Bankruptcy

Consumer Attorney sticking up for Creditors Counsel

By Attorney Goldstein

Let me preface this blog by stating that I am a consumer debt attorney.  I typically represent homeowners or small business owners in negotiations with banks and other creditors, or in protecting consumer rights though use of the Bankrutpcy code.  Now with that said, I am going to do somthing for my brothers and sisters, stick up for the “Dark side”.

 Last week the highest court in the land rendered a decision relative to the Fair Debt Collection Practices Act that will greatly empower home owners to negotiate with their mortgage companies.  More importantly, the ruling in Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, limits a lawyer?s ability to deceive a homeowner and claim it was a ?bona fide error?.  Should Creditors counsel advise their client to take certain steps where there is conflicting case law regarding the Fair Debt Collection Practices Act, and if a court rules that the route taken by the lawyer was not the proper interpretation, then the court may access personal liability against Creditors Counsel.

The ruling stemmed from a case where a law firm representing a mortgage company sought to foreclose on a home. It sent a letter to the debtor that said the debt would be considered valid unless the debtor disputed the claim in writing, even though the Fair Debt Act does not require a written dispute. The mortgage company acknowledged that the debtor had already paid the debt in full, and the firm withdrew the foreclosure suit.

In my opinion, this is a very scary ruling.  Even though, I represent consumers and Debtors in these types of actions and almost always find myself on the other side of the fence from Creditors Counsel, it is hard to agree with a ruling that limits any attorneys ability to interpreter law.  I mean, isn?t that what we have been trained to do from the first day of Law School to studying for the bar exam and now in practice.  More importantly, isn?t our entire judicial system built on the adversarial concept of two parties arguing different points of view over the same issue?  This seems like an awfully slippery slope to me.

Full post as published by Bankruptcy Articles & Blog on April 27, 2010 (boomark / email).