Your Right to a Jury – Should you Demand One

Jury Trial

I know I’ve discussed whether you should seek a jury trial before, but I want to give it a new look for this set of videos. In my view, debt defendants should always ask for jury trials if they have the right to them, and most of them do have that right.

Your Right under the Constitution

Under constitutional law, you have a right to jury trial under the 7th amendment for most “legal” claims. “Legal” in this sense is a term of art referring to the historical development of the English courts. Suffice it to say that most claims “sounding in” breach of contract are “legal” claims. Account stated, on the other hand, is not, so if the credit card company is suing you ONLY for account stated, you probably don’t have a right to jury trial, but for almost all other credit card or loan based claims you do. And if the plaintiff is suing you for breach of contract and account stated, you will have a right to jury trial that will, in all likelihood, control the whole case.

So most of the people watching this video or reading this article will have a right to jury trial. Should you take it?

I think yes for a couple of reasons.

Judges and Lawyers Take Jury Trials More Seriously

The primary reason is that judges and the other side will take jury trials more seriously. This means that the judge will be much more careful about what kinds of evidence to allow the jury to see, and since that is the heart of much of our defense, this is a very good thing. It isn’t that a judge should allow hearsay to affect his or her decision, it’s that the judge will pay much closer attention to your argument that something IS hearsay if he or she is worried about a jury hearing it. It’s just a more serious kind of case.

And the second reason is that it IS a more serious kind of case. Although a judge-held trial could last half an hour, a jury trial will be measured in hours or possibly days if there are any complications. That’s because the jury has to be selected, as much as anything, and that takes time. The difference in cost of attorney time could easily be a thousand dollars, and debt collectors don’t like to put that kind of money into cases like this. It’s just the way they do business, not that they fear them or anything.

Jury Trials are NOT Scary

But should you fear them?

It might sound like a jury trial is a bigger deal for a shy or intimidated person, and it is true that they are somewhat more complicated, and you’re playing to people in the jury rather than just the judge. But although that’s true, you will probably find, in real life, that it doesn’t matter. Juries are just as easy to talk to as judges, and if you’re caught up in your case it’s probably even easier to talk to the jury. They’re much more like you than the judge is.

There are factors you’ll need to consider as you prepare for the case, but in making your decision on whether or not to demand a jury that’s probably all you need to know. The judge will be more serious, the defendant will like the case less, and the jury will be easier to talk to than the judge. In general. So we suggest you ask for a jury trial. Find out your court’s rules on asking for one before you file your answer if that is possible.

What is “Valid” Service of Process


What is “Valid” Service of Process

This question comes up a lot, and I have probably addressed it before. But for this set of videos I want to give a shorter, sweeter answer. Bear in mind that service of process is the way a court asserts jurisdiction over you – “process” is not the lawsuit, it’s the summons, the sheet of paper from the court, and “service” is the way it’s given to you. If it isn’t done correctly, the court lacks power to control your fate. As you’ll see, the rule isn’t some sort of absolute constitutional requirement – it is constitutionally required, but it can vary under circumstances of practicality. We’ll discuss some of those here.

If you’re in small claims court, there may be special rules regarding service of process. There often are. For example, service by certified mail, or even just first class mail, may be sufficient. If you receive a summons by mail, you should look up the court’s rules on service. Sometimes, even if service by mail is good, there may need to be some proof that you actually received it. Check your rules and see if what you got was good enough. Obviously you don’t want to call them, identify yourself, and ask if receiving service by mail was good enough, since that would be admitting you got it.

If you’re being sued in something other than small claims court, it’s probably going to take more than just the mail. They’re probably going to have to hand you the suit or offer to do so.

Here again, the rule is not absolute. If they offer you the summons, and you refuse it or run away, you will have been served. It isn’t necessary for you to take it for service to have happened, just for it to be offered.

But what if they tack it on your door? Or put it between the screen door and your front door? That’s normally not going to be enough, since there’s no certainty you will be the one getting it, but if that happens, you’ll want to research the question before deciding it wasn’t good enough. Incidentally, if we’re talking about a foreclosure or rent eviction, tacking the suit to the door might be enough to get jurisdiction over the property even if not over you, personally. That would mean that they could evict you if you don’t answer, but not hold you liable if there’s anything else owed.

What about if they give the summons to a neighbor? Probably not enough (check your state’s rules) and possibly a violation of the Fair Debt Collection Practices Act, too.

How about giving it to you child at the door? This, too, is going to be determined by state rule. Most states have rules that allow service upon residents at a place who are a certain age or above. So ordinarily that would not give a visitor a right to accept service on you, or a child under a certain age.

If you haven’t been served adequately, you may wish to oppose the court’s jurisdiction over you. I actually usually suggest you hire a lawyer to do that for you, since it’s just a more powerful statement and can be done without being tremendously expensive. You would file what’s called a “motion to quash service,” to have it deemed ineffective by the court.

What if they can’t find you or reach you at home? There are other ways you can be served, but usually the plaintiff has to ask for permission to do that. They could serve you “by publication,” which means posting notice in some legal publication. Since no one ever reads those publications, you won’t see that, but if you’re aware they’re trying to reach you, you should follow the case docket and see if they ask for permission to serve you that way. If so and the court gives them permission to do so,  you’re probably going to want to go ahead and waive service and ask them to mail you the summons and complaint. But it’s quite rare for debt collectors to take all the trouble to serve by publication for a very good reason: if they can’t find you to serve you, they’re not likely to be able to find your assets to collect on them. Everybody in the debt collection business likes to get paid, and if they don’t think they will be, they usually won’t put in the effort.

As you can see, I generally think the debt collectors should have to put in the effort to serve you. If they can’t, there isn’t much reason for you to make that easier for them. They might drop the suit on you completely. That’s a winner.

How to Talk to Lawyers and Judges When you’re Sued for Debt


I’ve discussed some of the background realities of talking with judges and the attorney for the other side when you’re representing yourself as a defendant in a suit for debt in “Real Words about Talking to Judges and Lawyers.” There, I mentioned that you face systemic discrimination as a pro se defendant because neither judges nor the lawyers will respect you. The judges don’t primarily for classist reasons, but the lawyers for the other side have various reasons. There’s a bias against you, and that means certain things we’re going to talk about.

It means, above all, that you have to be better than the lawyer for the other side to receive appropriate respect. There are reasons this is possible, but it’s primarily because of the business model of the debt collectors. They take a factory approach, and that means that your case will simply get very little individual treatment from the company – it just isn’t profitable for them to do that. Nor is it profitable for them to hire lawyers from the Ivy Leagues, let’s just say. Their whole approach is to bug you into paying without suing you and then to file huge numbers of suits knowing most people won’t defend themselves at all and will allow a default judgment.

Defending yourself takes you way out of the “ordinary.”

And it’s a start, but you also still have to put in enough work to be better than the other side, and that’s what we discuss here.

Because of the general lack of respect for pro se defendants, when you say something, you will be more likely to need to cite controlling authority than a lawyer would. They can make references to “black letter law” (which is just legalese for “generally obvious”), but you will do better, if the issue is important at all, by citing a case that supports it. That means research is going to be important to you.

One thing non-lawyers seem to have trouble with is keeping things “relevant.” If you’re arguing about whether the debt collector has proof they own the debt, some things will shine a light on the issue, but the fact that the company has been sued by the federal government for collection abuses will not be, for example. Because of the way the court sees you, it will have very little tolerance for any straying off topic – it (the judge) will think you’re wasting time and often tune out. Therefore, make sure everything you say relates to exactly the issue you’re discussing.

A related issue is keeping things brief. Again, the court will quickly sense that you’re wasting time if you veer away from the most important things at all. The judge doesn’t need to know why you thought something or planned something, it needs to know what the law requires. Pro se defendants seem to have a tremendous difficulty with this – you want to tell your story, but let me tell you that the court could not give one damn about your story. Legal talk is very different in this respect than regular human talk. Do NOT waste the court’s time.

Don’t whine. This is probably self-explanatory, but it’s part of the other things I’ve mentioned. Because the court does not care about your feelings, it will regard anything you say or insinuate about your feelings as a waste of time. And whining is irritating and unprofessional.

Know when to hold and when to fold. This is part of maintaining self-discipline and paying attention to the judge. When the judge says they’ve ruled, you are on extremely borrowed time. Ordinarily you should shut up and sit down. As I point out in “Real Talk,” you do that by saying, “Thank you, your honor.” But sometimes you don’t think you’ve had a chance to raise a crucial point. In that situation, you say something like, “I hear that, your honor, but I wanted to make sure you knew that they caught the defendant red-handed holding the knife with blood all over him…”

What I’m saying here is that if you want to say something after the judge has already ruled, it had better be damn good, and even then you’re on thin ice, but sometimes you have to say something to preserve the record. Judges can be hasty, and specially so with pro se debt defendants, so sometimes you may feel you have to point something out, but make sure it’s good – otherwise you’re just going to make the judge mad.

And speaking of anger, you must ALWAYS keep your feelings in check when you’re talking to the judge. If you raise your voice you could get thrown in jail for contempt of court, but of course it’s much more likely that the judge will just stop listening to you for the rest of the case. Baseball coaches seem to think it helps sometimes to get kicked out of a game, but this is never going to be a good strategy for you. Shut up, collect your thoughts, and be ready for the next thing.

And now just a few words about the lawyers. First, keeping your cool is just as important with them as it is with judges. They can’t throw you in jail, but they can certainly tune you out in lots of ways. It won’t be good for you if they do.

Because you’ll be negotiating in various ways with the other lawyer, you need to remember one thing: talk is cheap. Because they don’t have a lot of respect for you, if you tell them “we should settle this thing now, or I’m going to file a motion for summary judgment next week…” they’re just going to ignore that. They don’t think you’ll do it. Any similar threats are pointless and more harmful than good. Instead, do the work first and let your actions speak for you.

Incidentally, a lot of lawyers try the same trick with the same results (nothing), but whereas I could probably draft a motion for summary judgment and send it to the other side saying that if they don’t settle I’m going to file the motion, you probably couldn’t even do that. There’s a chance they’d read it if a lawyer wrote it, but they probably won’t read anything you send until you file it. So go ahead and file what you’re going to file. Let your actions do your talking.

Talking to Judges and the Other Side When Sued for Debt


Real Words about Talking to Judges and the Other Side
When Sued for Debt

If you are being sued for debt and representing yourself – that’s called “pro se” – you’re going to have to talk to judges and also to the lawyer for the other side. That presents special challenges for pro se defendants, and particularly pro se debt defendants.

The first thing you must remember is that any FACTUAL thing you say can be taken as an “admission.” That means, if the fact you made the factual statement is established, the fact itself will be regarded as proven. That can be huge in debt cases where debt buyers often cannot prove things with legitimate evidence. If you say “I know I owe…” or “I know I did…” or “You told me…” or anything else that leads to
a factual statement, that fact will be regarded as proven. Not BY you, incidentally, but AGAINST you. So don’t try to get cute and say, for example, “I know you can’t prove your case.” The rule only applies to what are called “admissions against interest” and it’s a one-way street: you can’t make admissions for the other side. Is that clear?

When you’re talking to judges, they may simply ask you, for example, whether you used or had a credit card or something along those lines. You may be disputing, primarily, whether the debt collector has a right to collect from you, which could be a completely different issue, but if you admit you got the credit card you will lose the case 99% of the time. You must resist the temptation to answer such a question with an admission. You can say, instead, “that’s one of the things the other side has to prove, and I’m not admitting it.”

You are not a witness under oath when you’re talking to the judge in open court unless you are, in fact, testifying, and you should not feel required to make admissions. If the judge presses you very hard, simply say you don’t think so.

If the lawyer for the other side asks you point blank for some similar admission while you’re negotiating or haggling over discovery or at any other time than while you are under oath, you should simply say you “deny” it. That’s what you’re doing by your denial of the allegation in your answer.

Now let’s go to some “unwritten” facts, you might say. And they’re frankly not going to be pleasant to hear, but you need to know them. Both judges and the other side – lawyers and their minions – regard you as socially inferior. You may feel it and feel intimidated, or you may not even feel it, but most of the time it is a simple fact. They do not respect you in a fundamental way.

With judges that can never be remedied. They can respect your intelligence and your willingness to compete, shall we say, but they are in a position of power over you that is virtually absolute, and they’ve been in that position or some similar position for a long, long time. This gives you kind of a delicate task which we’ll come back to in a minute, but first we’ll talk about the lawyers and the other side generally.

Lawyers don’t respect you, either, and neither, most especially, do their owners the debt buyers. Again, you cannot fix that, but you must treat them, as much as you possibly can, as your equals. They’re not your parents and will never, under any circumstances, do anything in your interests that doesn’t help their interests, so do not ask them for guidance in any way. Ask me. Or ask a trusted friend. And then do your research. But when you’re talking to the lawyer you should be aware of the power dynamic and resist it. Not saying be rude or overbearing; I’m saying to keep your cool and treat the lawyer the way you’d treat anyone else you’re in a professional relationship with. Because that’s what you are.

Believe me, though, they start with contempt for you, and that will never change unless you fight and win. Professionally, again, I emphasize. You fight and win by standing up for your legitimate rights, keeping your cool, not making admissions, and forcing their hand where possible. Eventually, if you do these things, they’re likely to develop a sort of grudging admiration for you – fighters like fighters, in a way. They respect that about each other. But they’re never going to invite you to the boathouse, if you know what I mean. Know that fact.

Now let’s get back to judges, because your relationship to them is much more complicated.

Your job, as an advocate, is to instruct the judge on what the law requires, as you understand it. If the other side is suing you for a debt they cannot prove they own, you have to tell the judge that that failure to prove ownership requires they lose the case. When you object at trial or in motions, for another example, you have to tell the judge why legal precedent in your state requires that your objection be sustained.

Lawyers do this all the time, although even lawyers handle judges they don’t know extremely well, with kid gloves. And your job is much much harder because the judges regard you as socially inferior. You still have to tell the judge what the law requires, and you can’t mince your words about that. But never, ever, interrupt a judge, raise your voice, or lose your cool, and don’t forget that judges can make mistakes (and so can you, of course), so work with that. It doesn’t mean they’re against you – it doesn’t usually mean much of anything. It’s usually impersonal, and even if it isn’t you have to act like it is.

Remember that judges are in a god-like position over you, and a lot of them seem to think they are god, too. If they tell you to shut up or it’s over, they’ve ruled on a question, they expect you to thank them! They do, and it’s standard. The judge says, “I’ve overruled your objection,” and you say, in response, “Thank you your honor.”

It could seem disgusting, but it’s tradition as much as anything else, and you are respecting their position when you say that more than their person.

So you have a challenging balancing act with judges. You have to tell them what the law requires and what makes you think so – and they actually may not know or remember. But you must keep in mind that their power is nearly absolute, so you should usually treat your arguments as “reminders” to them of what you expect they already know. And yet you are their intellectual equals, too, so you should stand up for the right of your position even if the judge is questioning it.

With all that said, a lot of judges are intelligent, nice people. ALL of them are, at least some of the time to some people. Recognize that fact and understand that they play a role in this case, and that role is to make judgments, some of which you aren’t going to like. Don’t personalize their rulings, and don’t think that because they disagree with you on some point that they’re against you. Unless you’re a competitive athlete or a lawyer, this is probably way out of your experience, but referees in football are required to look at every play and make their best judgment regardless of who they like better. They try to do that, and so do judges, most of the time. Understand that fact – it’s just their job.

When you’re talking to the other side, but especially when you’re talking to a judge, remember to listen carefully. So often people just listen to what others are saying primarily as a way of marking time – you have something to say, and you’re just waiting for them to finish so you can say it. Don’t do this in the law. Listen to what they’re saying – it’s usually important.

And make sure the things you say are important, too. Stay on point and remember that anything you say that seems to go off-point will cost you respect and attention. No one wants to hear your feelings or difficulties. They want to hear what the law is and what it requires. If you’re representing yourself, you’re going to have strong feelings, but keep them in check and keep them quiet. Talk about the few things that matter to whatever you’re discussing.

Remember that above all, the case that means so much to you means very little to the other side or to the judge. It’s just a job to them, which they may take more or less seriously, but for you it is much more important. Act like the case is important to you and work steadily and hard, and stay humble. Hope the judge will take his or her responsibilities seriously enough to be fair and listen to you when it matters, and that the lawyer on the other side is as uninspired as most of them are. Keep those things in mind and you’ll have a great chance to win.

What to Expect as a Poor Person in a Rich Man’s Game

Real Words about the Law and Being Sued for Debt

What to Expect as a Poor Person in a Rich Man’s Game

You may have heard that “justice is blind,” which oddly enough was meant to suggest that justice is fair in America – it’s blind to class and race, and all the rest, supposedly. But if you’re being sued for debt you’ve probably heard of another saying: “it’s a big club, but you aren’t in it.”

I’m afraid that second saying is probably more relevant to what you can expect in the courts. If you’re going it pro se, that is to say representing yourself, you’re going to have some trouble getting the
attention of most judges. They’re not going to value what you say as much as they’d value what a lawyer would say, especially a lawyer for a corporation. Most judges are on that side of the fence, and they’re DEFINITELY from that side of the tracks, if you know what I mean.

So let’s just say there’s an institutional bias  – prejudice – against you. But I am saying “most” judges, after all, and some don’t share that bias.

And as a general rule judges do have a sense of fair play as far as playing by the rules, although again this is just a “general rule.” If they care about the outcome of a case, I’d say they can be pretty results driven, never minding the rules, but in fact most of them do NOT care about the outcome of debt cases. On the whole they seem not to like them, and we’ve all heard that debt collectors are notoriously heartless and… dirty. The judges are aware of all this, and I think they do regard them, on the whole, as the vultures of the legal kingdom. Judges often come from the more high profile sort of law.

But these are generalizations, and you should observe for yourself what your judge is like.

And here’s yet another general rule of the courts: the judges regard cases involving less than a couple
of million dollars as being sort of trifling and not worth their time. That’s a thing you should never forget. It’s a question of who they blame for your case wasting their time. I think they start with the sense that YOU are to blame, if you bother defending yourself, but this can change, and we want it to change. You didn’t bring the suit, after all, but you are one of the few meaningfully opposing the debt collectors, and so the judges might blame you for that. It has often seemed that way to me, anyway.

This is all hardly a ringing endorsement of the process, I know, but probably nothing new to you, either.
So why do I still think you have an excellent chance of winning if you fight these cases? Because the debt collectors really don’t usually have what they need to prove the things they need under the rules, and courts do have respect for rules. They’ll forgive corporate counsel a few transgressions, but in the final analysis they want the rules to be followed, and the case can be reversed on appeal if they don’t. So you have your chance.

And judges are people. The more time you spend with them, providing you keep your goals in mind, the more the judges will like you, the more they’ll listen to what you have to say. And you will have the law on your side. That does matter. It usually makes all the difference if you know what you’re doing.

And that’s why we’re here – to make sure you do know what you’re doing. Just be aware that whatever
they say about cutting a break for non-lawyers in the justice system – and they do in certain unimportant ways – you’re probably going to be held to a higher standard than the lawyer representing the debt collector rather than a lower one. You’re going to have to know more and do a better job than the other side.

You can do that, it just takes work and a certain humility. The lawyers on the other side are not the greatest legal minds. The debt collection business draws business people, and the business they’re in
means they won’t spend a lot of time on your case. They won’t have a lot of the stuff they need or the
time to get it. Your job is to show that to the judge in a way he or she will listen to. It’s a challenge, but it can usually be done. We’ll be helping you.

The lawyers for the other side have a job to do, and that’s to beat you. Some of them will treat you with respect, and others with contempt (which will be controlled), but remember their job, and however they present themselves to you it will be part of their overall plan to beat you. Don’t expect to go out with them for drinks after it’s all over.

 

Our 20-20 Membership


Our 20-20 Membership

People often ask me what they should get first from Your Legal Leg Up. To me, the answer is obvious, and it’s both the first and last thing you’ll pay for in most cases: the 20-20 membership. It’s the best we offer both in value and price. It’s so much better than the other options, in fact, that I almost feel guilty when people buy anything else, but sometimes they do, and there could be reasons one of the other memberships would be right for you, so I’ll talk briefly about your other options at the end of this article.

Teleconferences

All of our memberships include access to our teleconferences, and I’m not aware of any other program that offers anything like that.

What teleconferences are is an opportunity to ask questions in real time. You can ask about what things mean, what the bad guys might be driving at or trying to accomplish with something they’re doing, and how you might respond. We’ll help direct you to sources of information or guide your research. Sometimes you might just want to know where you are in your case, what a word means, or how to say or search for something… stuff like that.

Sometimes you’ll just need some encouragement and a reminder to keep up the good work because
working steadily is important but difficult in legal work, where there are deadlines that can be months away, but you forget how much time things take even aside from doing the work itself.

And sometimes you’ll want to hear other people who in the same boat as you are. Debt defense pro se can be a lonely process, but there are a lot of people trying to defend themselves. You can talk to them, and we offer encouragement and coaching as well as more substantive help too. People who use it find it enormously helpful. We can’t offer legal advice – you’d have to pay between $150 – 250 per hour to get that – but consider it a very active form of coaching and help.

Teleconferences currently happen three times per week and members can come to any and all of them. They’re scheduled for an hour each, but often go above that amount of time because I want everyone with a question to get it answered. If need be, we’ll increase the number of teleconferences per week to make it easier to get those questions answered.

Fees and Prices – Why the 20-20 Membership is Best

Most of our memberships involve a registration fee and a monthly payment, but the 20-20 only requires one payment for a full year that will be less than the other memberships for a year. The other memberships offer discounts on our digital products, but with the 20-20 you get all the digital products for free.

In other words, for one price you get all of our digital products and access to all the materials on the website for a year in addition to the teleconferences. The digital products which are designed to make the whole process easier and more effective, and the many articles and videos should help you get a deeper understanding of specific topics as well. You don’t get any “bonuses” because you get everything with the membership.

Materials You’ll Get – You Get ALL Digital Products we Offer

Maybe that’s all you need to know, but if you like to see it all before you make a decision, I’ll say you get all the digital products on our comprehensive product page.  This includes numerous reports, including among others, Got Debt, Assignment Contracts, and Three Weaknesses Almost All Debt Collectors Have, the Manuals for Debt Litigation, Debt Negotiation, and Credit Repair, and all the Motions Packets, including the Motion to Vacate Default, Motion to Dismiss, Motion to Compel, and Motion for Summary Judgment. There will be others, too. You will also get our Model Discovery Pack and, if you live in either California or Pennsylvania, products relevant to those areas.

And you’ll get access to all the hundreds of articles on our site. Many are free to the general public, but many others are restricted by level of membership. As a 20-20 member you get them all. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.

Why Such a Good Deal?

I know this is going to sound like sales talk, but the 20-20 is a much better offer than we’ve ever made, and some explanation might help it make sense. There are two reasons, one selfish, and one not so selfish, for making this offer.

The selfish reason is that I’ve noticed that when people get sued they regard the law suit as a major priority and will pay what they have to (if they can) to give themselves a chance to win. That makes a lot of sense to me. But if they sign up for a monthly membership, there often comes a time when the case is less scary, or there comes a time when they need to buy a product but don’t have the money. So they cut corners and skip a product. That lowers their chance of winning, which isn’t good for Your Legal Leg Up’s reputation. It’s very important that you all win if at all possible, so making a deal which will never make you cut corners makes good business sense to me. And it’s why I’m here in the first place.

The other reason is just that I can do it. The products are here (and the work has been done, though they are sometimes revised), and I want you to be able to do your best work and get your best results without always having to sweat gallons. You’ll have plenty to do, but we can make things a lot easier. So I want to do that and am fine with making a little less than I might in to do it.

The Other Memberships

I mentioned the other types of membership a little bit above. Those are the Gold, Platinum and Diamond memberships. The main advantage with them is that if you show up and the debt collector gives up just because you do, you’ll save money because you won’t be paying for things you don’t us. Don’t laugh, that can happen. And it does happen maybe 1 percent of the time. They’re looking for an easy, automatic victory, and just by answering you make them decide to go away. Like I said, that happens about 1% of the time as far as I can tell. To be frank, nobody that’s happened to felt bad about getting the 20-20, but it’s a fact that a monthly membership would have cost less in that situation. Just about any other situation, though, and the 20-20 will save you a bunch of money and a ton of time and worry.

It’s the way to go for almost everybody. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.

Your Right to a Jury Trial in Debt Litigation

Your Right to a Jury Trial in Debt Litigation

Under the Seventh amendment you have a right to a jury trial for cases involving “damages.”

Damages is a little bit of a term of art in this sense, but it basically means “money” for claims that were traditionally brought in courts of “law” (as opposed to courts of “equity”). As it happens, breach of contract, which is what most credit card cases are, is a legal claim subject to the 7th amendment. On the other hand, claims brought under, for example, the claim of “account stated,” are equitable claims that don’t give you a right to a jury trial by themselves.

That means that if the debt collector is suing for breach of contract or “open” or “closed” account, you have a right to a jury trial under the constitution. If they are suing you EXCLUSIVELY for account stated, on the other hand, you don’t.

When you have a right to a jury trial for one claim, you have a right to jury trial for all claims, so if they bring breach of contract AND account stated, you’ll have a right to jury trial for both. Most debt defendants, therefore, do have a right to trial by jury. Should you demand a trial by jury? I usually think so.

Trials by jury force the judge to take the law of evidence more seriously. In fact they take jury trials more seriously in a lot of ways. That benefits the debt defendant because our case is usually that the debt collector does not have any evidence that complies with the rules of evidence, and we need the court to take that seriously.

I also suggest demanding a jury trial because they are far more difficult for the debt collectors.

Understand what I’m saying, though. It isn’t that debt collectors don’t know how to do jury trials or even that they aren’t good at them – individual talent varies, of course.  I’m only saying that debt cases tried to a judge can take twenty minutes. Picking a jury can take hours. And all the rules have to be carefully followed, and there are special rules and procedures, too. So demanding a jury might require 20 times as much attorney time. And time is money. Especially attorney time at $250/hour.

Debt plaintiffs don’t like cases that take a lot of time. It increases their costs, and they know you don’t have much money, so they worry about getting it back. Debt collector lawyers also worry about cases taking a long time because their performance affects their annual pay, and long debt cases hurt them.

In my opinion, those are strong reasons to seek a jury trial, and I might add that there will be times when a jury is also more sympathetic to the defendant than a judge would be. Judges haven’t faced debt trouble in a very long time, in general, by the time they’ve become judges. Most jurors, on the other hand, will have money worries. But I wouldn’t rely on this too much. Some judges are sympathetic, and some take their work seriously whether they’re sympathetic or not. And some juries can be pretty harsh.

But our goals in jury trials don’t depend on the jury that much. We want the judge to exclude evidence that shouldn’t be seen, and they take that more seriously when there’s a jury. Then it’s clear the debt collector didn’t make its case.

So why might you NOT want a jury? The only reason I’ve ever heard from debt defendants is that they’re scared of them. And I hear that a lot, but it’s not a good reason. Almost everybody I know who has ever had a jury trial has said it wasn’t scary. Not when you’re doing it. They are a little scary to think about and get ready for – pretrial jitters are normal, but once the trial starts, you’ll be too busy to be nervous. That’s as true of jury trials as it is of judge-tried cases.

You have a right to a trial by jury, but how and when you ask for it can make a difference. In some jurisdictions you just put it at the end of your Answer. In some jurisdictions you have to enter it as a separate request, separately. Which of these you’ll need to do is probably in your court’s local rules, but you might ask a court clerk about that. If you can’t get an answer from an authority, I’d suggest putting it both on your Answer and making a separate request which you submit at the same time as your Answer.

If you didn’t ask for a jury trial, is it too late?

The law favors jury trials, but individual judges often don’t, since they know as well as I do that jury trials take more time and attention. For that reason, if you haven’t already asked for a jury trial, I suggest you do it ASAP. The number of days could matter, since a court’s discretion to deny a request for jury is probably tied to how long the case has been going on. You should do a little research before filing your jury demand, though, because if you don’t do it right off the bat, you’ll need to file a motion that tells the judge why you should get one. That isn’t complicated, but you’ll want to know what the rules are that apply to it.

What is Arbitration and Should you Seek or Oppose It?

Compel Arbitration or Oppose it?

Arbitration. Should you compel arbitration? Or oppose it? I’ve recently had a comment on Youtube asking me to discuss arbitration, and it has also come up in several recent teleconferences as members contemplated seeking arbitration. Others have wanted to know whether to oppose a motion to compel arbitration.

Let’s start with a definition: Arbitration is the submission of your case to a private entity known as an arbitrator. After some process and a hearing (most likely), the arbitrator will decide what happens in your case and issue what amounts to a judgment.

For debt cases, it’s always a single arbitrator or a company that will provide a single arbitrator that’s appointed, but for other cases it could be other things, like a panel, perhaps. In any event, there will be an arbitrator and some special rules that will NOT be your state’s rules of civil procedure and also might not be your state’s rules of evidence. But there will be rules that control the process.

Arbitration is popular because it makes it faster, easier and cheaper for people to engage in litigation. The discovery process will be limited, and the appeals process almost eliminated. That’s why rich companies and debt collectors always love it. Almost all of these things are completely and profoundly BAD for debt defendants. That’s why I’ve always suggested debt defendants should avoid arbitration.

But there is another side to the question, and there are some who argue in favor of allowing or even forcing arbitration in debt cases. What’s their argument?

I think the argument in favor of arbitration boils down to the fee, which apparently has to be paid up front by the debt collector And that can amount to two or three thousand dollars, or even a little more. The idea here is that debt collectors won’t want to put that much money down on the barrelhead just to chase a bad debt and that court is, for them, much cheaper.

There is some sense in this argument.

Debt collectors never worry about winning a case, but they do know you don’t have much money. That means that they’re sure they’ll win, but worry that they won’t collect, which is the most important thing to them. The more you make them spend, the more worried about that they’ll be. Maybe they’ll drop the case if you demand arbitration.

We often make the argument that by pursuing discovery, filing and defending motions, and preparing for trial you are driving up the costs of litigation and may make the whole thing too expensive for debt collectors to want to do. Again, not because they worry about losing, but just the amount of money they’re having to spend when their business model is designed around easy, cheap judgments. However, conducting discovery and filing and defending motions and the rest do in fact improve your chances of winning, and we think that, when it comes to a debt collector, you should win your case. These things are the way to do it, and the chance the company will drop the case is basically the icing on that cake.

In arbitration, it’s the whole cake. You should remember that.

One big question that may be more theoretical than real is, who ultimately pays the arbitrator?

I say it may be theoretical since I just said the debt collector isn’t sure you’ll have any money at all, but this won’t stop them from seeking as big a judgment as possible. And if they get a judgment, they WILL try to collect it. All. So be advised that the judgment size could matter.

Okay, but who pays the arbitrator?

I think some states may have rules that matter, and I know that California, for example, does have rules regarding employment and consumer-brought claims. In the absence of any state based rule, you
would look to the arbitration provision giving you the right to arbitration – i.e., the contract. That will often say who pays the arbitrator, and it can specify any of a number of things, from company pays all to loser pays all, to dividing it up. The contract isn’t often going to put all the burden on the company because, after all, the company wrote the contract.

If it says company pays all, though, the company can’t shift that payment to you if you lose. If it’s loser pays all, though, it obviously will. But if there isn’t a direction in the contract, that would usually mean you start by splitting the cost, but that the arbitrator can award the cost to the winner, i.e., add it to the judgment.

The rule in your case is going to depend on your own specific circumstances.

The net of all this would suggest that you will have some advantage if the contract makes the company pay, but there’s risk if the loser pays. And of course it matters a lot who pays up front, which is often the debt collector.

So… should you compel arbitration?

In a debt buyer/collector case (i.e., not the original creditor) I’d still lean strongly against. You should win this case under most state laws because of the rules of evidence, and you cannot depend on the arbitrator to enforce those rules rigorously. If it’s an original creditor, it’s a much closer question. You’ll have to consider all the things we’ve discussed here and make a judgment call.

Filing a motion to compel arbitration might trigger some settlement negotiation, but I wouldn’t think you could get the company to give you a very steep discount, but there I’m just guessing based on what I know about lawyers and not experience in these type cases.

I remain very hesitant about suggesting arbitration, but there may be value in considering it if you’re
dealing with an original creditor.

Light One Candle – Oct. 2021

Welcome to the first Light One Candle. As you probably saw, we call our newsletter this because it’s better to light one candle than curse the dark. If you’re facing big debt issues or even being sued, there is a series of steps you can take to get out of trouble. That’s what Your Legal Lg Up is all about – showing you those steps and helping you take them. It isn’t always easy, but debt law is not complicated if you know what you’re doing.

Evergreen

In honor of this being the first newsletter, our first “evergreen” feature is an “oldie but goodie.” It’s why you have such a good chance of winning if you’re sued by a debt buyer.  It’s nothing magical and doesn’t rely on weird gimmicks you’ve seen on Youtube or any bizarre rules someone made up to sell you something. It’s just the plain old rules of evidence and the way the debt collectors acquire the debts they’re suing you for.

Link

I hope you can forgive the sound quality of some of the older videos. I don’t replace them because so many people have watched them over the years that they help other people find us, but the quality isn’t the best. On the other hand, the message is clear: you have an excellent chance to win a lawsuit filed against you by a debt collector because of the way they operate. They don’t buy all the information the original creditor has, and they most particularly don’t get an affidavit filed by someone from the original creditor testifying to the accuracy of the record-keeping.

For more on this topic, I recommend the Three Weaknesses Every Debt Collector Has Report. It’s free to all members.

What’s Up

There’s a lot going on this month here at YLLU. We’re going to be recreating many pages to make them easier to read and more up to date, and also to make them connect more easily and obviously.  Click here for a link to our Link Tree that’s tied to the litigation time-line. This should tell you what resources we have related to whatever particular issues you’re addressing, and it will eventually make finding everything much easier.

A new trick the debt collectors seem to have come up with now that Covid is going on is the filing of motions for summary judgment very quickly after filing suit. They’re doing this to keep from letting you conduct discovery and also to prevent you from exercising your right to a trial. Click here for information on that – it’s something we will be working on more as time goes by.

Remember that debt litigation is a series of steps. Some are hard and some are easy, but they’re all more manageable if you take them one at a time and never stop working your case until it is dismissed. Remember that there’s always an endpoint. You should keep working on your case even if the debt collector doesn’t seem to be. You have things you need to do.

Spokeo, Activist Courts, and Consumer and Debt Law

People involved in debt and consumer law have heard a lot about “Spokeo” in the past few years, and they’re going to hear more. Spokeo is a wolf in sheep’s clothing, a Supreme Court decision purporting to limit the Judicial system’s ability to override the functions of the other branches of government, but actually itself a vast usurpation of that power. It has been used to gut consumer and debt law protections enacted by Congress, and it will increasingly be used to do so. I expect it to be extended to state courts and jurisdiction as well.

So, what is “Spokeo” and how does it usurp legislative power? We discuss these issues and suggest some possible approaches in the following article.

“Spokeo” is the way many refer to a case and the Supreme Court decision that decided it. The case was Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016).  Spokeo, Inc. was a business that compiled information on essentially everybody and made it available to people searching it. Some of the information was free, and some was only available upon payment (not a distinction relevant to the case). It disseminated information on creditworthiness and lifestyle and general biographical information, and its reporting on creditworthiness (allegedly) brought it within the reach of the Fair Credit Reporting Act (FCRA).[1]

In the case of Robins (the plaintiff in the suit), Spokeo reported that he was in his mid-fifties, employed, affluent and married – all of which Robins alleged was false. Robins claimed the information had hurt his attempt to obtain employment. Robins brought suit under the FCRA.[2]

The Supreme Court held (essentially) that he had not alleged a “concrete, actual injury.” Probably every single person reading this article intuitively knows how false this holding was, in reality.

The Court based its analysis on Article III of the Constitution, which limits judicial action to actual “cases and controversies.” They pointed out a fundamental concept of the law, which is that courts are only empowered to hear cases involving real people with real adversary interests – otherwise people would make up cases to test abstract limits of the laws as a sort of judicial review. To keep the Judicial branch in its own lane, courts have determined that, to satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability (ability of a court order to “solve” the wrong that has been committed. With respect to the injury requirement, the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough: there must be some harm already, or some harm must be imminent.[3]

Article III’s “Standing” Requirement and the Federal Court’s Attack on Statutory Consumer Rights

To satisfy Article III, a plaintiff must show (1) injury in fact, (2) causation, and (3) redressability. With respect to the injury requirement, which the Supreme Court discussed at length in its seminal opinion in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the injury must be (1) “concrete and particularized” and (2) “actual or imminent.” A “bare procedural violation” of a statute is not enough.

All of these requirements are designed to insure that a litigant is protecting his or her own specific rights and not some theoretical general or public right which would be akin to judicial review.

In Spokeo, the Supreme Court seemed to take the position that the “harm” or injury Robins alleged was a procedural violation – like he was some purist offended by Spokeo’s carelessness in keeping information. The harm, however, was crystal clear and not at all theoretical or akin to judicial review: Spokeo had wrong information about Robins. Having and disseminating false information about him WAS the wrong, and it was also the very “harm” that the FCRA was designed to prevent. The fact that the incorrect information was also damaging to him was irrelevant to the Article III analysis, though of course it would be relevant to the amount of damages he should have gotten.

The Court was not unaware of this; its decision was a blatant attack upon civil and consumer rights, many of which are quite difficult to quantify and are intangible. The Court is hostile to these rights, and Spokeo was a usurpation of the legislature’s Constitutional power to create them and give people the right to enforce them. Thus it is a lasting monument to the hypocrisy of the current Supreme Court. There will likely be many more over the coming years. The Spokeo decision has been used to attack civil and consumer rights from the instant it was written, most notably, perhaps, the Telephone Consumer Protection Act (TCPA), but what will be the harm to a debt litigant under the FDCPA of the debt collector failing to publish warnings in conspicuous print if the consumer sees the warning anyway? What’s the harm of making harassing phone calls late at night? The Supreme Court has put itself in the business of evaluating and quantifying those harms, while the FDCPA made them per se violations. The courts will use Spokeo to attack the FDCPA as well.

State Law Applicability of Spokeo

Even a casual reading of Spokeo will reveal that the Court pretended to be careful to limit its ruling to federal courts. There is no doubt the state courts will follow, however. Note the reasoning, applicable to every state, in the following paragraph of a New York State opinion. I include the links so you can more conveniently track down the cited cases:

“Under the common law, there is little doubt that a `court has no inherent power to right a wrong unless thereby the civil, property or personal rights of the plaintiff in the action or the petitioner in the proceeding are affected'” (Society of Plastics Indus. v County of Suffolk, 77 NY2d 761, 772 [1991], quoting Schieffelin v Komfort, 212 NY 520, 530 [1914]). Related to this principle is “a general prohibition on one litigant raising the legal rights of another” (Society of Plastics, 77 NY2d at 773). Thus, if the issue of standing is raised, a party challenging governmental action must meet the threshold burden of establishing that it has suffered an “injury in fact” and that the injury it asserts “fall[s] within the zone of interests or concerns sought to be promoted or protected by the statutory provision under which the [government] has acted” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211 [2004]).[2] The injury-in-fact requirement necessitates a showing that the party has “an actual legal stake in the matter being adjudicated” and has suffered a cognizable harm (see Society of Plastics, 77 NY2d at 772) that is not “tenuous,” “ephemeral,” or “conjectural” but is sufficiently concrete and particularized to warrant judicial intervention (Novello, 2 NY3d at 214; see Spokeo, Inc. v Robins, 578 US __, __, 136 S Ct 1540, 1548 [2016]).

MENTAL HYGIENE v. Daniels, 33 NY 3d 44, 50 – (NY App. 2019).

What to Do

 

People familiar with my writing and videos will perhaps recognize that some of the language in Mental Hygiene is familiar. We argue the issue of standing all the time at a more basic level: a debt collector must show that it owns the right to sue – the injury in fact requirement is a constitutional necessity that the plaintiff show it owns the debt in question. Provided you dispute the debt collector’s ownership, which I have said every defendant should do in every case.

If you are alleging a violation of the FDCPA or the FCRA, you must obviously take some care to allege actual harm closely connected to the right you claim was violated.  If they are suing you for debt beyond the statute of limitations, their unfair collection practice has caused you emotional distress, the expense of hiring a lawyer or seeking help, the time reading, thinking about and responding to the suit, the price of paper in filing your answer or responsive motion, postage incurred in providing notice to the debt collector, gas in taking the suit to be filed, and whatever else you can think of.

The courts are extremely aggressive in TCPA litigation, where they have held that “a single emailed fax” was not a cognizable harm even though Congress said it was, and even though even a single emailed fax would require some time to read and elicit some emotional response. If ONE emailed fax isn’t enough despite the fact that Congress made it so, then what about two? Or twenty-two? Expect the courts to apply this type of analysis routinely, and state your damages in as lurid and concrete a fashion possible.

Many state consumer protection laws are subject to what is called “strict liability” and do not require any harm at all – even a mere “technical” violation creates liability. The Supreme Court is willing to recognize that a trespasser, by stepping one foot across the line, has caused cognizable damage even though it may not be seen, felt, or even exist at all – it’s a legal wrong (to a property interest most often held by the wealthy). Will it see deceptive sales language that did not deceive a consumer as a violation in the same way? I believe a careful litigant should consider alleging shock and outrage, perhaps a call to a lawyer  or at least photocopying expense – something, anything – to show actual harm until some theoretical limitation has been placed on the courts’ “discretion” to reconsider and reevaluate damages determined by the legislature. Spokeo abandoned the principle of Judicial limitation.

[1] Among other things, the FCRA states that “[a]ny person who willfully fails to comply with any requirement [of the Act] with respect to any [individual] is liable to that [individual]” for, among other things, either “actual damages” or statutory damages of $100 to $1,000 per violation, costs of the action and attorney’s fees, and possibly punitive damages. § 1681n(a).

[2]Apparenty Robins did not dispute his “report” (and perhaps he couldn’t because of the nature of Spokeo) and sue under the provisions provided by that. Instead, he seems to have alleged a failure of Spokeo to use the required care to obtain information. This may have been a litigation decision based on the attempt to bring the claim as a class action, which requires “commonality” of legal issues among the class members. If so, it was the wrong decision for Robins’s individual chances, as it turned out.

[3] “Imminence” has created some interesting legal issues not important here. The courts have held that an enacted law may create imminent harm, but they have also held that where the executive has renounced enforcement of the law, the harm is not imminent.