My Talk with a Conciliation Court Judge

[Optimus_SubPrime]

I sat in as an observer on two days of conciliation court, hoping to see someone sued by a junk debt buyer stand up and defend themselves. I thought maybe I could learn from their mistakes and see what kinds of questions get asked and how to answer them.

No such luck.

One JDB lawyer -- well, maaaaybe he was a lawyer -- got 7 default judgments in a row. He just grinned like the cat who swallowed the canary. He must have been a regular, because the whole court staff was rolling in the aisles about it. The bailiff even shouted out, "Good work!" when the man finally stepped down.

Didn't exactly leave me feeling good about our day in court.

* * *

Half the cases on the docket both days were defaults, and everyone else either admitted the debt or settled. So I'm still wondering what to expect when my wife speaks up.

I do have some idea of what not to say. The second day of court, once everyone had cleared out, the judge spoke up and asked me if I had any questions.

There was one thing particularly that was on my mind, and I thought now was a good time to bring it up. I explained that my wife was being sued, and that state law said the summons must have a conspicuous notice of the consequences of nonappearance in at least 10 point bold typeface. The summons the plaintiff submitted did include a notice, but in 8 point bold, 2 sizes smaller than the law allows.

"It would seem to me that she hasn’t been properly served yet," I said, "and that perhaps the summons was not even properly issued. I’m just wondering how to present that in court."

The judge exhaled and rolled his eyes.

"I can tell you that the judge you have in conciliation court that day probably won’t take that detail into account at all."

"Can you help me understand why?" I asked.

"In Conciliation Court, the court is only interested in the defense to the case at hand," he said. Something in my mind switched off for a minute as I tried to process what he was saying. How was improper service not a defense? "If you want a new law, you might want to talk to your legislator about that," he finished.

"But this is the existing law," I said. "It’s already on the books. They put that specific language in there for a reason, so that unsophisticated consumers getting a summons wouldn’t not show up and get a judgment against them that could hurt them later."

"Pffft," he said. "Don’t you think if you get a summons in the mail, you should show up?"

"Sure you should, of course you should," I said. "But they should have to follow the law, too. The firm suing my wife is being sued by the Attorney General for bad faith collections practices. If you make your business sending out hundreds or thousands of conciliation court lawsuits, and getting default judgments, you should have to give the people you’re suing proper notification. It’s not fair if you don’t."

"If you don’t show up, I rule against you," he said. "That’s fair."

The judge was walking away now, irritated with me for even bringing the subject up. They do not like technical defenses in Conciliation Court, and you bring them up at your peril. This is a tough lesson for a slightly nerdy guy like me to learn, but trust me -- I have learned it.

* * *

Still, I wish I'd gotten to see someone defend themselves. I feel like we're going in blind. In the abstract, I know what my wife should ask for:

Do they have any proof that she is responsible for this debt? How did they come up with the amount they say she owes?

Any original agreements or statements? Who provided these documents and when? Are they here today to testify to their accuracy, and do they have a firsthand knowledge of it?

What is their proof the debt is not out of statute? Can they show any payments within the past 6 years?

They're all good questions, but my two days in court showed me that Conciliation Court doesn't work that way. It seems like bringing up the actual law at all just makes these judges angry.

I feel like making even any remotely technical argument, like, "The Plaintiff has no firsthand knowledge of the debt or of how factual or error prone the records he purchased are," will almost surely sour the judge against us.

I'd love to hear any advice or experiences anyone else has about small claims/conciliation court, what to say and how to win there.

[direred]

There was one thing particularly that was on my mind, and I thought now was a good time to bring it up. I explained that my wife was being sued, and that state law said the summons must have a conspicuous notice of the consequences of nonappearance in at least 10 point bold typeface. The summons the plaintiff submitted did include a notice, but in 8 point bold, 2 sizes smaller than the law allows.

"It would seem to me that she hasn’t been properly served yet," I said, "and that perhaps the summons was not even properly issued. I’m just wondering how to present that in court."

The judge exhaled and rolled his eyes.

"I can tell you that the judge you have in conciliation court that day probably won’t take that detail into account at all."

"Can you help me understand why?" I asked.

"In Conciliation Court, the court is only interested in the defense to the case at hand," he said. Something in my mind switched off for a minute as I tried to process what he was saying. How was improper service not a defense? "If you want a new law, you might want to talk to your legislator about that," he finished.

"But this is the existing law," I said. "It’s already on the books. They put that specific language in there for a reason, so that unsophisticated consumers getting a summons wouldn’t not show up and get a judgment against them that could hurt them later."

"Pffft," he said. "Don’t you think if you get a summons in the mail, you should show up?"

"Sure you should, of course you should," I said. "But they should have to follow the law, too. The firm suing my wife is being sued by the Attorney General for bad faith collections practices. If you make your business sending out hundreds or thousands of conciliation court lawsuits, and getting default judgments, you should have to give the people you’re suing proper notification. It’s not fair if you don’t."

"If you don’t show up, I rule against you," he said. "That’s fair."

The judge was walking away now, irritated with me for even bringing the subject up. They do not like technical defenses in Conciliation Court, and you bring them up at your peril. This is a tough lesson for a slightly nerdy guy like me to learn, but trust me -- I have learned it.

Gives you grounds for appeal though, and if you win the appeal, the judge will be ridiculed by his peers.

Just a thought.

[E. Normis Debtor]

The judge shouldn't be discussing specifics with a party in an action that might potentially come before him. So much for the character of the judge.

Raising a defect in service as a defense in a general apperance would fail as a matter of procedure. Once you defend against the claim itself, there can no longer be a question of service.

You would need to move the court to quash service as defective before filing any responsive pleading or making any appearance before the court in defense of the claim. In this case the court would likely deny the motion, but that's the procedure.

Countersue on grounds that the summons served by the plaintiff violated state law, and thus is a violation of the FDCPA.

[Optimus_SubPrime]

Raising a defect in service as a defense in a general apperance would fail as a matter of procedure. Once you defend against the claim itself, there can no longer be a question of service.

I had read that in a North Carolina case, ELLIS LESTER SELPH, JR., and STACY WADE HARRIS v. SCOTT H. POST and OBSERVER TRANSPORTATION CO., the NC Court of Appeals issued an opinion that:

"The trial court's additional finding of improper service in a personal injury case is reversed because although an improper summons amounts to improper service of process, the Court of Appeals already held the summons was proper."

I don't live in North Carolina, so I can't use this opinion as precedent, but it helped shape my thinking on the subject. It seems to me that ultimately the question is whether the summons was improperly issued when Plaintiff submitted a claim and summons form that failed to meet state statutory requirements. If we remove this case to district court, we are entitled to a trial de novo, so I had planned to make a Motion for Summary Judgment on this matter.

Countersue on grounds that the summons served by the plaintiff violated state law, and thus is a violation of the FDCPA.

The FDCPA has a "bona fide" error defense which I'm sure they will claim, although my understanding is that they must be able to show processes in place for correcting errors. It may be good advice, though.

For what it's worth, yesterday we sent the Plaintiff's firm a 9 page fax notifying them that, unless they settled on our terms, a class action on behalf of all previous defendants who have received these defective summons forms would be initiated against them. The law firm suing us is engaged in volume debt collection and files hundreds if not thousands of claim and summons forms a year.

My hope is that they will decide it's just not worth the risk, and bring in a signed settlement agreement before court on Monday, but I place the odds of this at about 10-to-1 against. I'm sure they receive about a dozen class action threats a week, and have taken a wait-and-see approach.

We have a lawyer waiting to represent us on contingency for this class action, but filing it is a big step, and doing so won't end their lawsuit against us, which is the most important thing right now.

[divemedic]

Bona Fide error is a tougher hurdle to clear than the CA's would have you believe. Bone fide error is intended for clerical errors and such.

To take advantage of the bona fide error defense, a debt collector must show by a preponderance of the evidence that it maintains “procedures reasonably adapted to avoid” the error. 15 U.S.C. 1692k©. The Court has described the

debt collector’s burden to demonstrate the existence of preventative procedures as “an essential element” of the defense. Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507 (9th Cir. 1994). Courts generally conclude that, to qualify for the defense, “the defendant must not only demonstrate that there are procedures in place designed to ensure compliance with the Act, but also that there is in place a system of checks and reviews to guard against errors that can result in a violation." (Therese G. Franzen and Robert S. Carlson, Defense Strategies in Fair Debt Collection Practices Act Litigation, 53 Consumer Fin. L.Q. Rep. 34 (1999))

[IHateCAs]

Nitpicking over an 8 point font size seems to be a minor issue.

[IHateCAs]

Although 8 point font is kinda small.

[Optimus_SubPrime]

Nitpicking over an 8 point font size seems to be a minor issue.

Normally, I'd agree with you. But these are people who live by the fine print. They take money out of people's bank accounts and paychecks under the color of law justifying it with credit agreement clauses in print so small it's basically unreadable.

If you want to do that, fine, but you ought to expect to be held to the same standard. Live by the fine print, die by the fine print.

The statute requires the notice to be conspicuous and in at least 10 point bold typeface. The legislators didn't need to include language that specific, but they chose to do so.

At any rate, if we do sue, the judicial system will make the ultimate determination, not me.

[astiman]

"Countersue on grounds that the summons served by the plaintiff violated state law, and thus is a violation of the FDCPA."

It might violate state law, but how does that constitute a violation of the FDCPA?

Please do clarify.

[E. Normis Debtor]

Violating a state law in connection with the collection of a debt, violates the FDCPA.