FYI: Massachusetts AG Reaches $12MM Settlement With Consumer Debt Buyer

A consumer debt buyer recently agreed to a $12 million settlement to resolve allegations by the Massachusetts Office of the Attorney General of a variety of allegedly unlawful debt buying and collection practices.

 

More specifically, the Massachusetts Attorney General reached an Assurance of Discontinuance (Assurance) with the consumer debt buying and collection company and its affiliates (Company).  The Company denied all allegations made in the Assurance but agreed to pay a $4.5 million dollar fine, cease collections activity on another $7.5 million dollars in uncollected debts, and to comply with various restrictions on its business practices as to Massachusetts debtors.

 

A copy of the Assurance of Discontinuance is available at:  Link to Assurance

 

Accounts Referred to Disbarred Law Firm

 

The Massachusetts Attorney General alleged that the Company purchased portfolios of "charged-off" debts from creditors that included credit card accounts and defaulted loans. 

 

The Company referred the collection of many the debts to a law firm in Massachusetts (Law Firm).  The Law Firm sued debtors on behalf of the Company, and also allegedly used the threat of litigation to induce debtors to pay debts allegedly owed to the Company. The Law Firm falsified internal records to make it appear that it filed suit when in many cases it did not. In 2011, the principal of the Law Firm was formally disbarred by the Massachusetts Supreme Judicial Court.

 

When the Company discovered the misconduct of the Law Firm, the Company recalled the debts they placed with the Law Firm and tried to detect and correct information falsified by the Law Firm. However, the Company could not detect the falsified or incorrect information and placed over 19,000 of these debts with a new law firm for continued collection.

 

According to the Massachusetts Attorney General, because many of these debtors were never actually sued by the Law Firm, the statute of limitations lapsed, and the Company and the new law firm were prohibited from collecting on the debts without providing the disclosures required by 940 C.M.R. 7.07(24) for such debts.

 

The Attorney General alleged that "the Company's new Law Firm proceeded to collect Debts on which the statute of limitations had run without including the language required by 940 C.M.R. 7.07(24)."

 

Initial Disclosures Required by State Law

 

In addition, the Massachusetts Debt Collection Regulation, 940 C.M.R 7.08(2) states in part that "it shall constitute an unfair or deceptive act or practice for a creditor to fail to provide to a debtor or an attorney for a debtor the following within five business days after the initial communication with a debtor in connection with the collection of a debt, unless the following information is contained in the initial communication or the debtor has paid the debt:

 

(a) The amount of the debt;

(b) The name of the creditor to whom the debt is owed;

(c) A statement that unless the debtor, within 30 days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the creditor; and

(d) A statement that if the debtor notifies the creditor in writing within 30 days after receipt of this notice that the debt, or any portion thereof is disputed, the creditor will obtain verification of the debt and provide the debtor, or an attorney for the debtor, additional materials described in 940 C.M.R 7.08(2)."

 

Under 940 C.M.R 7.08(2), if the debtor disputes the debt in writing, the person seeking to collect must provide:

 

"(a) All documents, including electronic records or images, which bear the signature of the debtor and which concern the debt being collected;

(b) A ledger, account card, account statement copy, or similar record, whether paper or electronic, which reflects the date and amount of payments, credits, balances, and charges concerning the debt, including but not limited to interest, fees, charges or expenses incidental to the principal obligation which the creditor is expressly authorized to collect by the agreement creating the debt or permitted to collect by law;

(c) The name and address of the original creditor, if different from the collecting creditor;

and

(d) A copy of any judgment against the debtor."

 

and all collection efforts must stop until the person seeking to collect "has made reasonable efforts to obtain the necessary information and provide this information to the debtor."

 

The Massachusetts Attorney General alleged that the Company did not provide the statement required under 940 C.M.R. 7.08.

 

Account Level Documentation

 

Moreover, the Company allegedly did not obtain certain account level documentation when it acquired many of the debts, including documentation provided to the debtor by the prior owners of the debts, complete transactional histories of the debts, and copies of any final judgments awarded to the seller. 

 

The Company also allegedly entered into agreements to purchase debts that did not require the seller to provide this account level documentation, and that limited the seller's responsibility for the accuracy and validity of the debts.

 

Excessive Calls

 

Massachusetts Debt Collection Regulation 940 C.M.R. 7.04(l)(f) "prohibits a Debt Collector from initiating more than two telephone calls to a Debtor's residence, cellular telephone, or other personal telephone in a seven-day period."  Outbound calls that do not reach a consumer, or where no message is left for the consumer, are included as "initiating" a communication with any debtor via telephone pursuant to 940 C.M.R. 7.04(f).

 

The Company did not include "outgoing calls where its collectors did not reach a consumer, or decided not to leave a message on an answering machine" within its call frequency limits.  "As a result," the Attorney General alleged, "in certain circumstances, the Company exceeded the number of calls allowed by 940 C.M.R. 7.04(1 )(f) in a seven-day period."

 

Collecting on Exempt Income

 

"Under Massachusetts law, Exempt Income is categorically exempt from court[1]ordered payment and includes, amongst others, Supplemental Security Income (SSI), Social

Security Disability Insurance (SSDI), unemployment assistance, and pension benefits."

 

The Attorney General alleged that the Company and its Law Firm collected or attempted to collect against Exempt Income of the debtor.

 

The Assurance

 

The Company denied these allegations but agreed to a $4.5 million fine to the Commonwealth of Massachusetts. The Company also agreed to a variety of restrictions as to Massachusetts debtors, and to not attempt to collect $7.5 million in charged off debts of Massachusetts debtors that the Company had previously purchased. 

 

The Assurance also contains a provision that if the Company acquires an entity in the debt collection business in Massachusetts, then the acquired entity will have a ninety (90) transition period before it also must comply with the terms of the Assurance.

 

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6^th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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FYI: Missouri Sup Ct Holds Dealers-Only Auction Is a "Private Sale", Reverses Lower Courts' Rulings

The Supreme Court of Missouri recently reversed the judgment of a trial court in favor of two consumers on the finance company's petition for a deficiency judgment in relation to a promissory note and security agreement financing the consumers' vehicle.

 

In so ruling, the Court held that (1) the trial court's finding that the consumers did not receive any pre-sale notice of the disposition was not supported by substantial evidence; and (2) the trial court misstated the law when it required the finance company to provide the consumers with "reasonable notification" of the sale of the collateral.

 

Instead, the Court held that, because the vehicle was sold at a dealers-only auction, and because a dealers-only action constituted a private sale, the finance company's pre-sale notice complied with Missouri law.

 

A copy of the opinion is available at:  Link to Opinion

 

The consumers defaulted on an automobile retail installment contact, and the finance company sent the borrowers two notices of their default and right to cure.

 

After the consumers did not cure, the finance company repossessed the vehicle and sent the consumers a pre-sale notice of disposition that advised the consumers that it: (1) had repossessed the vehicle, (2) intended to apply for a repossession title, and (3) intended to sell the vehicle "by private sale." The consumers admitted on record that they received the pre-sale notice.

 

The finance company then sold the vehicle at an auction conducted by a third party and open only to automobile dealers licensed in Missouri. The vehicle sold for less than the balance owed, and therefore the finance company sent the consumers a post-sale notice explaining (1) that the vehicle had been sold, (2) that the consumers owed a deficiency of approximately $8,600, (3) how the finance company calculated the deficiency, and (4) that the finance company "reserved the right to pursue legal action" if the deficiency was not paid.

 

The finance company sent the post-sale notice via certified mail to the consumers at their last known address. Postal records showed delivery of the post-sale explanation was unsuccessful and a notice of attempted delivery was left at the address. The consumers never claimed the post-sale notice, and after several weeks, it was returned to the finance company. The finance company took no further action to mail or deliver the post-sale notice.

The finance company filed a petition to recover the deficiency with interest, but the trial court found that the finance company was not entitled to recover a deficiency because: (1) the finance company failed to provide "reasonable notification" of the sale of the collateral, as mandated by section 400.9-504(3), RSMo 2000, and (2) the pre-sale notice failed to comply with sections 400.9-614(1)(A) and 400.9-613(1)(C), (E) in that it stated the vehicle would be sold at a private sale when the trial court found the dealers-only auction constituted a public sale.

 

The finance company timely appealed, and the appellate court affirmed.  The Supreme Court of Missouri granted transfer after the ruling by the court of appeals.

 

The finance company first asserted on appeal that the trial court erred in determining that it failed to send "reasonable notification" of the sale of collateral because the finance company sent, and the borrowers admitted they received, a pre-sale notice of its intent to sell the vehicle and the finance company complied with section 400.9-616(b) when it sent the borrowers the post-sale notice by certified mail to an address reasonable under the circumstances.

 

The Supreme Court agreed with the finance company and held that the trial court's findings of fact and conclusions of law were erroneous. Specifically, the Court found that there was no evidence in the record that either the first or second notices of the consumers' defaults and rights to cure were undelivered or unclaimed. The record also showed that the finance company sent the pre-sale notice via certified mail, and the consumers admitted they received the pre-sale notice.

 

The only evidence of unclaimed correspondence between the finance company and the consumers related to the post-sale notice, which all parties agreed was not delivered and was eventually returned to the finance company.

 

In this regard, the Supreme Court noted that, after the secured party disposes of collateral in a consumer-goods transaction, section 400.9-616(b)(1) requires it to "[s]end an explanation to the debtor or consumer obligor, as applicable, after the disposition[.]" Section 400.9-102(a)(74) defines "'send,' in connection with a record or notification" as:

 

(A) To deposit in the mail, deliver for transmission, or transmit by any other usual means of communication, with postage or cost of transmission provided for, addressed to any address reasonable under the circumstances; or

 

(B) To cause the record or notification to be received within the time that it would have been received if properly sent under subparagraph (A)[.]

 

The Supreme Court determined that Missouri appellate courts and other jurisdictions have found that certified mail complies with the requirements of subparagraph (A). See, e.g., Springfield Chrysler-Plymouth, Inc. v. Harmon, 858 S.W.2d 240, 244 (Mo. App. 1993); Auto Credit of Nashville v. Wimmer, 231 S.W.3d 896, 903 (Tenn. 2007); Coy v. Ford Motor Credit Co., 618 A.2d 1024, 1027 (Pa. Super. Ct. 1993); see also White, Summers, & Hillman, Uniform Commercial Code § 34:33 (6th ed. 2022).

 

Therefore, the Court concluded that the finance company "sent" its post-sale notice to the consumers when it mailed the explanation to the consumers at their last known address.

 

Accordingly, the Supreme Court held that the trial court was erroneous in finding that the finance company failed to provide "reasonable notification" of the sale of the collateral.

 

The finance company also argued on appeal that the trial court erred in ruling that the finance company did not strictly comply with sections 400.9-614(1)(A) and 400.9-613(1)(C), (E), in that the pre-sale notice stated the vehicle would be sold at a private sale but the trial court determined that the dealers-only auction at which it was sold was a public sale.

 

In consumer-goods transactions, section 400.9-614(1)(A) requires a notification of disposition to provide the "information specified in section 400.9-613(1)[.]" As relevant here, subdivision (C) of section 400.9-613(1) requires the pre-sale notification of disposition to state "the method of intended disposition," and subdivision (E) of the same section requires it to state "the time and place of a public disposition or the time after which any other disposition is to be made[.]"

 

The trial court determined that the vehicle was sold "at an auction in which only certain dealers who qualified could participate," but held that this constituted a public sale. The Supreme Court noted that the UCC does not define "public sale" or "public disposition," but reasoned that comment 7 to section 400.9-610 provides guidance.

 

Comment 7 states a public sale "is one at which the price is determined after the public has had a meaningful opportunity for competitive bidding." The same comment states: "Meaningful opportunity is meant to imply that some form of advertisement or public notice must precede the sale (or other disposition) and that the public must have access to the sale (disposition)." Id. (internal quotation omitted).

 

Because "only certain dealers who qualified" could participate in the auction, the Supreme Court concluded that neither the public nor the borrowers had a "meaningful opportunity" for competitive bidding. Id.; see also section 400.9-614. As a result, the Court decided that the auction was not a public sale, and the finance company's pre-sale notice stating that the vehicle would be "sold by private sale" and stating "the time after which" the vehicle would be sold complied with sections 400.9-613(1)(C), (E) and consequently, section 400.9-614(1)(A).

 

Therefore, the Supreme Court held that the trial court erroneously applied the law when it determined that the dealers-only auction at which the vehicle was sold was a public sale.

 

Accordingly, the Supreme Court of Missouri reversed the trial court's decision and remanded the cause.

 

 

Ralph T. Wutscher
Maurice Wutscher LLP
The Loop Center Building
105 W. Madison Street, 6^th Floor
Chicago, Illinois 60602
Direct:  (312) 551-9320
Fax: (312) 284-4751

Mobile:  (312) 493-0874
Email: rwutscher@MauriceWutscher.com

 

Admitted to practice law in Illinois

 

 

 

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