WHAT IS ZOMBIE DEBT?
To become a “zombie debt” killer, you first need to understand how “zombie debt” is created. Companies like Midland Funding, CACH, LVNV Funding, Cavalry SPV, and Portfolio Recovery Associates, are commonly known as “debt buyers” or “junk debt buyers.” Active consumer accounts that are being regularly paid are considered to be “assets” or “receivables.” After a certain amount of time without payment, accounts are eventually closed and “charged off” as a loss. Once that happens, many consumers believe they’ve heard the last of it, only to be bitten by a collection lawsuit months or years later. During that time, consumer accounts may be bought and sold between various companies before rising from the dead in the form of a collection lawsuit. Paying a steeply discounted price for unpaid accounts, the debt buyer attempts to collect based on the face value of the debt, thereby earning a profit. This multi-billion dollar “shadow” industry is referred to as the secondary debt market. Collection efforts often involve the filing of civil lawsuits. And, it can be years from the time that a consumer account is closed until the debt buyer first begins to make collection efforts. Where proactive debtors defend these lawsuits, debt collectors who lack sufficient evidence will often abandon the claims, allowing them to be dismissed by court order, and later re-filed. In GA, this process of filing, dismissing, and re-filing can happen repeatedly. Most debtors, however, fail to respond to the lawsuit, with many of them under the mistaken belief that they will later receive a trial notice from the court. But, the failure to respond generally results in a “default judgment;” which may pop up months or years later, without advance notice, in the form of a garnishment or real property lien. Still others make payments to the debt collectors in the belief that it has been settled, only to have the debt pop up again at a later date. To the uninitiated, these transferred debts may seem impossible to kill. Hence the name, “zombie debt.” While collecting on purchased debt is perfectly legal in theory, the reality is a business model that is rife with abuse, deception, and at times, outright fraud. Watchdog agencies, like the Consumer Finance Protection Bureau [CFPB], have cracked down on these companies over the past few years, forcing many of them into agreements designed to curb abusive and unfair practices. But, no agency can review every claim, and the business model for the secondary debt collection industry was not designed to comply with the of the judicial system. So, what can a debtor do?
THE ZOMBIE’S WEAK SPOT
Debt buyers purchase closed consumer accounts in bulk. They enter into agreements with credit issuers such as Chase Bank, Bank of America, Citibank, GE Capital, Synchrony, or a host of others, to purchase credit card balances, unpaid loans, balances on consumer finance agreements, etc. The selling creditors and debt buyers create what is known as a “forward flow” agreement, which involves periodic sales, that often take place over a period of years. Each separate purchase may involve tens of thousands of consumer accounts. The purchase agreements are carefully guarded by debt collectors, as they contain provisions that, if discovered, can be harmful to the debt buyer’s collection efforts. Creditors selling unpaid debt do not generally guarantee the accuracy or validity of the debt; and, purchased accounts are usually sold “AS IS,” with no warranty of enforceability. Debt buyers also have a contractual duty to make an independent investigation of the truthfulness and accuracy of the information provided to them by sellers. However, even if the debt buyers wanted to perform an investigation, they lack the ability, as the selling creditors generally provide very little account level documentation. As a result, employees of these companies generally make sure that their statements about the debt are couched in carefully crafted language, designed to convince the courts that the debt is true and accurate, while allowing room to disavow those statements if they are later challenged or disproved. In the context of FDCPA compliance, it can be like tip-toeing through a mine field.
HOW DOES ZOMBIE DEBT TURN TO MONEY JUDGMENTS?
Debt buyers are often unable to determine the validity of the purchased debt, and generally lack sufficient “account level” documentation. As a result, getting a judgment often involves subtle deceptions carried out by attorneys with experience in the secondary debt market. As a majority of debtors simply ignore the lawsuits, they give up the right to challenge the statements made by the debt buyers. Defenses that could have prevented a money judgment are lost forever. It is often asked why judges hearing these cases don’t do more to stop the abuse? Surely they see what is happening. In all fairness, most judges deal with an overwhelming number of these cases, making a thorough review of each case impossible. Additionally, judges are to remain impartial to the outcome of the case. Where a case is not defended, the entry of a judgment can often be little more than a ministerial task. On the other hand, judges are human, and their personal sense of fairness inevitably creeps into the decision making process. As a result, in cases without a lawyer to point out the weaknesses of a particular case, many judges only look to whether a consumer questions the amount of the debt. It is rare that judges spontaneously question a debt buyer regarding its actual knowledge of the claims, or asks to review the document outlining the purchase of the accounts at issue in a case. Lastly, very few collection cases are defended by attorneys with knowledge of the debt purchasing industry. On the other hand, collection attorneys are in front of the judges every day. Judges are constantly being handed stacks of these files for signature. Many judges become, in effect, a “rubber stamp” for almost any document they are handed by a collection attorney. The familiarity between the judges and collection attorneys; and, the longstanding routine created to resolve these cases, can pose a daunting challenge to debtors and defense attorneys alike. There is often no argument that is more difficult to overcome than the claim that “this is way we have always done it.”
WE ARE ZOMBIE KILLING PROFESSIONALS!
Having defeated thousands of debt buyer lawsuits, Carlisle Law Firm knows the inherent weaknesses in the debt buyer’s case and the “tricks of the trade” employed by collection attorneys. Using a trained eye to spot consumer protection violations and defenses that may go unnoticed by others, we have saved our clients millions of dollars in consumer debt. Attorneys who are less familiar with this area of the law may tell consumer debtors to pay up or file bankruptcy. The solution suggested by debt consolidation companies is no better. These companies ask debtors to send them monthly payments to be used for settlement of purchased debts. After deducting their fees from these monthly payments, the intended “settlement fund” grows very slowly, delaying and hindering any chance of settlement. When a lawsuit inevitably gets filed b an impatient debt collector, the debt consolidation company is helpless; as they have little understanding of the debt buying industry and, usually have no ability to defend the debtor from a lawsuit. While there are many consumer protection attorneys in practice, many of them are more interested in class action suits, and claims where debtors have suffered more substantial damage or loss. Debtors facing collection lawsuits rarely fall into that category. Few attorneys are interested in a “one off’ case involving an active collection account. Carlisle Law Firm employs a unique approach to providing debt relief. We use our skill and experience in the area of consumer protection, combined with years of trial experience defending contract cases, to defend and stop any consumer collection efforts, and reach favorable resolutions for our clients once, and for all. If you are being chased by a “zombie debt,” call and speak to one of our experienced “zombie killers,” and stop the debt dead in its tracks.
If you are facing active collection from any debt collector, feel free to contact us today.