July 25, 2001

Kathryn A. Sampson, Research Associate Professor of Law

This article, and the following student-authored arguments, are the products of a third semester legal research and writing assignment I designed to reinforce the students' ability to recognize and confront adverse legal authority. The central focus of the exercise was to integrate adverse authority into the affirmative argument made on behalf of a client. Confronted with Picht v. Jon R. Hawks, Ltd.,⁽¹⁾ and given the task of representing the attorney who had lost in the Eighth Circuit Hawks decision, the students had no choice but to find a way around, over, or through the adverse authority presented by the Hawks court's analysis.

The power of adverse authority integrated into the affirmative case is one not easily recognized or taught. While I have given the topic of adverse authority more theoretical treatment in two earlier publications,⁽²⁾ application of the general principles to a specific advocacy position creates more immediate and recognizable practical import. Because of the success of the assignment, because of very positive responses I received from the practicing bar regarding my last year's submission of student work,⁽³⁾ and because the opportunity presented itself to write in collaboration with Professor Janet Flaccus,⁽⁴⁾ I determined to write on the FDCPA topic and again showcase excellent student work, which appears in the next section of this collaboration.

With regard to the central case of the assignment, on its face, the Hawks decision appears to relegate application of the bona fide error defense to a dead letter, in the case of legal error. However, as Professor Flaccus has discussed, an attorney should be able to argue the bona fide error defense to the Fair Debt Collection Practices Act when the state collections law was unclear at the time the attorney collected debts, in a manner a federal court later deemed to be in violation of the Act.⁽⁵⁾ As noted, an attorney who argues such a defense will be squarely confronted with the 2001 Eighth Circuit Hawks decision.

In Hawks, the court held the attorney debt collector was not entitled to the bona fide error defense, because the attorney had waived his affirmative defense by failing to prosecute it at the trial court level.⁽⁶⁾ More importantly for future cases, however, is the court's broad dicta in which it rejected Hawks's argument that FDCPA liability does not exist where the liability "resulted from a mistake in legal judgment in interpreting and applying [state collections law]."⁽⁷⁾ The court observed that "[e]ven if Hawks had not waived the bona fide error defense," it would not have been available to him because, the court noted, the Eighth Circuit had previously addressed the use of the bona fide error defense in cases of mistake in legal judgment in Hulshizer v. Global Credit Services., Incorporated⁽⁸⁾ and had concluded that "reliance on the advice of counsel or a mistake about the law is not protected by the bona fide error defense."⁽⁹⁾ Thus, the Hawks dicta categorically states that any error in legal judgment falls under a strict liability analysis, relegating the bona fide error defense to apply only to "mere clerical errors."

In her article, Professor Flaccus analyzes why a rationale focusing on Hawks's decision to use a prejudgment garnishment statute to collect the debt for his client provided a clear and well-reasoned policy basis for the dicta that he would not have been entitled to the bona fide error defense, even if he had preserved it. Professor Flaccus also provides an historical analysis of the clerical error limitation and demonstrates why a broad application of the Hawks dicta lacks support in the relevant law under the current FDCPA statute.

This companion article will discuss Hawks, provide an annotated list of primary and secondary authorities, and provide a synthesis of those authorities that have analyzed "intent" elements in the FDCPA, both in the plaintiff's prima facie case and in the bona fide error defense. This article also anticipates models of legal argument that evolved from the legal research and writing assignment based on the Hawks decision. The models that appear in the next section are examples of student work from the University of Arkansas School of Law Class of 2002.⁽¹⁰⁾

This adverse authority project began with a review of the Hawks decision in light of the Appellant's and Appellee's Briefs in Eighth Circuit Docket No. 00-1270, available online through the Eighth Circuit Court of Appeals web site.⁽¹¹⁾ The analysis of these materials dovetailed into an assignment that focused on the Hawks court's two conclusions: (1) Hawks had waived the bona fide error defense at the district court, and (2) even if Hawks had not waived the defense, it is not available for mistakes in legal judgment. As a model for preserving the defense on appeal, and as a model of thorough legal analysis for why the bona fide error defense should be available for errors in legal judgment, the students were also given the citation to a Southern District of Ohio case, Taylor v. Luper, Sheriff & Niedenthal Co., L.P.A.,⁽¹²⁾ in which the attorney's bona fide error defense was successful. In addition, secondary authority recommendations were provided, including the trilogy of articles Professor Flaccus has written on the subject.⁽¹³⁾

Because of their contrast in result, and in level of legal analysis, the two primary authorities of Luper and Hawks provided a good starting point for this assignment in analysis and writing. Especially given the broad dicta in Hawks stating the defense is not available for legal errors, a successful post-Hawks case in the Eighth Circuit will require the same level of forethought and legal analysis that appears in the Luper decision.

In Luper, the attorney debt collectors, in the trial court, vigorously prosecuted their defenses to an action brought against them under the FDCPA, as reflected in 48 docket entries in the pretrial case from April of 1998 through November of 1999⁽¹⁴⁾ including 34 substantive pleadings, motions and briefs filed by both parties. The legal wrangling that led to the attorney defendants' ultimate victory culminated in attorney defendants' motion for partial summary judgment on plaintiff's claim for violations of the FDCPA (docket entry 44), to which plaintiff responded with a supplemental memorandum opposing defendants' bona fide error defense (docket entry 45). In contrast, the Hawks file demonstrates little legal wrangling; the case in the district court stopped at summary judgment in favor of the plaintiff debtor, and it was affirmed in the 2001 Eighth Circuit Hawks decision, after eight substantive pretrial pleadings, motions, briefs, and hearings in the district court.

This Law Notes analysis appears preceding the student contributions to take on the task of confronting the adverse impact of the Hawks decision itself. A post-Hawks attorney should be on notice of important factual details that were not fully analyzed in the Hawks decision: (1) the plaintiff debtors had not appeared in court on the underlying state bad check statutory claim; the defendant attorney debt collector, thus, invoked his state's default judgment rule to settle his client's underlying claim based on his state's bad check statute; (2) it was only after the default in payment had occurred and after the debtor had failed to make an appearance in the state court action filed on behalf of the creditor, but before a default judgment had been formally entered by the state trial court, that the attorney debt collector invoked his state's prejudgment garnishment statute to collect on his client's eventual judgment.

As Professor Flaccus discusses, use of a prejudgment garnishment statute should raise red flags for any attorney, given the question about the constitutionality of such statutes, as demonstrated in the synthesis understanding gleaned from a collection of United States Supreme Court decisions indicating such statutes are suspect.⁽¹⁵⁾ Moreover, the entry of a default judgment against a consumer is subject to a strong protective policy in favor of consumers⁽¹⁶⁾ and subject to a civility concern even among adversaries with equalized political and economic power.⁽¹⁷⁾ However, the Hawks court did not analyze the policy against prejudgment garnishment, or the intersection of the prejudgment garnishment statute with a proceeding taken pursuant to a default judgment rule; its analysis was focused on demonstrating the conclusion that the Hawks attorney had committed a clear FDCPA violation because the analysis of three Minnesota state law provisions was patently clear. Absent the articulation of the policy and the rationale that would support a broad reading of Hawks, the Hawks decision is subject to an overly broad application based on a fundamental misinterpretation of its cryptic analysis.

The concern is that the next FDCPA bona fide error defense case that comes before the Eighth Circuit will be hobbled by the Hawks analysis, even if the use of a prejudgment garnishment statute is absent. Consider the hypothetical case of (1) a state bad check statute and a collections suit brought pursuant to that statute; (2) a default judgment that has been entered; and (3) the implementation of a post-judgment garnishment statute. By collecting post-judgment, rather than prejudgment, the attorney avoids most, but not by any means all, constitutional difficulties.⁽¹⁸⁾ Still, under the strict liability dicta that appears in Hawks, even with the important factual distinction that the attorney proceeds post-judgment, the attorney may still lose a bona fide error defense argument after Hawks.

A prudent attorney who declines to employ a prejudgment garnishment statute to collect a debt, and who awaits the entry of judgment before collecting will be in a better FDCPA position than a more aggressive collections attorney, who uses prejudgment garnishment. If sued in federal court, the attorney who uses post-judgment garnishment should argue her bona fide error defense vigorously and will have preserved clear points of distinction from the Hawks decision.

What is troubling about Hawks is the message that FDCPA liability existed and no bona fide error defense was possible, in a case where the attorney tried to interpret the intersection of two state statutes and a rule of procedure, and came up with an interpretation different from the federal court's. Hawks appears to be the illustration of one of the hard hypothetical cases posed by the Sixth Circuit in Green v. Hocking⁽¹⁹⁾ wherein the court noted 15 U.S.C. § 1692e(5) "'makes it unlawful to threaten 'to take any action that cannot legally be taken or that is not intended to be taken.'"⁽²⁰⁾ The court hypothesized, "[a]ssuming a lawsuit is brought, and the consumer prevails to any extent, it would appear that the law had been broken, as the creditor threatened to take action that apparently, as a result of the judgment, 'cannot legally be taken.'"⁽²¹⁾ Hawks provides an illustration of this Green worst-case scenario. As noted, important policies may prove that Hawks is not the best poster child for this Green hypothetical, but those policies have not been developed in the two brief Eighth Circuit authorities on point.⁽²²⁾

Perhaps Hawks is the welcoming committee for those debtor attorneys who are seeking relief beyond federal bankruptcy statutes, in the form of consumer protection laws like the FDCPA which provides for statutory damages and attorneys fees for violations of what appears to be a strict liability statute as applied to attorney debt collectors in the Eighth Circuit. For creditor attorneys, Hawks provides clear warnings that the FDCPA has teeth.

In the subsequent section of this collaboration, sample arguments press the underdeveloped aspects of the Hawks decision, and suggest a more thoroughly developed analysis that can place both debtor and creditor attorneys on a more even playing field when the pithy Hawks and Hulshizer decisions appear in the next bona fide error defense case.

For purposes of the student assignment, a composite of which appears following this article, the students were asked to give a defendant debt collector attorney the hindsight of the Hawks decision by (1) preserving the bona fide error defense, and (2) fully confronting adverse authorities, starting with Hulshizer and Duffy v. Landberg⁽²³⁾ which were dispositive in the Eighth Circuit's assessment that Hawks had violated the Act and was not entitled to the bona fide error defense. The students were also encouraged to discover and develop responses to other authorities and arguments imbedded in the provided cases, to update, and to use independent legal judgment in developing thorough and well-balanced arguments in favor of the attorney debt collector.

In this process, with a footnote to one of Professor Flaccus's earlier FDCPA articles,⁽²⁴⁾ Michael B. Heister uncovered a procedural point that bears further discussion in this commentary. Mr. Heister's argument demonstrated that authority exists for the proposition that proof of deception and proof of actual damages are not necessary elements of a plaintiff/consumer's prima facie case under the FDCPA.⁽²⁵⁾ He identified an intersection between the simplicity of the plaintiff's prima facie case and the statutory bona fide error defense, which includes an intent element.

It is the intersection between the two elements that may be part of the basis for disparate conclusions regarding FDCPA liability for demonstrably unintentional, or technical, FDCPA violations. A set of research leads at the end of this article are grouped according to prevailing party. As to the procedural point, a handful of the decisions illustrate the problem Mr. Heister identified. These authorities are not entirely consistent, but represent points on an advocacy continuum on the issue of what burden of proof and burden of production is implicated by the FDCPA, with respect to the intent element.

The continuum includes, on the one hand, the aggressively plaintiff/consumer perspective that the FDCPA is a strict liability statute which is broadly construed to protect the unwary consumer and virtually no defense is available to attorneys who commit an FDCPA violation, because lack of intent to violate the FDCPA on the part of the debt collector will not save him from FDCPA liability.⁽²⁶⁾ At the opposite extreme is an aggressive defense perspective that the FDCPA's bona fide error defense is effectively incorporated in the court's analysis of the plaintiff's prima facie case, placing upon the plaintiff/consumer the burden to produce evidence of an intent to violate the act by the FDCPA defendant.⁽²⁷⁾

At a mid point is the perspective recommended by this discussion and by the student arguments in the next section of the collaboration. A model of this perspective appears in the Southern District of Ohio in the Luper decision.⁽²⁸⁾ Implicit in the Luper analysis is the non-controversial and routine burden-shifting analysis of litigation: once the plaintiff establishes his prima facie case, the burden shifts to the defendant to establish her entitlement to a defense. If defendant's proof of the affirmative defense is not effectively negated by plaintiff, defendant is entitled to prevail on that defense.⁽²⁹⁾

While ultimately not focused on an error in legal judgment, the Seventh Circuit's analysis on remand from the United States Supreme Court's Heintz decision demonstrates a thorough and logically defensible application of the summary judgment burden shifting mechanisms.⁽³⁰⁾ In the Seventh Circuit case, the consumer's argument on remand was, essentially, because she had produced evidence that "demonstrate[d] that the firm knew of the problems associated with force placed insurance," her evidence raised "a genuine issue of material fact entitling her to the jury trial she requested."⁽³¹⁾

The Seventh Circuit responded with a review of summary judgment federal practice:

[The consumer's] challenge does not take into account basic summary judgment methodology. Once the defendants offered evidence-through the testimony of law firm members and organizational records-that they did not know . . . the burden shifted to [plaintiff] to move beyond the pleadings and to set forth specific facts from which it might reasonably be inferred that the defendants did in fact know of the [debt collection client's] allegedly improper practices. [citations omitted]. [Plaintiff] has not done so. Viewing the evidence in the light most favorable to [plaintiff], we can only conjecture that defendants knew of the nature of the [debt]. But this is insufficient to deny a summary judgment motion. See Oriz v. John O. Butler Co., 94 F.3d 1121, 1127 (7th Cir. 1996) ("Speculation is insufficient to withstand summary judgment. . . ."). [Plaintiff] is required to present evidence creating a reasonable inference, not a mere possibility.⁽³²⁾

Using the summary judgment burden shifting analysis, the Seventh Circuit declined to hold the attorney strictly liable for a violation of the FDCPA, given absence of evidence that the attorneys knew and intentionally made false representations as to the character of the debt owed by the consumer/plaintiff. The court stated, "[i]f the FDCPA assigned liability for negligent behavior, [plaintiff's] case might survive,"⁽³³⁾ suggesting it does not consider the FDCPA to be a pure strict liability statute. Perhaps recognizing the assailability of its "negligent behavior" analysis, the Seventh Circuit majority offered an alternative ground for its result in its holding that the bona fide error defense protected the debt collector from liability.⁽³⁴⁾

Judge Ripple, in dissent, argued that "[b]ecause the [FDCPA] places the burden on the debt collector to establish the [bona fide error defense], the debt collector-not the debtor as the majority appears to suppose-also has the burden on summary judgment."⁽³⁵⁾

Judge Ripple's analysis, however, is consistent with federal summary judgment practice, including the burden shifting analysis, with regard to the majority's alternative bona fide error defense holding. It was Judge Ripple's position that defendant debt collector had failed to produce evidence of "procedures reasonably adapted to avoid the type of error alleged-attempting to collect legally unauthorized amounts through litigation."⁽³⁶⁾

Judge Ripple would have required evidence of a procedure designed to catch exactly the type of error the plaintiff pressed in her FDCPA action, a procedure that would have required a detailed review of the underlying contract upon which the debt collector's client had sued the consumer in state court.⁽³⁷⁾ Under his analysis, because the defendants could not produce evidence of such a finely tuned procedure, they had not met their burden of proving the elements of the bona fide error defense, and the burden had not shifted to the plaintiff. Judge Ripple concluded, "the bona fide error defense has not been established as a factual matter."⁽³⁸⁾

Judge Ripple's procedural point is well taken. Subsequent bona fide error defense litigation should sharply focus on proof of all elements of the bona fide error defense, including proof of elaborate procedures designed to protect debtors from FDCPA violations. The majority in the Seventh Circuit did not require the level of specificity Judge Ripple would have required, however. After detailing "unrebutted evidence of the procedures [defendants] followed when preparing to file suit to collect a debt to avoid errors and omissions that could result in an FDCPA violation,"⁽³⁹⁾ the majority rejected the plaintiff's broad proposition the defendants must "'routinely investigate and evaluate the legal liability of the debtor for charges imposed by [defendants'] clients. . . .'"⁽⁴⁰⁾ The court concluded, "[w]here defendants maintain extensive systems designed to prevent errors, an unintentional violation of the Act will not result in liability. [citation omitted] Defendants have satisfied their burden to prove this affirmative defense."⁽⁴¹⁾

Thus, the Seventh Circuit majority and Judge Ripple in dissent both make strong and logically defensible points. A clear split of authority exists on their differing intent analyses.⁽⁴²⁾ A clear analysis of the "maintenance of procedures reasonably adapted to avoid such error"⁽⁴³⁾ element of the bona fide error defense eludes the courts and the commentators. It is also an undeveloped aspect of the following model arguments and my own article in this Law Notes collaboration. The Southern District of Ohio decision of Taylor v. Luper, Sheriff & Niedenthal Co., L.P.A.,⁽⁴⁴⁾ provides some discussion of this point; however, the following legal commentaries provide much more comprehensive advice, including the advice that the bona fide error defense is only available for clerical errors (a status quo statement questioned by the model arguments that appear in the following section of this FDCPA collaboration).

• Alvin C. Harrell, Twenty More Ways to Avoid Liability under the Federal Fair Debt Collection Practices Act, 52 Consumer Fin. L.Q. Rep. 71 (1998).
• Alvin C. Harrell, Twenty Ways to Avoid Liability under the Federal Fair Debt Collection Practices Act, 50 Consumer Fin. L.Q. Rep. 109 (1996) (author notes in his 1998 installment, while his recommendations "generally remain valid," the FDCPA has been amended since the 1996 article).
• Therese G. Franzen and Robert S. Carlson, Defense Strategies in Fair Debt Collection Practices Act Litigation, 53 Consumer Fin. L.Q. Rep. 34 (Winter, 1999).

Research Leads

In addition to research leads on defense strategies and protective measures, below appears a compilation of some of the authorities analyzed in the sample arguments.

Consumer/Plaintiff Prevails

An attorney debt collector who writes the next brief to the Eighth Circuit Court of Appeals on the bona fide error defense should be particularly mindful of the following authorities that bear expansive language in support of the consumer debtor's strict liability or narrow interpretation of the bona fide error defense arguments. These same authorities provide a sound basis for the plaintiff/consumer's affirmative case for why the bona fide error defense should not be available to protect an attorney debt collector from a violation of the FDCPA.

• Baker v. G.C. Serv., Corp., 677 F.2d 775, 779-80 (9th Cir. 1982) (source of the analogy between the Truth in Lending Act's bona fide error defense and the FDCPA's bona fide error defense).
• Hulshizer v. Global Credit Serv., Inc., 728 F.2d 1037 (8^th Cir. 1984) (citing Baker v. G.C. Services for the proposition that legal errors are not covered by the bona fide error defense).
• Jenkins v. Heintz, 124 F.3d 824 (7th Cir. 1997) (Ripple, J., dissenting) (appeal on remand after Heintz v. Jenkins, 514 U.S. 291 (1995)) (arguing that bona fide error defense for legal error is inconsistent with the earlier United States Supreme Court's Heintz decision).
• Irwin v. Mascott, 112 F. Supp.2d 937 (N.D. Cal. 2000) (holding that FDCPA plaintiffs do not have to establish intent of actual damages and that bona fide error defense is only available for clerical errors) (citing Baker v. G.C. Services for the clerical error limitation to the FDCPA).
• Edwards v. McCormick, 136 F. Supp. 795 (S.D. Ohio 2001) (showing how even the clerical error defense can fail where an attorney fails to closely supervise clerical workers under her supervision).
• Picht v. Jon R. Hawks, Ltd., 236 F.3d 446 (8th Cir. 2001) (holding bona fide error defense does not apply to interpretations of state collections law).

Debt Collector/FDCPA Defendant Prevails

In contrast, the following authorities would provide a good model for the attorney/debt collector's affirmative case in an FDCPA bona fide error defense case. As well, the consumer/debtor who seeks relief under the FDCPA should be prepared to distinguish these authorities.

• Green v. Hocking, 9 F.3d 18 (6th Cir. 1993) (holding reversed by Supreme Court's Heintz decision but analysis of rationale for legal error exception to FDCPA liability still retains vitality).

• Jenkins v. Heintz, 124 F.3d 824 (7th Cir. 1997) (placing burden on consumer debtor to produce evidence of bad intent and knowledge and allowing bona fide error defense to protect attorney and his law firm).
• Lewis v. ACB Business Serv., Inc., 135 F.3d 389 (6th Cir. 1998) (granting summary judgment in favor of attorney debt collector in second case arising from underlying FDCPA claim which was first decided on directed verdict in favor of debt collector).
• Simmons v. Miller, 970 F. Supp. 661 , 665 (S.D. Ind. 1997) (suggesting plaintiff/consumer bears some burden to establish intent and recognizing that attorneys had solid basis in state collections law to take the debt collection actions they took) (bona fide error defense effectively incorporated into the court's analysis of plaintiff's prima facie case).
• Taylor v. Luper, Sheriff & Niedenthal Co., L.P.A., 74 F. Supp.2d 761 (S.D. Ohio 1999) (model argument and analysis that formed the basis for the student project in this Law Notes article) (analyzing legal ethics and each element of the bona fide error defense and granting summary judgment in favor of defendant debt collector).

Selected Legal Commentary on the Fair Debt Collection Practices Act in General

• Janet Flaccus, Fair Debt Collection Practices Act: A Decade of Litigation, 1996 Ark. L. Notes 23 (1996).
• Laurie A. Lucas and Alvin C. Harrell, 2001 Update on the Federal Fair Debt Collection Practices Act, 56 Bus. Law. 1231 (May, 2001) (the authors also survey 2000 and 1999 in 56 Bus. Law 1231 and 55 Bus. Law 1453, respectively).

1. 236 F.3d 446 (8th Cir. 2001).

2. Kathryn A. Sampson, Synthesis and Synergy: Building Your Case and Your Credibility with the Help of Adverse Authority, 35 Ark. Lawyer 17 (2000); Kathryn A. Sampson, Adverse Authority: Rationales and Methods for Using It to Strengthen Legal Argument, 1999 Ark. L. Notes 85 (1999) (including samples from student work from the members of the University of Arkansas School of Law's Classes of 1999 and 2000).

3. Kathryn A. Sampson, The Mouse in the Annotated Bibliography: An Insurance Law Primer, 2000 Ark. L. Notes 85 (2000).

4. Professor Flaccus has published several articles on the FDCPA: Janet Flaccus, Fair Debt Collection Practices Act: A Decade of Litigation, 1996 Ark. L. Notes 23 (1996); Attorneys, You Are Now Clearly Covered: The Fair Debt Collection Practices Act, 1995 Ark. L. Notes 43 (1995); The Fair Debt Collection Practices Act: Attorneys Beware! You Too May Be a Debt Collector, 1987 Ark. L. Notes 11 (1987).

I greatly appreciated Professor Flaccus's insights during her tenure as editor of Arkansas Law Notes from 1995-2000.

5. Janet Flaccus, Fair Debt Collection Act, Lawyers and the Bona Fide Error Defense, 2001 Ark. L. Notes ___ (2001).

6. Hawks, 236 F.3d at 451.

7. Id.

8. 738 F.2d 1037 (8th Cir. 1984).

9. Id. (citing Hulshizer v. Global Credit Serv., Inc., 728 F.2d 1037, 1038 (8th Cir. 1984) (per curiam) (citing Baker v. C.G. Serv. Corp., 677 F.2d 775, 779 )(9th Cir. 1992)).

10. The following members of the Class of 2002 participated in this writing project during the Spring of 2001: Caroline L. Curry, Jay A. Edwards, Valerie M. Glover, Matt Hankins, Michael B. Heister, Amy Huffman, Sarah Morris, Jeffrey D. Rickard, David H. Roberts, Amanda C. Rose, Kirsten C. Sanford, J. Ryan Solomon, Louisa N. Vassileva, Bradley W. Wallace, Brett D. Worlow, and Jennifer E. Young. A composite brief drawn from their work appears in the text with special textual acknowledgments to those student authors whose work appears at some length.

11. Eighth Circuit Court of Appeals Briefs, http://www.ca8.uscourts.gov/briefs/brfrm.htm (appellate brief search page) (access verified July 11, 2001). This specific site is linked from the Eighth Circuit United States Court of Appeals Home Page, http://www.ca8.uscourts.gov/index.html (access verified July 11, 2001). A good gateway site to this and other internet information appears at the Arkansas Bar Association Law Links page, http://www.arkbar.com/lawlinks/index.html (access verified July 11, 2001).

12. 74 F. Supp.2d 761 (S.D. Ohio 1999)

13. See supra note 4 (providing citations to Professor Flaccus's FDCPA articles).

14. Docket entries are available on line through the federal Pacer service; images of the content of the documents is not yet available at http://pacer.ohsd.uscourts.gov/ (access verified to docket in 2:98cv00350 on July 11, 2001).

15. Flaccus, supra note 5.

16. See e.g., Russell Engler, And Justice for All-Including the Unrepresented Poor: Revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1987, 2019-20 (citing among other articles Hillard M. Sterling and Philip G. Schrag, Default Judgments Against Consumers: Has the System Failed?, 67 Denv. U. L. Rev. 357, 386-87 (1990) for the proposition that "[c]ourts handling housing, consumer, and family law matters routinely face a high volume of cases and a high rate of settlement, with minimal judicial oversight. Vast numbers of cases are resolved in under five minutes at the bench, often reducing the judicial role to that of a rubber-stamp." Id.).

17. See e.g., Adam Owen Glist, Enforcing Courtesy: Default Judgments and the Civility Movement, 69 Fordham L. Rev. 757 (2000). Under Arkansas law, for a comprehensive account of Rule 55 in its present form after the 1990 amendments, see John J. Watkins, Revised Rule 55, Five Years Later, 49 Ark. L. Rev. 23 (1996); see also John T. Holleman IV, Revised Rule 55 Revisited, 21 U. Ark. Little Rock L. Rev. 443 (1999) (providing case law updates to the Watkins article); Mark A. Mayfield, Note, Setting Aside Default Judgments in Arkansas, 45 Ark. L. Rev. 971 (1993) (suggested by the Holleman article).

18. See Robert Laurence, Recent Developments in the Arkansas Law of Garnishment, 1992 Ark. L. Notes 39 (1992).

19. 9 F.3d 18 (6th Cir. 1993).

20. Id. at 21.

21. Id.

22. Picht v. Jon R. Hawks, Ltd., 236 F.3d 446, 446-52 (8th Cir. 2001) (six-page case, including headnotes); Hulshizer v. Global Credit Serv., Inc., 728 F.2d 1037, 1037-38 (8th Cir. 1984) (two-page case).

23. 133 F.3d 1120 (8th Cir. 1998) (Duffy I), appeal after remand, 215 F.3d 871 (8th Cir. 2000) (Duffy II). Because Duffy II was filed May 25, 2000, and because Hawks had made his assessment of Minnesota state collections law in February 1998 (Hawks, 236 F.3d at 448), Hawks did not have the benefit of the Duffy II decision at the time he attempted collection of the Picht debt. As the student arguments illustrate in the next section, while it was decided in January of 1998, Duffy I focused on the issue of whether a check was a "debt" within the meaning of the FDCPA; it was in Duffy II that the statutes at issue in Hawks came under scrutiny. Caroline L. Curry, whose Duffy argument appears in the following section, did an excellent job of raising this timing issue in our class discussions regarding the exercise.

24. Janet Flaccus, Fair Debt Collection Practices: A Decade of Litigation, 1996 Ark. L. Notes 23, 49 (1996).

25. Indeed, Professor Flaccus, acknowledging the broad sweep of the statute in favor of debtors, has stated: "These sections make clear rules that potentially overprotect the debtor. By this protection, the debtor is protected from potential harm that is very difficult to prove and the collector is not inconvenienced by the restrictions." Flaccus, supra note 24 at 46 (discussing 15 U.S.C. § 1692f(8) and favorable consumer case law decided under it).

26. Baker v. C.G. Serv. Corp., 677 F.2d 775, 780 (9th Cir. 1982); Irwin v. Mascott, 112 F. Supp.2d 937 (N.D. Cal. 2000).

27. Simmons v. Miller, 970 F. Supp. 661, 663 (S.D. Ind. 1997).

28. Taylor v. Luper, Sheriff & Niedenthal Co., L.P.A., 74 F. Supp.2d 761 (S.D. Ohio 1999).

29. Such burden shifting has been a hallmark of the summary judgment practice that has developed in the federal courts, after the Court's 1986 summary judgment trilogy. See Simmons v. Miller, 970 F. Supp. 661, 663 (S.D. Ind. 1997) (cataloguing United States Supreme Court decisions and synthesizing them with local court rules in FDCPA action decided on summary judgment in favor of debt collector). Carving out a piece of plaintiff's litigation for special treatment may bring federal practice under the FDCPA to the same place Arkansas state law practice has been with respect to summary judgment in state court. See e.g., Lewis v. ACB Business Serv., Inc., 911 F. Supp. 290 (S.D. Ohio 1996), aff'd 135 F.3d 389 (6th Cir. 1998) (granting judgment as a matter of law following jury trial on FDCPA claim); see also James R. Estes, Note, Wallace v. Broyles: Arkansas Summary Judgment a Thing of the Past?, 53 Ark. L. Rev. 99 (2000) (discussing "mirroring" approach to summary judgment and directed verdict in federal courts and arguing practical and economic reasons for increased use of summary judgment in Arkansas state practice).

30. Jenkins v. Heintz, 134 F.3d 824, 831 (7th Cir. 1997) (appear after remand from 514 U.S. 291 (1995)).

31. Id. at 829.

32. Id. at 831.

33. Id. at 832.

34. Id. at 832-35.

35. Id. at 835 (Ripple, J., dissenting).

36. Id. at 837 n.1 (Ripple, J., dissenting).

37. Id. at 836 (Ripple, J., dissenting). The majority's response to this point was: "[t]o require an attorney debt collector to conduct an independent investigation into the legal intricacies of the client's contract with the consumer would create a double standard for the bona fide error doctrine based on the identity of the collector." Id. at 833-34.

38. Id. at 836 (Ripple, J., dissenting).

39. Id. at 834. The majority stated: "These [procedures] include the publication of an in-house fair debt compliance manual, updated regularly and supplied to each firm employee; training seminars for firm employees collecting consumer debts; and an eight-step, highly detailed pre-litigation review process to ensure accuracy and to review the work of firm employees to avoid violating the Act. After suit is filed, the firm assigns an attorney to review all issues relating to a particular deficiency, and stops all collection efforts on a disputed balance before judgment to verify all disputed items with the client." Id.

40. Id.

41. Id. at 834-35.

42. See supra notes 26-28 and accompanying text (outlining points on the intent analysis continuum).

43. 15 U.S.C. § 1692 k(c).

44. 74 F. Supp.2d 761, 765-67 (S.D. Ohio 1999).