Local District Attorneys Sell Their Letterhead & Threats Of Jailtime To Debt Collectors

from the win-win? dept

Tue, Sep 18th 2012 11:50am — Mike Masnick

We've been quite reasonably bothered by the FBI handing out its seal to copyright holders to falsely imply that mere personal copying is a criminal offense that might get you sent to jail. However, it appears that this handing off of government law enforcement threats to private parties goes much, much further. Over the weekend, the NY Times wrote about the amazingly common practice of local district attorneys' offices allowing debt collectors to send threat letters on their stationary and signed by the local DA -- effectively threatening those who, for example, passed a bounced check, with potential jailtime if they don't pay up.

The DAs office, it appears, is literally selling the use of their stationary. In exchange for letting debt collectors appear both a lot more official and for falsely suggesting that law enforcement is pursuing criminal action, the debt collectors "sell" a "financial accountability" class, from which some of the proceeds get kicked back to the DAs' offices.

The practice, which has spread to more than 300 district attorneys’ offices in recent years, shocked Angela Yartz when she was threatened with conviction over a $47.95 check to Walmart. A single mother in San Mateo, Calif., Ms. Yartz said she learned the check had bounced only when she opened a letter in February, signed by the Alameda County district attorney, informing her that unless she paid $280.05 — including $180 for a “financial accountability” class — she could be jailed for up to one year.

The NYT includes images of some of the documents in question, and they really do look quite official, despite the fact that the DA's office usually is not even aware of the particulars of anyone's case, and is unlikely to pursue any sort of law enforcement activity.

As you can see, it certainly looks likes it's coming from the DA's office, and looks extremely "official" even though it's only down in the fine print that it's mentioned that it's actually sent "on behalf" of the office by a third party. Even then, unless you were really aware of what was going on, you would probably think this was law enforcement going after you.

What's really ridiculous is to see various DAs offices defend this kind of thing.

“I view it as quite a win-win,” said Baltimore County State’s Attorney Scott D. Shellenberger. “You aren’t criminalizing someone who shouldn’t have a criminal record, and you are getting the merchant his money back.”

Scott Greenfield's response to this ridiculous claim is dead on:'

Check bouncers should be held accountable. But only in a way that the law provides, after the people in whom we repose trust and responsibility ascertain that a crime has been committed, and after the accused has been afforded the opportunity of a full and fair hearing before a neutral magistrate. Whether the merchants deserve to get money back or not is the end result, not the starting point. It's a burden to do things right? 'Tough nuggies. That's why they pay you the big bucks.

He similarly finds offensive the claim from another (former) DA in the article that these shakedown programs are fair because actually having law enforcement would "overburden the court system or the resources of the district attorneys." Again, Greenfield points out that you don't get to avoid due process just because it's a hassle:

After all, who would want to "overburden the court system or the resources of district attorneys" by expecting them to do their jobs? Who would want courts and prosecutors to afford citizens due process? Instead, let's defer to the excellent judgment and trustworthiness of businesses and debt collectors. They would never lie. They would never get it wrong.

We've talked a lot about problems with forms of "crony capitalism" where businesses have undue power over government, and it happens at pretty much every level of government these days. But, at the very least, we shouldn't just be handing over the power of law enforcement to private parties. Law enforcement agencies are already prone to abuse. Giving it to private, for-profit companies? You're just asking for serious trouble.

Update: Liberty McAteer points out that the offices doing this likely are violating the Fair Debt Collection Practices Act (FDCPA) in a very, very big way... Update 2: Some more comments point out that there appear to be direct exemptions in the FDCPA for this kind of thing. Doesn't make it right, but probably not illegal under the act.

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Filed Under: bad checks, debt collectors, district attorneys, shakedowns

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Ninja (profile), 18 Sep 2012 @ 11:29am

we shouldn't just be handing over the power of law enforcement to private parties

It's been handed for sometime now. Megaupload? STC? Dajaz1? etc
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Ninja (profile), 18 Sep 2012 @ 11:32am

Re:
TPB... How could I forget the most emblematic case?!
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Another AC, 18 Sep 2012 @ 12:08pm

A Foul Stench Indeed
"Influence peddling is the illegal practice of using one's influence in government or connections with persons in authority to obtain favors or preferential treatment for another, usually in return for payment. Also called traffic of influence or trading in influence . In fact, influence peddling is not necessarily illegal... however, influence peddling bears the stench of corruption that may de-legitimize democratic politics with the general public."
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Anonymous Coward, 18 Sep 2012 @ 12:16pm

law enforcement are selling their souls already (mostly to the entertainment industries), so selling their letter heads shouldn't raise too much concern, surely
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The Muffin Man, 18 Sep 2012 @ 12:17pm

It's an adapt or die world! Debt Collectors need to adapt their industry some how because they can't just call people on the phone anymore and threaten them, thanks to the invention of that accursed Caller ID! *Shakes fists menacingly*

So they have found a new way to menace the people and shake them down and without the hassle of due process! WIN!
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The eejit (profile), 18 Sep 2012 @ 12:18pm

Hang on:
So let me get this straight:

Some DAs are selling their stationery in order to help collections agencies do something that not only extorts people, but also has procedures in place for bounced checks and are claim that it's "A win-win for everyone"?

Why have these people not been locked up already?
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Anonymous Coward, 18 Sep 2012 @ 12:22pm

This is pretty shameless its tricking people into thinking law enforcement is after them.
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Anonymous Coward, 18 Sep 2012 @ 12:38pm

Reminds me how some debt collectors have been caught impersonating police, pretending they're going to arrest you unless you pay off your debts to them that they bought from a credit card company for pennies on the dollar.
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weneedhelp (profile), 18 Sep 2012 @ 12:39pm

Re:
Bill collectors are the scum on the boot of scum.
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Anonymous Coward, 18 Sep 2012 @ 12:41pm

Re: Hang on:
What are they going to do, have themselves arrested? They'd have to have a shred of decency to do that, and they've already disproved the "slightest shred of decency" theory.
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Jeff, 18 Sep 2012 @ 12:57pm

Let's not gloss over...
She didn't discover this check had bounced when she got the letter she knew damn well when she wrote it or wrote others around the same time that one or more would not be good.

There is nothing to see here, short of a thieving POS that got caught.
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Yakko Warner (profile), 18 Sep 2012 @ 1:02pm

And they *never* get it wrong. *
Having a rather common (real) name, I get the occasional threatening letter or phone call from a debt collector fishing for someone with the same (or similar) name.

*The subject line is sarcastic. I would have used a SarcMark™, but I've exhausted my number of licenses for this month.
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Anonymous Coward, 18 Sep 2012 @ 1:11pm

Re: Let's not gloss over...
A bit harsh.

My girlfriend is the perfect example of someone who has no idea how much money is in the bank. She only knows when she runs out when the debit card gets declined, fortunately nowhere in the UK takes cheques anymore.

I would sooner give her the benefit of the doubt.

Surely WalMart would have done better to open a conversation with their customer first rather than selling the debt on straight away.
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Chosen Reject (profile), 18 Sep 2012 @ 1:20pm

Re: Let's not gloss over...
Hey everybody, Jeff is right. He has replaced due process with his magical ability to know not only that she is guilty, but also the severity of her guilt.

I think I speak for all of us here, Jeff, when I say that you are going to single-handedly save us a lot of money. With you taking up the mantle of judge and jury, making decisions based on accusations, we no longer need costly and time consuming court cases, nor do we need to waste time and effort on such mundane and wasteful concepts as "evidence" and "testimony". And just think, since we're in the saving money mood, we can finally recycle that pesky old parchment that espouses such wasteful concepts as "due process" and "trial by jury".

I nominate Jeff for Judge Master of All!!
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average_joe (profile), 18 Sep 2012 @ 1:26pm

Again, Greenfield points out that you don't get to avoid due process just because it's a hassle:

After all, who would want to "overburden the court system or the resources of district attorneys" by expecting them to do their jobs? Who would want courts and prosecutors to afford citizens due process? Instead, let's defer to the excellent judgment and trustworthiness of businesses and debt collectors. They would never lie. They would never get it wrong.

Mike,

Since you clearly are indicating your concurrence with Greenfield's claim that this situation violates due process, can you please explain why you think so?

This appears to me to be ANOTHER situation where you cite that faithful touchstone, but you don't actually have a real legal argument to back it up.

Prove me wrong?
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Anonymous Coward, 18 Sep 2012 @ 1:27pm

Let me tell you the little scam Walmart has. Walmart uses a third party to guaranty checks. If it passes the electronic check then the third party will make good all checks.

The scam part is once it is found to be a bad check the company then starts an electronic bounce game. As fast as is possible, the company will continue to send the check back to the bank, accumulating bad check fees from both the third party company and your bank simultaneously. It will do this for at least a week before any attempt to contact you.

I got caught in this because my paycheck was delayed in being deposited. I had written two checks, one of which was to Walmart. The first clue I had was when the bank sent me an overdraft notice by mail. I immediately went to the two places to make it good. One I paid that day and it was over with. It was not Walmart. Walmart informed me I would have to contact the third party over it.

When I did, the first thing was we don't have it, it's in route to the bank. So the next day, I called again and paid it all. The fees for the bounced check were several hundreds over the amount written. To this day I will never, ever, again give Walmart a check. Nor will I give most other businesses a check because of that experience. Cash or I walk, period.

Another little cute one that came up with Walmart I'll refer you to the news article over.

Here
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Joshua (profile), 18 Sep 2012 @ 1:30pm

Missing the point
I think the article misses the point that passing a bad check is an actual crime in most places. It is not the same as not paying on a credit card or not paying the cable bill. The merchants who were passed the bad check potential victims of a crime.
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Jeff, 18 Sep 2012 @ 1:30pm

Re: Re: Let's not gloss over...
This is the entire problem, accountability and responsibility for ones actions. Am I to believe that this woman never saw the bounced check fee, a check (or an image of one) sent via mail or online statement?
When you present a check for payment it is your responsibility to know that funds are available for it, being lackadaisical in your financial manners is no excuse.

This is and was a 100% idiot problem and there is nothing wrong with the manner in which WalMart handled it.
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Gwiz (profile), 18 Sep 2012 @ 1:30pm

Re: Let's not gloss over...
She didn't discover this check had bounced when she got the letter she knew damn well when she wrote it or wrote others around the same time that one or more would not be good.

There is nothing to see here, short of a thieving POS that got caught.

Wow. That's a really good condescending prick impression.

Shit happens sometimes, fool. I once bounced 3 or 4 checks in a row because my mortgage company and bank somehow cashed my mortgage payment twice. I had no clue until the "insufficient funds" notices started showing up in my mailbox at $30 bucks a pop.
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Vidiot (profile), 18 Sep 2012 @ 1:31pm

Looks familiar
Something about that letter... the fonts, the ad-like layout, the cheesy look of a mass-mailing high-speed laser printer... reminds me of postal mail our office receives on a near-weekly basis. The return addresses claim (with permission) to be from veteran's charities, MADD, Vanished Children's Alliance and other legitimate entities; but the envelopes are identical, the paper stock and bad printing identical. They're actually from a Texas-based boiler-room outfit, which pays charities mere pennies from the donated dollar. It feels sleazy... cheapens those participating charities.

Is this any different?
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Mike Masnick (profile), 18 Sep 2012 @ 1:35pm

Updated
Updated added about the possibility of these actions violating the Fair Debt Collection Practices Act (FDCPA).
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Dirkmaster (profile), 18 Sep 2012 @ 1:36pm

Re:
I work in a call center, and we have a sick-callout line that I'm responsible for answering that unfortunately many agents give as the number to contact them during working hours. (I say unfortunately because I can't transfer the calls to them if I wanted to, as their phones are on a different system).

Anywho, I get a LOT of calls from collectors. When I politely inform them that this is a call center too, and that the agents can't get calls from this line, I always ask if this is an emergency (so that if it's a doctor's office or a school, I can take a message.) If they say no, then I say I'm sorry, I can't help you. Please don't call this number again.

Recently, the callers have taken to saying "Yes, this is a financial emergency. That gets them a less polite "This is business, please remove this number from your database" and a hangup.

I understand that they are just trying to get their money, but if they don't want to be perceived as scum, maybe they shouldn't be lying asshats.
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Jeff, 18 Sep 2012 @ 1:37pm

Re: Re: Let's not gloss over...
Apparently you lack the intelligence to comprehend what was in the letter that was sent to the woman. She was offered that program in lieu of participating in due process or a trial by jury.

I blame the public education system of which you are obviously a product. Perhaps you should consider taking a case up against them because this drivel you just spewed all over this thread is meaningless.
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Gwiz (profile), 18 Sep 2012 @ 1:40pm

Re: Re: Re: Let's not gloss over...
Am I to believe that this woman never saw the bounced check fee, a check (or an image of one) sent via mail or online statement?

Well according to her statement in the article, yes.

If Walmart (or their 3rd party) never tried to put the check through a second time, then it's quite possible that the bank waived the first bounced check fee. My bank does that. I pretty much never open my bank statements and I don't do online banking. My bank never sends me cancelled checks anymore either. I check my balance and outstanding items via phone. So yes it is possible she didn't know.
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Anonymous Coward, 18 Sep 2012 @ 1:41pm

Re:
avoid does not equal violate ... reading comprehension, you should try it.
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Anonymous Coward, 18 Sep 2012 @ 1:43pm

So where can I get some of this letterhead? I've had more than a few issues with my HOA and I think this might just add a bit of the punch I need to my response letter.
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Gwiz (profile), 18 Sep 2012 @ 1:46pm

Re: Re: Re: Let's not gloss over...
She was offered that program in lieu of participating in due process or a trial by jury.

Sure. I've also had police officers offer to settle my speeding ticket on the spot with cash too. Extortion is still extortion.

Did you skip over the additional $180 required for this "program"?
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Anonymous Coward, 18 Sep 2012 @ 1:50pm

Re: Re: Re: Let's not gloss over...
I had a check bounce because a business charge me twice on the account using debit. They fixed it the next day but I still had a check bounce because of it. Thankfully I have overdraft protection so it was quickly fixed.
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average_joe (profile), 18 Sep 2012 @ 1:53pm

Re: Re:
OK, I'll play. How does this "avoid" due process? Put another way, what would you rather see happen so that due process hasn't been "avoided"?

I honestly don't understand the "due process" argument here. If anything, it seems like she'd rather "avoid" the due process of a fraud conviction.
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Chosen Reject (profile), 18 Sep 2012 @ 2:04pm

Re: Re: Re: Let's not gloss over...
You understand neither what was in the letter, nor what I was responding to. Hint: it was your comment where you decided she was a "thieving POS that got caught" and that "she knew damn well when she wrote it or wrote others around the same time that one or more would not be good." You decided, based on nothing even resembling due process that she's not only guilty but also a liar. You could argue that she's guilty by her own admission, but then you go off and accuse her of lying about what she knew as well. Several comments have already pointed out to you that not knowing a check has bounced is quite possible.

The letter doesn't forgo due process. It just gives her an opportunity to forgo it herself. It was you who decided due process isn't necessary since you've already determined her guilt. And yes, I realize your decision that she's guilty means jack squat to whether or not she'll get actual due process. I just pointed out that you had already decided guilt based on nothing more than accusation. They say she wrote a bounced check, and you say that not only did she do it, she willingly and maliciously did it.
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average_joe (profile), 18 Sep 2012 @ 2:05pm

Re: Updated
Updated added about the possibility of these actions violating the Fair Debt Collection Practices Act (FDCPA).

Translation: Someone, who admits to not being an expert on this area of law and to having only spent 10 minutes on Google researching the point, thought of some other law this might violate. Since I don't actually understand the law and since I like his conclusion (I do work backwards, after all), I'll just link to it with the ultra-FUDy claim that "the offices doing this likely are violating the Fair Debt Collection Practices Act (FDCPA) in a very, very big way..."

Sigh.

Sorry, Mike, but the way you rely on half-baked theories from people who admit to having only 10 minutes of research on a point kind of says it all about your methods and your bias. Considering we're talking about DA offices taking part in this, maybe, just maybe, there's a counterargument that you aren't aware of. I know, I know. Why go there, right? Attack!
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Jeff, 18 Sep 2012 @ 2:14pm

Re: Re: Re: Re: Let's not gloss over...
Another one maybe you and chosen reject can find enough others to form a class action....

I didn't skip over that part, I saw it, there was no attempt to hide or obfuscate it.

It is there for a reason, financially responsible individuals would have realized that this had happened and dealt with it appropriately before it got to this level. This is a class for them. I bounced the only check of my life nearly 20 years ago when I was purchasing my first home. It was one of the misc checks earnest money, appraisal fee or title insurance. It was 100% my fault my real estate agent assured me he wouldn't deposit it until the following week but his secretary wasn't privy to that. I knew when I handed it to him that with all the other checks I had just written until my payroll check hit me on that my account was picked clean. None of that changes where the fault lies, not opening your statements, not checking your balance and not verifying that the checks you write are honored and processed for the correct amount is YOUR responsibility. If it is handled in a negligent manner by your financial institution then your recourse is with them, they have nothing at all to do with the transaction between you and whoever it may be unless it is a bank certified check.

Unfortunately I am not the least bit surprised at the number of people that have popped in to attempt to excuse it for one reason or another, I really wish I were though. This is 100% her fault UNLESS she is not the right person, or an error that the bank made.
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average_joe (profile), 18 Sep 2012 @ 2:21pm

Re: Updated
And just to show you how incredibly prone you are to jump to conclusions, it took me 30 seconds to find this on Westlaw:
1. Exceptions to FDCPA Coverage

Effective October 13, 2006, Congress exempted qualifying private entities that contract with district attorneys to operate �bad check enforcement programs� from FDCPA liability. Id. � 1692p.
Schwarm v. Craighead, 552 F. Supp. 2d 1056, 1069 (E.D. Cal. 2008).

You might want to read 15 U.S.C. 1692p:
� 1692p. Exception for certain bad check enforcement programs operated by private entities

(a) In general

(1) Treatment of certain private entitiesSubject to paragraph

(2), a private entity shall be excluded from the definition of a debt collector, pursuant to the exception provided in section 1692a(6) of this title, with respect to the operation by the entity of a program described in paragraph (2)(A) under a contract described in paragraph (2)(B).

(2) Conditions of applicability

Paragraph (1) shall apply if--

(A) a State or district attorney establishes, within the jurisdiction of such State or district attorney and with respect to alleged bad check violations that do not involve a check described in subsection (b) of this section, a pretrial diversion program for alleged bad check offenders who agree to participate voluntarily in such program to avoid criminal prosecution;

(B) a private entity, that is subject to an administrative support services contract with a State or district attorney and operates under the direction, supervision, and control of such State or district attorney, operates the pretrial diversion program described in subparagraph (A); and

(C) in the course of performing duties delegated to it by a State or district attorney under the contract, the private entity referred to in subparagraph (B)--

(i) complies with the penal laws of the State;

(ii) conforms with the terms of the contract and directives of the State or district attorney;

(iii) does not exercise independent prosecutorial discretion;

(iv) contacts any alleged offender referred to in subparagraph (A) for purposes of participating in a program referred to in such paragraph--

(I) only as a result of any determination by the State or district attorney that probable cause of a bad check violation under State penal law exists, and that contact with the alleged offender for purposes of participation in the program is appropriate; and

(II) the alleged offender has failed to pay the bad check after demand for payment, pursuant to State law, is made for payment of the check amount;

(v) includes as part of an initial written communication with an alleged offender a clear and conspicuous statement that--

(I) the alleged offender may dispute the validity of any alleged bad check violation;

(II) where the alleged offender knows, or has reasonable cause to believe, that the alleged bad check violation is the result of theft or forgery of the check, identity theft, or other fraud that is not the result of the conduct of the alleged offender, the alleged offender may file a crime report with the appropriate law enforcement agency; and

(III) if the alleged offender notifies the private entity or the district attorney in writing, not later than 30 days after being contacted for the first time pursuant to clause (iv), that there is a dispute pursuant to this subsection, before further restitution efforts are pursued, the district attorney or an employee of the district attorney authorized to make such a determination makes a determination that there is probable cause to believe that a crime has been committed; and

(vi) charges only fees in connection with services under the contract that have been authorized by the contract with the State or district attorney.
15 U.S.C.A. � 1692p (West).

Are you this rushed to jump to conclusions with everything? I don't get it. Slow down.
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Jeff, 18 Sep 2012 @ 2:29pm

Re: Re: Re: Re: Let's not gloss over...
The only valid points you have made here are in this post.

If my other posts have not cleared it up then I will briefly summarize.

1. It was her responsibility to see that the check had cleared.

2. It was her responsibility to immediately make good on the payment when it was discovered that something went wrong *regardless* of where the breakdown was. If her check could not be honored for whatever reason that doesn't mean she gets to play for free.

3. If she were financially responsible enough and acted in a diligent manner this never would have escalated to where it did.

4. Only writing a check that you do have the AVAILABLE funds for at the time it is written, not if the deposit you are going to try to make the next day gets posted before the check is presented for payment in all but the rarest cases will avoid this, and in the rare cases where it fails to do so you can not be convicted.
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Gwiz (profile), 18 Sep 2012 @ 2:33pm

Re: Re: Re: Re: Let's not gloss over...
They say she wrote a bounced check, and you say that not only did she do it, she willingly and maliciously did it.

That's a good point. Not really sure about all the laws in California, but I think "willfulness" plays into determining whether a bounced check can be a civil offense or a criminal one. All I have seen stated is that in CA it can be one or the other and it is determined by the court.
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RD, 18 Sep 2012 @ 2:34pm

Re: Let's not gloss over...
"She didn't discover this check had bounced when she got the letter she knew damn well when she wrote it or wrote others around the same time that one or more would not be good.

There is nothing to see here, short of a thieving POS that got caught."

Yeah kinda like how I just recently got a call where they asked "Are you RD?" and when I said yes they immediately asked me to give them my SSN to "verify" something. They REFUSED to tell me who they were, why they were calling, or what it was about until I confirmed the SSN. I even offered to let them tell ME what it was and I would verify, but not, they insisted I TELL THEM my SSN. Yeah, right. They could be anyone. Perhaps it was a legit debt (I doubt it, I dont have any debts or outstanding old unpaid bills) but seriously, if they are going to be so deceptive and it appears I am being scammed for my personal financial info, how are we as consumers supposed to believe anything they say?

I told them there was no way I was giving them my SSN and the lady got all mad. I mean, YOU called ME asshole, then get mad? Whatever. She said "we cant continue with this matter then." Ok...so what then? There is no "matter" as you wont verify to me what (or even IF) there is one to begin with. I said "ok fine, whatever, bye" and havent heard from them since.
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Gwiz (profile), 18 Sep 2012 @ 2:36pm

Re: Re: Re: Re: Re: Let's not gloss over...
..It was her responsibility to immediately make good on the payment when it was discovered that something went wrong..

Going by her statement that was when she received the above letter, so....
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Chosen Reject (profile), 18 Sep 2012 @ 2:54pm

Re: Re: Re: Re: Re: Let's not gloss over...
1. Correct, it is her responsibility. But not fulfilling your responsibilities is not the same as being a willful and malicious "thieving POS" as you describe her.

2. How do you know she hasn't made good on the payment? You're the one accusing her of knowing "damn well", but there is no evidence (in this article anyway) that she knew, or that she hasn't tried to make it good since knowing.

3. Perhaps the check bounced through no fault of her own. There are lots of reasons for not having the money in your account that you think you do beyond not being financially responsible. How much time occurred between the check bouncing and her receiving this letter? Do you know? I would suspect there's a fair amount of time between, but do you know for sure in this case? I can easily imagine scenarios where it could be close to 2 months between her writing of the check and her seeing it on a bank statement. Not everyone uses online banking.

4. It needs to be said again. Checks can bounce through no fault of your own, no matter how diligent you are about how much is in your account. Banks make mistakes. I know because I worked in the check processing facility for a couple of banks. It happens.

She may well be a thieving POS. She may well have known that she was writing bad checks. Until all the evidence is laid out, though, lay off the heavy accusations.
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Jeff, 18 Sep 2012 @ 2:58pm

Re: Re: Re: Re: Re: Re: Let's not gloss over...
If she did not discover it until this point then she was negligent, derelict if you will in managing her finances.
I love how the date that the check was written was left out of this.... I'll assure you it wasn't written in 2012, you know as well as I do that her actions, were either willful or neglectful for it to have escalated to this manner, the only other possible case here is that the check cleared her account and the debt was reported in error.
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John Fenderson (profile), 18 Sep 2012 @ 3:07pm

Re: Re: Re:
If anything, it seems like she'd rather "avoid" the due process of a fraud conviction.

Why do you assume that there was fraud? Bouncing a check is not necessarily fraud. It could have been a mistake.
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John Fenderson (profile), 18 Sep 2012 @ 3:08pm

Re: Missing the point
Intentionally passing a bad check is a crime.
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That Anonymous Coward (profile), 18 Sep 2012 @ 3:10pm

Re:
Do not forget the group that setup their own kangaroo courthouse. They had their agents show up and drag people there, put them infront of the "judge" and made truly disgusting threats to get people to pay.
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That One Guy (profile), 18 Sep 2012 @ 3:37pm

Re: Re: Let's not gloss over...
I hope you reported the number to whoever is responsible for dealing with people like that; while you were smart enough to realize you were talking to someone trying to scam you, there's enough idiots out there who would fall for that completely to keep scum like that busy for their entire lives.
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That One Guy (profile), 18 Sep 2012 @ 3:41pm

Re:
Just find out who they send the kickbacks to, and tell them it's for 'official business' and they should send some your way.
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Milton Freewater, 18 Sep 2012 @ 3:55pm

Re: Let's not gloss over...
"She didn't discover this check had bounced when she got the letter she knew damn well when she wrote it or wrote others around the same time that one or more would not be good."

People bounce checks accidentally all the time. I did it once myself - my credit union covered it and billed me for the amount plus fees.

"thieving"

Now it makes sense ... cookies are awarded to everyone who works the word "thieving" into a TechDirt post and you want one. Does it still count if you type "thiefing"?
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Milton Freewater, 18 Sep 2012 @ 4:01pm

Re: Re: Re: Re: Re: Re: Re: Let's not gloss over...
"If she did not discover it until this point then she was negligent, derelict if you will in managing her finances."

True. I also wonder what causes a bank to turn a debt over to a collection agency. She must have deposited exactly zero dollars in the account from that moment to this.
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average_joe (profile), 18 Sep 2012 @ 4:56pm

Re: Re: Re: Re:
Why do you assume that there was fraud? Bouncing a check is not necessarily fraud. It could have been a mistake.

I don't know the facts of her case. Maybe there was an intent to defraud, and maybe there wasn't. I'm trying to understand the "due process" that this system is so evilly set up to "avoid."

Now, why aren't you asking Mike why he assumes that hundreds of district attorneys are so stupid that they're violating federal debt collection law? Isn't it more likely that the DAs know the law and are working within it?
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That One Guy (profile), 18 Sep 2012 @ 5:06pm

Re: Re: Re: Re: Re:
Or alternatively, they know they are untouchable, and don't care if they bend or break a few laws if it means some kickbacks sent their way.
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abc gum, 18 Sep 2012 @ 5:34pm

Re: Re: Re: Re: Re: Let's not gloss over...
Wow - keep digging that hole.
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abc gum, 18 Sep 2012 @ 5:41pm

What a sweet deal the collection people have here .. this would never be abused - no not at all - trust me on this one.

It could be a precursor to test the waters before rolling out the "you're a pirate" program.
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Milton Freewater, 18 Sep 2012 @ 5:52pm

Re: Re: Re: Re: Re:
"Now, why aren't you asking Mike why he assumes that hundreds of district attorneys are so stupid that they're violating federal debt collection law? Isn't it more likely that the DAs know the law and are working within it?"

Seriously? All you've got to say is 'If it was illegal they wouldn't do it'? And how many times have you posted on this thread?
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Milton Freewater, 18 Sep 2012 @ 6:12pm

Due process
Just for the record, the term "due process" is introduced in this piece in repose to a quote from a former DA in the original article. The QUOTE inadvertently offers a defense for end-running around due process on top of its intentional defense of these letters.

The article does not in any way claim these letters violate anybody's "due process." It merely points out that the letters are lying by implication, Bill Clinton-style, and that we should expect more from the use of our taxpayer dollars.

What is it about this blog that cut people's reading comprehension skills in half? Other blogs don't seem to have this problem.
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Anonymous Coward, 18 Sep 2012 @ 6:18pm

1) It is not a crime to bounce a check. It is a crime to write a check knowing that there are not sufficient funds to cover that check, at the time of writing.
2) The DA's office gets a percentage of the class fees.
3) The prosecutors may be in violation of Professional Responsibility standards, and could lose their licenses to practice law.
4) Because it is being sent under guise of the prosecutors office, the Prosecutor who signs the letter is obligated to investigate whether an actual crime may have been committed.
He or she is required to investigate the facts of each letter he or she signs. Or He or she may be committing a crime. Oops.
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average_joe (profile), 18 Sep 2012 @ 6:18pm

Re: Re: Re: Re: Re: Re:
Seriously? All you've got to say is 'If it was illegal they wouldn't do it'? And how many times have you posted on this thread?

Huh? I said more than that. I quoted "� 1692p. Exception for certain bad check enforcement programs operated by private entities." The point being that there is a perfectly good explanation for this that doesn't involve hundreds of district attorneys being so dumb that they're illegal selling their letterhead to debt collectors in violation of federal law. Give me a break. It's much more likely that the DAs are operating within this � 1692p exception, and that, given the fact that their job in life is (literally) to understand the law and to prosecute those who violate it, they were more careful in researching the law on point than Mike was (which means greater than zero, 'cause Mike didn't research it). Debt collection of a sum certain is pretty basic stuff. To think that all these DAs don't understand the rules on such a simple legal issue is ridiculous. Impugning these DAs based on a flimsy assertion from an admitted non-expert, as Mike has done here, is reckless and stupid. This post represents all that is wrong with Techdirt.
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Thomas (profile), 18 Sep 2012 @ 7:04pm

Just goes to show
that District Attorneys take bribes too. Interesting. How much do the debt collectors pay the DAs? Do the DAs get a percentage of money collected?

And no one seems to think this is a criminal thing? Of course not! The district attorneys are not going to prosecute themselves.

So if anyone had doubts that District Attorneys can be corrupt the question is a resounding YES.
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average_joe (profile), 18 Sep 2012 @ 7:17pm

OMG! 30 more seconds of research turned up this silly statute:
� 1001.60. Resolution for and adoption of program; writing bad check defined

Upon the adoption of a resolution by the board of supervisors declaring that there are sufficient funds available to fund the program, the district attorney may create within his or her office a diversion program pursuant to this chapter for persons who write bad checks. For purposes of this chapter, �writing a bad check� means making, drawing, uttering, or delivering any check or draft upon any bank or depository for the payment of money where there is probable cause to believe there has been a violation of Section 476a. The program may be conducted by the district attorney or by a private entity under contract with the district attorney.
Cal. Penal Code � 1001.60 (West) (emphasis added).

Crazy. The California legislature gives district attorneys the authority to enter into contracts with private companies to form bad check diversion programs. Wow. Who would have thunk that maybe the district attorneys are acting under some weird direct authority when contracting with collectors for debt collection?

Not Mike. He just assumes the DAs are all lawbreaking idiots.

Can you not even admit that maybe, just maybe, you jumped to a conclusion prematurely, Mike? You might be surprised how an inch of honesty can lead to a mile of respect. You don't have to be an extremist to get your point across. In fact, I bet you'd be a much more effective advocate if you weren't so extreme. Too scared to try? Or is just a fundamental aversion to telling the truth?
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abc gum, 18 Sep 2012 @ 9:03pm

Re:
Yes, that makes it all ok then. You see, it is no big deal because the black ink on paper says so. I fell so much better.
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btrussell (profile), 19 Sep 2012 @ 3:02am

Re:
"OMG! 30 more seconds of research..."

It took you almost 5 hours to copy/paste that?
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abc gum, 19 Sep 2012 @ 4:57am

Re:
We can't let details get in the way of a good tirade now can we? I'm sure there are many more out there who have not yet vented their anger towards those accused of bouncing a check.
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average_joe (profile), 19 Sep 2012 @ 5:07am

Re: Re:
It took you almost 5 hours to copy/paste that?

Biting repartee! Wow!

Um, I read a whole bunch of IP law and learned a bunch of new stuff in the meantime (currently trying to master publicity rights). Then I thought, "I wonder if there's something in CA state law about these diversion programs?" 30 seconds later, I found that statute.

Imagine what Mike would know if he spent even 30 seconds researching a point of law before accusing hundreds of DAs of being lawbreakers. I know, I know. Never gonna happen. He's too busy lashing out in hatred at the world.
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Ninja (profile), 19 Sep 2012 @ 6:03am

Re: Re: Updated
Are you this rushed to criticize any article that points wrongdoing? No one gets it. Slow down.
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Ninja (profile), 19 Sep 2012 @ 6:07am

Re: Re: Re:
Law! It's the Law! Because the Law! Law!

Obnoxious and missing the point as always.

Also, LAW! LAW! LAW! LAW! LAW! LAW!

Ahem. As far as I could understand nothing you pasted as if it was some sort of triumph actually says anything about what the article is pointing... May I suggest refining your search terms? Or rather, reading comprehension classes..
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Anonymous Coward, 19 Sep 2012 @ 6:14am

Re:
I wonder if you can point out to me precisely where any of your heavily researched examples says that it is legal for a government office to give their letterhead to private third parties?

Of course you can't.

And let me head you off with the "show me where it says it's illegal, hurr hurr." I'm not going to bother researching, it's pretty well known that it is illegal to impersonate a government entity, which is exactly what this ruse is playing on, that people will pay up in fear of legal repercussions, when in fact the matter is a civil one. It is deceit, pure and simple, and for you to pretend otherwise just shows yet again what a lying shithead you are.
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notbob (profile), 19 Sep 2012 @ 6:18am

blame the alleged victim?
Seems a lot of respondents would rather dump on the alleged victim than address the real issue, which is govt agencies aiding shady businesses. I am one who discovered an arrears debt. Cost me $150 merely to discover its existence. Turns out I was arrears on a cable service bill I was not even aware of. I settled in full when I moved. Or so I thought. I'm still am not aware of from what/where/when this debt arises. What? The service later discovered more charges after I closed my acct? I do not know. I only know it's a situation that was unintentional and will be resolved.

BUT! ....that's not my story, which is: I moved to care for my Alzheimer mom. She has several debts of which I cannot cover. She can, but won't. Regardless, she/I are now being harassed by a shady bill collector that is using the threat bogus legal proceedings to pursue one of my mom's debts. The dirtbag has gone so far as to lie --whatta shock!-- about my mom having a court date next week on this alleged debt. A check with the county court confirms it to be a untrue.

I recall when the CA legal system came down heavy on shady lender, going so far as to file a govt class action suit against them, which they later won and shut this rather large company down. Now, I see the Alameda County (where I once lived) giving another shady lender aid in shaking down alleged defaulters.

Can you say "graft"?
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average_joe (profile), 19 Sep 2012 @ 6:23am

Re: Re:
The collector is an agent of the district attorney, so there's no impropriety in the agent using the principal's letterhead.
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JMT (profile), 19 Sep 2012 @ 6:34am

Re: Re:
"I wonder if you can point out to me precisely where any of your heavily researched examples says that it is legal for a government office to give their letterhead to private third parties?"

Never mind legal, how about moral? Joe's been up on his moral high horse a lot lately, so perhaps he can explain how it's moral or ethical for DA's to allow private parties to obviously impersonate them for the sole purpose of intimidation?
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Anonymous Coward, 19 Sep 2012 @ 7:02am

Re: Re: Re: Re: Re: Re: Re: Let's not gloss over...
I'm so very glad that you aren't a member of our legal system. You make a mockery of due process and decide you're going to stand by it because you know, without all the evidence or even the whole story, that you are right and she's gotta pay. Whatever your day job is, please, don't quit.
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Titania Bonham-Smythe (profile), 19 Sep 2012 @ 7:40am

I'm in the UK and got a speeding ticket but was allowed to attend a driver speeding awareness class instead of being given an endorsement that would have come with 3 points on my license (get 12 points within 3 years and you lose your license).

This was great because I paid the same amount I would have paid for a fine, didn't risk losing my license and my insurance rates didn't go up.

The reason they do the class is that there is evidence to show it actually reduces the amount of speeding.

The reason I'm saying all this is because it's entirely positive. They're not doing it to generate a profit or even to reduce government costs, they're doing it to make the roads safer.

On the other hand, charging a penalty in the form of a compulsory class to someone who bounces a cheque is highly unlikely to penalise them for an appropriate dollar value. They're probably on the breadline and the financial penalty increases the need for them to commit a similar offence next time. And how much of an offence is it? It's certainly cheating someone temporarily out of money you owe them but it is not an intention to permanently deprive someone of what is rightly theirs. And it can happen by accident as well as on purpose.

Finally, if I bounce a cheque in the UK my bank is likely to charge me for doing it, which is all the penalty I need to stop me doing it. I don't need a queue of people behind them waiting to penalise me too.
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average_joe (profile), 19 Sep 2012 @ 8:01am

Re: Re: Re:
Never mind legal, how about moral? Joe's been up on his moral high horse a lot lately, so perhaps he can explain how it's moral or ethical for DA's to allow private parties to obviously impersonate them for the sole purpose of intimidation?

There is no impersonation. These collectors are the agents of the district attorneys, operating under authority granted to them for the purpose. Federal law allows this (I quoted the law above), and California law allows it too (I quoted the law above). Collection of a sum certain is pretty mundane. The fact that someone wrote a bad check is prima facie evidence of fraud. If they have some defense, e.g., the check was postdated or there was an error at the bank, the system in place allows them to make those arguments and pursue those defenses. I think this system is great. People who write bad checks get a chance to avoid criminal charges and get to attend classes where they learn responsible money management techniques, and district attorneys' offices don't get bogged down on enforcement since their agents handle it. And best of all, the actual victims, i.e., the people who received the bad checks, get their money.
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Mike Masnick (profile), 19 Sep 2012 @ 8:08am

Re: Re: Updated
I didn't "jump to conclusions." I saw an interesting article from someone with about the same experience as you, and added it to the post for people to look at. You've now added some more details, from which we can all learn, which is helpful and why we leave comments open.

Once again: we post what we find interesting and we leave comments wide open for discussion, knowing that people will add to it. Some people do so nicely. Some people... not so much.
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average_joe (profile), 19 Sep 2012 @ 8:45am

Re: Re: Re: Updated
I didn't "jump to conclusions." I saw an interesting article from someone with about the same experience as you, and added it to the post for people to look at. You've now added some more details, from which we can all learn, which is helpful and why we leave comments open.

Once again: we post what we find interesting and we leave comments wide open for discussion, knowing that people will add to it. Some people do so nicely. Some people... not so much.

Wow. Not very honest, are you? You didn't just link to what he wrote. You said it was "likely" that hundreds of DAs were violating federal law "in a very, very big way." You jumped to the conclusion that this guy's 10 minutes of research was plausible and likely.

It's a total cop-out to pretend like it's OK for you to make unsubstantiated accusations that hundreds of DAs are violating federal law because readers can correct your ridiculous mistakes in the comments. You should do a little bit of research in the first place so your arguments have an informed basis.

Are you really admitting that you don't know what you're talking about in your articles and it's all OK because the comments are available? I doubt it. But that's exactly what you're saying. What a ridiculous excuse.
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John Fenderson (profile), 19 Sep 2012 @ 9:20am

Re: Re: Re: Re: Re:
Now, why aren't you asking Mike why he assumes that hundreds of district attorneys are so stupid that they're violating federal debt collection law?

Because that was already covered in the other comments here.

But there is a difference: whether or not whether what the DA's are doing is illegal, it's certainly deceptive and cheapens the value of the DA letterhead, so it calls into question their sense of ethics and judgement.

But if a person bounces a check accidentally, that doesn't say anything about the ethics and judgement of that person.
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Anonymous Coward, 19 Sep 2012 @ 9:33am

Re: Re: Re: Re:
And best of all, the actual victims, i.e., the people who received the bad checks, get their money.

Let's just address this last bit, because you seem to not understand how this works. "The people who received the bad checks" sold this debt to a scummy debt collector for pennies on the dollar, so they have already got "their money". If the debt collector is successful in collecting, they do not forward any of the recovered funds to the original debtor.

Debt collectors are known for their sleazy practices which include threats (both legal and physical!), outright lying, and now, whether you will admit it or not, impersonating a government agency.

So now that you know that you are defending one of the scummiest, barely legal industries in existence and not the poor put-upon victims of check fraud, will you back down? Somehow I very much think you won't.
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Mike Masnick (profile), 19 Sep 2012 @ 11:17am

Re: Re: Re: Re: Updated
Are you really admitting that you don't know what you're talking about in your articles and it's all OK because the comments are available?

Are you really admitting that you took what I said totally out of context and are now acting like a total idiot in misinterpreting it?

I doubt it. But that's exactly what you're saying.

I doubt it. But that's exactly what you're saying.
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Anonymous Coward, 19 Sep 2012 @ 11:42am

There is no FDCPA exemption unless the DA actually reviews the file and decides probable cause. This generally doesn't happen, since the checks go straight from the merchant to the collector.
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average_joe (profile), 19 Sep 2012 @ 11:43am

Re: Re: Re: Re: Re: Updated
What I'm saying is simple: Before you get all excited and edit an article to add some half-baked theory about how hundreds of DAs are violating federal law, maybe put in a bit of research and thought. Trying to spin this like you can publish anything you like, no matter how poorly researched or thought out, because the comments are a vehicle of pointing out your errors is ridiculous. You would tear apart others if they tried to spin their nonsense that way. I'm calling you out on it. Instead of jumping to conclusions and letting your bias blind you, slow down, do some research, and give these things the thought that they deserve. Take some responsibility for what you publish. I know you think you're not a journalist, you're just a person who does journalism (LOL!), but that's just a bullshit spin you put on your laziness. If you want to be taken seriously, put some serious effort into your articles. This is just basic stuff. If you weren't so unable to look at yourself the way you hyper-focus on others, you would see that what I'm saying makes sense. There's no need to be such a reactionary extremist. You have good ideas. Hiding behind an arrogant facade (for example, being incredible mean towards Prof. Mossoff because of his article) doesn't get you as far as just being polite (yet forceful) would. There's no need for the extremism.
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Paul Arons (profile), 19 Sep 2012 @ 11:47am

Re: Missing the point
Passing a bad check is not a crime unless you know it's bad and are intending to rip-off the merchant. Just like using a credit card knowing you're not going to pay the bill is a crime. The real crime here is that DA's are allowing collection agencies to use DA's letterhead and authority to make phony threats, to extort hundreds of dollars in fees, on top of the check.
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Paul Arons (profile), 19 Sep 2012 @ 11:49am

Re: Re: Re: Re: Re: Let's not gloss over...
It's not yet a crime to be financially irresponsible. If it was, all of Wall Street would be in jail.
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Paul Arons (profile), 19 Sep 2012 @ 11:51am

Re: Re: Re: Re: Re:
Actually, the DA's don't care what the law is. They care what they can get away with.
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art guerrilla (profile), 19 Sep 2012 @ 12:19pm

Re: Re: Re: Re:
thank you...
that appears to be below-average joe's response to everything: b-bu-but its The Law (chorus of angels singing in the background)...
doesn't give a shit about the underlying 'morality' or efficacy of The Law, merely that it IS The Law...
what a tool...

below-average joe in 1776:
b-bu-but its against The Law to revolt against The King ! ! !
below-average joe in 1950's:
b-bu-but its against The Law to eat at a 'white's only' lunch counter ! ! !
below-average joe today:
b-bu-but its against The Law to steal intangible, infinitely reproducible, worthless bits ! ! !
*snort*

remember kampers, authoritarians are approx 25% of the population: their very survival depends upon doing EXACTLY as Big Daddy tells them, with NO QUESTIONS asked...

art guerrilla
aka ann archy
eof
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Gwiz (profile), 19 Sep 2012 @ 12:23pm

Re: Re: Re: Re: Re: Re: Updated
Trying to spin this like you can publish anything you like...

Umm. Mike can publish anything he likes on his own site, AJ.

He could write a post saying the moon is filled with marshmallow cream if he wanted to. This isn't a news site, it's an opinion blog.

We don't you go and fact check for the main stream media outlets, they get more shit wrong every day than Techdirt does in a year.
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Gwiz (profile), 19 Sep 2012 @ 12:28pm

Re: Re: Re: Re: Re: Re: Re: Updated
er..*Why don't you..
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Anonymous Coward, 19 Sep 2012 @ 12:43pm

Re:
How about the part that says where there is probable cause to believe there has been a violation of Section 476a.? They, like you, fly off the handle and immediately assume there is probably cause. What investigation was done to prove this? Any at all? Or are they just jumping directly to the accusation part? Since we're talking about criminal, not civil, law, wouldn't it stand to reason that they would need to gather evidence to prove their case?
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Anonymous Coward, 19 Sep 2012 @ 12:56pm

You got it right. There is zero investigation. Everyone who wrote a bad check and didn't pay it right away receives a letter that seems to come from the DA, saying essentially, pay $200+ for a diversion class, or risk getting prosecuted. The letter is a lie b/c it's not from the DA, there's no evidence of a crime other than the unpaid check, and almost no one is ever going to be prosecuted.
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average_joe (profile), 19 Sep 2012 @ 1:14pm

Re:
There is no FDCPA exemption unless the DA actually reviews the file and decides probable cause. This generally doesn't happen, since the checks go straight from the merchant to the collector.

The level of review necessary has been the subject of court battles, so I would assume the DAs are doing at least the minimum. Do you have any evidence that the DA in this particular case didn't examine the file sufficiently?
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average_joe (profile), 19 Sep 2012 @ 1:16pm

Re:
You got it right. There is zero investigation. Everyone who wrote a bad check and didn't pay it right away receives a letter that seems to come from the DA, saying essentially, pay $200+ for a diversion class, or risk getting prosecuted. The letter is a lie b/c it's not from the DA, there's no evidence of a crime other than the unpaid check, and almost no one is ever going to be prosecuted.

How did you determine that there is "zero investigation" in this particular case? The letter is from the DA in that the DA authorized it via its agent, so I disagree with you there.
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Paul Arons (profile), 19 Sep 2012 @ 1:34pm

I am one of the lawyers who has been battling these folks for years. I have looked at their procedures. They are a collection agency. With almost no exceptions, they will attempt to collect on any check sent to them by a merchant or other debt collector. They only require basic check information and the claim that the merchant tried to collect and didn't get paid within 10 days. Then, almost the only way to stop getting the threatening letters is to prove to them that you did not write the check. No amount of proof that you did not have criminal intent will stop the letters, emails and phone calls. And the fees are ridiculous, like a $5 "overpayment fee", to get a refund if you accidently paid them more than they were asking.
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Gary, 19 Sep 2012 @ 2:43pm

Re: Re: Re: Let's not gloss over...
Perhaps you should quit being a damned troll fool............fuck you
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Gary, 19 Sep 2012 @ 2:50pm

Re: Re: Re:
You,really just another troll asshole!
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Gary, 19 Sep 2012 @ 8:54pm

Re: Re: Re:
You,really just another troll asshole!
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Gary, 19 Sep 2012 @ 8:55pm

Re: Re: Re: Let's not gloss over...
Perhaps you should quit being a damned troll fool............fuck you
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Anonymous Coward, 19 Sep 2012 @ 10:42pm

Re: blame the alleged victim?
If your mom has debts that she is refusing to pay and she has Alzheimer's, then you need to get power of attorney over your mom's affairs. It is going to be hard on you, as a loving son/daughter. You do not want to defy your mom's wishes, but if she is making bad decisions with legal consequences, then something has to be done to fix the problem.
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Niall (profile), 20 Sep 2012 @ 4:47am

Re: Re: Re: Re: Re: Re: Let's not gloss over...
No, anyone earning less than $40k would be in jail, anyone earning between $40k and $100k would be on probation...

Remember, they are guilty of Felony Being Poor, and Felony Depriving Corporations Their Profits By Not Having Money To Give Them.
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mirza05, 4 Oct 2012 @ 8:41am

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