Monday, August 28, 2017: 1:30 in the morning comes up fast and hits like a brick. Trial day is an exciting thing for a trial lawyer; it’s almost like a drug. Waking up at 1:30 in the morning is worth it to get to try a case. There is a very distinctive rush to presenting, arguing, and closing a trial. Although my home office is in Santa Ana, California, we have 4 offices across the state. This means I get to travel to courtrooms anywhere in the state and could be in any county courtroom on any given day. Today’s trial is in Monterey; about 350 miles away. So, I set my alarm for 1:30 in the morning, grab my trial bag, and hit the road
The good thing about long, middle of the night commutes like this is I get to go over and over the case I’m about to contest. My team has worked up the case, did the discovery, prepped the trial brief, and given me everything I need to put my best case forward. As I travel through the empty freeways of LA and on up the coast, I have time to think about how I’m going to argue this case to a judge who already believes (rightfully usually) that my client owes somebody something. My firm represents people who have little money and are most susceptible to abuse from an overpowering legal system set up to help my adversaries.
I represent consumer debtors and today I am a student loan defense lawyer.
This case involves my client, a student loan, and a company called Educap, Inc. who are represented by the Gaba Law Firm. Educap, Inc. alleges that my client breached a Student loan promissory note and owes $13,506.58. Although we tried to settle the alleged debt with Educap, Inc. they would only accept full balance, and that is not acceptable at our office. Full balance means time to hit the road and try the case as there is little to lose by pitching our defense to the judge.
Although they claim to be something else, Educap, Inc. is what we commonly refer to as a debt buyer. Debt buyers purchase or are otherwise assigned debts originated by other parties. In my client’s case Educap, Inc. purchased the alleged debt at issue here from a company called 5 Star Bank. 5 Star Bank was the original student loan creditor.
When the Plaintiff in a debt collection lawsuit is a debt buyer important legal issues should get raised. Debt buyer Plaintiffs must prove assignment of the debt (i.e. that they now have the right to collect on the debt). They must also prove the underlying debt. You would think this is a simple task, and it should be. However, they sometimes struggle with it, especially against a competent defense lawyer. In my experience, they rely on the judge to do their job for them and truthfully, a lot of judge’s let them get away with it. Typically, as was the case with this client, Plaintiff debt buyers elect to prove their case up with a “section 98 declaration”. California Code of Civil Procedure §98 allows for parties in a lawsuit to submit a declaration signed under penalty of perjury in lieu of live testimony. These declarations typically have deficiencies that my office has become quite good at locating and exploiting. Educap, Inc. made all the mistakes a typical debt buyer makes which made the trip to Monterey worth the drive.
Our defense against Educap, Inc. has two legs: 1) inadequate proof of the assignment/purchase, and 2) insufficient authentication of the source documents (the loan itself). As to the assignment or sale of the account the only testimony presented was from an alleged custodian of records for Educap, Inc. To prevail against my client Educap, Inc. must submit assignment documentation that “describe the subject matter of the assignment with sufficient particularity to identify the rights assigned.” (Mission Valley East, Inc. v. County of Kern, (1981) 120 Cal.App.3d 89, 96). That means the assignment documents must identify the contract or account that was assigned. Secondly, Educap, Inc. must present testimony from a witness with personal knowledge of the assignment to lay the proper foundation and to authenticate the assignment documents. (Brown v. Bell, (1932) 123 Cal.App. 758).
The second leg of our attack on Educap, Inc.’s case lies with the California Evidence Code. To get documents from the original creditor into evidence there must be testimony from a “qualified witness” and a debt buyer’s custodian of records will not (or should I say, should not) do the trick to get into evidence the source martials: the original creditors documents. (Sierra Managed Asset Plan, LLC v. Hale, (2015) 240 Cal.App.4th Supp. 1, 8-10). These, and some other tricks I have learned, are the arrows a consumer lawyer brings to battle against a debt buyer.
I arrived in Monterey at about 8:00 a.m. and found my courtroom. My case was called at about 11:00 a.m. Opposing counsel’s performance was perfunctory: he simply introduced his section 98 declaration and submitted his case to the judge, asking for a judgment for the entire amount. That’s when all our work up on the case and the long drive starts to pay off. I began raising all my arguments to the Court: the section 98 declaration was inadequate to show the specific account was assigned/sold, the Educap declarant cannot testify to the original source documents as they had not created them or maintained them personally. Only the original creditor or my client could “lay the foundation” necessary to get the documents introduced into evidence.
Opposing counsel made the standard counter argument that the business record exception should allow them to introduce the documents and that the declaration and attached documents were sufficiently “reliable” and therefore the court should allow them into evidence. The truth of the matter is, judges do not like debt collection cases (mostly because they correctly assume that the consumer did get a loan and did not pay it back). This is not a case where the consumer is “innocent until proven guilty”, rather it is a case of guilty until proven innocent. And unless we have a truly “innocent” client, we must convince a judge that Educap has not proven its case. This is very difficult to do as we are essentially asking the court to ignore the debt and rule in our favor based upon a legal technicality.
It takes a judge with character and intellectual honesty to believe a consumer owes a debt but still rule in their favor based on a technicality like insufficient evidence or incorrectly introduced evidence. Let’s face it, my entire strategy on most of my debt collection defense trials are based on technicalities. This case was no different.
In the middle of my arguments the judge stopped me and looked to opposing counsel. The judge asked if the section 98 declaration was all the evidence that was going to be submitted, their lawyer said yes. Plaintiff’s counsel, reading the tea leaves as to where the judge was going, immediately sought a continuance of the trial (in order to bring in an actual witness) to which I objected to quickly…. “the trial has already commenced your honor….” Then came the words every student loan defense lawyer wakes up at 1:30 am to hear: Judgment for defense. No better feeling in the world than winning a student loan defense trial. I assure you the drive home was very easy and seemed to be only 100 miles. The only thing better was being able to tell our clients they did not have to pay… Always remember that trials are not about the true facts, they are about what facts get admitted into evidence. This is the true skill of a trial attorney.
William Campbell is a partner at Fitzgerald & Campbell, APLC. The firm focuses on debt relief for consumers & small business. More information on Mr. Campbell and his practice can be located at the firm website: www.debtorprotectors.com. He can be reached at firstname.lastname@example.org or 855-709-5788.
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