Defense Jedi: Protectors of the Industry

A long time ago in a courtroom far, far away . . . . Litigation Wars. Consumers are suing the collection industry with unprecedented fervor. Greedy consumers and their attorneys are seldom satisfied with statutory damages. They are focusing on the “low hanging fruit” and swinging for the fences. Regulators aim to punish collectors, not just correct technically imperfect behavior. What is a collector to do when they receive a shakedown letter, lawsuit, or knock on the door from a regulator? Find a “Defense Jedi,” a lawyer skilled at staving off attack and ensuring a collector’s “safe passage” throughout the industry.

Defense Jedi are not soldiers in search of an enemy, but guardians specially trained to protect a debt collector’s right to collect legitimate debts. They possess deep knowledge and understanding of the collection industry; they are inventive and resourceful; and they recognize danger before it befalls a client. Defense Jedi belong to “high orders” which include ACA International’s Members Attorney Program (MAP) and the Defense Bar of the National Association of Retail Collection Attorneys (NARCA). They are fierce in battle, but expert at peacemaking. They do not sugar coat the truth; and they faithfully advise their clients. Most importantly, Defense Jedi maintain an arsenal of weapons to stave off attack. Here are a few of my favorites:

Galactic Deposition: Many Jedi like to conduct written discovery before taking depositions; but sometimes immediate depositions are extremely effective. Investing in depositions at the earliest possible stage can yield high returns, especially when consumers assert fabricated actual damage claims. Quickly deposing employers, family, neighbors, and other third party witnesses to the consumer’s “agony” remains a valuable Jedi weapon.

Imperial Arbitration Clause: Many consumer credit agreements give both parties the right to resolve all disputes, including collection disputes, through arbitration. These agreements often include class action waivers prohibiting the consumer from bringing or participating in class action litigation. Defense Jedi search for these agreements tirelessly. Consumer attorneys (Droids) are not familiar with the arbitration process and many cower under the threat of enforcing these agreements.

Padawan Basics: Jedi Masters never forget the basics. The FDCPA generally does not apply to the collection of commercial debt, debt that is not in default, and certain categories of debt like fines, taxes, and penalties. FDCPA claims must also be brought within one year of the violation. Defense Jedi always begin with the basics when evaluating claims.

Darth Removal: Many state courts are more favorable to consumers than their federal counterparts. Defense Jedi often remove cases to federal court from state court. Rules and procedures are different in federal court. Jury pools and judges are different. Defense Jedi take advantage of these differences.

Cloner 68: Rule 68 is a powerful weapon in the Jedi arsenal. The Cloner 68; however, exploits weakness in psyche of opposing counsel. It works like this: defendant makes an offer of judgment, but does not quantify the fees and costs offered. The plaintiff accepts the offer, files the judgment with the court, and submits a fee request. Negotiations over fees and costs ensue. Agreement is reached, but only on the condition that plaintiff consents to vacating the judgment and dismissing the case. In this scenario, the Defense Jedi uses Rule 68 to settle the case while simultaneously avoiding judgment against the client.

Jabba Recordings: Ill-intended consumers are recording live collector calls. Generally, the laws regulating call recording apply equally to collectors and consumers. When consumers use recordings as evidence against collectors, Defense Jedi check state laws in which the parties are located. A handful of states have eavesdropping and wiretap statutes that prohibit certain call recording without the consent of all parties to the call and impose penalties even the Dark Side is powerless to deflect when the collectors assert violations as counterclaims.

Skywalker Evidence: Electronic information grows exponentially with advancements in technology. So too does the volume of “information debris” consumers leave behind. Bill Cosby once hosted a TV series named, “Kids Say The Darndest Things.” Today, the collection industry could produce a series entitled, “Debtors Say The Darndest Things,” and they say them on Facebook, Twitter, LinkedIn, blogs, consumer forums, etc. Defense Jedi scour this “internet debris” to find nuggets of evidence to rebut outrageous consumer claims.

Defense Jedi bear a heavy burden. They are the last protectors of a diminishing list of rights debt collectors enjoy as they collect legitimate debt throughout the industry. Search your feelings. The next time you find yourself under attack, hire a Defense Jedi. May the Force be with you.