DEBT COLLECTION        DEFENSE

Product # 22 SKU 107-B

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by

William R. Carlisle, Esq.

Of the Georgia Bar

ABOUT THE AUTHOR

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William R. Carlisle (“Billy”) is a fourth generation Georgia lawyer practicing in the area of consumer protection and debt collection defense.

During the mortgage crisis in 2008, Carlisle began helping construction clients, including builders, contractors and developers, with personal and business collection matters.

Noticing that collection cases comprised the majority of civil filings, his practice expanded to include consumer cases. In an area of the law where most defendants go unrepresented, Carlisle has won several appellate decisions involving procedural and evidentiary issues favorable to consumer debtors.  

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Understanding the challenges faced by both parties in collection matters, Carlisle has also defended collection attorneys, finance companies and collection agencies facing consumer protection claims.

Seeing the inefficiency and rising cost of litigation as a problem for both sides in collection cases, he recently developed Detamate, a software application automating the process of negotiating and administering payment in consumer settlements.

Currently married with four (4) children and one grandchild, Carlisle lives with his wife, Shannon, in Gainesville, GA.  

DEFENDING CONSUMER LITIGATION & ENFORCEMENT

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I. The Collection Process

Non-payment & default, delinquency to “charge-off,” in-house collection, agency placements, attorney/law firm involvement, initiation of lawsuit, default judgment & case dispositions, judgment enforcement methods, satisfaction of judgment, dormancy & revival, domestication of foreign judgments

II. Litigation as a Business Model

Overview, necessity of litigation, decentralization, automation & evidentiary concerns, assignment of chose in action, depreciation & time-value of claims, logistics & cost of collection, evaluating opposing counsel

III. Understanding Collection Lawsuits & Pleadings

The “math” on collection lawsuits, templates, non-lawyer & collector involvement, balance calculations, types of claims, reviewing exhibits, identifying discrepancies, hearsay and documents created for purposes of litigation

IV. New Client Intake

Identifying stage of collection process, parties involved in collection effort, creditor & current owner of debt, gathering information & documents, cost-efficiency concerns, client’s financial situation & setting client expectations & goals [Form 1]

V.  The Collection Defense “Toolbag”

Civil procedure, discovery & compelling evidence, common evidentiary issues, motions, sanctions, secured instruments & securitization, FDCPA, FCRA, TCPA, TILA, FBPA[state]

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VI. Civil Procedure

Time is the collector’s enemy, civil procedure is the defendant’s friend, using civil procedure to establish defenses and client’s theory of the case

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VII. TILA

Intro & scope, applicability & pre-emption/state law concerns, TILA disclosures for credit cards, auto financing, mortgage lending, etc., initial & ongoing disclosures, TILA compliance as an element of contract, using non-compliance as a defense

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VIII. FDCPA

Intro & scope, identifying “debt collectors” 15 USC 1692a, 1st communication & verification 15 USC 1692g, mini Miranda 15 USC 1692e(11), false communications 15 USC 1692e, unfair & unconscionable acts and communications 15 USC 1692f, SOL barred claims 15 USC 1692e(5), 15 USC 1692f, etc., improper venue claims 15 USC 1692i, prohibitive forms 15 USC 1692j, lawyer communications as debt collections [Heintz, etc.], the decision to file claims, separate action v. counterclaim, etc. 

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IX. FBPA

Intro & scope, state specific claims, linking FDCPA & FBPA, ante litem requirements & exemptions, remedies & available relief

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X. FCRA & TCPA

Intro & scope, identifying claims, documenting & proving claims, claim as offensive vs. defensive filing, deciding on a forum

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XI. Creating a Checklist for Collection Filings

Review of filing: Service issues [date, person served, answer due date], Case Caption & party name [standing, real party in interest, misnomer, multiple assignments, etc.], type & purpose of pleading [complaint, garnishment, post-judgment discovery or enforcement, motions, discovery & interlocutory filings], Jurisdiction & Venue [SOL, residence location, identity fraud, prior settlement, etc.], Allegations [sufficiency of facts compared to elements and evidentiary requirements, Exhibits [business records vs. summaries & litigation documents, hearsay affidavits, incomplete documents, discrepancies with allegations], Relief [support for damages calculation, lawfulness of interest, capitalization of interest into principal issues, etc.], Identifying Counterclaims

XII. Forming a Defense Strategy

Client needs & expectations [Reduced settlement, client “just needs some time,” types of dismissals and effect], the defense lawyer’s primary objective, ethical concerns, venue & service of process issues, sufficiency of plaintiff’s evidence, defense templates & “mirroring” of pleadings 

XIII. Filing the Answer

Filing before/after service of process, Answer vs. Motion to Dismiss, admitting/denying allegations, affirmative defenses, deciding on counterclaim, deciding on jury demand, requests for admission

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XIV. Discovery to Plaintiff

Being the 1st to file, organizing discovery requests, the decision to compel discovery [waking a “sleeping plaintiff” vs. exploiting unavailable evidence],  

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XV. Responding to Discovery

Personal knowledge of facts vs. presumption & opinion, client knowledge of terms & conditions, damages calculation & accuracy of balance, client relationship to plaintiff [creditor vs. assignee], using discovery to tell client’s story 

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XVI. Responding to Motion for Summary Judgment

Evaluating sufficiency of motion & evidence, identifying disputed facts, inferences and conclusions, identifying missing evidence & hearsay, challenging foundation for admission of business records, opposing affidavits, requesting oral hearing, laying groundwork for an appeal

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XVII. Preparing for Trial

Using pre-trial order to add/eliminate issues, the framework of the defense case, motions in limine & requests to charge, whether to call client as a witness, subpoenas to plaintiff & witnesses,  

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XVIII. Reading the courtroom & the judge

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Judicial attitudes to collection litigation, how collection calendars are handled in real life, going smoothly against the grain, flipping the judge, collector concerns in crowded courtrooms

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XIX. Settlement Discussions

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Planting the seed early [make settlement demand  known & repeat it at the right times], identifying leverage and bargaining power, negotiating from a position of strength, using client weakness as a strength in negotiations, the threat of

bankruptcy done the right way

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XX. Conclusion

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XXI. Concluding remarks

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Appendix/Forms

Sample documents, pleadings, template forms, checklist

About the Author

William R. Carlisle (“Billy”) is a fourth generation Georgia lawyer practicing in the area of consumer protection and debt collection defense. During the mortgage crisis in 2008, Carlisle began helping construction clients, including builders, contractors and developers, with personal and business collection matters. Noticing that collection cases comprised the majority of civil filings, his practice expanded to include consumer cases. In an area of the law where most defendants go unrepresented, Carlisle has won several appellate decisions involving procedural and evidentiary issues favorable to consumer debtors.  

Understanding the challenges faced by both parties in collection matters, Carlisle has also defended collection attorneys, finance companies and collection agencies facing consumer protection claims. Seeing the inefficiency and rising cost of litigation as a problem for both sides in collection cases, he recently developed Detamate, a software application automating the process of negotiating and administering payment in consumer settlements. Currently married with four (4) children and one grandchild, Carlisle lives with his wife, Shannon, in Gainesville, GA.