Indiana Consumer Lawyer Blog

Reliant Capital Solutions is a debt collection agency headquartered in the State of Ohio. They use a lot of different telephone numbers, but some of the numbers they use are: 866-547-5413, 866-738-3181, 866-837-5096, 614-452-6097, 614-328-0518, 614-328-0514, 614-452-6101, and 614-452-6093. I'm sure there are many others. I have a client who has filed a lawsuit against Reliant Capital Solutions alleging, among other things, that a debt collector working for Reliant Capital Solutions left voicemail messages stating and implying that he is with the "Attorney General's Office" and that a complaint has been filed against my client. The messages neglect to state that the caller is with Reliant Capital Solutions. It is a violation of the Fair Debt Collection Practices Act to falsely state that a complaint has been filed against a consumer, to fail to disclose that a communication is from a debt collector, to make a telephone call without meaningful disclosure of the caller's identity or to falsely state and/or imply that the caller is with the attorney general's office.

I believe that collectors working for Reliant Capital Solutions often represent themselves as being with or calling on behalf of the attorney general's office and use this illegal tactic to intimidate consumers and collect debt. When caught, they claim it was a mistake because they do actually work for the Ohio Attorney General (but should they Mr. Attorney General???). Apparently they do collect student loan debt that is referred to them by the Ohio Attorney General's Office. However, this does not allow them to state or imply they are with "the Attorney General's Office" and does not allow them to state they are "representing" or "calling on behalf of" "the Attorney General's Office" without disclosing that they work for Reliant Capital Solutions, all of which I believe the collectors are doing.

I believe this not only because of my client's experience, but also because I have uncovered numerous similar complaints to the Better Business Bureau and, ironically, to the Ohio Attorney General's Office of this same practice by Reliant Capital Services. HAS THIS HAPPENED TO YOU ALSO? If it has, please contact me by telephone (800-817-0461) or by e-mail (robert@robertdufflaw.com). You may be able to help my client show that this a regular practice of Reliant Capital Solutions, and I may be able to help you vindicate your rights under the Fair Debt Collection Practices Act.

My last blog entry, way too long ago, concerned Carfax and the unreliability of their reports. Well, Carfax has put themselves in the news again and I just couldn't help but comment. I just read on a local news agency's internet page that Carfax has put all the Cash for Clunker cars' vehicle identification numbers (VINs) on its website and has set it up so those VINs can be searched for free. Cash for Clunker cars were supposed to be destroyed, at least the engine and transmission, and of course should not be showing up for sale. Carfax's apparent press release noted these cars are going to start showing up here and there - a point on which I am in full agreement with Carfax.

The article I read didn't have a link to it, so I went to the Carfax site. Not surprisingly, I spent about ten minutes searching for it and could not find it. It wouldn't surprise me if Carfax is making it intentionally difficult to access so that frustrated consumers will just decide to buy a regular Carfax report on the car. I could be wrong. Maybe the website is set up so that no reports are sold on Cash for Clunker vehicles but instead when a person tries to buy a report on such a car a huge warning pops up. I hope so. But knowing what I know about Carfax, I have my suspicions.

Anyway, I found the link in another news article. The free search can be conducted here.

With almost three quarters of a million vehicles "retired" in the Cash for Clunkers program, I promise you that some greedy businesses are going to be selling these vehicles all over the United States - including Indiana.

I was working today on one of my car dealership fraud cases when I came across a Carfax Vehicle History Report. Having seen Carfax's recent television commercials, some of which are pretty funny (check this one out: Carfax Commercial), I thought another brief blog entry might be in order because I'm really bothered by how unreliable I have found Carfax reports to be. Now, I'm not saying they're useless. In fact, I have recommended to family and friends that they purchase both a Carfax and Autocheck report on any vehicle they are considering purchasing. The primary reason is to see if anything shows up. If it does, I have found that it tends to be accurate. But if nothing shows up, it really doesn't mean much. Carfax reports are very often incomplete and really shouldn't give you the peace of mind the Carfax commericals imply you should receive from their report ("Get the truth about used cars."). Sadly, some dealers love to find a car that sells for less at auction because of a defect but has a clean Carfax report (which the dealer will use to sell the vehicle to a consumer for more profit without disclosing the defect) .

Here is what Carfax says about the reliability of its report: "CARFAX DEPENDS ON ITS SOURCES FOR THE ACCURACY AND RELIABILITY OF ITS INFORMATION. THEREFORE, NO RESPONSIBILITY IS ASSUMED BY CARFAX OR ITS AGENTS FOR ERRORS OR OMISSIONS IN THIS REPORT. CARFAX FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES..."

Be warned: obtaining a Carfax report is not the end of your investigation into the purchase of a used car, but the beginning.

I want to discuss a couple decisions from the Indiana Court of Appeals that will likely have a profound impact on Indiana consumers for years. The decisions are noteworthy because they are both a significant departure from and/or addition to prior Indiana law and they make it much easier for credit card companies and debt collectors to obtain judgments against Indiana consumers. Do I believe the cases were wrongly decided? Yes I do. But I don't place much of the blame for that with the Indiana Court of Appeals. The Court of Appeals has to decide a case within the confines of the facts and arguments presented to them. I place the blame on the consumer/defendants who tried to represent themselves in these cases.

Blame can be a harsh word. I don't mean to say that these consumers meant to do anything wrong. In fact, I feel for them. I know that sometimes there is simply no money to hire an attorney and no way to come up with the money. I understand that. I also know that it can be difficult to find an attorney who knows how to handle debt defense cases and who won't charge an outrageous fee for doing so. I have clients tell me this often. Nevertheless, the fact remains that we have these two Court of Appeals decisions that are potentially harmful to every Indiana consumer in debt because Kevin Weldon and Diana Meyer decided to defend themselves, lost in the trial court and then made the very unfortunate decision to appeal. And if the Court of Appeals opinions are to be believed, neither did a good job of defending their own interests or the interests of Indiana consumers.

The cases are Weldon v. Asset Acceptance, LLC, 896 N.E.2d 1181 (Ind. Ct. App. 2008) and Meyer v. National City Bank, No. 44A03-0808-CV-391 (March 31, 2009). There is no need to get into the facts of the cases or the legal intracacies. I'll just tell you what they mean for Indiana consumers.

The Weldon case makes it very difficult for Indiana consumers to challenge an arbitration award. First, and this is critically important, the challenge must be filed within three months after the award is "filed or delivered." What "filed or delivered" means apparently will depend on the rules of the entity agreed-upon (allegedly) to conduct the arbitration. In Weldon's case, it was the mailing of the award by U.S. Mail. Proof of receipt of the mailing is not required. This means that, as Weldon alleged in his case, the time to challenge the arbitration award could expire before the consumer has any idea that an arbitration was ever filed! If that happens, under the Weldon decision, the consumer is simply out of luck.

Second, the arbitration award challenge must allege one of the following:
(1) the award was procured by corruption, fraud, or undue means;
(2) there was evident partiality or corruption in the arbitrators, or either of them;
(3) the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or
(4) the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

I hope that consumer attorneys are successful in strictly limiting the application of Weldon to its facts. Only time will tell. But what we do know, and what Weldon makes so much more important, is that when you are notified of the initiation of an arbitration proceeding, you cannot sit back and ignore it. YOU HAVE TO FILE AN OBJECTION TO THE ARBITRATION IMMEDIATELY. See MBNA America Bank, N.A. v. Kay, 888 N.E. 2d (Ind. Ct. App. 2008). And what if you never received any notice until you are sued in Indiana state court in a proceeding to confirm the arbitration award? Well, if you received notice of the lawsuit later than three months from when the award was allegedly mailed to you, you are very likely completely out of luck. That simply doesn't seem right to me.

Next time we'll talk about the Meyer case, a potentially even more damaging to blow to Indiana consumers.

It may be too late for many Indiana consumers, but it's still noteworthy. Congress just passed legislation that will shortly be signed by the President that cracks down on some of the abusive practices long used by the credit card industry. Although the law won't go into effect for nine months, the bill will generally bar interest rate increases on existing balances unless a cardholder has failed to make even a minimum payment for 60 days, require 45 days' notice before any interest rate increase, and prohibit increases any time in the first year after an account is activated. The legislation would also require card companies to apply a consumer's monthly payment to the debt with the highest interest rate, or to all debts equally.

It doesn't go far enough, but it's a good first start. And, perhaps more important than the details of the law, is the fact that the tide has turned and the credit card companies know it. Will it result in a restriction of credit? Sure. But I don't think that's a bad thing. I think it is a very good thing.

Credit must be given where credit is due (pun intended). This legislation clearly was spearheaded and made possible by President Obama. "I've been in Washington 20 years," said Ed Mierzwinski, the consumer program director with the U.S. Public Interest Research Group. "For the first 19, we couldn't even get a committee vote on credit card reform despite these practices." I am excited and optimistic about the benefits I hope consumers will reap under the Obama administration.

Unfortunately, as I noted above, it's already too late for many Indiana consumers who have suffered under the credit card industry's abusive practices. There have been a couple recent Indiana Court of Appeals decisions that have made it even worse for Indiana consumers who have been sued over credit card debt. I will discuss those decisions in a future blog post.

Peace!

I would like to take a second to highlight a case recently decided by the Indiana Court of Appeals. It is important not because it made new law but simply because it is a good reminder of what the law is.

The case is captioned Brad Lawson v. Rodney Hale d/b/a R.H. Equipment. It was decided on February 26, 2009. Brad Lawson bought a used tractor from R.H. Equipment. At the time of purchase, Mr. Lawson inquired whether there were any problems with the tractor. Hale did not disclose any problems, despite the fact that he knew the engine had a cracked block that had been ineffectively repaired.

The case was tried to the Court without a jury and the judge found for the defendant. The Court of Appeals reversed and directed the trial court to enter judgment for the Plaintiff on the fraud claim, citing it as a "textbook case" of fraud. The lesson we are reminded of is summarized in two important sentences from the opinion: "[F]raud is not limited only to affirmative representations; the failure to disclose all material facts can also constitute actionable fraud. When a buyer makes inquiries about the condition, qualities or characteristics of property 'it becomes incumbent upon the seller to fully declare any and all problems associated with the subject of the inquiry."

This is great, very broad language for Indiana consumers. It will be very rare indeed that a consumer will purchase a vehicle without making at least some inquiry as to the condition, qualities or characteristics of the car. Once this inquiry is made, the dealership has an affirmative obligation to disclose all material facts about the car.

The Indiana Consumer Law Group was blessed in 2008 with many excellent clients, for which I am very grateful. I believe that we obtained justice for some, yet for others obtaining justice is a work in progress. I hope that 2009 will see many continued victories, but mostly I pray that, in each and every case, justice will be done.

Here's wishing you many blessings in 2009! I want to leave you with a few of my favorite Bible verses on justice:

Yet the LORD longs to be gracious to you;
he rises to show you compassion.
For the LORD is a God of justice.
Blessed are all who wait for him! [Isaiah 30:18]

The LORD is known by his justice;
the wicked are ensnared by the work of their hands. [Psalm 9:16]

I know that the LORD secures justice for the poor
and upholds the cause of the needy. [Psalm 140:12]

Seek justice,
encourage the oppressed.
Defend the cause of the fatherless,
plead the case of the widow. [Isaiah 1:17]

When justice is done, it brings joy to the righteous
but terror to evildoers. [Proverbs 21:15]

Blessings,

Robert E. Duff
Indiana Consumer Law Group/
The Law Office of Robert E. Duff
310 N. Lebanon St.
Lebanon, IN 46052
(800) 817-0461

I received a press release the other day - why, I'm not sure - about a company offering new technology to law firms. Here is how it was described: "Technology Company Offers Voice Recognition Solution with Settlement Overtures to Reduce Operational Burden of Collection Attorneys." Did you get that? If you're like me, you had to read it about four times and still couldn't grasp what they meant. I had to read on, and I'm still not sure I completely understand it, but apparently it is computerized auto-dialer and caller that makes collection calls and, get this, through the voice recognition technology, even makes payment arrangements with the alleged debtors. It "has been designed specifically for law firms that are purchasing debt or working on behalf of clients for collection purposes."

First, did you know that some law firms are actually purchasing debt themselves? That's right. Just like debt collectors like Asset Acceptance, LVNV and others, some law firms now buy old debt for pennies on the dollar and proceed to attempt to collect on it. Being a law firm, it's easy for them to sue people since they don't have to hire an attorney. And they get to keep every penny they collect. What keeps them in check? Supposedly the Fair Debt Collection Practices Act, but that only works if people know their rights and do something about it when they are violated. Also, law firms have to worry about their lawyers' law licenses, which can be revoked for unethical conduct.

I think it just kind of looks bad to judges when a law firm is suing someone on a debt they bought. I've often wondered how often these firms sue under the name of the original creditor (not very often, I hope) or some kind of holding company they use to buy the debt (all the time, I imagine).

Moving on to the technology itself, I'm not sure what I think about it. On the one hand, I can't see the robo collector being nearly as nasty and verbally abusive as some real-people-debt-collectors are. So I guess that would be a good thing. On the other hand, how do you explain to this machine that they have the wrong person? Not that real-people-debt-collectors really listen to the people they call anyway, but it seems to me it would be even more difficult to get this machine to listen to a person's explanation of why they don't owe this debt and to take action to resolve the situation. Hmmmmm. I guess we'll see...

Almost every new car has a couple of kinks that need to be fixed, but after you have a few miles on your new vehicle, you expect it to run like a charm – and it should. But what can you do when your new ride has a serious defect and the dealer can’t (or won’t) fix it? Under Indiana lemon law, you do have rights. Sergei Lemberg, an attorney specializing in lemon law, offers an overview of our lemon law, and tips to preserve your Indiana lemon law rights.

Q: What vehicles are covered under the lemon law in Indiana?

Sergei: Indiana's lemon law covers new passenger vehicles, SUVs, vans, and trucks with a gross vehicle weight rating of less than 10,000 pounds. It also covers used vehicles that are sold during the new car warranty period.

Q: What’s considered a “lemon”?

Sergei: In order to be considered a “lemon,” the vehicle must have one or more defects that affect the use, safety, or value of the vehicle. The defect must first manifest itself during the first 18 months from the delivery date or the first 18,000 miles on the odometer – whichever comes first. In addition, the vehicle must have been taken in for four unsuccessful repairs of the same problem or been out of service for 30 business days and the problem still exists. Plus, you have to notify the manufacturer of a claim after the four repairs or 30 days but while the problem still exists.

Q: How do you pursue a lemon law claim?

Sergei: First, look in your owner’s manual to see if the manufacturer requires that you file a request for arbitration with the manufacturer’s arbitration program. If so, you need to go through arbitration first – but only if the manufacturer’s arbitration is certified by the Indiana Attorney General (as of April, 2008, this included General Motors, Volkswagen, Mitsubishi, Saturn, Kia and Isuzu). If not, you can take the manufacturer to court. Keep in mind, though, that manufacturers have teams of lawyers that do nothing but fight lemon law claims, and that you’ll only be on equal footing if you have a lemon law attorney at your side. Because Indiana’s lemon law says that, in a successful lemon law action, the manufacturer has to pay your attorney fees, you shouldn't have to. Often, with the help of a lawyer, you can get a refund, replacement vehicle, or cash settlement without having to go through the entire lemon law process.

Q: What kind of award can you get with a lemon law claim?

Sergei: If you’re successful, you can get a replacement vehicle or a monetary award, which includes the full contract price, credits and allowances for any trade-in vehicle, finance charges, tax and registration fees, dealer-installed options, vehicle towing and rental costs, and attorneys’ fees. If you opt for a refund, there will be a deduction for your use of the vehicle, which is calculated according to a specific formula.

Q: What should you do if you think you have a lemon?

Sergei: There are a number of steps you should take if you think you have a lemon. First, keep a log of every communication you have with the dealer or manufacturer. Also, note every time and date that you have a problem with the vehicle, as well as the days that the vehicle is out of service, either because it’s in the shop or because it’s not in working condition. Second, keep all of your repair records; never leave the shop without a copy of the work order. Third, keep any written correspondence you have. Indiana requires that you send the manufacturer a demand letter prior to filing suit, so make sure you have the paperwork to back that up. Finally, contact a lemon law attorney, such as Robert Duff at the Indiana Consumer Law Group, after the third repair attempt. He or she can help guide you through the final steps that will legally establish your vehicle as a lemon.

Q: What should you do if your vehicle isn’t considered a lemon under the law?

Sergei: Even if your vehicle doesn’t meet the stringent definitions of Indiana lemon law, there are other types of federal and state laws that can help you get the compensation you deserve. Consult an attorney to find out your options.

This post is primarily aimed at assisting consumers who are dealing with debt collectors, but it can also be of benefit to consumers dealing with other issues such as automobile dealership fraud or the lemon law. The minute you sense something might be wrong with a consumer transaction or interaction (and it probably won't take long when certain debt collectors call you), immediately go out and equip yourself with the means to record telephone and/or in-person communications. Then surreptitiously record all future communications. In Indiana (note that other states' laws are different, if you are not recording in Indiana please check the law of the state where you intend to record), this is legal as long as one party to the conversation is aware that the communication is being recorded. Do not, and I repeat DO NOT, let the other party know they are being recorded. If you do, they'll be on their best behavior and won't show their true colors.

Recordings like this can be INVALUABLE if you end up having to go to court to protect your rights. They are a great way to hold companies and people accountable for what they say and do.

If you've been sued by a debt collector in Indiana, the first thing you probably wondered while reviewing the summons and complaint is: "what am I going to do?" I can't emphasize how important it is at this stage to be proactive and take immediate action. You may give up some of your rights if you don't take action in as little as a week or ten days. For instance, in most small claims courts around the State of Indiana, you lose your right to move the case to a real court (yes, I said it!) if you don't request it within ten days of receiving the small claims notice of claim. (Note: Small claims courts are essentially collection courts since a huge part of their docket is collection cases. They are generally favorable for debt collectors and unfavorable for consumers. I never, ever, ever, ever want to be in a small claims court if I can help it.) And, you have to respond to a summons and complaint within 20 days or risk a default judgment.

Hiring an attorney to defend you in one of these cases unfortunately costs money. But you might be surprised at how affordable you can obtain representation in one of these cases. Our office handles most of these cases on a flat-fee/contingency basis. Depending on the size of the debt, our evaluation of the complexity of the issues of the case, the location of the court where the case is pending, and other factors, there is an initial flat-fee of one to four thousand dollars. A debt of up to six thousand dollars will usually have a flat fee of one thousand to fifteen hundred dollars. (Remember, though, that the fee is set on a case-by-case basis.)

The contingency part of the fee is based on the outcome or results that we obtain for the client. If the case is ultimately resolved with the client paying 50% or more of the amount demanded in the complaint, we receive nothing more. If the case is resolved with the client paying any amount of money up to 50% percent of the amount demanded in the complaint, we receive an additional amount roughly equal to half the flat fee. If the case is resolved with the client paying nothing, we receive an amount roughly equal to the flat fee or slightly less. Our clients like this fee arrangement because it has a relationship to the amount of the debt at issue, an incentive for a favorable result and because it is predictable. When paying by the hour, you never know just how much the representation will cost until is over.

Personally, these are some of my favorite cases to handle. All too often, debt collectors sue the wrong person or sue on a debt that is past the statute of limitations. They don't deserve to win, and I enjoy making sure they don't. Even when they do have the right person and the debt isn't stale, they very seldom have the documentation they should have in order to file a lawsuit against someone. This is because debt collection is all about volume and minimizing expenses. I understand that debt collection is a business, but that doesn't mean you can cut whatever corners you like in search of the almighty dollar. I've seen too many people's lives and well-being injured by greedy debt collectors. I don't think there is much of a difference between a debt collector who sues the wrong person because their practice is to attempt to collect debts without the appropriate documentation and a bus company who injuries a customer because they neglected maintenance on their bus.

Another reason I like these cases is because they sometimes lead to lawsuits against the debt collector or the attorney for violation of the Fair Debt Collection Practices Act.

If you would like to consider hiring the Indiana Consumer Law Group/The Law Office of Robert E. Duff to defend you against a debt collector, please give me a call at 800-817-0461 and I would be happy to discuss the possibility with you.

Indiana radio station WIBC FM 93.1 is focusing on identity theft this week on their Morning News Program. I was interviewed this morning for the program and had a great time speaking with Terri and Jake about my experiences assisting victims of identity theft. I appreciate them taking the time to highlight this issue. Unfortunately, I did not have an opportunity to express my opinion that the identity theft victims I come into contact with have trouble recovering from this crime primarily because the credit reporting agencies do not take the dispute process seriously. They don't take it seriously because the dispute process doesn't make them money. But I guess that's for another day...