Why does that creditor want you to sign an “Agreed Judgment”?

Probably because you do not know what that means.

Whenever a civil lawsuit is filed, the plaintiff wins the case by obtaining a “judgment” against the Defendant. A “judgment” is the final determination by a court of proper jurisdiction of who wins the case. Sometimes, after a creditor files a civil suit to collect money from you, they will ask if you want to settle the debt by entering into an agreed judgment. An agreed judgment is as good as a regular judgment — except, of course, you have agreed to it. An agreed judgment, like a regular judgment, resolves the lawsuit.

The difference is that there is typically a settlement agreement that goes hand in hand with the agreed judgment that stipulates that you are to pay the creditor a certain sum, X, in order to satisfy the judgment amount, Y. By the completing the payment amount (or settlement amount), X, the creditor agrees that you will have satisfied the judgment amount, Y. In exchange for your promise to pay the discounted amount, X, the creditor promises not to “execute” or act upon the judgment, i.e. initiate bank account garnishment or seize nonexempt assets.

The danger in agreed judgments is that if you default in making the payments, the creditor, according to the terms of the settlement agreement, has a judgment against you for the full judgment amount, Y (minus payments that were made towards it, of course).

The Emotional Ties to Debt

My perception of debt and human nature has been forever changed by representing the plight of those who society has forgotten: the debtor.  There is such a stigma against someone who owes money and typically it is the debtor, himself (or herself) who applies the stigma.  It is this very stigma that keeps debtors from taking action against those who break the law.  They feel that they do not deserve help or that the problem is one of their own making.  Guilt takes over.  Many times even when the debtor is sued, they do nothing because they feel that they deserve some sort of punishment because they were unable to pay their bills.

I have seen over the years, that debt is not created out of frivolity but rather out of necessity.  In an overwhelming amount of cases that I see, the debt was created because of  bad event: illness, job loss, divorce, etc.  Moreover, people defaulted on the debt because of another bad event.  As a result, the debt bears a baggage of the emotional situations that created the debt and then defaulted the debt. Every phone call and every letter reminds a person of the emotional situation that started this cycle.  It is for this reason, that laws exist to protect consumers from harassment.

I am constantly asked by other lawyers about how I sustain financially a dedicated consumer practice that focuses so predominately on defending people when they are sued over a debt. My response is simply that somebody needs to.  These types of cases have grown more difficult over the years, requiring more work and more risk. My clients have taught me so much about how there are good people in this world and those good people are just trying to make it from point A to point B.  My cases are not about getting someone out of there debt, but rather about moving someone down this roller coaster in such a way that no matter the outcome, they don’t harbor any additional regret.

I strongly believe that our judicial system should be available to the individual and that the system should not apply different standards for a debt case than it would over companies battling over millions.  The evidence rules are the same.  The procedure rules are the same.  The law is the same. Therefore, the attention and justice should be the same. Yes, my clients owe money but that does not mean that a creditor is automatically entitled to the judgment.

Robo-signing in the debt buying industry…

According to study out of New York, “researchers found that over the course of a year, one debt buyer’s affiant identified himself as the custodian of records in 47,503 affidavits, thereby claiming to have personal knowledge of the facts of each and every case” (The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and Lack of Proof in Debt Buyer Cases, Peter A. Holland, http://ssrn.com/abstract=1875727).

We see this kind of problem all the time. Just last week, we represented a consumer in a suit brought by a company which allegedly purchased the debt owed by our client. At trial, the debt buyer sought to introduce into evidence an affidavit of an employee of the debt buyer. However, amongst the dozens of pages that comprised the affidavit was yet another affidavit of an employee of a mid-stream buyer of the debt. The primary affiant claimed in its sworn statement that the account changed hands a total of 3 times: from original creditor to debt buyer A, from debt buyer A to debt buyer B, and then from debt buyer B to the company suing our client. The affidavit of the mid-stream buyer, however, said in her sworn statement that the account changed hands only twice, not three times. The Judge sustained our objection to the affidavit, resulting in a take-nothing judgment in favor of our client.

If you are getting sued by a debt buyer, you should always investigate the chain of title. Moreover, look closely at the statements made by the affidavits in the case. Do they conflict with the chain of title documents? Are there inconsistencies between affiant testimony as to who owned the account and when? If so, chances are the debt buyer may not be able to prove their case in court.

Car Dealer Must Pay $103,000.00 to our Client

We are very happy to report that Lesser & Jordan obtained a $103,000.00 judgment against a “buy-here-pay-here” car dealer for violations of the Texas Debt Collection Practices Act and the Article 9 of the Texas Business and Commerce Code.

Our client became behind in their car payments because of a job loss. The car dealer took steps to repossess the vehicle and in the process sent our client a text message which was harassing and offensive. To add insult to injury, the car dealer then took furniture belonging to our client as “collateral” for the car. It was a mystery to me as to how a creditor can steal a debtor’s property that is completely unrelated to debt.

Your Tsunami of Credit Card Debt

Tsunamis are dangerous because people don’t see the wave building until just before it crashes on the shore and wipes everything out. You may not realize it, but your credit card debt is just like that.

Over and over again, our clients tell us that they had everything under control until they lost a job or someone got sick or they had some other unexpected event. In fact, they didn’t have things under control. They just didn’t understand that their credit card debt was designed to rise up and wash them away at just such crisis points in their lives.

To credit card companies, the most profitable customers are the slow pays, the ones who regularly incur late fees and penalty rates but continue to pay. These folks are also the balance surfers. When they can’t afford a payment on one card because of a penalty rate, they’ll transfer the balance to another card that has a lower rate. The trick for the credit card companies wanting to maximize their profit is to turn as many of their cardholders as possible into these slow paying, balance surfing customers.

The credit card companies start the tsunami by playing a game of musical chairs. When a good paying customer slips a little, they ratchet up the game by imposing penalty rates and extra fees. They hope the consumer will continue to pay or if he can’t, surf to other cards so their competitors take the losses. When they’ve pushed too hard and the consumer is in danger of defaulting, they pull their chairs out by jacking up interest rates and/or minimum payments to such a level that the consumer has no choice but to surf. At some point however, the balance transfer offers dry up and the music stops. The last cards in the game are the ones that don’t get paid. When the credit card companies see this happening, they race to get their chairs out of the game. The consumer is washed out before he even knows what happened.

What does this mean for you? As long as you are charging your cards and making the minimum payments, everything seems fine, but when you hit a crisis, even just a short term one, the tsunami starts to build. Your interest rates go up, you get hit with fee after fee, and your minimum monthly payments start to climb. If you’re lucky, you can get out of the water before it gets dangerous, but for lots of people, the game moves too fast for them to do anything about it and they’re flooded with multiple credit cards that they just can’t pay back.

This game may be legal, but it is immoral and disgraceful. Do not be ashamed if you find yourself in this position. Be indignant. Recognize that the credit card companies knew this would happen to you when they started the game. They used your hard work and your belief that you should always pay your debts to drive you to your financial breaking point.

The new credit card law is not going to stop this game. It will slow it down a bit for the consumers who may stumble every once in a while, but for the consumers who have serious crises, the chairs will keep getting pulled out from under them. They’ll just receive a little extra paper to document the fact that they’re getting screwed.