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Debt Settlement Attorney Wants to Know if Debt Settlement Companies Suffer From a Fundamental Flaw

I received the following communication from a Greg Fitzgerald, debt settlement attorney who raised some excellent questions regarding the fiduciary duty and responsibility of debt settlement companies and the issues surrounds the unauthorized practice of law.

I think he has raised some good thought provoking questions and I’d love for readers to weigh in by posting feedback in the comments section.

Debt Settlement Attorney Wants to Know if Debt Settlement Companies Suffer From a Fundamental Flaw
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I have come to believe that your site is “as advertised” in that you are trying to do what is best for consumers. It seems you and many of your contributors are genuinely trying to get at the truth of the matter in regards to the “debt settlement industry”. I sincerely hope your stated goals and that of AACC are successful. The purpose of this letter is to hopefully add to that objective. Despite my best efforts, I am unable to overcome an analysis that debt settlement companies suffer from a fundamental flaw. My hope is that your readers/contributors can educate me as to any flaws in my analysis.

At the outset I want to be clear that I do believe in debt settlement as a debt relief option. There is a segment of the population for which it is exactly the correct remedy. I believe that anyone who says there is no place for debt settlement is dead wrong. There are consumers for whom BK or DMPs are not the best options. While debt settlement can and does work, it is also true is that it is not for everyone. Unfortunately, over the past several years many in the debt settlement industry acted like debt settlement was the best option for everyone and overstated what they could do. These marketing and performance abuses have dominated the debate and the resulting regulatory/legislative/judicial actions now threaten the industry as a whole. In response, many in the industry are touting an admirable but not altogether new concept: put the consumer first. My first concern is: given that it is the provider who will be determining “what is in the best interests of the consumer” (presumably during a sales pitch), exactly how will that be done?

In my view, far more insidious than the unsubstantiated claims made by bad operators, is the DSC that does not “oversell”, but who nonetheless enroll consumers who have other, better, alternatives. That is, those DSCs that accept customers who should not be in debt settlement. My question is not so much about who is a suitable debt settlement candidate, but rather how they are qualified as such. How does the DSC make the decision that its services are the best option to the exclusion of other debt relief options? There is an inherent conflict in suggesting a particular course of action over others when the provider only performs one of the available debt relief services. The same is true for BK lawyers who only provide BK services.

The propensity for self-dealing is not so much an evil thing as it is a natural component of nearly every business relationship or transaction. The abuses seen in the debt settlement industry in recent years have forced regulators to address the issue. California’s pending legislation SB 708 mandates a fiduciary relationship that requires DSCs to do what is best for the consumer and in fact put the consumer’s interests above that of its own. That is the stated goal of AACC, and TASC is apparently talking the same game. So at least in this respect, everyone agrees: the best interests of the consumer come first. Unfortunately, unlike TASC suggests, the mere changing of the words used is not enough. The conflict still exists. It is what we do, not what we say, that counts.

Given this conflict, the sufficiency of the qualifying process becomes extremely important. It is this process, which does not end at the time of enrollment, that I believe to be fundamentally flawed. It seems that in order to determine the best course of action for the consumer, all possible debt relief options must be reviewed and weighed against each other, including DIY. It is not enough that the DSC has not misrepresented its services and made all the appropriate disclosures. They must do more if they are going to put the consumer’s interests before their own. And they must do this until the services are completed. The time necessary to complete the services many times results in changed circumstances such that debt settlement may not remain the best option. While the upfront qualifying analysis may be correct, the customer’s circumstances change over time (lost job, health, particularly aggressive collector) such that the analysis should be reviewed regularly in order to insure the best interests of the consumer are being advanced at all times rather than just at the time of enrollment. Perhaps the most common example is the consumer who couldn’t file BK because he made too much money at the time he hired the DSC, but then gets a pay cut and becomes eligible. What does the DSC do then? Does it go to its customer and say: you should consult a BK attorney now?

The fact is that from a strictly cost/benefit analysis, BK, if available, generally provides the best all-around relief from debt and debt collectors. Not always, but many times. The law today is that only lawyers can provide that advice. Therefore, the question remains: how does a DSC make this determination? On the one hand, BK, given its possibly superior financial advantages, must be part of the qualifying analysis. On the other hand, if the DSC does provide advice in this area, it is engaging in the unauthorized practice of law. Isn’t this a Catch 22 for all DSCs? Is there a way the DSC can provide the BK analysis and not be engaged in UPL? Does the DSC only enroll customers after a BK attorney has informed them BK is not an option? Isn’t the suggestion that the potential customer hire the DSC rather than file BK providing legal advice? Isn’t offering debt settlement services to a consumer who has not been consulted about BK (by the DSC or an attorney) failing to act in the best interest of the consumer?

Let’s assume that the consumer is referred to the DSC by a BK attorney who has determined the consumer is not eligible for BK. I think it is pretty well accepted that the ability to settle accounts for less than 100% can only be achieved when the borrower is in default. Default is actually a breach of a contract and can anyone other than a lawyer counsel consumers about breaching their contracts? (Again, in theory they can, but generally are not allowed to). I suppose the DSC does not have to tell the consumer to stop making payments as mandated by the FTC, but with all due respect to the FTC, a consumer who continues to make payments frustrates the ability to settle debt for less than 100%. The DSC is in another Catch 22 in that it can’t advise consumers to stop paying their credit cards, but nor can it be effective if they don’t. Does it have an obligation to inform its customers of this problem? What is the solution?

Let’s now assume that the potential customer is not eligible for BK and has already defaulted on his credit cards prior to contacting the DSC. The debt settlement analysis still requires a thorough review of individual finances and a great deal of experience across all aspects of the collection landscape. The best interest of the consumer requires a discussion of all possible ramifications. Particularly when the ramifications include lawsuits, wage garnishment, real property liens, etc. Clearly these are legal ramifications that appear to require legal advice. Are reputable DSC’s referring these customers to lawyers for a consult when this happens? Are they reassessing the appropriateness of their services with an eye towards possibly telling the customer that they, the DSC, are no longer the best option for them and should therefore cancel? Shouldn’t they be? I assume what happens is the DSC goes into hyper settlement mode in hopes of avoiding judgment against its customer. Fact is, the defense of an action is an important tool that should be made available to the consumer as appropriate. More to the point for purposes of this discussion, shouldn’t the DSC customer be thoroughly consulted about all these issues? Doesn’t that have to be by a lawyer? How does the DSC maintain the best interests of the customer in this situation?

There are a myriad of other issues (that can be quite complicated and consumer and/or account specific) that seem to require a legal analysis. What does a DSC do when the statute of limitations for an account has expired? The accounts are still collectible sure, but should they be paid? What about consumers who only have “exempt” income and no other assets? Are they advised that, by law, the collector should never be able to enforce a judgment? What is “exempt” income? Isn’t that legal advice? Shouldn’t all of this, in the best interests of the consumer, be disclosed to the consumer and doesn’t that disclosure require some legal analysis? What about which account to settle and when? Does the DSC use the customer’s $1000 to settle the debt buyer account for 10% (knowing they can’t or won’t sue, and by the way, earn more fees for the DSC) or do you use it to settle the Discover account at Zwicker for 50% who has sued? Don’t you have to discuss the lawsuit and its ramifications when securing this customer’s settlement approval?

What about the documentation that memorializes any settlement? Certainly it is in the consumer’s best interest that these settlement agreements be enforceable (I‘ve seen far too many that are not to be told this is not a problem). I assume that when the documentation is deficient the DSC rejects it and seeks something that adequately protects its customer from future collection on the account. Doesn’t that require some legal analysis as to what is or is not adequate? In my practice I can’t tell you the number of times I have to use that documentation to stop zombie debt and sue collectors. This is by no means an exhaustive list of concerns. Other concerns include settling post judgment accounts and direct interactions between creditors and consumers.

Again, I want to be clear: my concern is not the actual answers to these questions. It is that the best interests of the consumer require that the consumer be fully apprised on all issues so they can make informed decisions for themselves.

Yes, I am a lawyer. I do debt settlement. I defend collection cases daily. I file FDCPA claims regularly. I do not file BK cases. I have nothing against DSCs as many provide a very valuable service. Like you, I am genuinely interested in promoting what is best for the consumer. My only objective is to assist consumers in overcoming their debts, using whatever tools are available. In my mind, the more arrows in the quiver the better. One such arrow may be the DSC. In 20 years of practice I’ve repeatedly seen non- lawyers outperform attorneys. It seems to me however that, whether we like it or not, legal advice is necessary to determine which weapon is best suited for the consumer and that continuing legal advice is usually needed until the consumer is entirely debt free. It seems the Holy Grail for DSCs is to discover how they can put the best interests of the consumer first without providing the legal advice necessary for full disclosure and informed decision making. I’m hopeful someone can explain to me how this can be done.

Warm regards,
Gregory Fitzgerald, Esq.

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About Steve Rhode

Steve Rhode
Steve Rhode is the Get Out of Debt Guy and has been helping good people with bad debt problems since 1994. You can learn more about Steve, here.
  • Greg

    I don’t really know enough about Legal Helpers to say for sure. My biggest concern is, and I suppose this goes for all “attorney model” debt settlement is: is there any actual attorney work going on? Are attorneys showing up each day and actually working on client files? Can you call legal helpers, demand to speak to an attorney and actually speak to one who knows something about your file? I would love to hear from Legal Helpers on how they qualify DS clients. Providing the exact same service as a DS under an attorney name is still just a DS in my view.

    As to Michael’s point, it seems to me there has to be a way to take the best of both worlds. The “local” lawyer has limitations. Consumer lawyers that actually have clients tend to be local while their counterparts such as the banks and collectors are national. The ability to interact with collectors/creditors on a national basis gives the consumer lawyer more power that can be used to the benefit of clients. The volume basis creates better influence and makes it affordable for both the attorney and the consumer. For example I can only provide the extensive collection defense I do because the cost to defend is supplemented by settlement fees. We don’t make any money defending collection cases (we charge a nominal defense fee but litigate agressively), but it does create better settlements, and therefore more fees. Its like the collection lawyer who doesn’t make any money when I defend the case because his model/fees are based on a high default rate. He must however continue the case in order to keep Citibank as a client. I feel I must do the same, if for no other reason than to keep the collector honest. The lawyer practicing only in his county will find it very difficult to properly rep these clients and still keep his/her door open.

    I think Steve’s site is a great way to help consumers. He honestly points people in the right direction. Those in the trenches actually providing services have a much more difficult task. I think Michael is right in that the DS landscape will change a lot in the next few years. I suppose those that really care about these consumers and the industry will find a way to make it work and those in it for the money will find something else to do.

  • Steve Rhode

    Greg,

    You raise a number of good and valid points. These are core issues to discuss so your submitting your letter for posting is much appreciated.

    The idea of self-serving is not a new one. I think even the best debt relief providers may wander one way or another a bit based on their expertise and frame of reference.

    The big problem I’ve seen over the past few years, especially with the debt settlement sites I’ve reviewed is when solutions like bankruptcy are vilified and portrayed erroneously in an effort to direct people away from bankruptcy and towards debt settlement. I can’t say I see the established credit counseling folks doing the same thing.

    In my own history, soon after my bankruptcy when I first started helping people I found myself subconsciously trying to guide people away from bankruptcy. For me at the time the freshness of the situation and my emotions surrounding my bankruptcy were very raw. But over time my point of view changed and I began to recognize that when creditors don’t want to participate with a repayment plan or there is no expectation a consumer could afford a repayment plan, then bankruptcy was a perfectly logical solution.

    The issues you raise surrounding the statue of limitations and asset status are relevant issues and in a perfect situation they should be addressed. And while I’ve love debt relief providers to operate in that perfect world, the goal right now is just to try to get the hogwash and BS that is flat out not true, out of the sales pitches.

    I’m with you, the role as a fiduciary is to do what is best for the consumer. That role needs to be taken very seriously and at least as I see it, there is little wiggle room. But some latitude seems appropriate to me when the advice given is based in the facts as the consumer has shared them and the solution recommended achieves those facts.

    You are right with your thoughts on the UPL issue especially if the DSC is knowingly provides false information about bankruptcy in an effort to make the DS sale. And I agree that ultimately it is a bankruptcy attorney that is licensed in the state the consumer lives in that has to make the determination about bankruptcy.

    It’s interesting that the apparent best solution is one of collaboration between debt relief providers. If the consumer is placed at the center of that circle of providers and the appropriate solution is presented, I think that is darn near the best outcome.

    But in the decision about what is best the debt relief provider can’t ignore the clients life goals and emotional state either. A suicidal consumer that is struggling with depression and hopelessness should be directed to speak with a bankruptcy attorney to afford themselves the quickest chance of putting the pain behind them. A debtor that can’t afford the credit counseling monthly payments but has an old car they want to sell should talk to a debt settlement provider. It’s the underlying nuances that come with experience that make this a tough profession.

    As far as how to achieve the Holy Grail of debt relief help, the way I saw to do this was the way I run this site. I answer reader questions and based on the information they provide to me I signpost people to the debt relief solution I think best meets their needs. Often I direct people to speak to a bankruptcy attorney and a debt settlement company and then come back with the information they learned so we can talk through it. I sell no debt relief services through this site.

    On top of that I have professionals from different backgrounds, and attorneys, who help to answer reader questions to educate others that might be in the same situation.

    In a long roundabout way my answer is the only way any debt relief provider can provide the best service is to put the consumer first in a fiduciary capacity. Anything short of that can certainly problematic.

  • http://GetOutOfDebt.org Steve Rhode

     Greg,

    You raise a number of good and valid points. These are core issues to discuss so your submitting your letter for posting is much appreciated.

    The idea of self-serving is not a new one. I think even the best debt relief providers may wander one way or another a bit based on their expertise and frame of reference.

    The big problem I’ve seen over the past few years, especially with the debt settlement sites I’ve reviewed is when solutions like bankruptcy are vilified and portrayed erroneously in an effort to direct people away from bankruptcy and towards debt settlement. I can’t say I see the established credit counseling folks doing the same thing.

    In my own history, soon after my bankruptcy when I first started helping people I found myself subconsciously trying to guide people away from bankruptcy. For me at the time the freshness of the situation and my emotions surrounding my bankruptcy were very raw. But over time my point of view changed and I began to recognize that when creditors don’t want to participate with a repayment plan or there is no expectation a consumer could afford a repayment plan, then bankruptcy was a perfectly logical solution.

    The issues you raise surrounding the statue of limitations and asset status are relevant issues and in a perfect situation they should be addressed. And while I’ve love debt relief providers to operate in that perfect world, the goal right now is just to try to get the hogwash and BS that is flat out not true, out of the sales pitches.

    I’m with you, the role as a fiduciary is to do what is best for the consumer. That role needs to be taken very seriously and at least as I see it, there is little wiggle room. But some latitude seems appropriate to me when the advice given is based in the facts as the consumer has shared them and the solution recommended achieves those facts.

    You are right with your thoughts on the UPL issue especially if the DSC is knowingly provides false information about bankruptcy in an effort to make the DS sale. And I agree that ultimately it is a bankruptcy attorney that is licensed in the state the consumer lives in that has to make the determination about bankruptcy.

    It’s interesting that the apparent best solution is one of collaboration between debt relief providers. If the consumer is placed at the center of that circle of providers and the appropriate solution is presented, I think that is darn near the best outcome.

    But in the decision about what is best the debt relief provider can’t ignore the clients life goals and emotional state either. A suicidal consumer that is struggling with depression and hopelessness should be directed to speak with a bankruptcy attorney to afford themselves the quickest chance of putting the pain behind them. A debtor that can’t afford the credit counseling monthly payments but has an old car they want to sell should talk to a debt settlement provider. It’s the underlying nuances that come with experience that make this a tough profession.

    As far as how to achieve the Holy Grail of debt relief help, the way I saw to do this was the way I run this site. I answer reader questions and based on the information they provide to me I signpost people to the debt relief solution I think best meets their needs. Often I direct people to speak to a bankruptcy attorney and a debt settlement company and then come back with the information they learned so we can talk through it. I sell no debt relief services through this site.

    On top of that I have professionals from different backgrounds, and attorneys, who help to answer reader questions to educate others that might be in the same situation.

    In a long roundabout way my answer is the only way any debt relief provider can provide the best service is to put the consumer first in a fiduciary capacity. Anything short of that can certainly problematic.

    • Greg

      I don’t really know enough about Legal Helpers to say for sure. My biggest concern is, and I suppose this goes for all “attorney model” debt settlement is: is there any actual attorney work going on? Are attorneys showing up each day and actually working on client files? Can you call legal helpers, demand to speak to an attorney and actually speak to one who knows something about your file? I would love to hear from Legal Helpers on how they qualify DS clients. Providing the exact same service as a DS under an attorney name is still just a DS in my view.

      As to Michael’s point, it seems to me there has to be a way to take the best of both worlds. The “local” lawyer has limitations. Consumer lawyers that actually have clients tend to be local while their counterparts such as the banks and collectors are national. The ability to interact with collectors/creditors on a national basis gives the consumer lawyer more power that can be used to the benefit of clients. The volume basis creates better influence and makes it affordable for both the attorney and the consumer. For example I can only provide the extensive collection defense I do because the cost to defend is supplemented by settlement fees. We don’t make any money defending collection cases (we charge a nominal defense fee but litigate agressively), but it does create better settlements, and therefore more fees. Its like the collection lawyer who doesn’t make any money when I defend the case because his model/fees are based on a high default rate. He must however continue the case in order to keep Citibank as a client. I feel I must do the same, if for no other reason than to keep the collector honest. The lawyer practicing only in his county will find it very difficult to properly rep these clients and still keep his/her door open.

      I think Steve’s site is a great way to help consumers. He honestly points people in the right direction. Those in the trenches actually providing services have a much more difficult task. I think Michael is right in that the DS landscape will change a lot in the next few years. I suppose those that really care about these consumers and the industry will find a way to make it work and those in it for the money will find something else to do.

  • Michael

    Thank you Gregory. That was well thought and a cogent read.

    How can what you suggest be done?

    To the degree necessary, and in order to be of maximum benefit to the struggling consumer, and where volume enrollment and/or lofty profit goals are set by a service provider, I am of the mind that it currently cannot be done. Not even by attorneys. Perhaps NACA type practices could deliver, but those are few and many would decline to embark upon the endeavor.

    The depth and understanding of the issues you raise are non existent in the front line sales and enrollment part of the debt settlement services industry. I am of the belief that the level of experience you outline as optimal is missing with many executive and management posts as well (including attorney fronted debt settlement shops).

    Attorneys, through education and training, are better prepared to operate in this field, but are no better off in delivering all of what you speak to without practical experience which takes years to become adept at. You came about your ability to put forward this excellent post over 20 of them. How many people do you know who can listen to, or review on paper, any given persons debt trouble weighed along side their cash flow and access to funding sources, measured against their current creditors recovery trends, length of delinquency, assignee placement trends, state of residency compunction for attorney placement etc. and come up with an intuitive and effective outline for navigating a successful track to avoiding BK through settlement?

    The MO of industry has been (and largely remains): “Can’t pay your bills? Build up savings every month for the next 36 or more and you will be out of debt in a jiffy”. This is a huge part of the problem.

    Existing state and federal laws and proposed legislation do somewhat embrace what you have put forth (WV is a good example). Should more? Perhaps. What that then potentially creates is the settlement solution that will then be priced out of range for many suited to it. It also would create (even encourage) more of what many refer to as “loopholers”, those who seek strategies and attorney relations in order to circumvent rules for profits.

    I believe more bankruptcy and general practice attorneys should embrace the option of offering debt settlement to clients in their local communities who are suitable candidates. The TSR final rule spoke clearly to this concept. I will be expanding on this and more in the future. I am set to present this type of content at the conference Steve is holding in Raleigh NC this July. The conference is ideal for attorneys and their in house paralegal staff, perhaps even more so than current industry participants.

    Debt relief options should be pursued and offered using a process of elimination by consumers and the professionals they consult with. An informative and effective system for doing so is in use by some in the industry and more will begin to implement same.

    I am of the opinion that the debt relief industry landscape known today will not be the same in a year or two.

  • Michael

    Thank you Gregory. That was well thought and a cogent read.

    How can what you suggest be done?

    To the degree necessary, and in order to be of maximum benefit to the struggling consumer, and where volume enrollment and/or lofty profit goals are set by a service provider, I am of the mind that it currently cannot be done. Not even by attorneys. Perhaps NACA type practices could deliver, but those are few and many would decline to embark upon the endeavor.

    The depth and understanding of the issues you raise are non existent in the front line sales and enrollment part of the debt settlement services industry. I am of the belief that the level of experience you outline as optimal is missing with many executive and management posts as well (including attorney fronted debt settlement shops).

    Attorneys, through education and training, are better prepared to operate in this field, but are no better off in delivering all of what you speak to without practical experience which takes years to become adept at. You came about your ability to put forward this excellent post over 20 of them. How many people do you know who can listen to, or review on paper, any given persons debt trouble weighed along side their cash flow and access to funding sources, measured against their current creditors recovery trends, length of delinquency, assignee placement trends, state of residency compunction for attorney placement etc. and come up with an intuitive and effective outline for navigating a successful track to avoiding BK through settlement?

    The MO of industry has been (and largely remains): “Can’t pay your bills? Build up savings every month for the next 36 or more and you will be out of debt in a jiffy”. This is a huge part of the problem.

    Existing state and federal laws and proposed legislation do somewhat embrace what you have put forth (WV is a good example). Should more? Perhaps. What that then potentially creates is the settlement solution that will then be priced out of range for many suited to it. It also would create (even encourage) more of what many refer to as “loopholers”, those who seek strategies and attorney relations in order to circumvent rules for profits.

    I believe more bankruptcy and general practice attorneys should embrace the option of offering debt settlement to clients in their local communities who are suitable candidates. The TSR final rule spoke clearly to this concept. I will be expanding on this and more in the future. I am set to present this type of content at the conference Steve is holding in Raleigh NC this July. The conference is ideal for attorneys and their in house paralegal staff, perhaps even more so than current industry participants.

    Debt relief options should be pursued and offered using a process of elimination by consumers and the professionals they consult with. An informative and effective system for doing so is in use by some in the industry and more will begin to implement same.

    I am of the opinion that the debt relief industry landscape known today will not be the same in a year or two.

  • question

    Gregory- What do you think of the Legal Helpers model? 

  • question

    Gregory- What do you think of the Legal Helpers model?

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