaming.
And so on. The problem arises in that this initial discovery request is sometimes included with (or even as part of) the plaintiff’s original pleading, so it’s overlooked and doesn’t get answered or gets answered incorrectly. The Request for Admissions is particularly dangerous, because if you don’t specifically say “no” you’re legally assumed to have said “yes.”
Is there any way that he could award MORE than a day’s pay to the guy who was wrongfully summonsed? He’s probably spent considerably more than a day getting his stuff together, and the debt collection agency could have easily avoided the whole problem with about 15 minutes of research. I think that punitive damages should be an option here. Make those sleazy debt collection agencies PAY for harassing innocent people.
I’ve had a company go after my husband and me. As it happens, we had paid off that debt long ago, and it was past the statute of limitations anyway.
Apparently there is another woman with the same name as my wife who lives in our general area. This woman is near or at retirement age. We frequently get AARP junk mail, term life insurance offers, assisted living community ads, medicare supplement pitches, etc. and it’s generally a source of great amusement. Especially the hearing aid ads, because she’s notorious for not paying attention when someone is talking.
The $457 bill we got for a brain MRI last week? Not so amusing. I’ve already sent a note that they have the wrong person, and I’m hoping it doesn’t have to get ugly, but it might.
Holy shit, they used AnyWho to look for people online? Cheap assholes! They could have hired any number of people-search companies who would have found the right people (age match, SSN match, the whole nine yards) for 25 cents a pop at the most, probably 15 cents for the volume discount. Hell, most of the time I find people even without date of birth, SSN, and sometimes with only the last known address, just by using Lexis.
Cheap fuckers. They oughta reamed a new asshole just for using freaking AnyWho to track down people. I’ll bet they found it through “the Google.”
I agree. $115 is pocket change. If the judge ordered (but it probably won’t hold up) a sum of $10,000, that would sting a bit and may make some debt collectors take another look at who they’re calling.
Add me to the “can the judge make them pay more than a day’s salary?” chorus. Mind you, still it’s certainly better than being ordered to pay a debt you never incurred!
My mother has similar problem. Let’s say her maiden name is Jane Doe. Her married name is Jane Smith. Her nephew married a woman who’s name is also Jane, therefore her niece’s name is now Jane Doe. These cousins are not good at managing money or paying off debt (which led to some upleasantness when Grandma died). Mom often get’s Jane’s bills, usually her medical bills. The odd part is they come to Mom’s house with her address on them, but my cousin’s name (Mom’s old maiden name). Mom also get’s mail that’s actually her’s under her maiden name (financial stuff since she still owns stock under her maiden name & her 1st married name). So she opens everything that has some varient on her name. Sometimes I wonder if it’s just the debt collection agencies being lazy or if my cousin really does give Mom’s address out to confuse them.
Sanctions are a weird beast. Getting them really depends on the judge. In this particular case, I think they are more than justified.
Fed R. Civ P. 11(b)(3) states “(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery” Most states have a similar rule in place.
Virginia’s Rule states " The signature of an attorney or party constitutes a certificate by him that (i) he has read the pleading, motion, or other paper, (ii) to the best of his knowledge, information and belief, formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law,"
Most courts interpret this as meaning that you have to have a good faith basis for going forward with the lawsuit, namely that you have a duty to make sure that your claim has some basis in fact. Here, clearly the collections agency did not have a basis for filing the lawsuit. Some courts have interpreted Rule 11 to provide a continuing duty to investigate while some have not.
They had the wrong Defendant, they should have known that they had the wrong defendant, and they should have done a reasonable search.
Rule 11 states " If warranted, the court may award to the prevailing party the reasonable expenses, including attorney’s fees, incurred for the motion." Generally, this is interpreted to mean attorney’s fees in fighting the motion and any other reasonable expenses. " I don’t know that the court could impose punitive damages and that they would hold up, but I don’t know New York law and procedure.
