Defending Debt Collection Suits at the Boston Municipal Court

1. Defending Debt Collection Suits at the Boston Municipal Court February 22, 2011 Volunteer Lawyers Project

2. Contacts • Joanna Allison, jallison@vlpnet.org • Hsindy Chen, hchen@vlpent.org • Emily Jarrell, ejarrell@vlpnet.org • Chris Bergen, cbergen@vlpnet.org • Nicole Lim, nlim@vlpnet.org

3. Materials • Substantive Defenses to Consumer Debt Collection Suits • Pro se Answer Form and Instructions • Exemption List • Sample forms

4. How Do I Volunteer? • Become LAR certified at http://www.screencast.com/users/VLP/folders/LAR%20Training or at a MCLE LAR training • Sign up at vlp.volunteerhub.com for a Wednesday • Come observe for a day

5. Why is this important? • Common Debt Collection Misconduct • Debt Buyer Collections • Debt buyers usually pay from less than 1% to 12% for defaulted debt. • Large debt buyers may only have access to documents for a small amount of time. • Small debt buyers may have no access to documents except through consumer.

6. Received a complaint from Portfolio Recovery Associates on February 10, 2011. Last and usual place of abode or personal service. Rule 4. The Plaintiff, Portfolio Recovery Associates, is a duly organized corporation The Defendant, Deborah Smith, is an individual presently residing at 1234 Main Street in Boston, MA. The Defendant owes the Plaintiff the sum of $2500 for the unpaid balance due for money loaned to the defendant by the plaintiff of a Credit Card Account. Deborah

7. Answer • 20 days after service of the summons to file an answer to the plaintiff’s attorney and the Office of the Clerk/Magistrate of the court. Failure to answer may result in judgment by default for the relief demanded in the complaint. • Must include counterclaims against plaintiff. • BMC accepts any answer

8. Deborah’s Answer • Deborah had a credit card with Macys many years ago but thought she had paid it off in full. • She does not recognize Portfolio Recovery Associates. • Deborah only receives $1100 from SSDI a month. • Portfolio Associates called her cousin and told her that Deborah was a deadbeat.

9. Case Management • Court schedules a case management conference after an answer has been received. • Courtroom D at 9:00 AM

10. Discovery • After an answer has been filed, Plaintiff may send Defendant interrogatories, requests for admissions and requests for the production of documents. • Rule 33 Interrogatories • 30 maximum • 45 days to answer • If Defendant ignores these and does not answer the Plaintiff will send final request for answers and if Defendant still does not answer then they may apply for final judgment.

11. Discovery • Rule 36 Request for Admissions • Admitted unless within 30 days denied. • Rule 34 Requests for the Production of Documents • 30 days to answer

12. Deborah’s Discovery • Deborah does not believe she owes the debt and therefore should ask for proof from Plaintiff. • Signed agreement with Deborah’s signature • Assignments from original creditor to collection agency • Accounting of amount owed • Interrogatories • At Case Management court will likely set a date when discovery must be completed and set a pretrial date.

13. Pretrial Conference • Usually an opportunity to discuss settlement or set a trial date. • Mediators may be present. • Courtroom M at 8:45 AM on Wednesdays.

14. Settlement • Agreement for judgment. Waive post-judgment 12% interest. • Lump sum for lower amount • Payment plan for lower amount • Debt Management Companies • Stipulation of Dismissal • Bankruptcy

15. Deborah’s Case • Plaintiff does not produce the documents. • Stipulation of dismissal WITH prejudice • Motion to compel production of documents • Motion to dismiss with prejudice • Plaintiff produces some documents • Standing • Liability • Amount • Plaintiff produces all documents

16. Judgment • May collect for 20 years • Debtor may still settle post-judgment • 12% statutory interest

17. Supplementary Process • Evaluates the judgment debtor’s ability to pay and examination of property. • Served by hand or at last and usual. • Capias warrants • Courtroom M at 2:00 PM on Wednesdays

18. Motion to Remove Default • Default or default judgment may be removed under Rule 60. • Attach affidavit • Argue the motion on Wednesday mornings in Courtroom C • Case starts over from the beginning

19. Old Exemptions Heat $75/mo Household furniture $3000 Rent or mortgage $200/mo Cash or savings $125 Automobile $700 Wages $125/week New Exemptions Heat $500/mo Household furniture $15,000 Rent or mortgage $2500/mo Cash or savings $5000 Automobile $7500 or $15,000 for elderly/disabled Wages 50 times minimum wage or 85% of gross income New MA Exemption Law

20. New MA Exemption Law Other Additions • In the case of a debtor who is either a handicapped person or a person 60 years or older where the court finds that the debtor has not property or income not exempt from being taken on execution, the proceedings shall be dismissed without prejudice. • “Handicapped person” shall mean a person who: (i) has a physical or mental impairment which substantially limits 1 or more major life activities; or (ii) is regarded as having such impairment as evidenced by the receipt of state or federal disability benefits. • 1 computer and 1 television