I will be doing a lemon law trial this week and most likely will not be posting to the blog until I finish later in the week. 

In the meantime, just remember, if it's too good to be true, it probaly is.  Or, in the words of that great orator, President Bush: "There's an old saying . . . 'Fool me once, shame on -- shame on you. [Pause.] Fool me -- you can't get fooled again.' " 

Until I return, you're on your own. Don't take out any pay day loans and there is no three day right to cancel an auto purchase.  

David Archuleta was chastised this week on American Idol for selecting a depressing song.  After politely listening to Simon's criticism, Archuleta silenced his critic by softly responding "[i]t talks about people who do not have homes--it calls attention to people around the world who have nothing."  I rarely watch American Idol, but anyone who seizes an opportunity to expose millions of viewers to the plight of the homeless has my vote.  While the depressing nature of the song may interfere with the weighty issues of Simon chastising a contestant's hair, the words are worth pondering none the less: 

She calls out to the man on the street
sir, can you help me?
It's cold and I've nowhere to sleep,
Is there somewhere you can tell me?

He walks on, doesn't look back
He pretends he can't hear her

             ***

Unfortunately, as a nation and in Iowa, we pursue public policies that cause homelessness.  We let special interests enact legislation that repeatedly exploits the poor, until they literally are left without heat, electricity or a place to call home.  We have destroyed the social safety net.  Debt collectors and credit card banks think little of freezing bank accounts containing nothing but the meager social security payments the disabled and/or elderly have to survive on.  And after our policies drive more and more to homelessness, we do little or nothing to alleviate their suffering.  As a society, we have no intention of letting the homeless burden our affluence.   

Oh think twice, its another day for
You and me in paradise

On my Resource page I have a link to a non profit assisting central Iowa homeless.  The organization was formed In the early 1990's after five homeless people froze to death on the streets of Des Moines.  The web site estimates there are more than 5,100 homeless people living in central Iowa on any given day.  Of this number, about 450 are veterans.  Their web site says they need tylenol and toothpaste.  Perhaps you can spare a bottle or a tube.  I would assume money is always welcome.   

If you care to be further depressed to music, here is a link to a music video worth watching.


http://www.youtube.com/watch?v=ftlYLcEW_I4

Iowa consumer groups turned out before a House Subcommittee this week to support consumer rights legislation.  The bill was then passed out of the subcommittee, without substance, to keep the bill alive for now.

Unfortunately, I've seen this move before.  When advocates for legislation are no longer present, a bill is quietly killed by House leadership without a vote so House Democrats are not required to stand up and be counted by voting on the bill.  In that way, they can continue to pretend they support the bill, but do not have to offend the special interests who keep the cash flowing to their campaign coffers.  It's possible that will not happen this time around.  There are some very supportive Democrats in the House and Senate who support this legislation.  But from where I sit, it sure looks to me like special interests have a strangle hold on some House Democrats and the tail is continuing to wag the dog.  

There is confusion concerning the legality of recording phone calls.  Tape recordings can be a valuable tool in seeking relief against abusive debt collectors.  The simplest way to ensure a legal recording is to simply disclose the call is being taped.

I recently sent a routine letter on behalf of a client on a disputed debt.  The recipient seems to have taken offense to the letter, because he called and left an extremely abusive voice mail message.  Near the end of his message he apparently realized it is sometimes better to engage the brain before the mouth.  He paused and said, "you are probably recording this call."  Ya think.  You are leaving a message on my VOICE MAIL.  Perhaps the "please record your message at the tone" might have been a clue.

I have pursued many cases for clients where a collector leaves abusive voice mail messages.  Other clients have taped phone calls with clear unfair debt collection violations.  In Iowa, it is generally legal to tape any phone call you are a party to.  It is not OK to secretly tape calls you are not a party to--for example, a call between your wife and her boyfriend.  It gets more complicated if the call originates from a state that requires two party consent to tape.  I don't have a clue what the law is in India when the call originates from a call room in India, but at the risk of jeopardizing international relations, it is probably OK to tape the call.

To be safe, just tell the collector the call is being taped.  The worst that could happen is the collector hangs up, decides not to abuse you, or does abuse you and you have proof on tape. 
 

Airbags are wonderful things.  They deploy in a nano second in a collision, saving the lives of you and your family.  Airbags are much less effective when the airbag has been replaced with ... a newspaper.

Unfortunately, Iowa is a dumping ground for salvage vehicles. Our consumer protection laws are weak and often ineffective.  We receive vehicles in Iowa that have been totalled, sold at salvage auction, repaired (and I use that term loosely) and then put back on the road--some with a salvage title and disclosure, others with the prior damage concealed from the purchaser.

A salvage vehicle is worth 30 to 50% less than a similar vehicle without prior damage.  Another serious issue with prior salvage vehicles is the quality of the repair and the safety of the vehicle.  The vehicle was previously totalled for a reason.  The cost of repair exceeds the value of the vehicle.  For a person to make money from repairing a wrecked vehicle, it often requires an incomplete or shoddy repair.  Air bags can be expensive.  I have represented consumers where there was no air bag at all.  In one instance, newspapers were stuffed where the air bag was supposed to be.  When you start your vehicle, the air bag light should come on and then go off.  That is the vehicle's check of the air bag system to ensure it is working properly.  So what do unscrupulous dealer's do when they have not replaced an air bag?  They disable the light so it does not stay on. 

Which brings us to the air bag in your vehicle.  Is it actually there?  Does it work?  If you or your family are in an accident today, will an airbag deploy or will their lives be in the hands of the Des Moines Register stuffed in the airbag compartment? 

Have you ever been in bed or in the shower when you hear an intruder in your apartment?  Turns out your landlord has used his key to enter your apartment without notifying you.  Have you been behind on your rent and returned home to find your landlord has locked you out.  If so, Iowa's Landlord/Tenant Act provides a remedy for your situation.

A landlord can enter your apartment without notice in case of emergency.  In non-emergency situations, the landlord must give 24 hours notice and must only enter at reasonable times.  Your landlord must use legal procedures to remove you from your apartment, even when you are behind on rent.  Locking you out of the apartment without a court order is not legal in Iowa. 

Most landlords are aware of the law and comply with it. Others do not.  Low income tenants seem to be victimized more often when it comes to illegal lock outs or illegal entry of an apartment.  Perhaps because the landlord violating the law knows it will be difficult for the tenant to obtain assistance in vindication of her rights. 

I will be in trial next week on a Lemon Law case.  Trial preparation is a lot of hard work, requiring witnesses, exhibits--doing eveything necessary to prove a case and recover damages for my client.  So why are the rules different for a debt scavenger collecting on a debt purchased in bulk for pennies on the dollar with the hope of cashing in?  Why should a debt buyer be entitled to a judgment against you without proving it owns the debt, or that you owe the debt, or without bothering to even show up for trial?  Unfortunately, debt buyers frequently obtain substantial judgments against Iowa consumers with very little, if any, credible evidence.

There are judges in Iowa and throughthout the U.S., however, who will not award judgments on credit card debt without proof.  A bankruptcy judge in Texas recently denied a proof of claim filed by a debt buyer where the creditor failed to prove an assignment of the specific account of the indiviudal debtor, provided no itemization of the account or entitlement to interest, and failed to provide a written cardholder agreement.  See In re Leverett, 378 B.R. 793 (E.D. Tex., Dec. 5, 2007).  Iowa law also requires an itemization of the account, proof of the assignment, and proof the alleged debtor agreed to the account terms.  In my experience, many cases fall far short of this level of proof.  The result is judgments frequently being entered against consumers on debts they did not owe or for amounts creditors are not entitled to receive.  

The Iowa Legislature has also enacted a controversial provision allowing a creditor's "appearance" in small claims court to be by document submission only--even where the alleged debtor has filed an answer.  The consumer, however, is required to appear and often has to submit to questioning by the judge.  The proceeding resembles more of an inquisition than a trial.  There is nobody at trial from the other side for the consumer to cross examine or question.  Exactly how this statute is to be interpreted has yet to be sorted out by the appellate courts, and small claims judges have entered conflicting rulings on the issue.  Some simply rule in favor of the consumer, others give considerable weight to the hearsay court file documents and then question the consumer. 

How would my consumer clients turn out if I would just file a claim, some legally inadeqate triple hearsay documents, and then not show up for the trial?  I would never do that to my clients, but even if I did, I already know how that would turn out.  We would lose big time.  Can we at least all play by the same rules? 

Now, even though it is Sunday, I need to get back to work on my trial.  The courts require consumes to actually prove their cases.