The term “debt collector” has been around a long time in our profession, and I should know, as I have been practicing law in Illinois for over 50 years. While the term has been around for some time, the meaning has been changing recently. When I was new to the practice of law, attorneys were not considered debt collectors. However, just about all attorneys collected debt for their clients on a regular basis. Creditors’ Rights was not a specialized field, but just an everyday part of enforcement of judgments.
Now, just about every actor in the Creditor field is considered to be a debt collector. About nine years ago, the Seventh Circuit handed down Nielsen v. Dickerson, requiring attorneys to adhere to the standards of the Fair Debt Collection Practices Act (FDCPA). Along with the new moniker of “debt collector,” came a host of attendant responsibilities for creditors’ attorneys. Even attorneys who occasionally collect debt can find themselves subject to liability under the FDCPA and similar state laws.
Creditors’ attorneys now must be specialists and keep abreast on new developments in the field. For example, the Illinois Attorney General is currently looking into possible abuse of the court’s contempt power in judgment enforcement actions. The result has been that judges are more hesitant to issue body attachments in post-judgment proceedings.
As the field evolves, attorneys in the debt collection field must evolve as well. We must find new ways to protect the rights of our clients and find meaningful ways to enforce judgments, while respecting the rights of debtors and adhering to the law.
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By Herbert H. Franks, Senior Partner
Franks, Gerkin & McKenna, P.C.