Warybuyer Blog

If you live in Texas, debt collectors have 4 years to sue you for not paying your credit card. If one waits longer than that to file, the lawsuit will be dismissed because of the statute of limitations.

If you are lucky enough to get through the 4 year period without being sued, I advise a 2 step process for dealing with each new debt collector that contacts you about the account.

First, send a letter to advise the debt collector that you believe that the account is beyond the limitations period and ask it to check its records to verify that the account went into default more than 4 years ago. It may simply stop contacting you after receiving that letter. If the collector responds and verifies that the default is more than 4 years old, keep the response as it will come in handy if the account gets sold or referred to another debt collector. You can use it as exhibit 1 in your letter notifying the new collector that the account is barred by limitations.

Once you get the response, or if the collector tries to contact you again without responding to your verification request, step 2 is a cease communication letter, in which you ask for no more contact about the debt.

These are very simple letters:

Letter 1: Notice of Limitations and Verification Request

Dear Mr. Debt Collector:

According to my records, it has been more than 4 years since this account went into default, which means that it is too late under Texas law to file suit on the account. Please provide me with verification of the default date and the date of my last payment on the account.

Sincerely,

Lucky Debtor

Letter 2: Cease Contact

Dear Mr. Debt Collector:

Thank you for verifying that my account went into default more than 4 years ago. Please do not contact me about this debt again.

Sincerely,

Really Lucky Debtor

These letters can be used in other states, but the limitations period varies from state to state, so you need to check your own state law about that.

The default date I discuss above is the date you first breached your credit card contract. That generally means the date you failed to make the minimum payment due by the due date. If you cure the default by getting the account current, the clock resets.

In Texas, you cannot extend the limitations period by talking to a debt collector. In order to extend the limitations period, you have to acknowledge the debt in a signed writing. You also can’t extend the limitations period by making a partial payment. Only a payment that completely cures the default will reset the limitations clock.

Who is most likely not to complain about high interest rates and to incur lots of fees for late payments? Who is legally unable to use bankruptcy to wipe out their debts? Who are the best credit card slaves ever? Andrew Leonard reveals all…

I’ve written about the evils of mandatory binding arbitration before. My opinion has not changed. If anything, my ongoing experience representing clients in arbitration has further convinced me that no consumer claim should ever be brought in arbitration.

Senator Feingold has introduced a bill in Congress, the Arbitration Fairness Act of 2007, that will address this problem by making arbitration voluntary in employment, consumer, franchise, or civil rights disputes. I strongly encourage everyone to visit the National Association of Consumer Advocates website to learn more about arbitration and to use their form for telling your elected representatives in Congress that you want your right to a fair trial in front of a jury of your peers returned to you.

The LA Times has more…

According to the WSJ (no link ’cause I’m too cheap to subscribe) as noted by Andrew Leonard in Salon, Bank of America is offering credit cards to people without social security numbers. Welcome to the Slave Ship! Just kidding. As bad as I think our credit card industry is, this is a major improvement for folks who have been plagued by our underground credit system of payday lenders, pawn shops, and neighborhood loan sharks.

I’ve recently been contacted by a few clients who believe that a debt collector has failed to properly respond to a letter either disputing a debt or requesting verification of the debt. They’ve told me about how much they’ve learned on the internet about their rights under the Fair Debt Collection Practices Act. When I talk to them, they do have a surprising amount of knowledge, certainly more than most non-specialist attorneys, about what the statute requires. Unfortunately, for all their research, the letters that they’ve sent me are so over the top that there is little prospect of them prevailing in a lawsuit against the debt collector.

The letters read like a giant game of gotcha; as if the letter-writer is trying to send the debt collector on an impossible scavenger hunt for every last piece of paper relating to the debt, hoping that the debt collector will fail or give up. My advise to these folks has been uniform: “Stop doing that.”

By attempting to game the system this way, these letter-writers have done the near impossible. They have set up a trial dynamic in which the debt collector will be more sympathetic than the debtor. Typically, there has been no harassment or anything close to wrong-doing by the debt collector. He has usually done nothing more than mail a form letter notifying the debtor that he will be collecting the debt, providing basic information about the debt that was provided to him by his client or predecessor, and giving the statutorily required notices. In response, he receives an accusatory missive, threatening him with a lawsuit for violating the law if he doesn’t fulfill a set of byzantine verification requests to the letter. I have even seen debtors who have sent the debt collector a form, informing him that his claim “will not be considered” unless the form is filled out in full.

When you are disputing a debt, you have to remember that you are not just writing to the debt collector. You are writing to a jury.

This jury will largely be made up of people who take the responsibilities seriously, otherwise, they wouldn’t have shown up for jury duty. For the most part, they will have worked hard in their lives to pay their debts, sometimes making personal sacrifices in order to make sure they keep their commitments. They are not going to be moved to help someone they perceive is twisting the law to slip free of a legitimate request to pay a debt. In fact, jury bias against people who haven’t paid their debts is a real problem in cases where the debt collector has really done something wrong.

The same is true of judges, who are the gate-keepers to the jury. While a disciplined judge will follow the law even when his personal feelings weigh against the party for whom he is ruling, that’s still an uphill sell, and not all judges are disciplined in their application of the law. There are plenty of judges out there who decide who should win and then figure out a legal way to justify that result.

What does this mean for verification letter writers? It means you have to write from the point of view of someone who has a legitimate concern and who wants information to satisfy that concern. Your letter should present your concern and suggest the easiest, most direct way of dealing with it. Here is an example of what I consider to be a good, initial verification request for a debt that you don’t have any reason to dispute:

Dear Mr. Debt Collector:

I received your notice that you will be collecting this credit card account from me. I need some information from you:

I need to know that you are really the person I should be dealing with on this debt. I don’t want to make a payment to you and then find out that I should have paid someone else. Please provide me with documentation that you either own this debt or have authority to collect it, so that I will know that if I make a payment to you, the payment will be going to the proper person.

I also need to know how you calculated the balance you say is due. When I last heard from someone about this debt, the balance was substantially lower. If you have added interest or fees to the debt, please provide me with an itemized breadown of what you’ve added and documentation showing that you are following the terms of my contract. I don’t want to have to pay more than I really owe.

Thank you for your help with this matter.

Sincerely,

David Debtor

This letter accomplishes the basic goals of a verification request. If the debt collector responds, you will have additional useful information about the debt that may come in handy in negotiating the amount of the debt or disputing it if it is incorrect. If the debt collector doesn’t respond but continues to attempt to collect the debt, he will have violated the FDCPA and you will have a sympathetic case to make to the jury that the debt collector was illegally refusing to comply with a request so reasonable that anyone would understand it.

This letter is not a one-size fits all letter. If the debt is not correct, the dispute letter needs to specifically point that out. There is an example of how to do that in my guide to disputing a debt. Depending on the circumstances, there may be other types of information that are reasonable to request, for example, if the debt is old and the debt collector has threatened to refer you for legal action, it would be reasonable to request documentation showing how long it has been since you defaulted on the debt, so you can determine whether the debt is beyond the statute of limitations.

Whatever the situation, and whatever kind of letter you write to a debt collector, or to a creditor or credit bureau for that matter, remember that you are also writing to a jury. If it helps, imagine that you are writing to your mother. Your letter should make her want to help you, not toss you out on your ear.

Wow! Canon completely blew me away today. Back in November 2003 I bought a Canon S400 camera. It’s been whitewater rafting in Colorado, to the frosty top of Pike’s Peak, zip-lining in Costa Rica and to every family gathering for the last 3 years. Just before Christmas this year, it failed. It just stopped reading the memory card. A couple of minutes with google and I found that Canon has a program to repair this problem, even for cameras like mine that are out of warranty. I sent my camera in.

I’ve been fuming lately because I got a message from them shortly after it went in saying it would be returned in 10 days and it was well over 10 days. Well, fume no more. Today I received via Fedex a PowerShot SD630 to replace my S400!

I’ve only had a few minutes to play, but it is smaller, captures 6 megapixels instead of 4, and has a 3 inch display instead of 1.5 inches. The operating software also appears much improved, easier to use and with more features.

Way to go Canon!

Zombie debt is a slang term for long written off debt that has been revived by a debt buyer for a new round of collection activity. The debt buyer may do nothing more than list it on your credit report in the hope that you’ll pay it off to raise your score, or undertake full blown collection activity. Liz Pulliam Weston writes in this MSN Article Zombie Debt is Hard to Kill about the prices that debt buyers pay for old credit card debts.

According to 2005 SEC documents, Asset Acceptance bought $4.2 billion dollars worth of debt for an average price of 2.4 cents on the dollar, Encore Capital Group bought $5.9 billion dollars worth of debt for an average price of 3.3 cents on the dollar, and Portfolio Recovery Associates bought $5.3 billion worth of debt for an average price of 2.8 cents on the dollar.

If you ever wondered how good a deal you were getting when a debt collector offered to settle your debt for 60 cents on the dollar, now you know.

Mickey Kaus discusses the threat of irredentism as one of the reasons that we should all be threatened by protesters waving Mexican flags. Of course, I had to look the word up to know what the heck he was talking about. Once I did, I was amazed. Does anyone seriously believe that someone who travelled hundreds if not thousands of miles to sneak across a largely desolate and dangerous desert border in order to work 12 hour days at hard labor on a farm, in a restaurant, or on a construction site because the opportunities here are so much greater than they are in Mexico, wants to undo all that by stealing California, Arizona, New Mexico and Texas back? Does anyone think that person’s children or grandchildren who were born and raised her feel that way? Puleeze. If they wanted to work and live in Mexico they could have just stayed put. No need for them go to all of that trouble.

There are some good reasons to regulate immigration, but there is a dark heart of racism that is driving much of this debate for a large number of people. I grew up in West Texas where hispanics were routinely referred to as spics and wetbacks in what passed for polite conversation amongst anglos. The times have changed and that kind of talk is no longer considered polite, but the underlying attitudes are still strong in many people. When I read this kind of over the top rhetoric, it sounds to me like anglos trying to find a new polite language for the same old racism.

Jim Sollisch wrote an excellent piece in the Washington Post about credit card sharks. It brought to mind something I’ve been thinking about publishing for a while, a Credit Card Holder’s Bill of Rights. The purpose of this Bill of Rights is to restore meaningful consumer choice to the credit card business.

Credit Card Holder’s Bill of Rights

1. No credit card company shall hold a card holder in default for any reason other than failure to make timely payments on the account being declared in default.

2. No credit card company shall change the interest rate payable on the existing balance of an account except pursuant to a previously agreed variable rate agreement in which the interest rate is tied to a published market rate.

3. No credit card company shall change the interest rate payable on future transactions unless the card holder has a meaningful opportunity to reject the change and pay off the account at the existing interest rate.

4. No credit card company shall make any change to the terms of its agreement with a card holder unless that change applies only to future transactions and the card holder has a meaningful opportunity to reject the change and pay off the account pursuant to the existing terms.

5. No credit card company shall charge any fee in excess of the reasonable average cost to the company of the event or circumstance which gives rise to the fee. Before charging any fee, a credit card company shall include in the card holder agreement an explanation of how the amount of the fee was determined and what relationship it bears to the cost of the event or circumstance giving rise to the fee.

6. No credit card company shall require a minimum payment that does not reduce the balance due on the account by less than 2%.

7. No credit card company shall mail a monthly statement to a card holder less than 21 days before the due date of the cardholder’s next payment.

8. No credit card company shall fail to credit an account with payment on the date that payment is received and no credit card company shall require payments to be received prior to 5:00 p.m. local time at the place of receipt in order to be deemed received on that date.

9. No credit card company shall require a customer to submit any claim or grievance to mandatory binding arbitration.

10. No credit card company shall sell or refer a charged off account to a debt collector without providing the debt collector with the date upon which the account was last current before it was charged off and all other information necessary for the debt collector to comply with the requirements of state and federal laws relating to debt collection and credit reporting.

11. No credit card company shall fail to provide a copy of the account application, agreement, or history to a card holder upon request or charge any fee for doing so.

Linens ‘n’ Things ran a loss leader in their Sunday newspaper insert here in the Dallas area that appears to be a case of bait and switch. They advertised a Thermos 40,000 BTU Stainless Steel BBQ Grill for $249.99. In the same flyer, they printed a 20% off coupon good for “any single item.” The coupon contained a number of limitations, none of which appear to apply to the BBQ. The warygirlfriend pointed out that this would be an excellent christmas present as well as an excellent value. As detailed below, I tried to purchase the grill for 20% off, but was rebuffed. My rebuffedness continues despite a nice letter of complaint and an email correspondence with their customer service representative, which I have posted below. I’ll post any updates as well. I’ve asked to speak to someone with authority to make a different decision, but I don’t expect to hear back.

I’m posting about it here because 1) I’m kinda mad, and 2) there are good consumer law issues to discuss, directly applicable to the holiday shopping season.

Bait and switch is one of the most commonly recognized terms in consumer law, certainly more common than say, ECOA adverse action notice. Bait and switch can take a number of forms. Linens ‘n’ Things’ ad covers two of them.

The Texas Deceptive Trade Practices Act (”DTPA”) prohibits “advertising goods or services with intent not to supply a reasonable expectable public demand, unless the advertisements disclosed a limitation of quantity.” Tex. Bus. & Com. Code § 17.46(b)(10). In this case, the first Linens ‘n’ Things store I went to was out of stock on this loss leader item within just a few hours of the publication of the insert, despite the fact that the prices advertised were in effect from December 4-11. As the first Linens ‘n’ Things employee was helping me locate a store with a grill in stock, her computer display showed most stores in the Texas market were reporting single digit quantities. The Galleria store she referred me to listed 12 units in stock, but she told me that the computer numbers often lag actual inventory. While a prosecuting attorney would have to investigate the circumstances to determine whether the failure to have an adequate inventory was intentional, the circumstances here are suspicious.

The DTPA also prohibits “making false or misleading statements of fact concerning the reasons for, existence of, or amount of price reductions.” Tex. Bus. & Com. Code § 17.46(b)(11). In this case, the Linens ‘n’ Things coupon is misleading because it clearly states that 20% can be taken off the sale price of “any single item” and none of the limitations contained on the face of the coupon apply to the grill. When evaluating whether an advertisement is deceptive, the general rule is that only clarifying information presented in the advertisement is considered. Additional limitations or disclosures published in the store are generally not considered. This is particularly true when the allegation is bait and switch advertising, as the reason such advertising is prohibited is that it lures consumers into stores under false pretenses. Accordingly, the in store signs indicating no further discounts could be taken on the grill are inadequate to save Linens ‘n’ Things from violation of this anti-bait and switch provision of the DTPA.

Rain Checks

The first Linens ‘n’ Things employee told me there were no rain checks available on the grill. Nothing in the DTPA requires a retailer to give a rain check when out of stock on an advertised item. Moreover, the offering of a rain check on an advertised item is not a defense to a charge of bait and switch advertising under either of the above-listed DTPA provisions. However, as a practical matter, it is a good way to preserve customer good will, and it will bolster a retailer’s argument that it did not intend to go out of stock on the advertised item, an element of the prosecutor’s case under the first bait and switch provision of the DTPA. For an individual consumer, as long as the rain check can be fulfilled reasonably promptly, the rain check goes a long way towards eliminating any harm caused by the failure to have adequate stock. It would be very difficult for such a consumer to prove any damages in any lawsuit that might be filed over the ad.

The bottom line: the law is very much in harmony with common sense. If you are a retailer and you advertise something for sale, you need to have it on hand and sell it as advertised. Anything less, and you are potentially in legal jeopardy. If you are a consumer, you have the right to walk into a store knowing that the advertised item will be there and that you can purchase it for the price advertised.

Enjoy your holiday shopping!

—

Note: While I was writing this post, Mr. Cesano called me on the phone. He affirmed his last email message, but did offer to put me through to the voicemail of Tony Vardiman, who he said might have authority to make a different decision. While I’m not happy with Linens ‘n’ Things’ handling of this matter, I certainly can’t fault the speed with which they have responded to my complaint. Thank you Mr. Cesano for your prompt correspondence, even if the result was not to my liking.

—-

My email correspondence with Linens ‘n’ Things:

I am very disappointed with the experience I had trying to purchase an item advertised in your December 2005 newspaper insert.

The front page of the insert features a Thermos 4000 BTU BBQ Grill for $249.99. The last page of the insert features a “20% off any single item” coupon. My girlfriend saw the flyer and told me the BBQ would make an excellent Christmas gift for her. She pointed out the coupon as well. I looked at the coupon carefully (I am a consumer lawyer after all) and noted that none of the restrictions on the coupon applied to the advertised BBQ.

I drove to your North Central store in Dallas. A helpful employee told me that the BBQ was sold out and that you have no raincheck policy. While the consumer lawyer in me was disturbed that you were sold out of a featured item in an insert within just a few hours after the insert was published and that you have a no raincheck policy, your employee offered to see if she could find one in another store for me. After a few minutes, she located one in your Dallas Galleria store and had it put on hold for me. I wish I could remember her name because she went out of her way to be helpful.

I drove to the Galleria store where another helpful employee found a dolly and fetched the BBQ to the front of the store while I waited. When I tried to check out, I presented the coupon, only to be told that I couldn’t use it with the BBQ because it was already discounted. I asked the cashier to double check. She spoke with another employee, Kevin, who appeared to be a supervisor or manager. Kevin also told me that the coupon could not be used. I pointed out that the coupon said it could be used with “any item” and that none of the restrictions on the coupon matched what he was telling me in the store. He would not change his position. I decided not to buy the BBQ.

I regret not buying the BBQ. I was angry and didn’t want to give in to what I thought was an unfair situation. If possible, I would still like to buy this BBQ, but I feel it is only fair that you sell it to me as advertised, for 20% off of the $249.99 price, or $199.99. Having already driven to two different stores amid holiday shopping traffic, it would be ideal if you would have the BBQ delivered to my girlfriend’s house at no charge, but I would be satisfied if you simply give me the address of a North Dallas store where I can go to purchase the item at the proper price.

Please call me at (214) 855-9355 or email me to let me know what you are willing to do about this situation.

—

Thank you for contacting us regarding the Thermos Stainless Grill advertised in our recent flyer. Please be advised that due to the enormous discount that we are offering on this item, we cannot accept any coupons or discounts. This was prominently marked both in the store and on the product. The price on this grill was sold to you, our valued guest, at cost pricing. If you can find this item at a better price, we will gladly match it. Thank you for bringing this to our attention.

Guest Services Linens n’ Things

—

Paul-

Thank you for your prompt response.

Kevin, your employee at the Galleria store, also informed me that the item was marked in the store as not subject to further discounts. Of course, I never walked far enough into the store to actually see the signs he referred to because I found out about the BBQ from your ad and another employee had called and put the BBQ on hold for me. Even if I had seen the signs, that would not address my concern.

I went to your store, actually to 2 of your stores, because of the advertising. I’m sure that if you consult with whoever reviews your advertising for legal compliance they will tell you that in-store disclosures cannot be used to contradict advertised offers.

I still would like to purchase this BBQ as advertised.

Craig

—

Not sure what you are looking for me to do at this point?

Thank you, Paul Cesano

—

I’d like you to locate one of these units in the North Dallas area, have it put on hold for me, and let me pay $199.99 for it.

—

This item is currently selling for $249.99 and we would not accept a coupon on this item as we are selling this item at below cost. Please contact your local Linens N Things on the availability of this item.

Thank you, Paul Cesano

My best friend, Eric Wolterstorff, has a company called Shifting Culture. Long before Katrina appeared on the scene, Shifting Culture was conceived to help organizations, both commercial and non-profit, dig themselves out of crisis situations. Dealing with Katrina has forced so many businesses, community organizations and other groups to throw themselves into overdrive just to survive. At the same time, the strain and stress of their efforts may be creating new vulnerabilities or weaknesses or bringing existing ones to the forefront, undermining the organization at the worst possible time and multiplying the challenges it must overcome.

Shifting Culture has a team of specialists and consultants who can identify, diagnose and fix the unique kinds of problems that groups dealing with the aftermath of Katrina are facing. If your business, community group, non-profit or other organization is bursting at the seams just trying to keep itself going, Shifting Culture can provide the support and assistance you need to meet the challenges you face. Contact Eric or me to find out how Shifting Culture can help you.

Excuse me while I vent a little. I’ve just spent a fair amount of time on the phone with folks who were mistreated in some way by a creditor or landlord type. Unfortunately, none of them had an actual claim that a court could help them with. They didn’t have claims primarily because they didn’t have any money damages or because the damages they did have were caused by conduct that was annoying or mean but not illegal.

Now, I don’t expect Joe or Jane Consumer who calls me on the phone to know whether they have a claim that is appropriate for a lawsuit. It’s my job to evaluate their claim for them. If I can do that over the phone in a few minutes, I do it for free. If it requires an office visit, I charge $200. That’s just a part of my job.

I’m venting because the folks who called me were referred by other lawyers. Even if those lawyers aren’t experts in the details of landlord-tenant or debt collection law, they should know that regardless of the nature of the claim, if there are no damages, there is no case. I suppose it was easier for them just to shuffle these folks off to me rather than give them the bad news. That bugs me. I’m not a trash can for other lawyers’ difficult phone calls.

I love being a consumer lawyer. I love helping people. I just wish that I didn’t have to spend so much time dispensing bad news for other lawyers who lack the spine to do it themselves.

While I’m venting, let me add another tip for folks who may want to hire me as a lawyer: As angry as you may be at what happened to you, remember that I’m on your side. Try to keep the conversation professional. Don’t let your anger take over. You may not realize it, but while we’re talking, I’m thinking about what kind of person you are and what kind of impression you will make in front of a jury. I’ve learned the hard way that juries do not like angry people. If you can’t have a civil conversation with me about your case, I’m not likely to take you on as a client.

I’ve had an iPod for a couple of years now and if she were just a little taller, I’d consider marriage. Short of that, I’ve tried numerous methods for coupling her to my car stereo system.

First I tried the iTrip FM transmitter, but here in Dallas there aren’t many open frequencies, and it occassionally glitches. On top of that, the sound quality was pretty poor. Then I got a cassette adapter. It sounded better and didn’t depend upon how far away I was from the North Dallas church that broadcasts an information loop on 87.9 FM to work, but after a few days, it decided that it would only output sound to the left channel. I used a cup-holder mount to hold the iPod in place and a cigarette lighter power adapter to keep it charged. Unfortunately, the cigarette lighter on my car interfered with one of the two front cupholders which meant that I had no cupholders and crummy sound. But hey, at least I had 3800 songs at my fingertips!

Today arrived via UPS two little gems. The first, an iPod2Car, is a little box with cables that plug into the CD port on the back of my car stereo and the iPod’s bottom port. It carries audio to the car stereo system, charges the iPod, and allows me to switch tracks using the car stereo controls. It also doesn’t deactivate the iPod’s controls, so I can still use the iPod as I normally would. I ran home for lunch to install it. It went in like a breeze and worked like a charm.

The second, an iStickyPad is way cool, but the jury is still out on whether I’ll keep it. It is a sticky (polymer? amputated gecko toes?) pad that adheres to the dashboard and the iPod without adhesive. It seems to hold them in place pretty well. I worry that in a crash it may turn my iPod into a dangerous projectile (though it seems to hold it pretty tight during normal driving). It also puts the iPod into direct sunlight, which is probably not a good thing. It’s nice looking, I amuse myself by wondering how it works, and it frees up another cupholder, but it may have to go.

All in all, I’m a happy boy. It’s nice to be easily pleased.

Sean has been playing guitar for about almost 3 years now and he’s gotten pretty good. He and his guitar camp band really rocked to close out the end of camp show. The behind the head guitar solo got a big response, and it sounded pretty good too!

As an extra added bonus, here’s a little camera phone tip: clean the lens before taking a picture. I was amazed at how much clearer the shots from my little camera phone were when there wasn’t a mass of pocket lint stuffed into the little dimple where the lens sits.

I may be one of the last people on the planet to see this, but even so, I thought it was hilarious.

Tom Mighell, writing on a NY Times story about computer users who buy new computers rather than deal with spyware issues, gets a little crazy about users who don’t take responsibility for properly configuring their security software. Here’s the story of someone who wished he had just bought a new computer:

In April my secretary’s 4 year old computer, a Dell Celeron 700 running Windows 2000, notified us that the virus protection software subscription needed to be renewed. I ran the update function, but instead of taking my money and allowing us to continue updating our virus protection, it posted an error dialog and dumped me into the Norton homepage. After some clicking, I found what I thought was the appropriate subscription renewal form, filled it out and got a renewal code. Unfortunately, I got the wrong product version, so the code didn’t work. I sent an email to Norton asking for a refund and help getting the right code. I haven’t heard anything back from them.

A couple of days later, I got an email from SW Bell, my DSL provider, offering me a free virus protection program. Yippee! I downloaded it, installed it, restarted my secretary’s machine, and bingo! The machine was completely locked up. Nothing I knew how to do (I’m a Mac guy, not a PC guy, and this story is just one of many that explains why) would fix the problem, so I called in a tech from a service that we use. He showed up the next day, diagnosed the problem, fixed it, installed new virus and spyware protection software, and billed me just over $400.

In light of the $400+ the tech guy billed me, the loss of the better part of 1 day of my secretary’s time, the loss of 3-4 hours of my time, and the fact that for $700 I could get a bigger, faster, better new CPU from the Dell website, shouldn’t I have just bought a new computer?

In the alternative, couldn’t the vendors of 2 different virus protection software products that failed at basic tasks have done a better job and saved me from this situation?

This winter a local car dealership, Ferguson Isuzu, went out of business. I represent a client who purchased a car from Ferguson just before they closed their doors. Ferguson never signed over the title to her or her new finance company. Moreover, the check Ferguson wrote to pay off her trade-in bounced, leaving her with 2 car payments due and no car in her name.

We had a title hearing at the Dallas County Tax Assessor-Collector’s office this morning. The hearing officer reviewed my client’s paperwork and approved an application for title transferring the new car to my client with her finance company as lienholder. The hearing officer told me that there at least 100 similar cases involving Ferguson Isuzu.

The title hearing solved one problem. My client now has title to the car. It didn’t solve her other problem, the fact that she has two car payments to make each month. I’m working with her to get that solved.

I don’t normally make posts about individual clients, and of course, I’m not naming my client or disclosing any confidential information, but given the large number of people who are apparently in a similar situation, I thought it might be helpful if I published some general information about what can be done in this situation.

My client’s problems are typical and have fairly ready soluctions. These solutions will apply to most people, who like my client, allowed Ferguson to arrange financing for their car.

Problem 1: No Title to New Car

This is the easiest problem to solve. In Texas, the county tax assessor-collector has an administrative procedure for issuing title in these situations. Call your local office and ask for a title hearing. They will tell you what papers to bring, typically your sales contract showing that you purchased the car and paid the sales tax, an odometer disclosure if one was given separate from the title itself, and proof of insurance. Assuming you have the documents necessary to document the transaction, they should issue a title in your name. In some circumstances, they may issue a bonded title, in which case you may have to post a bond that is conditioned on no one making a claim to the title. There is an alternative title clearing procedure under the Texas Business and Commerce Code that is superior to a bonded title, but it is rarely used and you will need an attorney to guide you through the process.

Problem 2: No Payoff of Trade-in

If the dealer arranged financing for the new car, you may be able to force the new finance company to pay off the trade-in. Check your finance contract for the following language:

Any holder of this consumer credit contract is subject to all claims and defenses which the debtor could assert against the seller of goods or services obtained pursuant hereto or with the proceeds hereof. Recovery hereunder by the debtor shall not exceed amounts paid by the debtor hereunder.

This language, which is required under federal law for all consumer credit transactions in which the seller arranges financing, allows you to sue the finance company for any claims you might have against the seller. This includes your claim against the seller for breaching its promise to pay off your trade-in.

The finance company’s liability is limited to the amount you have paid under the contract, typically your down payment, the value of any rebates or other similar sales incentives where others pay money to the dealer on your behalf, and the value of your trade-in. As long as the pay-off on your trade-in was less than the total of these amounts, you should be able to force the finance company to pay-off your trade-in. You may have to hire a lawyer to file suit in order to get that done, but if you are successful, the finance company will usually have to pay your attorney’s fees even if they exceed the liability cap under federal law. [Note: the law is fairly clear that the finance company must pay attorney’s fees here in Texas, where such fees are typically payable in an action based upon a contract, See Tex. Civ. Prac. & Rem. Code Ch. 38. This may not be the case in other states.]

One of my hats is computer guy for the Advisory Council of the Consumer Law Section of the Texas State Bar. One of our projects for this year was to start an email discussion group for our members. About the time we started talking about this, Google started Google Groups. I experimented with it a little, using it for a small group and it seemed to work fine. It was easy for people to use and easy for me to administer, so I recommended it to the Council. They agreed and off I went. I set up an invitation only list for our members. Everything went fine and about 100 members opted into the group to participate in the discussion. So far, so good.

The Council president wanted to send an announcement to all of our members regarding our upcoming meeting in June. Google offers announcement groups as an option, so I set up a second group as an announcement only group for all of our members. Rather than setting up the group by invitation, I set it up so that members would be automatically added to the group without the need to respond. I can imagine the potential for abuse that such a tool creates, so I wasn’t concerned when during the setup process Google notified me that they were going to review the list before setting it up.

The next day I got the following email from Google via their “noreply@googlegroups.com” address:

Hello craig…@gmail.com,

We’re writing to let you know that we received your request to add 1169 new
members to the State Bar of Texas Consumer Law Section Announcements group.
We’ve changed the subscriptions to “invites,” which means the users in this
list will receive an email asking them if they want to join your group, and
won’t begin receiving messages from this group until they’ve joined.

If you have questions about this or any other group, please visit the Google
Groups Help Center at http://groups-beta.google.com/support.

Thanks, and we hope you’ll continue to enjoy Google Groups.

The Google Groups Team

Ouch! Why didn’t they just reject the request if they didn’t like the way I set it up? Why didn’t they ask me before changing the group from an opt-out announcement only group to an opt-in discussion group? Why did they choose to communicate with me via a no-reply email address? I certainly understand what beta means. It means that the software may not be entirely reliable, that features may change, or that the software may not work the way it is advertised. I don’t understand it to mean that human beings at Google are going to make arbitrary decisions about what functionality is going to be offered without any notice on the site or legal support from the terms of service.

Now I have almost 1169 section members who believe they are going to receive announcements from the section, but who aren’t, and no way to communicate with them because Google won’t let me. I’ve searched the Google Groups site for a way to contact them about this, but there doesn’t appear to be anything other than a general feedback form. I’ve sent it in, but have not received a response and don’t expect to. If someone who reads this has a contact at Google who might be able to help get this situation resolved, please drop me a line. For everyone else, take this as a half-rant, half-cautionary tale about Google Groups and the shaving off of another sliver of my own naivete.

Dave Winer is working on another outliner. Yea! I wasn’t a big fan of More or Thinktank (sorry Dave) not because there was anything wrong with them, but because there was a simpler, more intuitive alternative on the Mac at the time: Acta. I’ve used the outline Dave built into Frontier/Radio and it’s as close to Acta as I’ve found. I use OmniOutliner now. It’s not as sweet as Acta, but it’s pretty good. By now you’ve guessed that I have an Acta fetish. It’s true. Guilty as charged. I loved the Aunt-Sister-Daughter convention, even if it meant I couldn’t use Cmd-s to save documents any more.

Of course, I’m not suggesting that someone needs to go out and re-invent a 15-20 year old outliner. Acta was great for its time, but we live in a new time now.

I use outlines to organize my ideas, and but for some minor interface quirks, they’re all pretty good at that. I think the next step for outliners is to help me integrate other people’s ideas with mine. I’d like to see an outline combined with search. This is different from the outline linking that was possible with Frontier/Radio, kind of the world wide outline, which required mutual participation. I’d like to be able to grab other people’s ideas for my outline wherever a search engine can find them.

One of the nice features of the Frontier/Radio database was the ability cmd-click on a table name and create a new window for that table. What if I could cmd-click on an outline topic and create a search window for that topic? The text of the topic would be the initial query, although I could edit it if desired. The search window would give me a choice of search engines or databases that I could use via a plug-in architecture. The search results would be displayed in this window. I could select text from a search result and drag it into my outline as new topic, where I could annotate and edit it. The new topic would remember its source url so I could always go back to it. The search would persist. It would remember which topics I dragged to the outline and always display those as long as the sources remained available. It would also allow me to delete search results that aren’t relevant and supress them from future updates of the search.

By itself, this would be a pretty cool advance.

Cooler still would be if the search window were a little smarter. What if the search window supplemented the relevance ranking supplied by the search engine, which is generic and is calculated without information about the context? I’d like to see the search window use the text of the topic from which it was created, the text of its subtopics, the text of any search results that were dragged into the outline, and the text of any deleted search results as context information for calculating relevance. Comparing search results to the outline context from which they were sought and weighting the search engine’s relevance ranking by similarity to the outline context from which the search was launched strikes me as a very useful thing. For this to work, the search window would have to actually fetch search results in order to do the relevance calculation or the search engine would have to provide an API for doing this calculation.

Would I be greedy if I mentioned that an RSS feed of new search results from an outline would be nice too?