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Understanding the New Maryland Rules for Collecting Debt

posted on 2011-09-19 by Jeffery Scholnick

Beginning January 1, 2012, new Maryland rules will make it tougher for debt buyers to collect their debt

The Baltimore Sun reported on September 7, 2011, that Maryland’s Court of Appeals has enacted new rules to protect Maryland debtors- .

Reading the new Rules, , at p.4 through 11, it is clear that the Court is reacting to the excesses of debt buyers who have been forced to dismiss thousands of debt collections cases. Just about ten days ago,  LVNV Funding LLC, was forced to write off about $10,000,000, in debt owed by approximately 3,500 people, as part of a class action suit, see article in Baltimore Sun

The new Maryland Rules, 3-306, 3-308 and 3-509, apply to all cases filed after December 31, 2011. Given the fact that tens of millions of dollars of debt were sold to debt buyer who did not know about the new Rules, the interesting question, is, “What will happen to all of that debt?” I cannot imagine that the debt buyers required the detailed records necessary now to prove their cases. Particularly, if the debt was sold more than once, the chain of paperwork may well be lacking. Debt buyers who purchase large blocks of debt may not be able to obtain the paperwork on each debt to prove their case. As a bankruptcy attorney who is consulted by debtors on a daily basis, I will recommend to them, even more so than in the past, that they should go to court and demand strict proof of the purchased debt. It will be a brave new world after January 1, 2012.
Many of the new requirements in the overhauled Rules specifically do not apply to original creditors. In contrast, if suit is filed by a plaintiff who is not the original creditor, this debt buyer will have to either show: (1)proof of the original debt with proof of debtor’s signature; (2) a bill with actual purchases; or (3) proof from the original creditor of the debt.
The requirements on the debt buyers will now be extremely high. The new Rules may even discourage many companies from buying debt of Maryland residents.
Here are some of the changes:
If the plaintiff wants to get a judgment by affidavit and is not the original creditor, it will have to show the chain of custody of the debt from the original creditor until plaintiff’s purchase of the debt as well as a bill of sale for each sale in the chain.
If the plaintiff attempts to obtain an Affidavit Judgment, and is making a claim for interest on the debt and/or attorney fees, the plaintiff will have to submit the following:
1. an interest worksheet that follows a new form to be prescribed by the Chief Judge of the District Court;
2. “sufficient proof evidencing” the claim for attorneys’ fees, and that the fees are “reasonable,” Rule 3-306 (c);
3. an “Assigned Consumer Debt Checklist,” based on another new form to be created by the Chief Judge of the District Court;
4. all necessary documents to comply with the new Checklist (the documents must be “clearly numbered and referenced per Rule 3-306 (d));
5. In addition, the Plaintiff will need to submit one of the following:
a.  a document signed by the defendant evidencing the debt or that the account was opened;
b.  a bill of sale, purchases, payments or other use of the credit card or account; or
c.  an electronic printout of such purchases or payments;
6.  plaintiff will have to submit a “chronological listing of all the prior owners of the debt" and the applicable dates and a certified or “properly authenticating bill of sale” for each transfer;  

7.  the Affidavit will have to include the name and last four digits of the account number for the original creditor and the nature of the debt;

8.  if the account was charged off, the Affidavit will need to include information as to when and the amount of the charge-off, as well as an itemization of additional fees and payments made after charge off and the date of last payment; and                                                                                

9.  (in direct response to companies such as LVNV Funding, who were not licensed properly as a debt collector when they filed suit), the plaintiff must include in the Affidavit their Maryland debt collection licensing numbers and dates issued.

If the Debtor files a Notice of Intention to Defend and there is a trial, what does a Plaintiff have to prove? According to the new Rules, if a plaintiff is not the original creditor, the Court “shall consider the requirements” listed in (1) through (9) above before granting a judgment. What does it mean that the Judge should “consider the requirements”? The new Rules give the Judge a certain amount of flexibility, but, clearly, some Plaintiffs, who bought debt that was sold three or four times, will not be able to obtain judgments against the debtors.
So, if you get a call from a client after December 31, 2011, who has been sued for a debt and the plaintiff is a company who bought the debt from a credit card company or store, you should tell your client to go to court and make the plaintiff prove their case. Your client has nothing to lose by going to Court and they just might be surprised to find that that debt buyer cannot prove their case! Furthermore, depending on the size of the debt, you may now be able to assist them in defending the charge.  Depending on whether the plaintiff can fulfill the nine requirements above, there may sufficient basis for you to charge a fee for taking the case to trial.

The devil (and the debt) will now be in the details.  :)

Middle Class Families vs. Big Banks

posted on 2011-09-09 by Elizabeth Warren

Do we need more proof Washington's not working for middle class families? We got it once again this week.

The big banks and their army of lobbyists couldn't stop the creation of a new Consumer Financial Protection Bureau, so now they are trying to undermine its work, enlisting their Republican friends on the Senate Banking Committee to stop the nomination of Richard Cordray to lead the agency -- just to try to slow up the agency from doing its work.

It's outrageous -- and we've got to hold them accountable.

I'm starting a petition: Sign on now to call on the Republicans on the Senate Banking Committee to protect the interests of middle class families, to confirm a director for the Consumer Financial Protection Bureau, and to let the agency do its work.

The goal of this new agency is to protect consumers by ending the tricks and traps and fine print banks have used to make it hard to understand and compare the costs of mortgages and credit cards. We need to hold Wall Street accountable for issuing the kinds of deceptive loans that nearly brought our economy to its knees in 2008.

I fought hard for these new protections and faced an army of lobbyists to hold the banks accountable. I am proud to have been part of the David vs. Goliath effort that led to the passage of this new agency. I was also proud to help set up the new agency over the past year as an assistant to the President.

We've made a lot of progress toward fixing the broken credit markets and preventing the next crisis, but the enemies of reform are at it again.

It's time for Republicans in the Senate to put the interests of hard working middle class families over the special interests of large financial institutions. We've got to speak out and make sure our fellow Americans know the truth.

Sign my petition to Senate Republicans now: Urge them to put the interests of families first and to allow this consumer protection agency to do its work!

We need clear rules to fix broken credit markets, protect consumers, and get our economy growing and creating jobs.

I've made my life's work fighting for middle class families and pushing back against special interests. I know what it means to live one pink slip or one health crisis away from economic disaster, because I did. That's why I'm working so hard to change things.

But I can't do it alone. I need you to stand with me, today. I need you to make this an issue that the Republicans can't duck.

Sign my petition to Senate Republicans now: Urge them to put the interests of families first and to allow this consumer protection agency to do its work!

And I'll make sure the petition and our signatures get delivered to the Republicans on the Senate Banking Committee.

Thanks so much for your help.