Does Henson v. Santander Consumer USA Inc. mean you can’t win your case? Not necessarily.

Is my debt collector a “Debt Collector” under the Fair Debt Collection Practices Act now?

On June 12, 2017 the Supreme Court of the United States (SCOTUS) issued a unanimous opinion that has debt buyers rejoicing in debt collection cases. SCOTUS’s holding says the following:

“A company may collect debts that it purchased for its own account, like Santander did here, without triggering the statutory definition in dispute. By defining debt collectors to include those who regularly seek to collect debts “owed . . . another,” the statute’s plain language seems to focus on third party collection agents regularly collecting for a debt owner—not on a debt owner seeking to collect debts for itself.”

So what does that mean for debtors sued by the likes of Midland Funding, LVNV Funding, Santander, or any of the other “debt buyers” out in the real world? In discussing this with my colleagues working on these cases here and in a Southern state, we believe that this decision does not change anything about how we are approaching these cases. Henson dealt with a single extremely narrow issue: when a debt buyer sues to collect is it trying to collect for “another”? The obvious answer is no.

Debt buyers still have two problems in debt collection cases.

First, many debt collectors cannot prove that they own the debt. While they can claim that they own the debt, many debt buyers simply cannot provide the paper trail that proves they own it. That’s why at McMullen Law Office, LLC we demand that they PROVE IT. When they cannot, they are taking an action to collect the debt of another and are a “debt collector” under the Fair Debt Collections Practices Act.

Second, debt buyers buy debt (especially old debt). They then turn around and sue someone for it. That means that the are “in any business the principal purpose of which is the collection of any debts.” 15 USC 1692a(6). This “debt collection business” also triggers the statutory definition of “debt collector.” SCOTUS did not address this provision in its decision in Henson.

What does this decision mean for me?

This decision still means that debt collectors are debt collectors. Just like the debt buyers, at McMullen Law Office, LLC it is still BUSINESS AS USUAL.

If you have a case that you want us to review, please do not hesitate to contact us by phone (937-985-2564), email (attymcmullen@gmail.com), or on the contact form on this site.

The information contained in this post are general opinions. Every case requires special review and attention. If you think you may have a case you should contact an attorney for a consultation in your area as soon as possible.


Debt Collection Defense Litigation

McMullen Law Office, LLC Adds Debt Collection Defense

Protecting Criminal Defendants AND Now Consumers

Attorney Justin M. McMullen has spent more than five years protecting Defendants from the State of Ohio through his criminal defense practice in Dayton, Xenia, Beavercreek, Fairborn, and surrounding areas in the Miami Valley. Now, Attorney McMullen and McMullen Law Office, LLC is proud to announce that they are bringing that same fight to the protection of Ohio’s consumers against the debt collection companies hired by credit card companies who harass and hassle consumers into payment.

Bankruptcy is not your only option in debt collection defense

Many debtors believe that once these collections letters and lawsuits get filed, that bankruptcy is their only way out. Federal and State law allows you to demand that these debt collection companies PROVE IT.

  • They must prove that they own the debt.
  • They must prove that their debt calculations are right.
  • They must prove they are entitled to interest (if asked for).

There are many cases where they simply cannot PROVE IT. In these cases, you may be entitled to:

  • Having the debt claim forgiven.
  • Having your attorney’s fees paid by the debt collection company.
  • Receiving mandatory damages BY LAW.

What do I do if I have been sued?

You only have 28 days to file an Answer to a complaint in Ohio. If you are served with a complaint (by certified OR regular mail OR hand delivery by a process server), you MUST answer the complaint or the debt collection company wins AUTOMATICALLY. Do not let these debt collection companies take your hard-earned money without making them PROVE IT in court.

If you have been served with a lawsuit, Contact Us today for a FREE CONSULTATION to discuss your NON-BANKRUPTCY options.

THIS BLOG POST IS THE OPINION OF THE WRITER. EVERY CASE IS DIFFERENT AND REQUIRES A CAREFUL REVIEW OF ALL FACTS RELATING TO YOUR CASE.

ADVERTISING MATERIAL.


2016 Top 20 Dayton Criminal Defense Lawyer – Expertise.com


McMullen Law Office, LLC is proud to announce that he has been named one of Dayton’s Top 20 Criminal Defense Lawyers for 2016 by Expertise.com.*

Expertise.com writes: “McMullen Law Office, LLC is an Ohio-based law firm led by attorney Justin McMullen. He offers legal services in criminal defense, drug charges, DUI, and appeals. McMullen Law Office, LLC is available for consultation 24 hours a day any day of the week.” Expertise.com states that they rely on twenty-five variables across five criteria in determining their list: (1) Reputation, (2) Credibility), (3) Experience, (4) Availability, and (5) Professionalism.

Justin M. McMullen has this to say: “It is a great honor and privilege to be selected to this 2016 top 20 criminal defense list by Expertise.com. When I opened McMullen Law Office, LLC, it was my goal to provide quality criminal defense legal services to the residents of the Miami Valley. While I am proud of this recognition, my focus is on helping those charged with crimes in Dayton and the surrounding areas – not awards.”

The full list can be found here.

*In typical lawyer fashion, a DISCLAIMER: Expertise.com is a third party site that has relied on its own criteria in determining its list. The recognition and opinions of Expertise.com may not reflect the experience of any or all past clients and should not be used as a factor in deciding whether to hire McMullen Law Office, LLC for your specific matter. Expertise.com’s opinion and rating relates to Attorney Justin M. McMullen’s representation of Ohio clients only and does not reflect an opinion on Indiana criminal defense or regarding any other practice area. As always, speak to a lawyer before you hire them and do not rely only on third-party rating sites when deciding whom to hire.


People Want to Know…

“What cases do you see most often?”

That answer is easy: drug cases.

No two “drug cases” are the same. A lot of my cases are standard drug possession cases. ‘Typical’ drug cases happen when an officer stops a person for some reason, the officer gets permission to search (a topic for another blog entry), and the officer locates a baggie of drugs or paraphernalia from the person. The most common drugs I see prosecuted are heroin, marijuana, methamphetamine, and cocaine.

There are another category of cases that only touch on the issue of drugs. This includes charges such as theft, trespassing, identify fraud, or even violations of a protection order. For example, it is common to see someone committing a theft offense in order to obtain money or items to exchange for drugs. As another example, those with drug issues sometimes lose their place to live and are forced to stay somewhere they probably should not be. These people can end up charged with trespassing or protection order violations.

If the State charges you with a drug case in Ohio, you may have options. Call McMullen Law Office, LLC at 937-985-2564 to talk about your case.


Should I Talk to the Police?

Most of my criminal defense consultations start the same way: the prospective client was arrested, given a citation and a court date, or they were served with an indictment (and then usually arrested). They sound something like “Justin, I got a ticket for drunk driving and I was taken to jail” or “Justin, I got this summons to court next week.”

A few of my consultations begin even before that. They sound more like this: “Justin, I got a call from a police detective last night asking me to come in and talk to him/her. What should I do?” Should I talk to the Police?

In general, people think there is only one response – to go talk to them.

“Maybe it has nothing to do with me.” It does.

“Maybe they just need some information.” They do – whatever they can use against you.

“Maybe they don’t know anything.” They do.

“Maybe I can talk my way out of this.” You can’t.

I have one rule to keep in mind – if you did not call them, DO NOT TALK TO THE POLICE.

“But don’t I have to talk to the police when they ask me to?” NO. Unless they have arrested you, any time you talk to the police it is considered voluntary. (If they order to you stay and answer basic “who are you?” questions, comply. Don’t answer anything else other than “who are you?” questions. We can fight over the detention later.)

If a cop calls me to come in, what should I do then?

(1) Tell the officer that you do not speak to the police without a lawyer present. Politely ask the officer for his/her name, what police department he/she works for, and for a phone number. He/She will probably try to tell you that asking for a lawyer makes you sound guilty. Politely tell the officer that you are finished speaking with him/her and disconnect the call. Write down the officer’s name, department, and phone number.

(2) Contact a lawyer to get an appointment as soon as possible. McMullen Law Office, LLC‘s phone number allows you to speak to or leave a message for Attorney Justin M. McMullen directly – not a paralegal or a secretary – who will schedule a face-to-face meeting with you.

Any conversation where you are looking to a lawyer for legal advice is confidential. That means that the lawyer cannot disclose the nature or content of your conversation without risking their license to practice law.

(3) DO NOT speak to anyone, other than a lawyer, about why you think the police are calling you. Your conversations with others are not confidential. This includes your family. Your conversations can easily be misunderstood and turned into a “confession” by an aggressive police officer.

(4) Once you have hired a lawyer, let the lawyer speak to the officer and to the prosecutor, if necessary.

While the content of this post will cover most situations, every legal matter is different. Please call  McMullen Law Office, LLC at 937-985-2564 if you have any questions about what to do if an officer contacts you in the Miami Valley.


Greene County has a New Juvenile Court Judge

According to a Court News Ohio story posted here, Adolfo A. Tornichio has been appointed as Judge for the Greene County Common Pleas Court – Juvenile Division. Tornichio replaces Judge Robert W. Hutcheson who retired from the Juvenile Court bench on May 31, 2015 after having served in that capacity for more than 20 years.

I have had the pleasure to work with Tornichio, a felony prosecutor, on criminal defense matters in Greene County. I wish him the best in his new role as Judge.


First Anniversary – Criminal Defense Firm

McMullen Law Office, LLC opened on August 18, 2015 with one goal – to provide high quality criminal defense and legal service to the Miami Valley. It takes more than a lawyer to have a law firm.

It takes clients.

To the 25+ clients who have brought their matters to me to handle, I want to thank you from the bottom of my heart. You made this law practice possible.

Because of you, I have represented clients as far south as Cincinnati and as far north as Fairfield; as far west as greater Indianapolis, and as far east as Xenia. Referrals from you keep my doors open and let me do what I do best: testing the State’s evidence and getting clients the help that they need.

From the bottom of my heart, thank you so much for making this past year possible. I look forward to helping you, your families, and your friends as we march forward into our second year.

~Justin