Worried about "Frivolous" Defenses?

Sometimes people tell me they have been warned against making “frivolous” defenses. Sometimes it's by the debt collectors or their lawyers, and sometimes it's by more well-meaning people. Here's what you need to know about frivolous litigation.

What Is "Frivolous?"

A “frivolous” defense is making a claim which is completely unsupported by the facts or law. Any person in court has a responsibility to investigate claims he, she or it makes and the facts alleged, and if it is not possible for a “reasonable person” to believe the facts (or if you know them to be untrue), or if there is no reasonable likelihood that the law will allow what you want, the action is frivolous.

In debt litigation, this rarely comes up.

Defenses

You could make a frivolous defense by arguing, for example, that although you owed the original creditor money, your debt was “non-transferable” (unless you could point to a specific provision in the contract which said the debt was non-transferable. Some people like to claim that because the banks use debt to create money according to our banking system, that no money is actually lent. I believe some courts will find this a frivolous claim. In any event, you generally have to stretch to come up with a frivolous defense. You have a right to deny everything and force the debt collector to prove every aspect of its case.

Counterclaims

It's a little different in the area of counterclaims. If you seek a remedy (by counterclaiming) on facts that do not give you a legal right, and could not reasonably be expected to do so, then you may be making a frivolous claim. If you made a claim based on the Fair Debt Collection Practices Act against an original creditor, this could be a problem.

Appeals

Appealing a ruling of law by the trial court that was clearly right could be frivolous.

Practical Reality for Debt Litigants

In reality, though, “frivolousness” is not likely to be a problem for anyone sued by a debt collector unless you are somehow extremely hard-headed and continue to pursue things long after a more reasonable person would have let them go. For one thing, the courts are generally tolerant of people “pushing the envelope” on legal rights. As long as there is some reasonable basis for hoping you will win, the courts should not punish you for trying. And more practically, if you're being sued for debt, it is generally understood that you don't have much money, and this reduces both the debt collector's desire to pursue you and the court's interest in punishing you. To some extent.

Caution Advised

Although frivolousness is not much of a risk in my opinion, there are situations where care is needed. In making any sort of factual allegations (anywhere), there is always a chance that what you say could either be used as an “admission” (admitting that some fact is true that you later try to argue is not true) or is an assertion on which you could be cross-examined. If you are under oath, of course, this is far more important,  and any untrue factual assertion could be considered perjury.

In responding to requests for admissions, a different set of standards comes into play. Remember that an admission is not exactly evidence—it removes the necessity of evidence by establishing the fact as true for purposes of the lawsuit. That can be an important distinction, because once a fact is admitted, further discovery about it is not necessary and could even be irrelevant. This means that you should be extremely reluctant to make admissions and do so, if at all, only when the fact is very clear to you. If you deny a request for admission that the other side later proves at trial, you could conceivably be required to pay attorney fees for the time and effort required in proving it—if it was really clear all the time. I've never actually seen that penalty imposed, but I'm sure that it does and can happen.