Friday, June 19, 2015

Understading the Law of "Hate Crimes"

As always, prior to reading this post, please review my disclaimer by clicking on the link above, or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.


I am not a criminal law attorney, nor do I seek criminal clients, but I am a lawyer who cares about the law.  This is not the post I planned to write today, but it's one I feel compelled to write after watching in horror the aftermath of what happened in Charleston.  The brutal hatred we've witnessed there is, to put it mildly, depressing, difficult to swallow.  That being said, I don't pretend I have anything new or different or special to say, but I do want to talk about the law.

You see, this incident has caused a topic to come up that seems to come up every time there's an attack somewhere motivated by hate, or an effort to target hate legislatively - the topic of hate crimes.  All too often I hear people who don't understand hate crimes laws asking questions like "how can you criminalize hate?"  "Isn't this just criminalizing thought?"  "What about free speech?"  This ignorance of how hate crime laws work has become so prevalent that, when there was a debate about adding sexual orientation to the hate crimes laws, people started warning of the mass arrest of Christian preachers.  Of course this was nonsense, and I'm aware of no Christian preachers arrested for preaching intolerance in the 6 years since the law passed.

So, what are hate crimes?  How do they work?  Most importantly, why don't they violate the constitution?

The first thing to understand about hate crime laws is that they do not criminalize anything new.  There is literally nothing you can do to another person where, if you were not motivated by hate, the action would be legal, but if you were motivated by hate, the action would be illegal.  This is a critical step that many people who are fearful of hate crimes miss.  So, since it's important, let me repeat it: if something is not a crime if done without bigotry, it is not a hate crime when done with bigotry.  So, a preacher commits no crime when preaching negatively about anyone, so if he does it about homosexuals and homosexual living, he is still not committing a hate crime.  If the preacher tells his church members, however, to go and hunt down homosexuals and kill them, then he's committing a hate crime, but if he was just picking someone random from the community to hunt down and kill for, say, being rude, he's still committing a crime (incitement).  There is literally nothing you can do to get charged with a hate crime that would not still get you charged with a crime if your action was not motivated by hate.

So, with that being the case, what do hate crimes do?  Well, they do two things.  First, federal hate crimes federalize the conduct.  This is important because it allows prosecutors who fear that they cannot get an impartial jury in a particular community to move the trial further away than state prosecutors are usually able to do.  Second, both federal and state hate crimes increase the severity of the penalty applied for the crime.  While a regular crime might carry a sentence of up to 5 years, when the crime is motivated by hate, it might be up to 10 years.

So, why the sentencing aspect?  Why should we punish people extra just because they were motivated by hate?  Well, this gets to the broader question of what the purpose of jail time is to begin with.  Most people ascribe four purposes to jail sentences - deterrence, punishing the offender, rehabilitating the offender, and protecting society from the offender.  I would argue that hate crimes fit logically into the latter two purposes.  Someone who is motivated by hate will take longer to rehabilitate (if rehabilitation is possible) than someone who is not.  Moreover, someone who is motivated by hate (rather than a desire to harm a specific individual, for example) is a greater threat to society and has a greater likelihood of recidivism, so keeping them away from society for longer to protect society from them makes more sense.

So, in short, hate crimes laws fundamentally work by protecting the judicial process from potential undue local influences, as well as enhancing the penalties applied to offenders so as to allow more time to rehabilitate the offenders, and more time to protect society at large from the offenders.  They do not seek to, nor do they in fact, regulate thought or speech.  Moreover, they create no new crimes of their own - only applying to conduct that is already criminal, whether motivated by hate or not.

With that explanation it is my hope that more people understand what hate crimes laws are, what they seek to do, and why they play an important role in our country's continuing efforts to rid itself of the scourge of bigotry.

Friday, June 5, 2015

Fighting Virginia Debt Collectors in Court

As always, before reading this post, please review my disclaimer by clicking on the link above or by clicking on this link.  As always, any legal principles discussed apply only to the Commonwealth of Virginia.

Introduction

Stuff happens - that's one of the realities of life.  Sometimes this means we don't pay bills we intended to, we fall behind on credit card payments, or we even forget about some bills altogether.  On top of it all, sometimes we pay our bills, and the person we paid loses our payment, loses track of it, or mis-enters it into their billing system.  Regardless of how you get there, however, few things can be scarier than receiving a summons to court because a debt collector has sued you.  In today's blog post, however, I'll discuss some basic "tricks of the trade" on how to fight back against a debt collector's lawsuit, even if you technically owe the money.

Before I begin, if you're new to this blog, it may help to familiarize yourself with the procedures for civil cases in the General District Court.  I will be discussing General District Court here since that is where nearly all lawsuits from debt collectors are filed in Virginia.

How to Tell if You're Being Sued by a Debt Collector

The first thing to do is to figure out if it's actually a debt collector who's suing you.  The best way to do this is to look at the name of the plaintiff on the Warrant in Debt you've been served with.  If you've never heard of the plaintiff, and especially if the plaintiff is listed as "assignee of" or "subrogee of" or something similar, followed by a name you have heard of, then you're being sued by a debt collector.  If, however, the name of the plaintiff is familiar, and it's who you owe (or owed) the debt at issue to, then you are not.

While some original creditors, especially very large ones, behave similarly, most do not, so this blog post is really geared towards people being sued by debt collectors, not original creditors.

Motivations at Issue

So, the next thing to do is try to understand the motivation of the parties involved.  For the original creditor, they likely made some cursory efforts to collect payment from you, and when that didn't work, gave up.  They decided, probably reasonably, that they're not likely to be able to collect your debt - at least not without expending substantial effort - so they sold it to a debt collector, likely for pennies on the dollar (I've heard of debts being sold for somewhere between 5 and 35% of face value, depending on a number of factors) so as to get something.

For the debt collector, they make their money by buying up as much "bad debt" as they can, and then hoping to collect enough of it to make back their money and then some.  As you can guess, though, if a debt collector only pays 15% of face value, it probably only expects to actually successfully collect somewhere around 25 to 35% of the debt it buys.  This means a debt collector of this sort is generally motivated to collect as much as they can while exerting as little effort and cost as possible.

Handling the Lawsuit

Some debt collectors will simply file a lawsuit against everyone whose debt they've bought.  Their hope is that a) some people will get scared into paying by the lawsuit, b) some people will get scared into paying by the judgment that's entered showing up on their credit, c) some people will actually own property and will end up paying when they sell that property due to the lien the judgment created, and d) the collector will stumble upon a person's employer or banking information and be able to do a garnishment with its judgment.

Remember, however, that a debt collector is still assuming that it will never see a dime from the majority of the people it sues.  This means a collector is likely unwilling to expend substantial legal fees, or a great deal of time.  If they have a judgment, they usually won't do debtor interrogatories (for more on post-judgment collections, you can read my post on the topic), and for the main lawsuit, they are hoping that you, like the vast majority of people they sue, don't show up to the return day, so they can just take a default judgment.

How to Fight Back

That last part is key - the debt collector is relying on most of its judgments being default judgments.  So, your first step to fighting back is to show up at the return day.  When the judge calls your case, you can usually legitimately and truthfully deny liability, because at that point you don't have sufficient knowledge to prove that the collector suing you actually owns the debt.  When you challenge liability, a trial date will be set.  Many debt collectors will voluntarily dismiss their lawsuit right then and there.

If, however, your plaintiff does not dismiss the lawsuit, a trial date will be set.  Pleadings will likely be required, which is where they will document how they own the money.  You can still, however, challenge liability in your answer and grounds of defense by simply noting that you're without sufficient knowledge of the transaction to be certain of its accuracy.  Consulting an attorney will help you prepare an answer that is both truthful (actually truthful, not just technically truthful but deceptive) and effective.

Come trial, many debt collectors will give up and dismiss their case.  A small number, however, might go forward.  Their plan, again since they intend to expend minimal effort, is to call a witness from their own company to validate their purchase of the debt, but not to expend the effort needed to call a witness from the original creditor to validate the debt itself.  They might try to have their own witness validate the debt itself, but even a defendant with very basic legal knowledge will be able to object to that validation as hearsay.  Instead, they will call you to the witness stand to validate the debt itself.  If, however, you have an attorney, and you have not been subpoenaed (and they almost never think to subpoena the defendant) you do not have to be at trial.  If you are not there, they probably cannot validate the debt, and if they cannot validate the debt itself, they cannot win.

Important Caveats

Note, however, that while a minority, there are debt collectors who are legitimately trying to collect every single debt they own.  They will go through the effort of having a trial and having their necessary witnesses there, then engaging in post-judgment collections actions.  In short, what I've listed here works, in my experience, with most debt collectors, but not all.  Additionally, if there's a problem with the debt (like you actually paid it, but never got credited), then you should appear at trial to present that evidence.  Further, no plan is perfect, and you should definitely have an attorney if you are challenging a debt collection lawsuit in the manner described above.  Finally, you must be truthful throughout the proceeding.  Doing otherwise could get you in some very hot water.

Conclusion

Being sued by a debt collector is scary, but there are ways to fight back, even if you owe the money.  Only an attorney can tell you what strategy is best for your case, however.  If you've been sued by a debt collector, feel free to call (703)281-0134 or e-mail me at SLeven@thebaldwinlawfirm.com to set up a consultation.  Our initial consultations are free for up to half an hour!