Could this Be a Good Time to Start Something New

This is a bad time in the world and in the economy. Could it be a good time to open a new business? Maybe – if it’s the right one. In this article I’ll take a look at a couple of ideas that occurred to me. This isn’t my normal mission here, but maybe it could help some people in what’s coming.

I do not believe the Corona Virus is finished with us. Although it looks like state authorities are about to open up businesses again, I have my doubts about the wisdom of doing that, and it also seems unlikely that things will stay open. On the contrary, I think we’re in for a longer haul. And when normal returns, it will be a new normal – I saw one study projecting that over 40% of jobs lost now will not come back. So an alternative could be a good idea.

I make one suggestion to people considering a new business. Make it pay immediately unless money isn’t an issue for you. This isn’t a good time to go out on a limb.

The two ideas I’m going to discuss are pretty different from each other. The first is something almost any adult with a car could do. The second is far more specialized but could be used as a template for anyone with such a specialized background in various things. Neither should involve an outlay of cash at all, and both are “scalable” (can be ramped up and leveraged). Both are based on current realities.

Restaurant Food Delivery

As everybody knows, most restaurants have been forced to shift from in-store dining to curbside pickup or delivery. And you may know that they are relying on certain delivery service apps. For a much fuller discussion of the way this is hurting restaurants and the way the companies involved make money and use their power, check out this link: Uber-Grubhub: How the Pandemic Is Launching the Era of Online Platform Regulation. To summarize the article very briefly, the delivery service apps are charging up to 30% of the price of the meal for delivery. Some (few) jurisdictions have mandated a maximum of 15%, and some have required that tips be given to the drivers, instead of what appears to be the prevailing custom of having them go to the apps.

The money charged restaurants is killing them. I’m told that there is also a direct charge to consumers as well sometimes, and there is another danger of which restaurant owners may, or may not, be aware. But I know.

The way most phone apps work is not by charging for their use. Do you know how they make their money? They make money by selling data the apps generate to big data processing companies (“Big Data”). Food delivery apps are creating a lot of data. Of what? Of restaurants and their customers, of addresses, food preferences, time preferences, spending habits, and net delivery income. If you owned Joe’s Pizza, would you want Sam’s Pizza, or Frank’s Italian Food, two blocks away, to know all these things about your business?

Not unless you’re crazy. And do you trust Big Data not to sell that information to your competitors? Again, not unless you’re crazy. But restaurant owners might not know what the delivery apps are, or could be, doing. And they may not have a choice.

You could give them that choice. You could call up Joe’s Pizza and offer to deliver for them. Make your best deal, and see if you can make it pay. It’s low risk physically if you’re careful, and if you already drive, you’re risking only your time, financially. You’d be local helping local business and local people, and you would be thwarting, to some extent, Big Data (which I think is a significant social benefit). There could be regulatory obstacles, of course, and eventually you will need to take it seriously as a business, of course, but those things wouldn’t stop you from starting. And as you learn, you can figure things out.

Dungeons & Dragons Dungeon Master

Dungeons and Dragons (D&D) is a “table-top role-playing game” (ttrpg) that several people can play. You create characters and navigate a “dungeon,” which is a made-up world inhabited by a large variety of creatures, many of them hostile, and some with missions for you to perform. Your character starts at a certain level of skill and talent and gains experience and items as you navigate the dungeon. I played the game in college and found it addictive just like that. There was a computer game based on D&D which had overall goals – a “game story” of which you were a part. Whether that’s part of a dungeon master’s trade I don’t know.

An amateur dungeon-master was facing eviction and a great need to earn money but was worried about leaving the house and possibly risking the life of at-risk members of his household. I suggested he consider being an online professional dungeon master. I know that gamers, and especially D&D gamers, are often techies who have not been as hurt by the Corona Virus or social distancing, so the customers for dungeon masters should have money. But if they’re social distancing, people who were playing the game in person might want to do it online, but how? They’d need an online dungeon master.

D&D is an intensely social game, with interaction between player-characters and the dungeon master, and between player-characters as they face various battle scenes and strategic choices. That’s what makes it such a fun game. An online dungeon master would need a video app. The person to whom I spoke also said he needed a computer program costing $300 and microphone, another $100. So that was a $400 risk – that he could not afford to take, and which I said everybody should avoid anyway.

Finding Out

And anyway, who knows whether online dungeon mastering would pay? How would you find out without spending a ton of money?

Here’s how you solve both of those issues. You advertise, for free, in Craigs List or whatever online advertising forum you can, as long as it’s free. And what do you advertise? Online dungeon mastering, of course. Figure out how much you would need to make for it to be worth it to you, and how much people are willing to pay, and if those two numbers intersect, you have a start. But you still have to get $400 to set it up, how do you do that? You sell prepaid subscriptions. If it was going to cost $50/month per person for one evening per weekend, you offer a prepay price of $25. When you have 16 customers paying that, you buy your equipment and start.

Note that I just made up all of the numbers I used (except the equipment), from what the market would pay to how many evenings per week you would do. I just wanted to illustrate the way prepaid subscriptions could get you started. That would be true of any board game or, actually, any other service you might sell, at a profit, if you needed capital to start. You can get it from the people who want your service – and looking for those people helps you learn how valuable the service is and what the demand for it is.

I believe the market is going to be very tough for wage-earners or people with jobs dependent upon physical customer contact for quite some time, and I also think that many jobs that previously existed simply won’t come back. If you can find something where you are not an employee and which does not require a lot of customer contact, I think that would be a smart thing to do.

Default During the Time of Corona Virus

It is not yet clear whether the courts are now accepting new cases for filing in debt collection or not, but some people are contacting me with cases they have recently received. Are some law firms have cases previously filed served? Are service processors just finding people home now? Or are people just finding cases that have been dropped off in some way? I don’t know.

But here’s what I do know: if you get served and do not answer a lawsuit in time, you will be “subject to default.” It could happen without further notice. And this presents a huge risk for people in debt.

Let’s talk about what “default” is, first, then I’ll show you why it’s such a risk now.

What Default Is

In litigation, a default judgment occurs when you don’t respond to a suit within a certain amount of time. The judgment will normally be for whatever was sought in the lawsuit. If this happens to you, you have “lost” your suit.

How Default Happens

Default is a two-step process, though often, but not always, these two steps are collapsed into one. The first step is the “Order of Default.” In that, the court finds that service of process occurred and was proper to establish jurisdiction, and you failed to respond. It declares you liable.

The second step is the “Judgment of Default,” in which the court establishes the amount you owe and enters a judgment against you. At that point the debt collector can begin to garnish wages or attach bank accounts (take them). They don’t start collecting, in other words, till there’s a judgment.

The way defaults normally happen in most courts is you are served and due to respond or show up in court on a specific date. THAT is your NOTICE. And no other notice is required unless you do, in fact, respond in court. The court doesn’t require plaintiffs to keep you informed after you ignore service of suit.

Increased Risk During Corona Virus

Suppose you receive summons now of a lawsuit. You may, or may not, even be able to file an answer. But probably are able to, even though you won’t be required to go to court (as of now). If you do NOT file an answer, you may not be entitled to any further notice of the suit at all. That would mean, or could mean, that when the courts reopen, you are immediately liable to have an order of default against you. It MAY even mean that there already IS one, because the courts are in business even if they are closed to the public, and they could be issuing default orders.

When they open again, the debt collector will seek and get a default judgment without ever needing to tell you. Your first notice could be from your employer telling you your check has been garnished. Or from bounced checks coming back to you. During a time like this especially, but always really, this is likely to be a life-threatening disaster.

What to Do

If you have been served a lawsuit, you should respond either with a motion to dismiss or an answer. You cannot ignore the suit just because the court is closed and you don’t have to, and cannot, go to court. In other words, don’t treat this as a vacation. If you’re being sued, take defensive measures immediately. Start defending yourself. As I have pointed out elsewhere, this is actually a good time to do that, because the debt collectors are not in a position to a lot of work on your case. Start defending, and they may drop your case and look for easier pickings.

Debt Defense in 20-20 Vision

Introducing the 20-20 Memberships

We are introducing two new types of membership, the 20-20 and 20-20 plus. Right now, the difference is just how long they last, but it is likely that there will be some special content or materials for 2020+ before too long.

If you have watched the videos at the Overview of Litigation page, you know why we’re offering these products and why I think they’re a great deal. I will outline the new memberships briefly below.

First and mainly, the 20-20 membership will be a “pay-once” program. For a flat price you will receive all membership benefits for 12 months. This should get you all the way through to the end of any litigation you are involved in now. You won’t buy anything else from us or be charged again. Here’s what the 20-20 membership includes:

Teleconferences – currently we have them twice per week. Depending on need, that number could increase so that people regularly have an opportunity to ask questions in real time.

Access to member-only materials, including what used to be called the document bank. This gives you access to materials that have been created for a variety of different real-life situations as well as a large number of articles addressing the situations most debt litigants encounter. In other words, the 20-20 is a full membership, and you get everything members ever get.

Free access to all of our products. You won’t have to buy anything anymore. If you need a motion to compel pack, for example, you can download it for free. And that’s true of all of our materials that are currently for sale.

Specifically, that includes the Debt Defense Litigation Manual, the Three Weaknesses Almost every Debt Collector Has and how to Use them, materials on assignment contracts (not yet, but soon, a product), the Legal Research and Analysis report, and much more.

Comparison to Other Memberships

You can check the prices, but you’ll find that, added up, these materials and benefits would cost at least $1,000, so this is by far the lowest price we’ve ever offered. The 20-20 (regular) will cost $250 for 12 months, and the 20-20+ will cost $300 for 18 months. These prices will stay good at least through February 15.

Our other memberships are designed more on a pay-as-you-go basis. They all include at least two teleconferences per week, with the possibility of increasing as necessary to allow you to get questions asked and answered. Beyond that, they offer general access to most documents in what used to be called the document bank. And they have a graduated discount on specific products you might need. Our goal was to let people get and pay for what they need but not other stuff.

That turns out not to be ideal for some, since it involves repeated billing (monthly) and occasional extra expense when they need a new product. If you prefer, though, this membership remains available.

Our 20-20 memberships eliminate the repeated and occasional costs. Pay once up front and get it all for a year (20-20) or year and a half (20-20+). The overall price will be much lower than one of the other memberships if you end up needing one or more products, as most members will. I say that because if you need a discovery pack and any one motion pack you’re already saving money, and it is likely that you will need those things. Many members need much more.

Overview of Debt Litigation

The new 20:20 project –

New Year, New Kind of Membership

There are three videos in this series. Together, they describe the debt litigation process and almost everything you will encounter as you go through it. We have products for every situation, but these videos are more about the process than our products. Below the videos you will see more about a new product that brings all of our other materials together. If you prefer what we have previously offered, those things will still be available.

Part One

The debt and debt litigation industry.

Part 2

Debt Defense and why it can be so difficult

Part 3

Why Pro se works and how you can do it.

Here is the 20-20 Membership

We are introducing two new types of membership, the 20-20 and 20-20 plus. Right now, the difference is just how long they last, but it is likely that there will be some special content or materials for 2020+ before too long.

If you have watched the videos above, you know why we’re offering these products and why I think they’re a great deal. I will outline the new memberships briefly below.

First and mainly, the 20-20 membership will be a “pay-once” program. For a flat price you will receive all membership benefits for 12 months. This should get you all the way through to the end of any litigation you are involved in now. You won’t buy anything else from us or be charged again. Here’s what the 20-20 membership includes:

Teleconferences – currently we have them twice per week. Depending on need, that number could increase so that people regularly have an opportunity to ask questions in real time.

Access to member-only materials, including what used to be called the document bank. This gives you access to materials that have been created for a variety of different real-life situations as well as a large number of articles addressing the situations most debt litigants encounter. In other words, the 20-20 is a full membership, and you get everything members ever get.

Free access to all of our products. You won’t have to buy anything anymore. If you need a motion to compel pack, for example, you can download it for free. And that’s true of all of our materials that are currently for sale.

Specifically, that includes the Debt Defense Litigation Manual, the Three Weaknesses Almost every Debt Collector Has and how to Use them, materials on assignment contracts (not yet, but soon, a product), the Legal Research and Analysis report, and much more.

You can check the prices, but you’ll find that, added up, these materials and benefits would cost at least $1,000, so this is by far the lowest price we’ve ever offered. The 20-20 (regular) will cost $250 for 12 months, and the 20-20+ will cost $300 for 18 months. This membership should be available for sale as soon as December 27, and the prices will stay good through February 15.

Click here for a more detailed description and comparison of these new memberships to the other memberships.

Proving Ownership of the Debt – How Big is that in Debt Law?

 

Proof of Ownership of the Debt – How Hard Can it be?

To download a free copy of this article in pdf form, click here: How Hard is Proving Ownership

I get comments like this all too often: “A debt collector got a judgment without even proving ownership of the debt.” It makes me feel bad, but it makes me angry, too. Let’s talk about proof of ownership and then seque to a larger point – the point that ever person being sued by a debt collector MUST LEARN.

Proof of Ownership

It is not hard to prove ownership in the law. For a car or piece of real property (land), you just need a title (car) or (deed). You get them, essentially, by the seller giving the buyer a bill of sale which in turn gets verified by the state.

The state procedures complicate things a little bit, but it’s basically a very simple, rubber-stamped process. It is a mistake to regard this process as much of a hurdle or legal protection against the collectors. It isn’t in anybody’s interest to make it difficult or unpredictable – on the contrary.

Selling a debt is easier than selling a car. You need a bill of sale that identifies the thing being sold. And that’s all. Our commercial system favors a simple sales process because people believe that where there is easy and rapid commerce, there will be more commerce, and that makes everybody better off. That’s the theory, anyway.

It is Possible to Blow it

Now, as it happens, debt collectors sometimes do not satisfy this very simple process. How? By not identifying the thing being sold.

A typical debt bill of sale document says, “I, Bank, hereby assign all rights to the following debts to Debt Collector. See Attachment A for the debts assigned.” Sometimes – and quite often, actually – the debt collector, in attempting to prove it owns the debt, neglects to attach the “Attachment A” to its proof. That leaves the bill of sale unconnected to any specific account and thus fails to prove that the debt collector owns the debt.

The courts should always take that failure seriously, as it really does mean the debt collector did not prove it owned the debt. If it happens at trial, and you demonstrate the failure of proof, it should result in instant dismissal of the case because you have shown that the plaintiff has not established a constitutional requirement – that it be a true party in interest.

Still, you can see how it is basically a technicality, and you should know that the courts don’t like technicalities that help people avoid debts.

Chain of Title

Now let’s go one step further. Suppose a debt collector buys a debt and then sells it to another
debt collector. That happens all the time. If either of the bills of sale forget to attach “Attachment A,” then you say that the debt collector cannot prove a “valid chain of title.” That’s because with rare exceptions, a party that does not own a valid title cannot sell a valid title.

Again, though, not all courts are sensitive to the justice of this “technical” rule. It is NOT really a “technical” rule. Proof of title is critical to making sure that the plaintiff is the correct party in interest, as a bogus suit which manages to get a judgment against you will not bind the person with a legitimate title. If they scam you enough to get a judgment, then this will not stop the person with the legitimate title from suing you. Why should it? And that means you might have to pay twice.

Nevertheless, the courts have treated this requirement as if it were a technicality because it can look like the debt collector simply overlooked that element of the proof. You will be burned sometimes if this is all you depend on. Even though in my opinion you should always win.

The Bigger Issue of Attacking on ALL Fronts

Okay. Now let’s move on to the bigger issue. We put out a video called “The Most Dangerous
Myth for People in Debt” which may give you some insight into this question. The point there is that is that you cannot depend on other people – not courts, debt collectors, or opposing lawyers – to help you. You can’t depend on them to do the right thing.

In the real world, what you have to do is pile up as many reasons to do the right thing as possible and hope that one of them works.

If they don’t legitimately prove ownership you should win and probably will win more than 50% of the time. If that’s all you’ve got, you go with it, right?

But if you’ve got a debt collector, you know the chances are strongly against them having
legitimate, admissible evidence of the amount of the debt.

So you attack that, too.

They probably don’t have good evidence that you owe any debt, or that the original creditor
ever sent you statements, so you attack those things, too.

Any time you stop attacking before you run out of things to attack, you’re depending on someone else to take care of you. You’re hoping they’ll do the right thing without having been told all of the reasons to do so.

And how do you know what to attack? By doing discovery, by probing, researching, thinking… by doing everything you can, in other words, to find out what to attack. Our materials help you develop a full plan of attack and help you at every stage in implementing that attack, from answering the petition and submitting discovery, to motions and eventually trial.

Whether you use our materials or not, make sure you keep attacking the debt collector’s case until there’s nothing left to attack. Then you can hope to win.

Your Legal Leg Up

Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.

In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Products Related to this Article

There are no specific products related to this article because it addresses a strategy you should use throughout your defense. You might consider our memberships or our new program that we’re going to call Vision 20-20, out soon.

Memberships

Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.

Sign Up for Free Information

You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/

What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.

What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.

 

 

What Makes Something “Evidence” in Debt Cases?

What Makes Something Evidence

For a free copy of this article in PDF format, click here: what makes it evidence

This article is a brief but important discussion about “evidence,” what it is, how it works, and what to do about it. I get a lot of questions about “striking” documents at various times in a lawsuit, so this may help with that, too. While this article is intended to be a stand-alone article, it is also a part of our Glossary of Legal Terms, where we explain legal concepts and language to non-lawyers. Please feel free to use that resource if you run into a legal term you don’t understand.

But in this article we discuss something that most people understand a little bit about.

What is Evidence?

In a way, evidence is just “stuff.” It’s stuff that is supposed to relate to a case, so let’s start by introducing the concept of “relevance,” which is the formal way in which material relates to a case.

Relevance

Something is “relevant” if it makes some fact that matters to your case (is “material” to your case, in legalese) somewhat more or less likely to be considered true. A bank statement, for example, might be relevant to show how much you owe, or that it is your account.

It doesn’t have to “prove” it. Just make it more or less likely, and of course some evidence is much, much more convincing than other things might be. In debt law, the “credibility” of evidence actually rarely matters because what the debt collectors typically use are credit card statements and other things like that. For some reason the courts almost always believe them, despite all the stories of how often they’re wrong.

In any event, this video will presume that the “evidence” of which we are speaking is relevant. But you should never just do that. Always consider the question of relevance as one of the important first questions. Does it impact on something the debt collector must prove to establish its case? Anything else is not relevant and should be objected to on that basis.

How is Evidence Used

So what turns this relevant stuff into “evidence?”

The “stuff” becomes “evidence” when you ask the court to consider it for some specific purpose. That is deceptively simple, and you might think it doesn’t mean anything. But it means a lot, actually. It means that when a debt collector attaches statements or affidavits to its petition, it is NOT evidence, unless the petition is a “verified petition” where somebody is swearing that the allegations, and the evidence attached are true. Those are quite rare, but if you have one, you will have to verify your answer as well. So in that situation the stuff is a lot like evidence.

However, we need not consider that further because in almost all debt cases, there isn’t a verified petition, and the documents attached are NOT evidence in any present sense.

This in turn suggests that a motion to strike the attachments is pointless, and you should also be aware that the plaintiff is not trying to prove its case – so a motion to dismiss for lack of evidence is also pointless at that stage.

Stuff generally becomes “evidence” at two times in a case.

  • On an “evidentiary motion.”
  • And at trial.

An evidentiary motion is a motion that calls for some sort of proof. Most typically, that would be a motion for summary judgment, but a motion to dismiss for failure to serve would also involve proof of that failure. Likewise, motions to compel require that you show the court certain facts, and motions for sanctions can involve much more involved fact finding.

And a motion to vacate is also going to require some very specific evidence.

But in most of these situations you’re simply presenting evidence to show a rational person could believe something – you’re not asking the court actually to believe it. In motions for summary judgment you’re asking the court to find, decisively, that certain facts are established beyond dispute, and at trial you’re asking the fact finder to believe you and not the other person.

Evidence is always Evidence of Something

In any event, we now have stuff that has become evidence. It’s always evidence of SOMETHING. Right?
It’s supposed to show some specific, important thing is true or not true. And of course evidence could show more than one thing is true or not true, which is important.

Evidence is always evidence of some fact or facts, in other words. You don’t move to “strike” it. You OBJECT to it when the other side tries to get the court to consider it. You object to its being used to prove some specific fact (but maybe not some other fact).

Admissibility

Before the court can consider the evidence, it first must decide whether it is “admissible”  (It has to decide whether it can consider it.)

We talk a lot about admissibility in other materials, because most debt cases are decided based on
whether evidence – usually affidavits and bank statements – is admissible. Your objection to evidence is to its admissibility. In other words, you are asking the court not to consider the evidence at all. At a jury trial, it’s important to do this before the evidence is seen by the jury, so you object to the question asked (rather than the answer given) if possible, or you object when the other side asks to show it to the jury.

Remember that it is possible to have evidence admitted for one thing but not another thing. Suppose you’re claiming, for example, that you sent a request for verification, but they never verified before suing you. Your copy of the letter would be proof of what the request said. Your testimony that you sent the letter would be proof that you sent it, but you would ALSO need some proof that they received it. Hence it makes sense to send them by certified mail.

The letter itself is admissible about the contents of the request but not the receipt.

Normal people are not used to breaking things down in this way, and this turning of everything into an elaborate flow-chart takes some getting used to. But you need to think that way both to get your own evidence admitted, and also – more importantly in debt cases – to attack the debt collector’s evidence.

Remember that if the debt collector manages to get credit card statements admitted into evidence that will almost always be fatal to your defense.

Your Legal Leg Up

Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.

In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Products Related to this Article

Because this is a general article, there are not any products specifically related to this post. I do suggest asserting your rights early and often, and you might find our Take Control of your Life product helpful in that. I also suggest great care in researching and analyzing facts and law. You might find our Guide to Legal Research and Analysis product helpful for that.

Beyond that, if you are facing significant debt problems, I’d suggest our memberships.

Memberships

Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.

Sign Up for Free Information

You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/

What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.

What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.

Voidable Judgments – the Other Kind of Motion to Vacate

Voidable Judgments – the Other Kind of Motion to Vacate

For a free copy of this article in PDF form, click here: the other kind of motion to vacate

Most of the time when people talk about motions to vacate they’re talking about motions to vacate a default that occurred as a result of failure to respond to a properly served lawsuit. There is another kind of motion to vacate, though, for people where the court did not have proper jurisdiction. If that’s your situation, this is a better way.

A Quick Review

Once a lawsuit is properly served on a defendant, the court has “jurisdiction” (the power to address the claims made in the suit) at least provisionally. If a defendant fails to respond appropriately to such a suit, the plaintiff will probably get a default order and judgment. That is what happens in a large majority of debt cases.

An “appropriate” response that will prevent a default judgment is either:

  • An Answer, or
  • a motion to dismiss the suit.

It is also possible to file a motion “for more definite statement” in some states, as well. The point is, though, that every allegation in the petition must either be moved against or answered. If that happens, a default judgment should never be issued.

If you fail to answer and the court awards a default judgment, you can ask the court to give you another chance by asking it to “vacate” the default and allow you to defend the case. I discuss what this is, what the time limits are, and how to do it in several articles, see, e.g.,  Overcoming Default Judgments.

Voidable Judgments

But what if the court does NOT have or get proper jurisdiction over you?

This can happen in two common ways: the debt collector does not manage to serve you properly; or the debt collector sues you in a court that doesn’t have power over you (because you live somewhere else). Other ways are possible, but these are by far the most common.

If you find out that you are being sued in a court that lacks jurisdiction before judgment, you can move to dismiss the case on that basis, but that can defeat the whole purpose of the rule – since in order to do so you would have to appear (“specially”) in the court to do it, and if you’re far away, that’s impractical. Another way to handle the situation is to let the court rule and then attack the judgment in the correct court. That also has significant drawbacks, so if you know about the situation before judgment, it can present a tough question.

But most people do not learn about suits where the courts lack jurisdiction before judgment.  They find out about them later. What do you do if that happens?

No Authority, No Judgment

The good news is that there is NO time limit on a voidable judgment. The court never had authority to enter the judgment, and “all” you have to do is establish that fact. You can do that at any time, and it completely undoes the judgment. It is called “void ab initio,” meaning “from the beginning” as if it never existed.

Burden of Proof

The bad news is that you can have a high burden of proving that the court did not have authority over you. Most courts require you to present “clear and convincing” evidence of the facts that you were not subject to the court’s jurisdiction. In the case of residency – you were living in California but sued in Florida, that isn’t necessarily so hard.

In the case of sewer service – where you weren’t served, but the process server swore you were, it can be much more of a challenge. Still, almost everybody I’ve known who tried it succeeded. That’s because the process servers normally describe the person to whom they theoretically gave the petition, and they usually won’t know your age or body shape, and often guess incorrectly your gender and race. If their affidavit says they served a woman 5’2” eyes of blue and you’re obviously not that, you’re good. Other things obviously aren’t as easy to prove.

What you Have to Prove

You have to prove by good evidence that the court lacked jurisdiction over you.

What you Do Not Have to Prove

You won’t have to prove you made any mistake (you didn’t) or that the substance of the judgment (i.e., you owe $2,000) was wrong in any way. You do not need to allege or prove any “defense” to the suit, in other words. Attack the jurisdiction, and the case goes away.

What you Should Not Have to Prove

You shouldn’t have to prove you didn’t receive notice of a sewer service filing. Suppose, for example, you found it in the trash in a nearby dumpster. Most courts require proper service and not “notice” of the suit. But I’m afraid you can’t count on the courts to apply that rule consistently. You will not want to offer proof or any indication that you heard about the case in any way prior to judgment. If you became alerted to the fact that a process server was around and do some research in the court files, you will want to disguise the fact and cover your trail.

Special State Rules

The rules for this sort of motion to vacate are NOT the easily found rules in the rules of civil procedure. You must research your state’s rules for voidable judgments and follow whatever rules you find there.

Products Related to this Article

We do not have a product directly related to this article if you are moving to void a judgment. You may find our Motion to Vacate Pack helpful in showing you the form of motions and proof, but it does not contemplate the rules you would need to follow. I emphasize, again, that in filing a motion to void a judgment entered without jurisdiction, you would not want or need to include a “proposed Answer,” and you would not need to allege a defense (although claiming a defense wouldn’t hurt and might help).

You would probably find our memberships useful, particularly if the situation with the debt collector that brought you here is not the only one you’re facing.

Memberships

Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.

 

Sign Up for Free Information

You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/

What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.

What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.

Three Weaknesses Almost Every Debt Collector Has and How to Use them to Win

Three Weaknesses Most Debt Collectors Have

For a free copy of this article in PDF format, click here: Three Weaknesses article

Debt collectors tend to buy debts in large quantities (called “tranches”) at a cost that varies from 25 or even 50 cents or more per dollar of “nominal” debt owed (that is, how much the documents say you owe) all the way down to small fractions of a cent per dollar of nominal debt. The price depends on various risk factors, including the date of the debt, how many other people have owned the debt, and so on. As a general rule, the older the debt, and the more owners it has had, the less a debt collector pays for them.

Most of the debts tranches are sold at auction, so there is also a competitive factor, although considering the amount of debt that exists, this can’t be very significant. We have written extensively about the contracts that control the terms of these auctioned debt sales, because getting this contract can be extremely helpful in defending against a debt lawsuit. Members, See, Assignment Contracts, Holy Grail for Debt Defendants.

Most debt collectors bug the people who supposedly owe the money and collect as much as possible before bringing suit, but they can simply bring suit immediately. In any event, when they file lawsuits, they tend to file them “in bulk” often filing fifty or a hundred suits at a time in the same court.

Most of the people they sue do not fight back.

Because the price of the debts is often so low and so many people don’t respond to lawsuits against them and give up a default judgment, the debt collection business is mainly not designed to fight a determined opponent, and it rapidly becomes uneconomical for them to do so.

This gives ordinary debt defendants a tremendous advantage if they know how to defend themselves and where to focus their efforts. Our materials are designed to help you fight back intelligently, and our Three Weaknesses Report will show you where to focus your efforts in most cases against the debt collectors. You’ll have to do some work both to figure this out and to apply it to your case, but it will take much of the work out of your defense and give you a shortcut to victory.

The Weaknesses

The weaknesses debt collectors share all come from the carelessness that handling cases in bulk with an absolute minimum amount of individual time spent on them brings. There is very definitely a “factory mentality” among the debt collectors, and individual time is by far the most expensive part of the collection process for them.

This factory mentality pervades the process from top to bottom and infects sales of debts between the debt collectors. Remember, none of these weaknesses are “magical” or “secret.” They are simply the inevitable result of a process which focuses so much on bulk purchases and processes that rarely get tested by defendants. The debt collectors tolerate problems that can be fatal to their case in individual cases because most people don’t attack the problems.

No Adequate Bill of Sale or Chain of Title

We tell you specifically what to look for to know that the debt collector has this problem, but many debt collectors can’t seem to show an adequate bill of sale that proves they own the debt.

A related problem occurs when the debt has been sold more than once. In that situation adequate proof of every transfer is necessary. And when the debt has been sold more than once, the debt collector is almost never going to have what it needs to prove its right to sue you. The Report shows you what questions to ask in discovery to get proof of the problem, how to show it to the court, and give you case authority for the position you are going to take. The bottom line, though, is that the debt collector will often fail to prove actual ownership of the debt. Without that, it has no right to sue you.

Hearsay and the Business Records Exception

Debt buyers buy debts from other people who created and kept all the records of the debt. They almost never get what they would need to introduce these records in court properly. We explain the rule against hearsay in the report and show why the debt collectors’ efforts to avoid that rule not only should not work but actually probably amount to a violation of the Fair Debt Collection Practices Act (FDCPA). We give you cases and arguments, and we show you how to get what you need to prove your case.

No Contract

Debt collectors rarely bother to get the credit card contract or application for which they are suing you. They say they don’t have to, but…

We’ll show you why they usually do need to have that proof. Again, we give you the case law and show you how to find the debt collector’s weaknesses through discovery. And we also show you how to deal with the most common way debt collectors try to avoid the huge problem not having a contract can often bring: the “Account Stated” claim.

Conclusion

As we’ve said, almost all debt collection cases share these weaknesses, and you can usually kill their case with the information in this report. You will need to do some research to make it just right, and you will definitely need to understand the arguments, but this report will take you a long, long way towards beating any case brought by a debt collector.

Your Legal Leg Up

Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.

In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer.

Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Products Related to this Article

This article is largely a promotion for the Three Weaknesses Report. You can buy that directly if you’d like by clicking here: Three Weaknesses Report. Or you can join us and receive the report for free as a special bonus for joining.

You may be reading this article because you are being sued. If so, the first question to address is whether or not you have been properly served with the suit. We have two ways of helping there. You can use our Case Evaluation product for a quick evaluation of the legal issues presented by your suit, which will include a discussion of the way you were given it, or “served.”

A second way would be to join us as a gold litigation member or above and ask about it at a teleconference for free.

If you are satisfied that you were properly served, you should consider our First Response Kit. It is designed to help you consider significant early issues and to commence the process of defending by answering the suit and beginning discovery. Of course we also believe that a gold litigation membership will help a lot at this stage and beyond, and not only will you get to ask unlimited questions about your own suit, you will also receive a discount on the price of any products you need

Memberships

Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.

Sign Up for Free Information

You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/

What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.

What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.

Is Pro Se Debt Defense Hard?

Is Pro Se Debt Defense Hard?

For a free copy of this article in pdf format, click here: is pro se defense hard

How hard is it to defend yourself from the debt collectors?

You would think that wouldn’t be a very difficult question to answer, given that the business is largely automated and conducted by people who all want one thing: your money. And yet the answer can vary because all litigation is a fight, and how hard you will have to fight depends on a number of factors you can’t know ahead of time.

Still, with that said, the difficulty is mostly psychological. It can be scary at first, but if you do the things that need to be done one at a time, it isn’t that hard. And you have a great chance to win.

The Factors

The first, most important factor in determining how hard it will be to fight the debt collectors is probably YOU.

Courage

I often say that debt collectors “aren’t the sharpest knives in the drawer” when it comes to legal work. They could be, but they aren’t, because lawyering as a debt collector rarely requires legal expertise beyond a very basic level. For the most part, they file suits and collect judgments – it requires the expertise of a bully walking up and down a beach kicking sand in the face of people who don’t look like they’ll fight back.

The bully’s expertise is in choosing victims and scaring them, not in fighting them, and debt collectors are the same way. The first, most difficult, step is to get up and fight. It doesn’t take that much effort, but it’s the hardest thing you’ll do.

The Debt Collector

The next biggest question is what kind of debt collector do you have. Many of them have no interest in fighting the case at all. I don’t know what the percentage of debt collectors is who are like this, but it is surprising how many of them will drop the case if all you do is answer the petition. They don’t show up, and the court dismisses their case, just like that.

Most of them have more fight than that, but as I say, you’d be surprised by how many walk away as soon as you answer the petition. They’re only interested in the absolute easiest pickings, and when you answer, you aren’t that. They go away.

The others have some point to which they’ll go. It appears to me that lines typically get drawn near the following events:

  • You answer
  • You file counterclaim
  • You serve discovery
  • You pursue discovery
  • You file motion to compel
  • You file motion for summary judgment
  • You defend against their motion for summary judgment
  • You show up for trial

Each of these steps is one step further along, of course. What may not be so obvious is that each of these steps involves a decision on their part to spend money and time on your case. It isn’t the fact that time is passing, it’s that you’re making them spend money on your case.

Why is That?

When debt collectors purchase your debt, they do so at a small price, and they can file suit remarkably cheaply – that’s their business. By the time you’ve been served, they’ve “sunk” these costs of doing business into your case. Their goal is not to spend any more, but simply to pick up a default judgment and send it to the people who look for your money or try to harass you into paying it. Low wage earners. It works this way 80 – 90% of the time.

Every time you make the legal department take some action, though, you are making them pay high wage earners, and you are making them pay for something they didn’t expect to pay. AND you are making them pay something that wasn’t already a sunk cost. You are costing “extra.”

They don’t like this, and for good reason. A dollar spent chasing you is much, much less efficient than a dollar chasing the 80-90% who give up. And when they spend NEW money to chase you, they have to worry more about whether they’re going to be able to get the money out of you. It’s one thing to get a judgment, but a different thing to collect it. And they’re very aware of that difference.

Almost all debt collectors have a line beyond which they will not go. The sooner you make them think they’ll have to go past that line, the sooner they will drop the case.

Notice I haven’t even mentioned the possibility that you could win the case. They don’t worry about that much, but if you can make them worry about it, that will push all but a tiny fraction of them to the point where they drop your case. It’s not “weakness” on their part or laziness or any other bad quality. It’s business.

So that Brings us Back to you

The question is, how hard is it to make them go away? You will have to learn how to do things up to the point they give up. It might be just learning how to answer, and that is very, very easy. It might be putting discovery requests together or pursuing the steps leading to a motion to compel. It might be filing or defending against a motion or two.

No one of these things is all that hard, and you will have time to learn as you go. You’ve probably heard the saying, “inch by inch it’s a cinch.” Well, I don’t know about “cinch” once you get past the answer, but it’s all manageable, and in the greater scheme of things it isn’t hard at all. And it pays you very well, depending on how much they’re suing you for.

It Isn’t Hard

So after all, it isn’t hard. You will need to learn enough to defend yourself intelligently at each step. It takes some effort, but mostly it’s the psychological effort to realize that you CAN do this and that you DESERVE to win for yourself.  The more you do, the more you will realize these things are true, so you don’t even have to start with much hope of winning.

Eventually you will learn what you need to know. When you do, you’ll know they’ll never be able to push you around again.

Your Legal Leg Up

Your Legal Leg Up is a website and business dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. As you can see below, we have a number of products as well as memberships that should help you wherever you are in the process. In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many are available to everyone.

Finding Resources

Our website is both a business and a public resource, and you can use it to find information on a wide variety of debt law-related topics. While many of our resources are restricted to members, of course, many more are free to the public. Please feel free to use it. Every page has a site search button in both the header and footer. It’s a little magnifying glass icon that looks like this:

Click on the magnifying glass icon, and a small window opens. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Difference between Original Creditors and Debt Collectors

Debt Collector or Original Creditor

For a free copy of this article in pdf format, click here: difference between original creditors and debt collectors

We used to face a simple either/or question in debt defense. Were you being harassed or sued by the original creditor? That’s the person who allegedly lent you the money in the first place. If so, you were dealing with a person who had better rights against you – but some concerns over public perception that could help you. If it was a “debt collector” who had bought the debt from someone else and had nothing else to do with you, you had better rights and a better chance of winning.

Various things have blurred the line somewhat, but it is still worth keeping the distinctions in mind. There are now really three important categories to consider: original creditors, debt buyers, and “debt collectors,” and the last two categories overlap to some extent.

How Debt Arises

Debt can arise in a number of ways. If you buy a club membership, for example, and then stop paying on it, the club is the original creditor. If you stop paying, the club will bug you for a while, and then they may send the account to a debt collector to bug you some more. Eventually, they may sue you or sell the debt to another company. Whatever they do directly to you, however, they must worry about their reputation in the community, and harsh collections might reduce their sales.

This concern, that they needed to have – about reputation, was considered a check on their debt collection practices. The legislature thought that was enough protection against the worst abuses.

Debt Collectors

Debt collectors, by contrast, lack that relationship with the consumer. Their only client is the creditor company or, if they have purchased the debt for themselves, their only loyalty is to their own bottom line. Thus that protection from abusive collection practices was not there, and the FDCPA was designed to put it there.

The emphasis was on how the debt originated and how it came into the possession of the person bugging you. Thus for a long time we simply considered anyone who bought debts as a “debt collector.” Such people or companies had no need to protect their relationship with the public, and so the public needed protection from them.

Supreme Court

The Supreme Court has made things a little tougher for debt defendants by holding that debt buyers are not, by that fact alone, now defined as “debt collectors” under the Fair Debt Collection Practices Act. Legally, a company can be a “debt collector” under the FDCPA if its “principle business” is the collection of debts. But otherwise a debt buyer isn’t necessarily a debt collector.

This will protect some very bad people from consequences for some of their actions, and it will prevent many people from being able to get lawyers to protect themselves from debt lawsuits.

It will also complicate the way you handle your lawsuit against someone who may be a debt collector, since you will have to try to prove the company bugging or suing you is a debt collector. We have changed our model discovery to address that new reality, and if you’re being sued, you will need to take it into account.

New Reality

Unfortunate as the Supreme Court decision was, it’s now the law until and unless it gets changed. In the current political climate, that seems unlikely. So you must bear in mind some practical distinctions.

Debt buyers, whether or not they are “debt collectors” under the FDCPA, will have difficulty getting or using certain evidence in court. The distinction is very important in assessing your defenses against a lawsuit for debt. Debt buyers will likely face major hurdles from the hearsay law, and they won’t have the same records as an original creditor.

You will have more and easier counterclaims against those who are defined as “debt collectors” under the law, but you will need to conduct discovery specifically to prove that they are, in fact, debt collectors.

Original creditors will probably have fewer issues with hearsay and may or may not have many records. They seem to have fewer records and less control over their files than they used to, for whatever reason, so you will need to explore this in your discovery and defense strategy. And you will have a better chance defending against an original creditor than used to be the case.

Difficulty of Defense

It is not more difficult to defend yourself from one group than another. The legal process itself is basically the same. You have to do all the same things to defend yourself, from answering the petition to showing up in court, responding to discovery, and going to trial if necessary. But the content of the discovery as well as the process of the suit, will likely be different. The original creditors will be more reluctant to sue you, but will have more materials to support the suit. The debt buyers will be more willing to sue, but have less material to support their claim, and if you  can prove the other side is a debt collector, you’ll probably have a counterclaim.

Whichever you’re facing, you should defend yourself. We suggest our materials and membership if you’re ready to do that on your own.

Your Legal Leg Up

Your Legal Leg Up is a website and business dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. As you can see below, we have a number of products as well as memberships that should help you wherever you are in the process. In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many are available to everyone.

Finding Resources

Our website is both a business and a public resource, and you can use it to find information on a wide variety of debt law-related topics. While many of our resources are restricted to members, of course, many more are free to the public. Please feel free to use it. Every page has a site search button in both the header and footer. It’s a little magnifying glass icon that looks like this:

Click on the magnifying glass icon, and a small window opens. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.