This post gathers my thoughts on three eye openers. Some were in the news, and some I experienced first-hand in my bankruptcy practice. The common thread among these eye openers is a profound threat to the freedom and wellbeing of the citizenry.
I. Debt Collector Abuses
A. Whole Lotta Collectin’ Goin’ On
In the February 16, 2012 Los Angeles Times, Jim Puzzanghera reported on the recently formed Consumer Financial Protection Bureau and noted:
Debt collection has been second only to identity theft in consumer complaints to the Federal Trade Commission in recent years. The bureau estimated that 30 million Americans have debts in the collection process.
Thirty million! Wow! That’s one-tenth of the entire U.S. population. So it’s not just my clients who are facing debt collection agencies and their corrupt and abusive tactics. And given the volume of complaints it appears that abuses by debt collectors are widespread – it’s not just a few bad apples.
B. We Don’t Need To Obey No Stinkin’ Laws
“It will improve things immensely because most debt collectors are operating in an either illegal or amoral way,” said Bill Bartmann, chief executive of debt collection company CFS II in Tulsa, Okla., who has been a longtime critic of some industry practices.
The debt collectors know they’re doing wrong, but do it anyway because the devil makes them do it. Oops. I meant to say that they view the occasional pesky lawsuit filed by an abused debtor or government agency is just part of the cost of doing business. In fact:
One of the nation’s largest firms, Asset Acceptance, agreed to pay a $2.5-million civil penalty in January to settle a Federal Trade Commission lawsuit for misrepresentations in dealing with consumers, including failing to disclose when a debt was too old to be legally collected.
As a bankruptcy attorney I see abuse by collectors all the time. It’s nice to see that someone with governmental authority sees it too.
C. Pssst: Wanna Buy A Discharged Debt?
One fascinating abuse involves the marketing of discharged debts. Debt collectors buy and sell debts that were discharged in bankruptcy.
As you might have guessed, such debts are called zombie debts because they eat brains – oops, I mean because they come back to life after they died.
What can be done? If a debt collector attempts to collect a discharged debt from you, file a motion to reopen your case to sue the collector for violating the discharge injunction of 11 U.S.C. § 524(a).
D. Violations Of The Automatic Stay
Filing for bankruptcy protection triggers the automatic stay of 11 U.S.C. § 362(a), which, inter alia, stays all attempts to collect on prepetition debts. Most of the time collection agencies abide by the stay, but recently I have seen an increase in stay violations. Garnishment of wages, sending the debtor bills, and the like – all postpetition (I.e., after the bankruptcy petition is filed), and after clear notice of the filing – are happening with alarming frequency. The collectors must be making enough money collecting in this fashion because, as I said before, my suits are just the nuisance cost of doing business.
II. Corruption In The Sheriff’s Department
One shocking repeat offender is the Sheriff! I have seen multiple wage garnishments after a given bankruptcy filing, even in the face of clear notice. And the Sheriff simply refuses to return the funds garnished postpetition in spite of the fact that federal law requires it. Indeed, I have even had the Sheriff refuse to return garnished funds after I produced an order signed by a bankruptcy judge ordering the return of the money!
Since sovereign immunity with regard to the automatic stay has been waived in 11 U.S.C. § 106(a) – this provision was upheld by the U.S. Supreme Court in Central Va. Community College v. Katz, 546 U.S. 356 (2006) – the Sheriff’s behavior is without excuse.
The Sheriff’s department has recently been in the news over the beating of inmates. And the deputies union is fighting tooth and nail to prevent investigators from seeing the personnel files of the deputies who participated in the beatings. Perish the thought that investigators would be permitted to see incriminating evidence against corrupt cops. Apparently, there must be a deputy/Sheriff privilege that I didn’t learn about in law school.
I wonder if the deputies union is familiar with this language from the Sheriff’s website:
As Sheriff of our nation’s largest county serving ten million people, my responsibility for public safety requires constant action, innovation, strong core values, cutting edge technology, positive political partnerships at the federal, state, and local level. Also required is a daring to be different, no fear of criticism, transparency regarding our mistakes, full respect and cooperation with the media, and big ideas.
If the Sheriff’s department sees nothing wrong with beating inmates, it’s not all that surprising that they see no reason to comply with federal bankruptcy law, and nothing wrong with stealing garnished funds. It looks like the corruption has infected large swaths of the department. After all, a little leaven leavens the whole lump.
III. The Anti-Constitutional Supreme Court Justice
Speaking of troubling words and deeds from on high, the Los Angeles Times recently reported that U.S. Supreme Court
Justice Ruth Bader Ginsburg traveled to Egypt and Tunisia with her daughter to celebrate the “Arab Spring” on a trip arranged by the State Department. She raised eyebrows when she told an Egyptian interviewer she would not recommend America’s “18th century” Constitution as a model, pointing to the South African Constitution as more fitting for a new democracy.
The New York Times expanded on Justice Ginsberg’s recommended constitutional reading list to the Egyptian audience:
In a television interview during a visit to Egypt last week, Justice Ruth Bader Ginsburg of the Supreme Court seemed to agree. “I would not look to the United States Constitution if I were drafting a constitution in the year 2012,” she said. She recommended, instead, the South African Constitution, the Canadian Charter of Rights and Freedoms or the European Convention on Human Rights.
And lest you think the Los Angeles Times and the New York Times took Justice Ginsberg out of context, you can watch the entire interview to see for your self.
Hmmm. One of the nine Supreme Court justices has such a low opinion of the U.S. Constitution that she prefers the South African Constitution, the Canadian Charter of Rights and Freedoms, and the European Convention on Human Rights instead. It makes me wonder how that position informs her constitutional reasoning when she authors the opinions of that august court? Shouldn’t there be some requirement that a Supreme Court justice be pro-U.S. Constitution?
What was that sound, Justice Ginsberg? It was freedom of speech being dashed on the rocks of the European Convention on Human Rights:
Europeans lack an American-like First Amendment, which means they can be punished for expressing the “wrong” opinions. But Europe’s war on free speech should serve as a warning to Americans about the perils of complacency. Indeed, the Obama administration says it intends to “strengthen federal hate crimes legislation, expand hate crimes protection by passing the Matthew Shepard Act, and reinvigorate enforcement at the Department of Justice’s Criminal Section.” Some politicians have also expressed support for re-imposing the Fairness Doctrine, which would effectively censor the opinions of tens of millions of Americans.
Moreover, the New York Times warns that
Europe’s suppression of free speech is guaranteed to spawn and incubate precisely the kind of bigotry and sectarian violence it is intended to prevent.
As for the Canadian Charter of Rights and Freedoms championed by Justice Ginsberg, the Boston Globe observed:
The laws as they were written were a recipe for censorship, and the meal has now been cooked. Worse, the legal restrictions on free speech have contributed to a climate where freedom of thought and speech is considered a disposable value. During a 2008 case examining a white supremacist, a lead investigator for the Human Rights Commission was asked what value she gave to the freedom of speech. She responded: “Freedom of speech is an American concept, so I don’t give it any value. It’s not my job to give value to an American concept.’’
Finally, check out the South African Constitution. Do a search on “speech” or “freedom of speech” and you will find that freedom of speech is available for “Cabinet members, Deputy Ministers and members of the National Assembly” (section 58), “Delegates to the National Council of Provinces” (section 71 – see also sections 66 and 67), and “Members of a provincial legislature and the province’s permanent delegates to the National Council of Provinces” (section 117). Notice anyone left out? Everyone who is not a cabinet member, government minister, or elected official is left out in the cold.
As for freedom of the press, here’s Amnesty International’s take on recent developments in South African law:
The South African parliament’s approval of a draconian secrecy bill which could see journalists and whistleblowers in prison for investigating state wrongdoing is a worrying development for the country, Amnesty International said today. The bill, which could see journalists facing up to 25 years in prison for publishing information which state officials want to keep secret, was overwhelmingly approved in parliament, with 229 votes to 107.
If Justice Ginsberg is thoughtful enough to opine on the advisability of using the South African Constitution, the Canadian Charter of Rights and Freedoms, or the European Convention on Human Rights over the U.S. Constitution only after having read these documents and seeing their provisions in practical application, then what on earth is her view of the First Amendment’s freedom of speech and freedom of the press provisions? If she is not alone on the Court in holding these views, the future does not bode well for freedom of speech and freedom of the press in America. Stay tuned.