FCCC Best Practice: Collections Winter Conference February 17, 2016 Kissimmee, Florida

Transcription

1 FCCC Best Practice: Collections 2016 Winter Conference February 17, 2016 Kissimmee, Florida

2 Presenters Gypsy Bailey, General Counsel and Courts Director, Leon County Clerk of the Circuit Court & Comptroller Louis Tomeo, Director of Court Operations, Criminal Court Services, Palm Beach County Constitutional Clerk & Comptroller 2

3 The Best Practices Committee The committee has been in existence for about 10 years Purpose of the committee is to provide guidance to Clerks statewide and assist in achieving consistency in interpretation and practice The committee has a workgroup to staff the drafting and research processes The current number of BPs is about 50 The library of best practices is located at The workgroup strives to perform a regular review to insure the best practices are up-to-date with current law 3

4 The Best Practices Committee Chair: Marcia Johnson (Franklin) Vice Chair: David R. Ellspermann (Marion) FCCC Staffers Christopher Campbell Cyndi Andrews Members J.K. Buddy Irby (Alachua) (CCOC) Ken Burke, CPA (Pinellas) Todd Newton (Gilchrist) Dana Johnson (Dixie) Gail Wadsworth (Flagler) Becky Norris (Gulf) Neil Kelly (Lake) Tara Green (Clay) Barry Baker (Suwannee) Amy Heavilin, CPA (Monroe) Carolyn Timmann (Martin) 4

5 Best Practice on Collections History FCCC had a best practice on collections that had become outdated CCOC was developing a toolbox of collection strategies and shared a collection strategies document with Clerks statewide, located here - In preparing for the 2016 legislative session, Clerks became aware of several bills that would affect driver license suspension and other collection efforts, and worked to create a current, comprehensive best practice on collections to add to the Clerks library of best practices located on Resources. The Best Practices workgroup, with representatives from several counties, assembled to make the best practice current, not only with law, but with all Clerk practices 5

6 Best Practice on Collections (continued) The workgroup had several conference calls to review drafts and make changes, provide documentation, forms and training materials for the appendix The workgroup sent its recommendation for the best practice and appendix to the Best Practice Chair and the Best Practice Committee for approval, and that committee sent it on to the Executive Committee for final approval FCCC ed out Bulletin #15-089, dated 12/14/2015, providing the Collections Best Practice, appendix, and supporting documentation 6

7 Best Practice on Collections (continued) External Forces Affecting Clerk Collections Previous Brennan Center review of Clerk collection practices - Lawsuits like the recent one in Marion County - Newspaper articles - Senator Brandes bill - FCCC response to Brandes bill dated 01/12/16 7

8 Best Practice on Collections (continued) Purpose of the Best Practice: Clerks statewide must employ all tools provided by the legislature in a consistent manner. The legislature has set the court costs and fines; the courts impose court costs and fines; and Clerks must comply with the laws and enforce the court orders, using all tools in a consistent manner. While maximizing collections is an important goal, it must be balanced against Clerks duty to collect as much as is practicable in the circumstances presented by defendants. This best practice is intended to provide guidance on a consistent approach to collections. 8

9 Best Practice on Collections (continued) Main Provisions of the Best Practice Use flexible payment plans Consider default payment amounts but also consider individual defendant circumstances Use application / affidavit forms to allow defendants to apply for program and to gether defendant data Use all enforcement tools Record judgments in Official Records Send late letters / postcards Use phone reminders / online & IVR payment systems / outbound call process Use garnishments Suspend driver licenses 9

10 Best Practice on Collections (continued) Main Provisions of the Best Practice (continued) Use all enforcement tools (continued) Respond to collection motions Attend collection hearings File answers in CA and CC mortgage foreclosure cases to assert Clerk s interest in collecting on liens Insure compliance with bond forfeiture statutes Send cases to collection firms/agencies Implement a process to compromise under FS

11 Best Practice on Collections (continued) Collections Checklist The workgroup wanted to distill the important provisions of the 11-page best practice into a short checklist The workgroup also wanted to highlight the mandatory and optional elements of collection programs, based on what the law provides Mandatory Elements Collect statutory fees as required by FS 28.24(26) - $25 one-time set-up fee or $5/payment Establish a program that accepts partial payments for court-related fees, service charges, costs and fines, as required by FS (4) Contract with collection firms/agencies as required by FS (6) for the collection of all fees, service charges, fines, court costs, and liens for the payment of attorney fees and costs pursuant to s Enforce, satisfy, compromise, settle, subordinate, release, or dispose of debts and liens as required by FS (9) Comply with the bond forfeiture requirements noted on FS ,.27, and.28, and FS

12 Best Practice on Collections (continued) Best Practice Collections Checklist (continued) Optional Elements Suspend driver licenses for nonpayment under FS (5) Place defendants on payment plans on the day of sentencing, and run the 90-day time period of FS (6) from the sentencing date Use application/affidavit forms to obtain financial information from defendants in setting them up on payment plans Use postcards/late notices/letters and IVR systems to provide defendants with payment reminders and next consequences. Establish default payment amounts for CT/MM vs. CF cases as a starting point, but work with defendants and their individual circumstances 12

13 Best Practice on Collections (continued) Optional Elements (continued) Regarding collection agencies/firms: Do not send cases under FS (6) if the defendants are complying with local payment plans. Provide them with specific settlement authority under FS (9). Retract cases from the firms when new costs and fines have been imposed so that all court costs and fines on a case are combined. Communicate with all parties involved in collections: Defendants, in court or immediately after sentencing, to provide information, information sheets, etc. DOC, concerning its statutory requirement under FS (7), since that statute provides for different distribution than FS (5) Judiciary For an administrative order that will allow the financial portion of cases to remain open until paid in full, despite a seal or expunge order For a process to claim money seized during a case, whether as evidence or not, to apply to court costs and fines. 13

14 Best Practice on Collections (continued) Optional Elements (continued) Collect administrative costs for compliance under FS (12), for postage, copying, docketing fees, service fees, etc. Share information on community service options under FS (2), provide information forms, insure monitoring, and work with the judiciary for reconversion if defendants fail to submit timely proof of completion Record all criminal judgments and sentences to insure that a lien is created under FS (6) Conduct a review of the property records and motor vehicle title records as part of the criminal indigence determination process, under FS 27.52(2)(a)2. Use the DOC website, Offender Search, to track defendants release so you can notify defendants about compliance Respond to all motions pertaining to collections and all motions pertaining to bond remissions Regularly evaluate the effectiveness of collection tools 14

15 Court Collections Issues Prior Issues Actions Taken 1. Motions to modify cost order. 1. Worked with judiciary to develop order requiring defendant to establish payment plan. 15

16 Example of Court Order 16

17 Court Collections Issues Prior Issues Actions Taken 1. Motions to modify cost order. 2. Court not ordering payment plans and/or providing too much time to pay. 1. Worked with judiciary to develop order requiring defendant to establish payment plan. 2. Met with all Criminal Judges to demonstrate benefits of a payment plan vs. no payment plan. Discussed the correlation between successful completion of payment plans and DL suspensions. 17

18 Payment Plan vs. No Payment Plan MM/CT cases only CY Total cases on payment plan 9% (1,776) 64% (1,127 cases) success rate (plan completed or making payments) 36% (649 cases) had DL suspended for failing to comply. Total cases with no payment plan 91% (18,673) 25% (4,628 cases) success rate (paid or making payments) 75%(14,045 cases) had DL suspended for failing to comply. Sampled 200 case; Assessed $73, Ave. time to pay 200 days Collected $ cases with payment 18

19 Payment Plan Comparison Payment Plan Percentage CT 4,067 5,193 28% CF 631 1, % MM 1,570 2,132 36% 19

20 Payment Plan Aging Analysis All Case Types 2015 Month Plan Established # of payment plans Amount Assessed Amount Paid Amt. Collected/ Per Month # plans past due Success rate January 1,326 $412, $245, $25, % February 1,157 $323, $213, $23, % March 1,238 $422, $216, $27, % 20

21 Outbound Telephone Call Criteria Since July 2014 All criminal and civil traffic cases with an outstanding balance on a payment plan. Failed to establish payment plan as ordered by Court. Missed at least one payment. Payment plan has expired with outstanding balance remaining. Results: 1,452 cases $252,

22 Court Collections Issues Prior Issues 1. Motions to modify cost order. 2. Court not ordering payment plans and/or providing too much time to pay. 3. Defendants who violate probation for failure to pay have assessment reduced to judgment. Actions Taken 1. Worked with judiciary to develop order requiring defendant to establish payment plan. 2. Met with all Criminal Judges to demonstrate benefits of a payment plan vs. no payment plan. Discussed the correlation between successful completion of payment plans and DL suspensions. 3. Met with County Criminal Judges to explain unintended consequences of reducing assessment to judgment. 22

23 Misdemeanor Probation Collection Issues CY ,089 Probation cases with outstanding fees. 80% (870 cases) issued violation of probation for failure to pay and driver license suspended/collection agency. 20% (219) cases successfully completed probation. No DL suspension or collection agency surcharge. 23

24 Palm Beach Post September 17,

25 Pilot Probation Payment Plans Implemented October, 2015 One Judge 48 cases. Total assessment = $48, cases (77%) successfully completed or are current with a payment plan. 11 (23%) cases have not made a payment. 25

26 Court Collections Issues Prior Issues 1. Motions to modify cost order. 2. Court not ordering payment plans and/or providing too much time to pay. 3. Defendants who violate probation for failure to pay have assessment reduced to judgment. Actions Taken 1. Worked with judiciary to develop order requiring defendant to establish payment plan. 2. Met with all Criminal Judges to demonstrate benefits of a payment plan vs. no payment plan. Discussed the correlation between successful completion of payment plans and DL suspensions. 3. Met with County Criminal Judges to explain unintended consequences of reducing assessment to judgment. 4. Incorrect Assessment of Fines/Costs 4. Clerks assumed the responsibility of preparing cost orders in January Automated through CMS. 26

27 Assessment Collection Report

28 Financial obligations in criminal cases; supplementary proceedings. (9) The clerk of the court shall enforce, satisfy, compromise, settle, subordinate, release, or otherwise dispose of any debts or liens imposed and collected under this section in the same manner as prescribed in s (3). Clerks should follow the May 15, 2012 legal opinion from Greenberg Traurig. Clerks should not use compromise authority on community service hours. See FS (2), The judge may convert the statutory financial obligation into a court ordered obligation to perform community service after examining a person under oath and determining a person s ability to pay. 28

29 Compromise Considerations Attempt to collect entire amount. Negotiate collection agency surcharge/accrued interest. Age of case: the length of time the fines and costs have been owed. The longer owed, the greater the adjustment could be. The more owed, the more flexibility in negotiation. Length of time a payment plan will take to pay off vs. a lump sum settlement. 29

30 Criteria Established in Palm Beach County Selected a target group of cases. Prison sentence was complete. Retained private attorney at time case was resolved. Since prison release, defendant has not been re-arrested. Mail settlement letter. 30

31 Palm Beach County Settlement Letter VIA U.S. MAIL RE: State of Florida v. Corey L. Dempsey, Case No. 2008CF010114BMB Dear Mr. Dempsey: On February 10, 2009, the Court signed an Order Assessing Additional Charges and Fines and Entering Judgment in the above-referenced action, which is attached. The Clerk & Comptroller, Palm Beach County is charged with the collection of these amounts. To date, we have only received $ towards these fines. The total balance due at this time is $102, Furthermore, the judgment bears interest at the rate prescribed by law until satisfied. Please contact our office as soon as possible to discuss a settlement amount and resolve this outstanding judgment. Sincerely, Hampton C. Peterson Legal Counsel & Ethics Office Clerk & Comptroller, Palm Beach County 31

32 Determination of Settlement PBC utilizes the following tools: Full Public Records Search including property, civil judgments, civil and criminal cases. Facebook, Instagram, LinkedIn, Google (family members). DOC Website. Information on immediate family members. 32

33 Palm Beach County Settlement Results 25 cases settled/established payment plan $248,

34 Collections SWAP Program Began in June 2014 Clerks with multiple collection agencies. Unpaid cases that have been with a collection agency for 2 years or more. All criminal court types and civil traffic infractions. 34

35 Collections SWAP Program Cases swapped 13,065 Amount collected- $140,

36 Consider Other Collections Strategies Consistent policies and procedures. Reminder notices. Maintain most current address. Payment plans available on-line. Aging report analysis. Collection training for new hires/refresher training for current employees. 36

37 Improve Collection Goals & Measure Achievements Evaluate the cost and benefits of each of the collection tools. (Collection agencies, suspension of driver license, collection letter, phone calls, collection court, etc.) and emphasize those that have the greatest net benefit. Review collection/payment programs regularly to insure the maximum in collections. Consider setting collection goals. Consider providing collection education and training to clerk staff. Request CCOC technical assistance and education services. 37

38 Questions 38