Interview with Michael Ziegler Esq., Managing Partner, Ziegler Diamond Law

This interview is with Michael Ziegler Esq., Managing Partner, Ziegler Diamond Law.

For readers at Connectively, how do you describe your role as Managing Partner and the consumer finance matters you most often lead?

What I love about what I do personally and what we do as a law firm is that it blends my two passions. First, the nature of our legal work means that we get to help our clients in their most difficult hour. I have always been a people person, and being in an area of legal practice where I can truly help is what drives me.

Second, I am passionate about entrepreneurship. I spent the better part of 10 years as the chair of the Clearwater Bar Association’s Small Firm Section. I’ve now spent nearly 14 years as the owner and partner in our law firm, and I love being able to explore business operations, team building, and trying to build the best firm I can for my clients and team members.

What key experiences in the legal services industry shaped your path to Managing Partner in bankruptcy, debt defense, and consumer protection?

I started as a legal aid attorney and cut my teeth on the legal issues that arose from the housing crisis in 2008. That experience laid the groundwork for the legal areas we now focus on.

Building on that background, when a client arrives with a foreclosure notice or multiple collection letters, what first-week checklist do you follow to stabilize their situation?

There are a few different factors that we look at when a client comes to us with foreclosure or collection issues in charting their path:

• Where does the client want to get to?
• Does their goal align with their resources to get there?
• What are some of the short-term considerations?

Most clients who come to us may already have a direction they would like their case to take. If they’re in foreclosure, they may already know whether they want to get caught up or sell the property. If they have been sued in a lawsuit, they may already have some understanding of whether they have the resources for a settlement or whether their budget is such that bankruptcy makes more sense. We’ll always want to listen to the client’s direction.

The second thing we look at is how reality matches up with the client’s direction. For example, if a client’s monthly mortgage payment is $3,000 but their monthly income is only $1,000, it’s unlikely that they will be able to secure a loan modification that is achievable within their budget. We want to orient our strategy with reality.

Once we have our broader plan, we need the rubber to meet the road on our short-term objectives. That might include meeting a lawsuit response deadline, calendaring hearings, or whatever the situation calls for.

Turning to bankruptcy strategy, which client facts most reliably drive your recommendation between Chapter 7 and Chapter 13?

There are a few different factors that distinguish a case between Chapter 7 and Chapter 13.

1. The first and most commonly discussed factor is the means test. If a filer earns above a certain amount, they may not qualify for Chapter 7. The means test can be tricky because it involves multiple moving parts. The first part is to compare the filer’s household income against the median income; the second part involves applying various living expenses against that income to show what is left over at the end of the month after those expenses.

2. The second consideration is the type of debt we are trying to eliminate. Chapter 13 provides what is sometimes called the “super discharge,” which can allow a filer to eliminate some debts that cannot be discharged in Chapter 7. Additionally, Chapter 13 is typically more effective at addressing secured debts, such as a mortgage that is behind. It can also allow for the payment over time of certain “priority debts,” like recent IRS taxes and child support.

3. The third consideration is whether the filer has non-exempt property, meaning assets beyond what Chapter 7 allows the filer to keep. Chapter 13 can often be more effective for allowing the filer to retain assets that may be important.

From your courtroom litigation, what pleading or evidentiary defects do you most often leverage to challenge a debt buyer’s standing or the amount claimed?

In many cases, the documents that we look at to fight the claims of debt buyers include:

• The agreement allegedly transferring the loan, which often cannot be produced or may show in the fine print that there are limitations on the authenticity of the loan information.
• The account statements themselves.

In foreclosure defense, which mediation techniques have most consistently produced durable resolutions for your clients?

There are a few different techniques that have consistently produced durable resolutions for clients.

• Thoroughness. In nearly all foreclosure mediations, the lender will want a loss mitigation package completed prior to the mediation. The more thoroughly those documents are completed and submitted to the lender, the more likely the lender will be to substantively review the documents rather than simply ask for additional documentation.

• Consistency of follow-up. Even after lenders have spent years developing their loss mitigation processes, it remains typical for a lender to be slow to respond, which can sometimes impair results. Following up with lenders consistently keeps attention on the file.

• Forum. Mediations can usually be requested in state court, but they can often be requested in bankruptcy court as well. In my experience, I typically find the bankruptcy mediation process to be more effective, but there are various considerations that go into whether bankruptcy is the right approach.

Drawing on your FCRA cases, where do furnishers or CRAs most commonly fall short in practice, based on what you’ve seen in real files?

Furnishers and consumer reporting agencies (CRAs) most commonly fall short in the thoroughness of their investigations.

Because of their size, these companies often rely on automation when someone contacts them to report an inaccuracy on their credit report. These investigations are frequently conducted through automated pings, with little or no human involvement or oversight to ensure they are accurate and thorough. Any error in the automation can lead to errors in the investigation process itself.

In consumer protection matters, which state UDAP or federal theories have proven most effective for you in negotiations or at trial?

There isn’t a one-size-fits-all law that will always be the most effective for negotiations or at trial, because the right claims will depend on the facts of the case.

If a claim is based on improper collection, we usually look to the Florida Consumer Collection Practices Act and the federal Fair Debt Collection Practices Act to support the claim.

While our firm typically does not stray into more generalized consumer protection claims, the Florida Deceptive Trade Practices Act can be an effective outlet. Arguably, the most important consideration isn’t the claim but the damages—how the conduct affected the injured party.

On the craft side, what practical adjustment have you made to your legal writing workflow that most improved efficiency without sacrificing persuasion in high-volume consumer cases?

The biggest change we’ve made is that we’ve moved to a more specialized team.

For example, instead of having a paralegal who handles the case from beginning to end, we may have one team member charged with investigating and documenting a claim and another who deals with litigation deadlines and requirements.

Thanks for sharing your knowledge and expertise. Is there anything else you'd like to add?

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