29 June 2003

A collection agency sent a letter to McHugh stating that it was considering criminal prosecution if she did not pay off a check. She called and was bullied by someone claiming to be an attorney who threatened her often and at great length with the "fact" that the police were going to come get her if she did not pay the check off. Panicked, McHugh pays off the check that day. Checking later she discovers that the check had already been paid. Not surprisingly, she sues. And she wins (including attorney fees). Chief Judge Wilson makes it very clear that he is not happy with this company:
"In this case, Check Investors intentionally panicked McHugh causing her to pay a debt she did not owe. Check investors, through its overzealous, deceitful collection agent, clearly intended to cause McHugh severe emotional distress, and she in fact experienced severe emotional distress."
McHugh v. Check Investors Inc., No. Civ.A. 5:02CV00106 (W.D.Va. May 21, 2003).

Her lawyer is quoted in the Virginia Lawyers Weekly as saying:
"They basically told [McHugh] if she didn't pay the debt within an hour, they would come and arrest her. . . People who don't know much about the law - a tactic like that can work."
Well, I do know the law (at least in Virginia) and this sort of thing would scare the living daylights out of me as well.

In Virginia, if your check bounces and the entity in receipt of the check sends you notice you have five days to pay (even if you don't get the letter). If you do not, this is one of the statutes wherein the Legislature has abolished the presumption of innocence. You are guilty unless you can prove you are innocent. Every time I read that statute - and many others like it in Virginia - the words "impermissible burden shifting" come to mind. But the Virginia Courts Appellate do not agree with me.

A lot of retailers use that statute to turn the local prosecutor into their bill collection agency. People who have never even been near a court before are dragged in so that the convenience store down the road can get its $28 (plus $25 return fee). In some jurisdictions the prosecutors drop the case if the check is paid off in others they do not - the retailer could care less as long as he gets his money. You see the same retailers in week after week after week doing this - they don't even try civil remedies.

So, yes, I would be afraid if a letter arrived at my home two days after it was mailed and I couldn't get ahold of the Agent for the company for another couple of days. Because I know that no matter how convinced I am of my innocence when that fifth day passes they can file criminal charges against me. And what if I did make some sort of error? After all, the collector in this case was talking about a check from four years earlier. I'd have to contact my bank about something that far back and they would probably have to mail the information to me (they seem to have to mail everything after three months have passed). I'd pay too in order to avoid the possibility of getting a criminal conviction. Hopefully I'd follow thru like this lady did afterward.


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