Debtor's Purgatory 

People who can't afford to hire an attorney have virtually no chance in court against well-heeled lawyers for banks and debt collection companies.

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The burden of "equal justice" has now fallen on nonprofit organizations like Bay Area Legal Aid and East Bay Community Law Center, as well as the resource centers located within the courts themselves. But there are not enough of them to pick up the slack.

Theoretically, we don't have debtor's prison any more, but Rapier thinks that our class disparities and the withering economy have prevented the courts from serving poor people, no matter how well intentioned they are. He pointed to the list of "unlawful detainer" cases posted outside of Judge Don C. Clay's Oakland courtroom on a recent Friday, for people getting evicted from their homes. Roughly two-thirds of the defendants were pro pers.

Rapier shook his head dispiritingly. "These people here?" he said. "They're getting wiped out."

Like their peers in nearby Contra Costa, civil court judges in Oakland are feeling the effects of the sputtering economy. Judge Kimberly Colwell, who hears small claims cases on the third floor of the Alameda County administration building near Lake Merritt, said economic downturns always cause an explosion in debt collection, wrongful termination suits, and personal injury cases. "They trip over a crack in the sidewalk, and suddenly they need to sue the city," she said of people who have lost their jobs and desperately need money. "Whereas they might have had insurance and brushed it off before."

Colwell deals with a higher case volume than most civil court judges, and seldom does she see anyone arrive with an attorney. A typical weekday morning might include more than a dozen cases, each with its own mess of complications. At one recent hearing, two East Oakland residents disputed over culpability in an auto accident, but provided few details for Colwell to parse — one tried to claim $2,000 in damages, but had no receipt to prove it; the other didn't speak English. A tenant tried to sue her landlord, citing a handshake deal that was never committed to print. A woman demanded thousands of dollars in restitution from United Airlines over lost jewelry, not realizing she signed a terms of service agreement that made jewelry unrecoverable.

Pro per litigants will often consult an Internet primer before coming in, then attempt to fight their cases the way a lawyer would, but don't really know how. "There was an automobile repair case in which the plaintiff felt [he was] entitled to damages 'under California law,'" Colwell said. "I asked which law. [He] wasn't sure."

She managed a wan smile. "I always say the Internet is a blessing and a curse."

Budget cuts have pinched Oakland courts nearly as much as their analogues in Contra Costa County, though the effects often manifest in small ways, said Colwell's clerk Melinda Guerrero. "That's my Inbox," Guerrero said, pointing to a thick stack of untouched manila folders on a filing shelf, midway through morning hearings on a Thursday. With Alameda County cutting staff and juggling operations — until this year, courts in Hayward and Pleasanton were routing their small claims cases up to Oakland — overload is the new normal, she explained. "They recently changed the phone system but they don't have anyone to give refresher courses," she added.

At this point, court budget cuts have become a Bay Area-wide scourge for low-income litigants. The courthouse in Pittsburg no longer accepts filings, so people with domestic violence or family law cases have to trek over to Martinez. That's especially problematic for people who don't own cars, said Ken Theisen, spokesman for Bay Area Legal Aid. "Folks have to take the bus, transfer buses three to four times, and the buses don't come very often," he explained.

Staff shortages in San Francisco and San Mateo counties have created a backlog of temporary restraining orders, and a number of them aren't signed within 24 hours. Traffic court is another hornet's nest, with many counties ill-equipped to handle the volume of cases that come in.

But debt collections, which began proliferating in 2008 after the Wall Street crash, are perhaps the saddest indicator of a court system so hobbled by cutbacks that it can no longer serve its population. Megan Ryan, a staff attorney at the East Bay Community Law Center who specializes in such cases, said that the vast majority of them result in defaults, which makes it extremely easy for the creditor to prevail, or pressure the debtor into a settlement.

"I think that's the business model for a lot of these third-party companies like Cache, Midland Funding, and Portfolio Recovery Associates," Ryan said of debt collection companies. "The hope is that someone will go into default, have no familiarity with the legal process, and not have an attorney to represent them."

By the time a debt snowballs that far, the debtor usually has few resources to fight it. Most defendants can barely afford to pay rent or buy groceries, let alone hire a private attorney, and most lawyers won't take a debt case on contingency because current statutes limit them to a paltry $800 remuneration. Unless a case involves some kind of juicy collection practices cross-complaint — such as an agency harassing the debtor's employer, or calling late at night, in violation of federal law — it's just not worth taking, Ryan said. And since many debtors aren't aware of the laws, they don't know to hire an attorney if the collection agency behaves inappropriately. They're simply out of luck.

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