Why is this Website so Messy

If you’ve visited our old version of this website, you may have been impressed by how out of date and unhelpful it was. We were, daily, and yet many people managed to use it to win their cases. What if the website were much more modern and helpful? Would it attract more visitors and cause more people to join? We thought so, so we decided to build a new page.

That didn’t stop new problems from coming up, of course, and we didn’t want to spend any more time on fixing the old site than absolutely necessary. It just seemed better to make the change and deal with whatever came up. At least it would be working on the site that was coming rather than going. So that’s what we did – we stopped trying to address problems on the old site and, instead, will address them on the new site.

Starting a website is never easy, especially when you have over a thousand pages in it, products, memberships, reports, and all the rest. Changing formats was a mammoth job, so here it is. For a little while you will see mainly text and not so many images. And the bottom line of what we do is that it’s pretty information-intensive. You’re going to have to read, but soon it should be a little easier.

We expect significant progress every day, but we’ll take down this question and answer by the first of October. We should be fully ready to go then.

Service Call Scam Warning

Tech support scams, which get people to pay for fake computer help or steal their personal information, are convincing. You might already know the signs of a tech support scam, but do your friends and family? Here’s what they need to know now:

  • Companies like Microsoft don’t call and ask for access to your computer. If you get a call like that, it’s a scam.
  • Real companies also won’t ask for your account passwords. Only scammers do.
  • Tech support scammers try to convince you they’re legitimate. They’ll pretend to know about a problem on your computer. They’ll ask you to open normal files that look alarming to make you think you need help.
  • If you do need computer help, go directly to a person, business, or website you know you can trust. General online searches are risky because they might pull up another scam.

If people you know were already scammed, here’s what to tell them:

  • If you paid with a credit or debit card, call your credit card company or bank immediately and tell them what happened.
  • If you paid with a gift card, contact the gift card company (iTunes, Amazon, etc.) ASAP to see if the funds are still on the card and can be frozen before it’s too late.
  • A tech support scammer who has access to your computer can install malware. Update your computer’s security software, scan your computer, and delete anything it identifies as a problem. Restart your computer to be sure the changes take effect. Going forward, download security updates as soon as they are available. Most operating systems have a setting to download and install security updates automatically. Use it. And install updates for your other software, including apps.
  • If the scammer got your password for a financial account, or a site like Amazon, change the password immediately. Contact the company directly to make sure nobody has broken into your account.

Report your experience to ftc.gov/complaint. You’re not alone, and reporting these scams helps law enforcement go after the people behind tech support scams.

The Beginning of a Debt Lawsuit

Start of Suit

There are some issues more likely to come up early in the case than at other times. For help with this sort of issue, take a look at the videos and articles below.

Debt Collector Dirty Trick–to Trick You into Defaulting  Video. Sometimes, for various reasons, a debt collector will tell you “not to worry” about answering the petition. This video tells you how to handle that.

Debt Law Is the Law of the Jungle!  Article. Don’t be fooled. If you’re being sued, you’re in a contest, and they’re trying to eat you up. 

The Importance of Early Discovery  Article. If you’re being sued for debt, it will help you to get “off the blocks” quickly and begin the process of discovery. This article explains why that’s so important.

Is Defending Yourself Hard?  Article. How hard is it to defend yourself? This article goes a little more in depth than the video on that question.

Is Defending Yourself Hard?  Video. Basically the same as the article–if you prefer to learn in video.

Defend Yourself, Protect What’s Yours  Video. You have an excellent chance to win if you defend yourself. This video tells you why and gets you started.

Pro Se Defense  Video. Some pros and cons about defending yourself in court when you’re sued for debt.

Settling with the Debt Collector  Article. Settlement can be either victory, defeat or compromise. Before you settle at any point in the suit, you should read this article.

What if I Really Owe the Money?  Video. What if you owe the money? Should you just pay it? or fight? This video tells you why you must defend yourself or run the risk of paying twice. And if you fight, you may not have to pay at all.

What’s Your Case Worth to a Debt Collector?  Article. How Does a Debt Collector Decide How Much Your Case Is Worth?

What to Expect the First Day  Article. If you’re being sued, you probably need to go to court even if you answer the petition. Here’s what to expect when you get there.

Why Don’t the Debt Collectors Just Give Up?  Video. If your defending yourself makes suing you so unprofitable, why don’t they just give up when you file your answer?

Stating Attorney Fees in Petition – Probably FDCPA Violation

It is common for debt collectors to name a specific amount of attorney’s fees in the Petition when they’re suing on a debt. In other words, there will be an amount stated (specified) as reasonable attorney’s fees and sought as part of the debt in the “wherefore” clause of the Petition. The question is, does this violate the Fair Debt Collection Practices Act (FDCPA)? The answer seems to be “yes” if the petition sues for a specific amount for attorney’s fees. If the company represents that you agreed to any specific amount of fees it is probably a violation of the FDCPA.

Common in Contracts

Many credit agreements include a section allowing the creditor to collect its “reasonable attorney’s fees” in the event of a default, and on the face of it this is perfectly reasonable. If a consumer fails to make payments, someone is going to have to pay an attorney – the reasonable fees section puts that burden on the person causing the problems. Like most laws, it’s tough on people without much money, but if someone has to pay (and someone always has to pay the lawyers), then it makes sense that the person breaking the agreement should do it. Or at least that is one reasonable type of agreement.

How it Shows up in the Petition

The way this often plays out, though, is that, after default and sale of the debt (obviously, the right to collect is what is being sold) to a debt collector, the debt collector will often bring suit for a specific amount. The petition will allege the right to attorney’s fees and then, in the “wherefore clause” will state something like this:

Wherefore, plaintiff requests $1,000 as the principle sum owed, plus interest at a rate of 29% from January 3, 2007 ($775 as of the date of filing), plus $450 attorney fees, plus costs and interest dating from the date of judgment.

I am using round numbers to suggest an attorney’s fee of 25% of the amount sought, and that is not an unusual amount sought as attorney’s fees.

The debt collector will often back up this request for fees with an affidavit stating that the amount named was “its attorney’s fees expended” or simply that the amount is for “fees as provided by contract,” or the like.

Violation of the FDCPA

This language violates the FDCPA because it wrongly suggests that the consumer agreed to a specific amount as an attorney’s fee – and that almost never happens (in the case we’re looking at, the right was to “reasonable attorney’s fees”). Where the right is to “reasonable attorney’s fees,” a debt collector violates the FDCPA by liquidating that amount (turning it into a specific dollar amount) and seeking that amount as if that was what had been agreed. The case you will want to use and to know if you have this situation is Stolicker v. Muller, Case No. cv-00733-RHB Document 61, Filed 09/09/2005, Bell, J, U.S.D.C. W.MI)(granting summary judgment to the consumers in a class action lawsuit on this issue). Note that the court found that seeking attorney’s fees in this way – by including a liquidated amount in the wherefore clause “altered the contract she signed with [the original creditor]… and violated the FDCPA. It specifically violated Section 1692e(2)(A),(B) (a false representation of the character or amount of a debt or the false representation of the …compensation which may be lawfully received); 1692e(10) (using a false representation to collect or attempt to collect a debt) and 1692f(1) (collecting any amount unless such amount is expressly authorized by the agreement creating the debt or permitted by law.”

Is There a Moral Duty to Pay Debt Collectors

Debt and Moral Duty

Debt collectors and bankers, and their minions, like to talk about the “moral” duty to pay your debts. Is there one? And if so, does it extend to paying bankers and debt collectors? You’ll have to decide for yourself, of course, but I don’t think it’s the clear issue the debt collectors want you to think it is. Regarding paying a debt owned by a debt collector, I think there is no moral duty at all.

 

Debts and Morality

First let’s consider the broader question: is there a moral duty to pay your debts? Creditors like to say so, of course, but are they really impartial? Of course not. Their invoking a moral duty is highly self-serving.

Commercial Loans and Interest Rates

First let’s look at what a loan is, as it has come to be meant in modern times with credit cards. Credit cards in essence involve a loan – at an extremely high rate of interest: the issuing bank “lends” you the money to pay a merchant for some service. Interest payments on loans are supposed to cover two things: risk of nonpayment and the loss of the present use of the money. In other words, interest payments are designed to cover the fact that you’re giving the money back later (called “discounting” for time) and the risk that you won’t pay it back at all.

The way you discount for time is easy. You look at the inflation rate, taking a guess as to whether it will continue or not. The present inflation rate is somewhere between one and four percent, and the banks are, in any event, borrowing the money from the Federal Reserve for much less than one percent. That means that almost the entire interest rate either provides the banks an obscene rate of profit or pays for a risk of loss of approximately 30%. It also means that loans are business propositions which contemplate a very significant risk of loss (much higher than the actual loss would justify) – a risk that is paid for by the borrower on every loan that is repaid.

Any loss on a loan is more than adequately repaid by this premium on other loans to people with the same credit standing. I don’t see a moral duty to repay there, do you?

Non-Commercial Loans are Different

Notice that I am not addressing loans made for personal friendship, for example, where the risk is not compensated and offset by the interest rate. I see these as completely different and believe there is a moral duty to pay back someone who actually takes a risk on your integrity. But that is certainly not credit cards or other arrangements where you pay an interest rate higher than the rate of inflation.

Does the Law Imply a Moral Duty to Repay?

Is there a “moral” duty to repay a loan implied in the law? Really, not very much.

There are things that are considered legally “bad,” and these things are called “torts.” Assault, theft, and a variety of other things are torts, and the main thing they have in common (besides many of them actually being criminal offenses as well as “civil” torts) is that if you prove them, you are entitled to “punitive” damages or some sort of statutory “penalty.” That is, if someone commits a tort against you, the law lets you actually try to punish them (which is the point of punitive damages or statutory penalties).

For plain breach of contract cases (like not paying a bill), there are no punitive damages or penalties – only the money actually lost. In formulating this policy over the centuries, the courts have actually pointed to the beneficial effects of allowing breaches of contract. Not punishing breach of contract encourages people to act in more efficient ways, although to be fair avoiding payment may not be completely within this concept. There are some indications that the law recognizes a moral obligation to pay, although it has very little actual legal force.

Usury – Is THAT Immoral?

In ancient days throughout the Christian world, and even now in some Islamic law, charging interest on any loan was considered immoral. Most states – even now – have laws against “usury,” which is charging more than a certain amount of interest. It might interest you to know that the prevailing interest rates charged by credit card companies would violate those laws in most states. Ever wonder why credit cards always have their financial centers in just a few states? It is the way that they evade the usury laws. Because while states can control the interest rates local concerns charge, the courts have held that credit cards are “interstate commerce” and cannot be controled by the individual states. Only the laws of the state in which the credit card issuer is located can set that rate. Thus the interest rates charged by most credit cards, most of the time, could be considered immoral or illegal from some points of view.

That doesn’t seem to bother the banks or debt collectors one bit.

How about Business Bankruptcies?

What about when large businesses go “bankrupt?” For them it mostly means that they get to trash their commitments to workers and their pensions. Ever hear anybody howl about “moral” duties? No. The talking heads all line up to discuss how tough business is, or whatever, but there is never any real moral pressure brought to bear on these companies. Of course that would be pointless: it’s just business, right?

And of course in this day of bailouts, the banks don’t even have to go through the farce of bankruptcy. They get their money basically free from the federal reserve and use it to speculate or lend it to individuals at rates as high as 30% or more – and when that isn’t good enough to fund their bonuses, they get huge amounts of money in other ways from the government. You know who pays for that, right?

Is There a Moral Duty to Pay Debt Collectors?

As I have pointed out elsewhere, you might consider that you have a moral obligation to pay a business that extends you credit, although I do not believe that is a powerful obligation. What about to debt collectors? In their case, I do not believe there is any duty at all. Where does the duty towards a merchant that extends you credit arise? surely it is from the faith in you that the action of lending you money implies. The merchant extends credit to you as part of an overall relationship which in some cases is quite personal, but in every case is based on a mutual expectation that you will pay the money back. None of that is going on when debt collectors own the debt.

By the time the debt collector owns the debt, the original creditor has lost all the money it is going to lose – and you can believe that the debt collector bargained hard against it to pay as little as possible for it. If you pay the debt collector you do not improve the merchant’s situation at all – you simply give the debt collector a windfall profit. And the debt collector purchased the debt knowing you were struggling financially – their intention was never to help you at all or do you any good at all. Instead, a debt collector exists to squeeze, punish and ultimately sue you in an attempt to force you to pay. I see no moral duty to pay at all, although I emphasize that there is still a legal duty if they can prove it in court. My point is that nothing should hold you back from giving it your best not to pay.

Conclusion

I won’t say that morality is for suckers (although the bankers would), but what I do say is pay attention to your own needs and interests – and look carefully at anybody who criticizes you for taking care of yourself. The moral talk by debt collectors and their servants is simply a gimmick to get  you to pay.

Jurisdictional Issues in Debt Law

Kicking the Debt Collectors out of Court

– Jurisdictional Issues in Debt Law

 

 

Kicking the Debt Collectors out of Court

– Jurisdictional Issues in Debt Law

 

We discussed two kinds of jurisdictional issues in a recent teleconference – two different issues that call for very different responses.

In this video we’ll discuss what happens when the debt collector doesn’t show its ownership of the debt and when you are not properly served with the lawsuit.

Ownership of the Debt

When debt buyers bring a lawsuit, their ownership of the debt is always in question. It won’t be their  name on the debt instrument or contract,  and they will have purchased the debt – gotten it on “assignment.”

There is nothing wrong with that, let me emphasize. Most debts are freely transferrable (unless either a contract or law says they can’t be transferred) – so in most cases this will not be an issue. But what is an issue is proof of ownership. Only the true owner of a debt is permitted to bring a lawsuit. In a way that’s a no-brainer, isn’t it? If I happen to hear that someone owes you money, I can’t sue them for it can I?
No – if I want to sue, I must prove that I am the “true party in interest.”

Without the true party in interest’s participation, the court  does not really have jurisdiction over the subject matter of the case. If I bring suit on a debt someone else owes you, and that person gets around to pointing out that I don’t own the debt,  the case should be dismissed immediately – without prejudice. If the person being sued does show that the plaintiff cannot prove ownership, the proper response by the court is to dismiss immediately without taking any other action – it can’t make a judgment about the validity of the debt without the real owner being present.

You can attack ownership of the debt at any time, and in a debt case you should always contest the issue not only because you might win, but also because  debt collectors actually try to collect debts that don’t belong to them fairly often. You should always make them prove it.

In the case of the big junk debt buyers, they often will have a so-called “bill of sale” between the original creditor and the junk debt buyer. It will say that the  creditor is selling and assigning umpteen million dollars worth of debts to the debt collector. It will mention an attachment with the numbers of the accounts sold.

And it will often not have that attachment or anything else linking your account to that sale. That is inadequate proof of ownership. It is no proof
of ownership. If you attack the case on that basis it should be dismissed – unless the debt collector can supply the information. For some reason,
they often cannot.

You can make this argument at any time.It isn’t waived by you participating in the case. Any time you can prove the debt ownership isn’t
established, the case should go away.

Sewer Service

Sewer service is different. In this situation, the process server threw the summons into the ditch while the defendant was watching and then swore to having given the summons to the defendant. In that situation, the defendant is forced into a choice: attack the court’s jurisdiction immediately by motion to quash, wait and attack jurisdiction, or defend. If you take actions to defend on the merits of the case – you say you don’t owe the money – you will likely be “waiving” or letting go your attack on the court’s jurisdiction.

Letter to visitors

Finding What You Need On YourLegalLegUp.com

Welcome to Your Legal Leg Up.

If you’re being pursued legally by the debt collectors, the first thing I want to tell you is not to give up. You have a good chance to drive the debt collectors away if you will fight a bit. This website is about providing you the help you need to do that effectively enough to win.

Your Legal Leg Up has been around since 2007,  but if you have been to my site before, you may notice I have recently made some big changes to the way the site looks and feels. The old site was not user-friendly enough and was limited in certain very important capabilities. Over time my vision for what this site can do has also expanded, and I think the new format will allow for that growth and improvement. I do apologize if you have bookmarked pages that no longer work. The site will soon, if it doesn’t already, have all of the same materials the old site contained–and much more.

Within the next week or two I expect to have greatly expanded the materials designed to figure out where you are in the debt litigation process and direct you more specifically to areas that will help you. I also expect to add dozens of articles and videos in the coming weeks. Soon I’ll start adding even more to the site. If you are being harassed, threatened or sued by debt collectors, you should bookmark this site and plan to come back often. I’ll use this page to provide updated links and information about the site.

Wherever you are in the process, you’ll want to consider my Debt Litigation Bundle. That includes the Debt Litigation Manual, which provides you the basic understanding of the legal process, why you have such an excellent chance to win along with very specific strategies to take advantage of the advantages you have, and the Debt Litigation Forms, which includes the forms you can adapt to your situation with confidence.

I always welcome your questions and comments and invite you to email me at info@yourlegallegup.com. Remember that I can discuss the legal process in general and can help you understand some of what you are facing, but I cannot give you legal advice.

Sincerely,

Ken

 

What to do First if you are Sued by a Debt Collector

You’re about to change the way you see the world forever in a good way. If you take control of this situation – and you can do it more easily than you think – you will never be pushed around by the debt collectors and the legal system again. If you have the courage to help yourself, I can promise you that you will rock your world.

And we’ll help.

Introduction

Few things in life are scarier than being handed a summons by a process server letting you know you’re being sued. It seems like some of them actually enjoy terrifying people and get off on it. Others may be a little more sympathetic, but under the best of circumstances and no matter how nice or mean the process server is, being sued for debt is a drag.

No doubt about it, and it is going to require you to take action.

But it probably isn’t as bad as you think. There are things you can and should do to protect yourself – things that are actually not hard or expensive. You can handle this, and believe it or not, you may eventually be glad this happened. You can change the way you see the world forever. In a good way. I know it’s hard to believe, but people who work with us tell us all the time that it’s true. If you take control of this situation – and you can do it more easily than you think – you will never be pushed around again. You don’t have to be super intelligent, super brave, super gifted as a speaker or super tough. Anybody can do it – it’s just that very few people do.

Click here for the rest of this Report.

Letter to People being Sued for Debt

 

Could Anything Actually Make You Glad to Get Sued by Debt Collectors?!

Dear Harassed Consumer,

It’s hard to believe that could happen, isn’t it – that you could actually end up glad you got sued by a debt collector? And yet it could true.

If you’re being sued by a debt collector, chances are it’s coming at the end of a long process that started with missed bills, phone calls, letters, messed up credit reports, worry, and missed sleep at night. I don’t need to tell you how awful it is. And the lawsuit itself may seem like a nightmare. After all, if you lose, you could face new problems: garnishment of wages, seizure of bank accounts, and possibly even worse.

And you can forget about your credit report if they get a judgment, right?

So How Could Getting Sued Possibly Be Good News?

It seems hard to believe, but the lawsuit could actually be the end of your trouble. That’s because the debt collectors usually start their lawsuit without what they need to win. If you play your cards right, that may give you a chance to erase your debt for good. In the process, you can take control of your life again.

I’ll explain how later. For now, think about your situation: in debt, worried, harassed, and sued. What if you could make it go away? Imagine how you’ll feel when you drive the debt collector away and erase the debt. You can start repairing your credit report and get back to your life. You can answer your phone without worrying about debt collectors

Finally.

It’s even better than that, though. Here’s what one user of Your Legal Leg Up Litigation Materials said about his experience:

Today I received in the mail an offer “Stipulation For Dismissal With Prejudice”,which basically states the Plaintiff will dismiss their Complaint if I dismiss my counterclaim.  All the examples,logic and powerful arguments presented in your materials helped me beyond belief! I am eternally grateful,and right now quite ecstatic!

Thanks Ken,
Frank from Arizona 

 

And another:

Just a quick email to say THANK YOU for your well written manual! I was scared to death when I got a Summons and Complaint served on me by a debt collection attorne. I did exactly what you said though, and basically let them know I wasn’t going away.… So I filed a Motion to Dismiss, and that was pretty much it. The Attorney folded like a cheap suit, and I have to say it almost felt better than sex!

Thanks again! 
Gary

 

These people, and many more, could tell you the same thing: you can beat the debt collectors. And when you do, it will feel even better than you would ever guess. It will change your life. They’ll never push you around again. You’ll never be scared of debt collectors and their lawyers again.

And it won’t cost you a fortune, either.

You can do it all with my litigation products. The “foundation” product, that tells you “everything you need to know to beat the debt collectors, is the Litigation Manual and Forms. For your best chance – and to spend a lot less time and worry, you will want one of the memberships. They give you unlimited access to all our videos, FightDebt! our newsletter, and our document bank of tried and true documents that were created by other people in the same situation you are in.

If you know what you’re doing – and I can show you – you can probably win the case even if the debt collector actually has what it needs. And it usually doesn’t.

Your job is to make them start looking for those records, make them start losing money and worrying about whether they can win the suit. We can show you how to do that.

The trick is to fight. They’re not really set up to fight you if you know what you’re doing.

It’ll help if you can file a counterclaim against the debt collectors. That’ll keep them from just dropping your suit without erasing your debt. The Litigation Bundle will show you how to file a counterclaim against the debt collector, and you will learn a lot about possible counterclaims from our videos either through our Video Series or the membership.

I Don’t Want to Tell You You Can Just Get Away with It (But You Probably Can)

I don’t want to tell you you can rack up debt and get away without paying, because we should all pay our debts. But these are tough times, and sometimes things happen that make it impossible to pay.

And sometimes those things are the fault of the banks.

If you’re having trouble with credit cards, not having to pay would be poetic justice.

Not only have they siphoned away huge amounts of public money through the infamous “bailouts,” ensuring that you and your children will be taxed for decades to keep the banking fat-cats in their fancy cars and expensive mansions. But these same people have set you up for failure, offering you way more credit than you could ever pay off. Sure you should have known, maybe, but they’re paid to know, and they did know. They deliberately set you up to borrow more money than you could pay back…so that you’d be stuck with ridiculous interest rates and ruinous fees. They wanted it to happen, and they made it happen. Now they’re trying to drive you into the ground.

If they’re after you, the only way you can get them to stop is make them stop. The Litigation Bundle and Video Series will give you what you need to do that.

FDCPA and Bankruptcy Book

The Fair Debt Collection Practices Act and Bankruptcy

 – Cooperation or Collision

 

Are You Being Harassed or Sued by Debt Collectors?

Are you in bankruptcy, or was the debt a part of a previous bankruptcy?

Then you will want this book

This book is about the way the Fair Debt Collection Practices Act (FDCPA) and the Bankruptcy Law interact. Both laws are designed to address certain rights between people and those who claim to be owed money. The laws overlap to an extent, and when that happens, what should you do? 

Who this Book is for?

This book is for you if you are (1) contemplating bankruptcy; (2) are in bankruptcy and have noticed that some of your creditors are submitting overly large claims or out-of-date claims; or (3) you have gone through bankruptcy and debt collectors are now trying to collect from you on one or more debts that were discharged. 

 

fdcpa_bkr3.jpg

This book could be for you if…

This book could be for you if you have a great curiosity about how the law sometimes works – including how courts can come to diametrically different interpretations of the same laws, or if you are interested in how the class war can sometimes play out in the law. 

For much more on debt and law

If you would like to sample our writing on a much larger range of legal issues, or if you have legal issues that relate to debt in any other way than its interaction with bankruptcy law, you should take a look at our website at http://YourLegalLegUp.com. We have a great deal of information free for you to use, as well as a wide selection of products.

This book is not for you if…

If bankruptcy is not a part of your landscape and you are not interested in the the ways laws can be read and interpreted, this book will not be for you. This book is not for you if you just want a general understanding of the bankruptcy law or if you are just looking for light reading. We do try to write in plain English, and no doubt we do a better job than most in dealing with a complex and intricate issue, but this book will take some effort to read and understand. 

You can get this book on Amazon, and if you have Kindle Unlimited, it’s free to read.