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.

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.

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.

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 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!

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.

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

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...

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.

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.

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.

Whether the issue is a lawsuit by a debt collector, fraud perpetrated by an auto dealer, credit report errors or any one of a number of other issues, I speak with Indiana consumers all the time who put off addressing the issue for far too long. I'm sure there are many reasons for this. One of the primary ones, I believe, is a feeling of helplessness. But KNOWLEDGE IS POWER and it's NEVER TOO LATE TO BECOME PROACTIVE. Some knowledge costs money, and I understand that, but there is a lot of knowledge out there on the internet on so many consumer issues that is totally free.

For instance, I give free initial consultations. I'm guessing, but I bet only 10-15% of the consumers I speak with become clients. Some I can't help, some I can help with some simple advice, some choose not to hire me and some I can help and they become a client. The point is that if you look hard enough for information, free information, it can be found. Now I know I am really preaching to the choir here, because if you are reading this blog entry chances are you are looking for information on the web on a consumer issue and are being proactive. But we all need to be reminded of how critical it is to take the bull by the horns, so to speak, including myself!

The reason it's so critical is that often the longer you wait the fewer the options that are available. Options are a good thing. So be proactive and keep your options open!

Sometimes a default judgment is obtained because the alleged debtor never actually became aware of the lawsuit. The Indiana Rules of Trial Procedure outline how an individual defendant is to be served with the Summons and Complaint. Rule 4.1 states that service may be made on a person by:
1. certified mail to their residence, place of business or employment;
2. handing it to them in person;
3. leaving a copy at their house or where they live; and
4. serving their agent as provided by rule, statute or valid agreement.
These are the only ways, almost, that a person can be served with a lawsuit that has been filed in state court in Indiana. I say almost because a recent unpublished Indiana Court of Appeals decision says that an individual can also be served by sending certified mail to their post office box. See Timothy E. Wellington v. Asset Acceptance, LLC, 49A02-0706-CV-466 (February 20, 2008). I suspect this case will be accepted and reversed by the Indiana Supreme Court because it clearly ignores the plain language of the rule, but I guess we'll see.

If you are surprised that leaving a copy of the summons and complaint at someone's house, or, probably more accurately, their last known address, is valid service, you aren't the first. I regularly speak with defaulted consumers who are surprised and angered by this. But it's true. It's right there in the rule.

If you have been unfortunate enough to discover that a default judgment has been taken against you (often, by seeing it on your credit report), all hope is not lost. A default judgment can be set aside, but it is much, much easier if the motion is filed within one year of the judgment. After a year, it can be very difficult and often impossible to set aside a default judgment.

This lawsuit has garnered publicity simply because of the connection with "The Price is Right." Before I became a consumer lawyer, I would have read this article and thought what a freaky set of circumstances this was. A car dealer took a car that they knew had been wrecked, repaired it and passed it off to this contest winner, ripping her off for potentially thousands of dollars. Then the contest winner somehow finds out about it and sues. Wow. Sadly, these are not freaky circumstances. It happens every day all over the United States, and as I say that I don't believe I'm exaggerating.

You see, before I became a consumer lawyer I didn't realize how much money is involved in buying and selling cars in the U.S. Or how competitive the market is. Or how greedy dealers can be. Or how people who work in the industry, for whatever reason, get to a place where misleading consumers and taking advantage of them isn't seen as wrong but as a legitimate way to do business.

I receive numerous calls from Indiana consumers every week about all kinds of issues. A majority of those calls, though, are from Indiana consumers who believe they have been ripped off by car dealers. Often, they have. The misrepresentations abound: never been wrecked, one owner - woman driver, warranty, actual mileage and on and on. Plus, my favorite misrepresentation, typically made in a phone call twenty or thirty days after the sale: we couldn't get you financed so you need to bring the car back since there's no deal - and if you keep the car you've stolen it and you're a thief.

I used to be blissfully unaware of these things, but now I enjoy pursuing justice for victims of this kind of conduct. And, hopefully, somewhere along the way, I hope I can help some car dealers understand that, for dealers who make money off of Indiana consumers, The Price is Wrong.