Legally Speaking: Dead Men Tell No Tales -- Except in Court

John G. Browning Mar. 3, 2011, 2:49am

I don't do probate cases, due perhaps in part to the somewhat creepy summary explanation that my Wills & Estate professor in law school gave to that area of law, calling it "present events controlled by a cold dead hand from the grave."

Besides, recent goings-on in our legal system convince me that dead people are apparently testifying in court a lot more often than we realized.

No, I'm not talking about zombie witnesses, vampire prosecutors, or anyone else from the ranks of the cinematic undead. I'm not even talking about Florida lawyer Mark Anthony, who recently landed the $90,000 a year job of chief deputy with the Brevard County Clerk's office. Anthony maintains that he can communicate with the dead, and has a website touting himself as "the psychic lawyer" who helps grief-stricken individuals communicate with their lost loved ones.

Instead, I'm talking about people like Baltimore, Md., police officer James Fowler. Officer Fowler strikes me as the unusually hard-working type — not that most cops aren't hard-working, and not just because his signature appears on roughly 2,000 red light camera citations pending in Baltimore's traffic courts. Rather, it's because Officer Fowler died in a Pennsylvania car accident on Sept. 27, 2010, but the traffic violations in question took place after that.

That's pretty impressive. On each red light citation is a sworn statement, signed by an officer verifying that a traffic violation did indeed occur. Typical of the citations "signed" by the late Officer Fowler was one from Jan. 12 in which the driver of a van was cited for running a red light during the middle of the day. The story was broken by investigative reporters from Baltimore's WBAL-TV 11 News.

Red light cameras can be a cash cow for municipalities; in Baltimore, 9,300 red light citations were issued during January alone, and each ticket carries a $75 fine.

Police officials have tried to downplay the embarrassment and what would appear to be the rampant fraud illustrated by having a dead man's "signature" verifying that a violation took place. They blame the situation on a "computer glitch" on the part of the company that operates the camera system, and say that it's been fixed.

But a "computer glitch" doesn't explain what happened to the real, living police officer who was supposed to watch the camera footage, and determine that a motorist had actually run the particular light, and then sign his name under oath.

Legally, I can't imagine the citations bearing Fowler's signature being enforceable. After all, how do you cross-examine a dead man?

Just like the Baltimore Police Department, the lawyers for Portfolio Recovery Associates (one of the largest debt collection firms in the country) have some explaining to do. In July 2010, the debt collector's attorneys pursued a lawsuit against a woman in Seattle over $2,892.10 in alleged credit card debt and interest.

Supporting their case was an October 2006 affidavit by one Martha Kunkle, a "designated agent" of the original credit card issuer, Providian, who swore under oath "to the best of my knowledge" that the amount purportedly owed "reflects a true and correct accounting of the cardholder's credit card account."

There was just one problem. Martha Kunkle died in 1995, so signing an affidavit in 2006 would have been problematic, to put it mildly.

This fact came to light thanks to lawyers for Jeanie Cole, a Montana resident who was one of thousands of people sued by Portfolio Recovery Associates over alleged credit card debt. Ms. Cole countersued, and eventually became the lead plaintiff in a 2008 class action lawsuit against Portfolio.

The federal case, filed in Montana, alleged that the debt collection firm had engaged in numerous violations of the Fair Debt Collection Practices Act and targeted 16,000 borrowers using affidavits that were "false and misleading."

During this litigation, Ms. Cole's lawyers found lots of documents supposedly signed by Martha Kunkle, but couldn't track down Ms. Kunkle herself. They finally found her daughter working at Providian in a document-processing division. When the lawyers deposed Kunkle's daughter, they learned that not only had Kunkle died in 1995, but that since then, her daughter and other Providian employees had all used the name "Martha Kunkle" when signing affidavits.

In 2008, one of Portfolio's employees, Judy Montoya, testified in one of the company's debt collection lawsuits that its personnel sign as many as 200 affidavits a day, although insisting that Portfolio has a "very rigorous set of policies and procedures."

I beg to differ—if your company has a dead person's "signature" on what is essentially sworn testimony, your policies and procedures are anything but rigorous—rigor mortis perhaps, but not rigorous.

Not surprisingly, in 2010, Portfolio Recovery Associates settled the Montana class action lawsuits. The terms of the settlement are confidential, and Portfolio will not say how many debtors were sued on the basis of documents "signed" by Martha Kunkle.

Officials in a number of states insist that the Martha Kunkle scandal demonstrates rampant sloppiness and shoddy documentation in the debt-collection field.

Minnesota Attorney General Lori Swanson, who is investigating many debt collectors and buyers of consumer debt for falsifying affidavits, says of the Kunkle fiasco, "when you see corner-cutting like this, it's alarming."

Missouri's attorney general is also investigating to see if any "Martha Kunkle" affidavits have been issued in pursuing debts in that state.

And last July, the Federal Trade Commission (which regulates the debt collection industry) recommended that state regulatory officials require disclosure of "more information" by debt collectors, due to concerns about the industry's reliance on false or incomplete paperwork.

This kind of "robosigning" has occurred just as notoriously in foreclosure cases as well as in debt collection lawsuits and red light camera citations.

So if you or someone you know is facing legal action of this kind, make sure to hold the other side to its burden of proof with sworn evidence from an actual living person—because in court, dead men shouldn't tell tales.

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