Gail Storer will never forget the physical pain and anxiety she felt every time the phone rang or she heard a car pull up outside her home.
"To hear the phone just constantly ringing -- your heart stops beating for a second," she said.
A double mastectomy and chemotherapy had drained her of energy and money. Donald's, her husband, heart disease put him in the same boat. They couldn't pay off their payday loans anymore.
By law, the lenders couldn't take away their Social Security checks, the only income they had left. But a lender would call at least twice a day, threatening them with prosecution, even though Donald had told them in writing twice that the debt couldn't be paid.
Now the Isle of Wight County couple are suing Columbus, Ohio-based Checksmart for $750,000, accusing it of breaking state law. Virginia legislators allow payday lenders to charge annual interest rates of almost 400 percent, but they can't threaten criminal prosecution.
This isn't the first time Virginia payday lenders have been accused of making criminal threats. Another lawsuit involves an employee of Allied Cash Advance pretending to be a sheriff's office employee.
The vast majority of the 278 complaints to Virginia regulators about the lenders since their industry was legalized in 2002 in Virginia revolve around how they handle collections. The state can impose fines or yank licenses for violations, but it's levied only one small fine in five years.
Many complaints to the state involve a common gripe that state law doesn't address: Payday lenders are allowed to constantly call debtors at work and home. The lenders, who now make $1.3 billion in annual Virginia loans, have been caught making threats many times before.
West Virginia's attorney general recently settled with Advance America, the nation's largest payday lender, even though the business is illegal in that state. Some employees from the culprit stores aggressively collecting over the state line were coming from Virginia.
BAD TIMES GET WORSE
Gail Storer survived her fight with breast cancer.
After the surgery, she had to get chemotherapy and radiation treatment that created a nerve disorder and the need for costly medications -- with no insurance coverage.
Donald lost his job when his employer went bankrupt. While he was on unemployment, his chronic obstructive pulmonary disease led to having two stents put in arteries on his heart in 2004. He drained his retirement savings over the next two years.
Gail opened an account at a Checksmart in Smithfield in January 2006 to pay for medication. Either Gail or Donald would get another loan every month that year at several payday stores, taking out 12 total to pay the other loans off.
"Everything just snowballed that year," Gail said.
By the end of the year, Gail was stressed out and crying a lot. "I was very depressed and disappointed. "We didn't have any money for Christmas."
Their only income left was Social Security, and payday companies aren't allowed to garnish that money. Donald told three lenders that he and his wife couldn't pay back their last loans.
"It really was a hard thing to do, but it came down to them or us," Gail said.
Every lender forgave the debt except Checksmart.
On Jan. 11, Checksmart called the Storers six times. That same day, Donald sent a letter to the Smithfield Checksmart, explaining that he didn't have to pay anymore because of the Social Security exemption.
Donald sent a second letter -- this time to Checksmart's corporate office in Ohio -- on Feb. 5. Some of the calls they were receiving were especially threatening. One male caller said he would call five times a day until the loan was paid.
Finally, the Storers got a response Feb. 7 from Robert Ross, chief recovery officer for Checksmart. He asked to hear their recorded calls and apologized. Ross said calls from Checksmart's corporate office would stop immediately.
The Storers' legal case will revolve around whether Checksmart crossed the line in a Feb. 14 message, in which it said it would "press charges." The Storers thought that "press charges" meant the police would be involved.
Ross wrote to the Storers again on March 27, saying Checksmart records "do not substantiate these types of threats being made." Now an arbitrator will decide. Many payday contracts allow either party to choose arbitration, rather than face a court case.
Sometimes, the payday lenders are more brazen with threats of criminal charges. According to a lawsuit, an Allied Cash Advance employee said she was with the Spotsylvania County Sheriff's Office and would have Marlies Sanders arrested for not paying back a loan.
Like the Storers' lawsuit, the Sanders case is being handled by Petersburg consumer lawyer Dale Pittman. He has another case against Checksmart for threatening central Virginia resident Sylvia Gobble when she couldn't pay back a loan.
Gobble made the mistake of switching banks while the lender was still holding a check to cash from her old bank. She asked Checksmart to wait until she got her new checks so she could pay them, but it cashed the first check anyway.
It bounced. After Checksmart threatened her with criminal prosecution for fraud, she says, Pittman helped her file a lawsuit. After it was filed, another Checksmart employee threatened her with criminal prosecution for fraud, and she recorded it.
Checksmart's Ross said in a letter to Virginia regulators that Gobble could be sued on civil fraud charges. But there's no such thing as a fraud charge against someone who bounces a check in Virginia. Fraud has only criminal meanings.
Regarding bad checks, Virginia legislators carved out different rules for payday lending -- a business based on customers often writing bad checks that will become good checks on the next payday.
Even when people write checks on a closed account, Virginia allows payday lenders to recover only what they are owed, a $25 charge and up to $250 in attorney fees. Checksmart said that it didn't violate any laws and that it intended to vigorously defend itself in both cases.
ENFORCING THE LAWS
As payday-loan collection problems have mounted, Virginia consumer and law enforcement authorities haven't moved aggressively against the companies.
The Virginia State Corporation Commission has authority to investigate payday lenders' records and force them to make statements under oath. The SCC can fine a payday company $1,000 and revoke its license for every violation of the state regulations.
Each case gets heard before SCC judges, so the regulators must make a strong legal case to succeed. But the SCC also doesn't separately use its authority in some of the strongest cases -- the ones that are going to court.
There have been 213 complaints about collection practices in Virginia. Each one was investigated, but the state has levied only one $4,000 fine. The problem, SCC officials said, is that the regulators usually don't get evidence beyond the company's word against the customer's.
The SCC tries to get agreements between lenders and borrowers and has gotten refunds for some borrowers. Regulators have also gotten lenders to voluntarily change practices, but state officials are looking for patterns or strong evidence before they will levy a fine or revoke a license.
Many lenders are straddling the line of what's a legal threat. The SCC has issued no guidance on whether lenders can use words associated with criminal prosecution such as "fraud" and "press charges." But the SCC said the threat issue was on the front burner right now.
The trade group for the industry is the Community Financial Services Association of America. It tries to guide members with best practices and ostracize bad players that don't conform to the guidelines. Members aren't supposed to threaten debtors in any way, and they must comply with a federal debt-collection law. However, the law legally applies only to third parties -- not payday lenders. That's why payday lenders usually try to collect the debts themselves, said Jay Speer of the Virginia Poverty Law Center.
And there are plenty of bad checks out there to spur collections. In 2006, payday lenders had 153,882 checks -- worth more than $62 million -- bounce in Virginia.
Payday lenders often say their fee of $15 for every $100 lent is smaller than banks' fees for bounced checks, which is true.
At the national average overdraft fee of $27.40, the checks that bounced in Virginia when someone couldn't pay their payday loan in 2006 would have benefited banks to the tune of about $4.2 million in fees.
As a last resort, lenders can file lawsuits to get their money. In 2006, lenders sued almost 3 percent of the borrowers. They filed 12,486 suits against Virginians for a total of $5.1 million.
Lawyer Pittman said he informed Northern Virginia authorities about the case of the payday employee allegedly posing as an officer -- a criminal offense -- but no commonwealth's attorney was interested.
NOT THE FIRST TIME
West Virginia Attorney General Darrell V. McGraw Jr. reached a settlement in March with Advance America, the largest payday lender in the country. Payday loans are illegal in West Virginia, but its residents cross the border into Virginia, Pennsylvania, Kentucky and Ohio.
McGraw said Advance America employees in the border states were enforcing loans with West Virginia residents by threatening criminal charges, calling references listed on applications and visiting customers at their home -- leaving a doorknob hanger if they weren't home.
"Not only is it very intrusive, but it risks disclosing the debt to third parties," said Norman Googel, assistant attorney general in West Virginia.
Each Advance America state affiliate, Virginia's included, agreed to end the practices. There are about 33 Advance America stores in Hampton Roads and 142 statewide. Part of employees' pay is determined by meeting collection targets.
McGraw and Arizona's attorney general have also settled two other cases for threatening criminal prosecution or pretending to be affiliated with law enforcement.
Collection calls are difficult for the recipients to handle personally, but they are also tough on employers. Newport News business owner Ward Scull helped co-found Virginians Against Payday Loans after he saw one of his employees breaking down from the stress of the loans and getting calls at work throughout the day.
"It was the interruption of the work performance of this individual," Scull said, "and the stress put on the employee."
People who can't pay are still having problems with lenders contacting friends and relatives listed as references. In the Storers' nightmare, Checksmart contacted their son in North Carolina.
In the Allied Cash case, the woman posing as a sheriff's employee called the debtor's friend first with the threat.
Between gasps from his medical problem, Donald Storer said it was scary at first, until he learned they had to leave Social Security payments alone. He never yelled at the lenders or lost his cool as they called, but he knows the embarrassment tied to others learning of a payday predicament.
"All these things go through your head," Gail Storer said. "What are you going to tell your kids? What if the sheriff comes to the door? What do we say to our neighbors and people at church? You feel like a low-life." *
A LENDER'S CALL TO ONE CUSTOMER WAS TAPED:
Virginia resident Sylvia Gobble tells the Checksmart caller her attorney's name and number. He questions why any attorney would represent her.
Gobble: I'm not even sure he would want me talking to you.
Checksmart: (yelling) You don't have an attorney!
Gobble: Sir, I'm not sure he'd want me discussing this with you.
Checksmart: I'm not sure he wants to represent a bad check writer writing checks on a closed account! He's probably not aware of that, and I'm going to tell him.
Gobble: Sir, he is aware of the entire situation.
Checksmart: He knows you're writing checks on a closed account, which is fraud?
Gobble: Excuse me? So now you're telling me you're going to prosecute me for fraud?
Checksmart: For writing checks on a closed account? Absolutely. It's fraud. Anyone will tell you that.
TAKING THEM TO COURT
There have been private lawsuits and attorney-general actions in other states against some of the largest payday lenders in the country over allegedly illegal collection practices, including:
* Advance America
* Allied Cash Advance
* Check Agencies
* Ohio Valley Check Cashing and Loan
CONTACTING THE STATE CORPORATION COMMISSION
A written complaint should be mailed or faxed to the Bureau of Financial Institutions:
* Bureau of Financial Institutions
P.O. Box 640, Richmond, VA 23218-0640
* To fax a written complaint:
Bureau of Financial Institutions
* Complaints can be filed by e-mail at bfiquestions@ scc.virginia.gov.
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