Why debt collectors are wrong to label FDCPA law firms as “lawsuit mills”

There’s a fairly well-known passage in The Adventures of Huckleberry Finn where Huck, after patiently enduring the Widow Douglas’ attempts to “sivilize” him by reading him passages from the Bible, asks the Widow if he can take break to smoke a cigarette. The Widow refuses, scolding Huck that smoking is a mean, nasty habit. Huck immediately points out the obvious hypocrisy in the Widow’s disapproval of cigarettes, noting that the Widow “took snuff, too; of course that was all right, because she done it herself.”

For the last few years, debt collectors have engaged in a relentless public relations campaign against consumer lawyers that far exceeds the hypocrisy in the Widow’s admonition to Huck. A recent example is a Denver Post article that bemoans the rise in Fair Debt Collection Practices lawsuits. The article alleges that the FDCPA has “morphed into little more than fodder for lawsuit mills cranking out hundreds of cases yearly–thousands nationally–enriching the lawyers filing them and minimally helping the consumers for whom the laws were written.” What I find most interesting about this argument, which is often repeated by debt collectors and their allies, is that debt collectors themselves file hundreds of thousands of collection lawsuits each year.

In my former life as a debt collection attorney, for example, my medium-sized collection firm alone issued between 500 and 1,000 collection lawsuits per month. A 2008 Minneapolis Star Tribune article revealed that debt collectors filed approximately 51,000 lawsuits in 2008 (up from 36,000 in 2007), and that was just in Minnesota. Consumer bankruptcy attorney Jay Fleischman notes that in New York, debt buyers “filed over 450,000 lawsuits–in New York City alone–between January 2006 and July 2008. That’s about 300,000 such cases brought each year in a single metropolitan area.” Yet debt collectors are accusing FDCPA lawyers, who file a couple thousand lawsuits a year, of being overly litigious. That’s like Jenna Jameson calling a girl who just lost her virginity a slut.

Now, I know what some of you are thinking: despite her own tobacco use, wasn’t the Widow Douglas right to warn Huck Finn about cigarettes? And isn’t it also possible that, despite their appalling hypocrisy, debt collectors are right about these “mill” consumer law firms lining their pockets by churning out frivolous FDCPA lawsuits? Possibly, but I doubt it.

First, all of the FDCPA attorneys that I know work in either solo or very small firms, which, of course, is the complete opposite of a “mill.” Second, I can tell you from experience that being a FDCPA lawyer is hardly lucrative; certainly not as lucrative as, say, defending large debt collectors. And I screen each of my potential FDCPA cases very carefully. If I get the impression that my potential client is not telling the truth or that they set up or provoked the debt collector, I won’t take the case. And since I, like just about every other FDCPA lawyer, take FDCPA cases on a contingency fee, I’m only interested in cases where there is strong, if not airtight, evidence of a violation. I’m not interested in risking my own money or time to pursue a case where liability will be difficult to prove. Every FDCPA lawyer that I’ve met is just as cautious. So I have a really hard time believing that there’s an army of unscrupulous consumer lawyers out there harassing innocent debt collectors with waves of frivolous FDCPA lawsuits.

The much more logical explanation for the supposed increase in FDCPA lawsuits is that debt collectors are resorting to more aggressive–and illegal–tactics as they pursue debtors with less money to pay due to the poor economy. The Denver Post article quotes Charity Olson, an attorney that defends debt collectors in FDCPA cases, who argues that “I can call 10 collectors right now and I can get a dialogue in all of them that would have a basis for a suit.” Ms. Olson apparently meant this as an indictment of consumers and consumer lawyers. But really, what does it say about the debt collectors that she represents that virtually every conversation with a debt collector will result in an FDCPA violation? Debt collectors and their allies love to lecture debtors about taking “personal responsibility” for paying their debts. Maybe instead of hypocritically blaming consumers and consumer lawyers for the increased FDCPA litigation, they should follow their own advice and clean up their act.

Consumers dealing with debt collectors become stuck in a vicious cycle of lawsuits | Denver Post | February 27, 2011

(photo: http://upload.wikimedia.org/wikipedia/commons/4/4b/Copper_Kettle.jpg)