Business Debt and the FDCPA

June 6, 2018

The Fair Debt Collection Practices Act (FDCPA) does not apply to “business” debts. According to its terms, the law only applies to “consumer” debts, and this can mean two things: a consumer is the “end-user” of the product, so the debt cannot have been generated in purchasing something for commercial resale; and the purchase cannot have been for business purchases. What does all this mean to you?

Is it a Business Debt?

For most people using my materials, this limitation may be more of a pleading issue than anything else. I say that because if your business is a legally distinct entity, you are not allowed to represent yourself anyway – because only lawyers are allowed to represent people other than themselves, and that rule applies to legally distinct businesses (i.e., corporations even if owned completely by you). If you are being sold personally, though, how would they know that your debt was generated for business purposes? Usually this is difficult if not impossible (but there are times when it is obvious that it is a business and not consumer debt, of course – as, for example, equipment leasing or purchase), and the debt collector simply pleads or alleges that it is business-related. Unless you admit that, however, it is going to be tough in most cases for them to prove it – and until it is proved, you can counterclaim under the FDCPA.

Don’t Claim Something You’ve Expensed as a Consumer Debt

As I’ve pointed out before, however, this can cause tax complications you want to consider carefully, because if you have claimed the expenses as tax deductible business expenses you can create several severe problems by turning around and claiming them as consumer expenses in a lawsuit. On the other hand, the courts will not regard your previous tax treatment of debt as necessarily deciding the question. It’s just that you can get in OTHER trouble if you claim things you have previously deducted were consumer transactions.

You Still Need to Defend Yourself Even if It Is a Business Debt

If the debt is a business debt and not a consumer debt, and everybody knows it, then the FDCPA does not apply to it. That means you cannot sue the debt collector for violating the Act. Does that mean that the Litigation Materials won’t be useful to you? Not at all. You still need to defend yourself, and all the basic rules and principles of defense still apply, and this is true whether or not the entity suing you is a debt collector or original creditor.

Alternatives to the FDCPA for Counterclaims

Beyond defense, though, consider what the FDCPA was designed to do. It makes “unfair” collection practices illegal. It was designed to level the playing field and give relatively unsophisticated consumers fairly clear rights against the debt collectors. It eased the requirements of proving damages and “wrongful” intent. In a general sense, it was designed to extend certain legal and practical rights to consumers, whereas congress considered businesses more capable of defending themselves from the day-to-day intrusions of the debt collectors and to hire lawyers to protect their legal rights.

In plain English, what I am saying is that many of the claims a consumer might bring under the FDCPA could, with slight alterations, be brought by businesses under other state laws. For example, the FDCPA makes it illegal for a debt collector to call you before 9:00 a.m. or after 9:00 p.m. without some reason to believe that’s okay. A debt collector calling a business owner at 8 a.m. Is probably going to be okay, but calling at 6 a.m. mightt rise to the level of “outrageous conduct,” which is a basis for suing regardless of whether or not the debt was business related.

State Tort Laws

Bad language or harassing calls might be similar. There are many other laws (these are called “tort law”) that might also apply to ruthless debt collection. The FDCPA certainly has its advantages if you can use it, but most of the things it applies to are, to some degree or another, already illegal under tort law. Your challenge as a pro se lawyer is to find your state’s tort law. To search for that you will be better off actually going to a law library, finding your state’s legal digest (a multi-volume – in Missouri has more than fifty volumes – that pretty much discusses all the state’s laws) and looking up some of the following terms: defamation, libel, slander, invasion of privacy, outrageous conduct, assault, harassment, and debt collection. Some states have broader protections than the FDCPA provides.

What if it Is Your Business Being Sued?

If the debt collector is suing your business rather than you, can you defend it? The answer here is a “qualified no.” If the business is a partnership or “C” corporation, the answer is almost certainly not. If it is a “sole proprietorship” (really just you as owner of the business), on the other hand, the answer is that you can defend yourself. There are some gray areas, however – if the corporation is an “S” corporation you may or may not be able to represent the corporation – some courts seem to allow it, although there are some good reasons not to do it. If you are being sued along with the company as a guarantor of the debt, you can defend yourself, but you will probably need a lawyer at least to file an answer to the suit against the company.

Conclusion

It’s a little more complicated, and a little tougher to prove, but there’s a good chance you can find a counterclaim even if the debt collector is after you for a debt that is clearly not a consumer debt. You just cannot bring it under the FDCPA.

Things you Should Know before you Settle

June 6, 2018

Things You Should Know before You Settle with the Debt Collector

If you’re being sued by a debt collector, you’re probably worried–of course you are–but think twice before settling the case just to make it go away. Sometimes that can be a very bad idea, and if you will hang in there and fight a little bit, you’ll be in much better shape.

A Few Basic Facts about Settling Debt Cases

The lawyers for the debt collector never worry about losing a suit – they always assume they will win. And has nothing to do with the evidence, because they rarely have any idea of what the evidence is or what they could prove if they have to. Their confidence comes from two things: they don’t worry about losing a case because they have many of them and they’re cheap. And they don’t think you – a non-lawyer – have much of a chance against them anyway. So going to court and claiming they’ll win (if you try to negotiate) is nothing to them at all – and it should mean nothing to you, either.

So what do the lawyers for the debt collector fear? They fear wasting time – or spending it at all. That’s why they never do more than glance at your case before you show up. They have the business down to spending just a very few minutes per case.

They can do this because they do lots of cases at the same time and because most people give up or default.

So in Order to Settle in Any Meaningful Way

In order for you to get them to take you seriously, you will need to do a little work – and you will need to make them do a little work. Before that happens, they might knock off 20-30% of what the case is seeking if you ask (or they might not), but they won’t do serious negotiation. To settle, you have to file an answer and begin to defend yourself. Once you file an Answer and serve them some discovery, they start noticing you, and after that the chances of settling just get better and better.

And so do your chances of winning outright.

So hang tough for a bit and do a few things – they’re easy to do and not really scary. And if you want to settle eventually you can be sure that you will have made that easier and better. Or keep fighting and see if you can make them give up.

Tip 1 Uncommon Common Sense

June 6, 2018

Tip 1: Standing up for yourself isn’t hard – it’s just different

And it gets easier

You probably wouldn’t believe how often I get asked the question: “is it hard to defend yourself from the debt collectors?”

Or maybe you would.

If you’re being sued or harassed by a debt collector, one of the very first decisions you face is whether or not to defend yourself. And it is tempting to walk away, no doubt. So what you want to know is, how hard is it not to run away, but to stay and fight?

And luckily, it isn’t really hard.

One Step at a Time

I’ve started a lot of things in my time that if I’d had any idea how much work they would involve I probably never would have started in the first place. Fighting debt collectors is probably not going to be one of these things for you. But what makes it possible even to do the truly difficult things in life is simply to concentrate on the one step in front of you. As a debt defendant you will have a series of these steps. That’s what lawsuits are – a series of things to do, like steps. How many steps it will actually take, no one can say. What I can say, with certainty, is that if you are reasonably smart and willing to work a little bit, you can do every single step. One at a time.

Debt law isn’t rocket science.

You’re going to need to file an Answer or Motion to Dismiss. Could you do that if you set aside ten hours to do it? Yes. Using our litigation materials, it will take you half an hour to draft an answer, and you can do it yourself without our litigation materials in a somewhat longer time.

You’re going to need to draft “discovery,” which is the formal way you ask the other side what they have to use against you – what could hurt or help you. Could you do that? Yes, you could. Our materials make it relatively easy, but again you can do this on your own.

You may need to file or respond to a motion. Or more than one motion. Can you do it? Certainly you can.

And so it goes. You need to develop a broad strategic plan and then take a series of very manageable steps to get there. You may or may not need to take them all – again, only the debt collector really knows how far it will take things – but you can take every necessary step from being served with the suit through trial if necessary. Each step is relatively simple.

The Difficulty is in your Mind

What is “hard” about standing up for yourself is not the actual standing up or doing what needs to be done. What is hard is to do something different than you have done. Debt troubles are usually not an accident. They are usually the result of certain actions that you or someone took (or failed to take). They are often the result of certain habits. And these habits often accompany a habit of not “taking charge.”

Habits can be hard to break, but anyone can do it if they’re determined enough, right?

Standing up for yourself is “taking charge.” It’s just a different mind-set. Easy as pie – and hard as the devil! I won’t kid you – if you are going to defend yourself you must be willing to start to make the shift from “letting things happen to you” to “taking charge.” It isn’t “hard,” in the sense of physical labor or even intellectual challenge, but it does require paying attention to things you haven’t paid attention to before. And it requires looking at something you’d probably rather not look at, right?

It does require “growth.”

This growth is why people who do stand up for themselves and beat the debt collectors feel so good about doing it. Even more than the money, maybe, standing up for yourself and growing into that sort of person is deeply satisfying and – yes – liberating. You will never be sorry if you take on the debt collectors. Any work you do on it will be “good” work. You’ll know that right from the very beginning, and you’ll get to like it more and more, probably.

The difficulty is just in changing. It’s like stepping through a wall that isn’t really there. So if you’re going to do this, start today to look out for yourself. And watch for the next tip tomorrow.

Tip 2 Uncommon Common Sense

June 6, 2018

Tip 2: Always know the rules of the game you’re playing.

Every game has rules, and if you want to win, you need to know the rules of the game you’re playing. It is obvious, but when your head is spinning and you feel threatened – maybe nothing is all that obvious.

The legal game has rules too. In fact, the legal game may have more rules than any other game, and these rules definitely matter at every stage of the game. You have to know them – or know how to find them when you need them.

Rules of Civil Procedure

The overall, “starting” rules of the “civil litigation” game (which is what debt litigation is) are the Rules of Civil Procedure. Every jurisdiction (court) has them, and the rules in state courts, which is where you will be if you are being sued, can be different from state to state. If you are in federal court, it will always be the Federal Rules of Civil Procedure. You can google “federal rules of civil procedure” for the federal rules, or “your state” plus “rules of civil procedure” to get the rules of your state.

If you are involved in the litigation process, you must have these rules. They tell you what can be done, and when it must be done. If the other side files a motion, the rules tell you how much time you have to respond, and if you file a motion it tells you what happens next as well as what belongs in the motion.

Local Rules

Many state courts, and all federal courts as far as I know, have “Local Rules” in addition to the Rules of Civil Procedure. These basically amount to an interpretation of the rules or set the standards for your particular court. A common one, for example, says that documents are “produced” when they are actually delivered to the other side (not just “made available.” You must know whether these rules exist for your court, and if so, what they are. Most courts have a physical copy of them available in the clerk’s office where you file things, and if they have a website, they should be online.

Rules of Evidence

The Rules of Evidence ane the other “most important rules.” These rules tell you what “counts” in court. They are obviously important for trial, but they also will determine what can be used in motions as well. They will be critical to your case. In addition, knowing these rules helps you evaluate your case and the other side’s case. Therefore, it is important to find and get them (you can google them as you would the rules of civil procedure, only using “rules of evidence” as your search term). In the very early stage of the case, however, you won’t need to spend a lot of time on them. Just have them ready. Our materials will tell you which of the dozens of rules of evidence will be most important to your case.

Other Rules

We’ve discussed the formal rules that control the case, and if you can establish what you want clearly enough within these rules, you will be okay. But there are other “rules” as well. There are rules of “custom” or “habit,” and there are social rules. A rule of custom or habit might be the way a specific court proceeds – for example, it is customary for a party bringing a motion to speak first to the court. The best way to observe these rules is, simply, observation. Not knowing them will not usually hurt you too much, except for the “social rules,” as I will discuss below.

Social Rules

Social rules are not really rules of court at all and do not play a formal part in your case at all. But they certainly exist. And here we are talking about the “rule” that says people with money or experience are given more respect and authority. This rule says that you should dress fairly well – but not so well that you look like someone “trying” to make an impression. And this rule says that lawyers, unfortunately, will carry more “believability” into court than you will. It is a good idea to observe your court before you must be in it, so you can get a sense of the way these rules work, because they do matter.

Regarding the “rule” that lawyers get more respect, the only thing you can do is prepare hard for everything that is going to happen and then stay as “cool” as possible when things are happening. Remember that, no matter what else happens, by being there and forcing the other side to be there, you are winning a battle even if the court rules against you.

If you do that, and if you know pretty well what you’re supposed to be doing at every step of the way, you can swing that respect factor in your direction. The fact is, if you read the materials from my site, and particularly the Debt Defense Manual, you will know more than most lawyers do about the debt law. Being able to use it may be a different story, but you will at least know more than almost everybody else the debt collector has ever dealt with – including opposing lawyers. That’s an advantage, and you can use it if you take care of the other parts of the process. The teleconferences will give you a HUGE advantage if you take advantage of them.

Conclusion

Every game is played by rules, both obvious rules and rules that are not so obvious. Knowing the rules in any given situation will give you a much better chance to win. You can get and know them, and you should.

Understanding Opportunity Costs in Debt Litigation

June 6, 2018

Tip 4 of Uncommon Common Sense

June 6, 2018

Tip Four – More about Time

In yesterday’s tip, I discussed managing case time. In today’s message we speak about part of why that matters so much, and why time can be one of your best advantages — if you make the debt collector’s lawyer spend a lot of it.

The Way Lawyers Value Time

I have often talked about the way lawyers value time. In debt cases there are two primary ways lawyers look at their time. First and most simplistically, they value their time according to their hourly rate. Most debt lawyers charge somewhere between $75 and $250 per hour of time, depending on their experience and “rank” in their firm and community. This is probably a lot more than you would value your time, and that gives you an ability to spend much more time on the case than they do.

The other, more realistic way lawyers look at their time is in relation to “opportunity costs,” or what they’re losing by chasing you. For more of a discussion on this topic, check out my article Understanding Opportunity Costs. I also consider this topic in detail in the Debt Defense Litigation Manual. In brief, however, consider that a typical debt lawyer might represent a few clients in cases against 100 people. If the lawyer can obtain judgments of $5,000 per case in 90 of those cases by default, those judgments total $450,000.00. If they can collect even a small percentage of those cases, a 15% attorney’s fee is going to be around, say, $75,000. For an hour or two of attorney time.

As crazy as that may seem, it is what they expect – and usually manage.

In order to take advantage of the lawyer’s need to make a lot of money for their time, you will need to spend your time making the lawyer do actual legal work. You can do this simply by defending yourself, by filing motions, and contesting the things they do. But I am not suggesting that you do things that “waste” time. Rather, the debt collectors have certain habits you can take advantage of. One of these is that they tend to be quite careless in their pleadings, and they often forget to put things into their lawsuits that are necessary to state a real claim against you. If you attack this, you force the lawyer to defend what he did and create something new.

Another, even better, example, is the way that debt collection lawyers ALWAYS object to every question you put forth in discovery. This stops most people, but for you, it will be a perfect opportunity to question the lawyer about what she means, argue with the lawyer about whether the objection is valid (they often are not, because they are “boilerplate” objections used regardless of what you asked in your discovery), and to file a motion to compel. All these things require the lawyer to spend time on a case without increasing the value of the case.

The Value of YOUR Time

If you look at the spending time, you have to consider how much money you could get by doing something else than defending yourself and comparing that to how much money you will save by beating the debt collector. Suppose you’re being sued for $5,000. How many hours would you work or be willing to work to make $5,000? Whatever your answer to that question, there’s probably plenty of reason to work hard protecting yourself. While the lawyer only gets between 15 and 25% of the value of the case, you will save ALL the value for yourself, so even if you valued your time at exactly the same as the lawyer does, it will still make sense for you to spend five times as much time as they do.

A Game of Nerves

The difference in monetary value of your time is actually a large advantage for a pro se defendant. The lawyer suing you on behalf of the debt collector is always watching the clock and needs to be “making” at least the billing rate all the time. You only need a small fraction of that to justify the actions you take, and this means that you should plan to use a lot of time to learn and implement your defense.

But to use a lot of time, you must have a lot of time, and this means that you cannot afford to spend weeks not working on the case. This is definitely a situation where “slow and steady wins the race.” Plan to spend all the time necessary on your case, and then do it.

Tomorrow we will send Tip 5.

Tip 3 of Uncommon Common Sense

June 6, 2018

Tip 3: Time is Always of the Essence

Everything in law is tied to a due date – a deadline. The rules provide very specific amounts of time for everything you must do, and missing those deadlines, while not always fatal in itself, will usually lead to dire consequences.

On the other hand, the deadlines can seem so far away as to be unlike deadlines at all, so that you are tempted to hang around doing nothing without any regard to time at all.

Time is ALWAYS Limited – You’re Either Gaining Ground or Losing it – All the Time

It is tempting to believe in litigation, as in life, that time is unlimited – that there will always be time to do the things you need to do. And the truth in law, at least, is that if you know how to do things and you are willing to take extreme action at some given points in time, it is possible to stave off disaster most of the time.

Rising to the serious occasions that come up while ignoring developing problems most of the rest of the time is very stressful, and you are likely to try to rely on someone else to do something for you on very short notice. If you are defending yourself pro se – that is, without a lawyer – you simply do not know enough about the law to be able to afford to operate “by the seat of the pants” in this way. You don’t know what it takes to do most of the tasks set before you, and you don’t know how long it will take. Therefore, you have to start long before you feel like you’re running out of time.

I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. You’re trying to trade your time for money.

So what do you do? What do you do in order to stay on top of the deadlines?

First, of course, you must know how much time you are allowed by the rules to do each step. We are going to discuss that tomorrow. Today, however, I just want to emphasize something we all know all the time, and yet we ignore most of the time: time passes. If you want to win your case, you have to use the time you’ve got carefully – even when it appears that you have more than you need.

Staying On Track

The main trick of having “enough” time in litigation is knowing exactly how much time you have to do any given task. And then you must give yourself that time to do what it takes. Since you won’t be experienced in the law, you won’t be able to predict very accurately how much time things will take. Therefore you must start immediately when things come up and not stop until you’re finished.

The Time Allowed for Tasks will be Revealed in One of Two Places

There are two sources of time limits for the things that come up in your case: the Rules of Civil Procedure, and the court itself (your judge).

Time in the Rules of Civil Procedure

The Rules of Civil Procedure give you a certain amount of time for everything that happens in a case. You’ll either find this in the specific rule applying to whatever you’re doing, or in more general rules. Discovery – interrogatories, requests for documents, and requests for admissions – and Motions for Summary Judgment all have their own specific rules, and these rules will include how much time there is for response. For other motions, more generally, there’s usually a “notice” rule which will require that you give (or be given) a certain amount of time after a motion is filed before the motion can be argued. This is the time for response.

Court Scheduling Orders

Another main way time is determined is simply by the judge, usually by means of a “Scheduling Order.” This order will give the parties a certain amount of time to complete some phase of a case – to conduct discovery, for example, or to file a “dispositive” motion (a motion that could end the case). These orders DO NOT NORMALLY alter the amount of time you have for a specific task. If you’ve been given a set of interrogatories, you’ll have the amount of time allowed by the rule to answer, not the end point of the scheduling order. However, if you submit discovery to the other side without enough time for them to answer before the scheduling order ends the discovery process, they may not have to answer at all. Thus you must make sure your answers will be due before the discovery cut-off in the scheduling order.

Leave for Additional Time

Whether you have a iscovery cut-off or need more time for discovery (or need them to answer quicker), the solution is to ask the court for a special order that does what you need. Remember that you’re asking for something special, and such a motion would need to be justified.

Your Problem is Not Someone Else’s Crisis

So what do you do? You have to stay on track as much as possible every step of the way.

Tomorrow we’ll discuss the “other side” of time – the way you can use time pressure to weaken the debt collector’s resolve to keep suing you. Do that enough, and they’ll drop the case.

See you then.

Tip 5 of Uncommon Common Sense

June 6, 2018

Tip 5: In the Law you are Always Either Pushing or Being Pushed –

and It’s Much Better to Push than Be Pushed

We all know that it’s true in any sort of contest, that one side or the other takes “the initiative,” while the other gets pushed around. It is possible to win even if the other side has the initiative most of the time, but it is unlikely, and the game is much more fun if you are ahead throughout the play. It is really the same way with litigation.

Advantages and Disadvantages as a Defendant

If you are defendant, you start the lawsuit with both an advantage and disadvantage in the initiative. By filing suit against you, the other side took the initiative, but the rules of most jurisdictions give you an opportunity to take control. In addition, you have two huge advantages that you must use to your benefit: the debt collectors are either lazy or busy (or don’t expect you to put up a fight); and the debt collector lawyers must always justify the amount of time they spend on the case and are trying to keep it to a minimum. You, on the other hand, can and must take all the time necessary to take control.

This means you can take control of the case by giving the other side things to do. You should begin doing that immediately.

Stages of Litigation

There are a number of stages throughout the litigation: pleadings, discovery, motions, and trial. And they’re not completely distinct, of course. When the debt collector files suit and gets you served, you are forced to respond either with an Answer or a motion to dismiss. They have the initiative at that point, because you will lose the case if you do not take one of those actions. If you file a motion to dismiss, you will take the initiative of the pleading stage, since they will need to respond – but there is also the discovery stage. If you also serve discovery on them when you file your motion or Answer, you will have taken the initiative in that stage as well.

Game Planning

A good game plan will take the initiative into account. It’s a good idea to form one early in the lawsuit, and the Debt Defense System includes materials to help you do that.

If you are drafting and serving discovery, you can take all the time you want to do it, and then when you give it to the other side they have only a certain amount of time to reply. In debt collection cases, they will never give you what they are supposed to at first – it’s a fact of life. You could think of this as frustrating, as it will be in some ways. Mostly, however, consider it an opportunity for you to keep the initiative: push and keep pushing until you make them give you everything you can get. As long as they are being pushed by you in that way, they will not be pushing you back as much as they could.

The Difference between Pushing and Being Pushed

It is impossible to explain the difference between pushing and being pushed. It takes just the same amount of effort to serve discovery before the other side does as after it does – but it feels completely different. And that feeling – of being empowered rather than disempowered – makes all the difference in reality, especially for pro se defendants. But also for lawyers – it’s a drag always to be behind. Stay on top!

That is true at every stage of the game. Every time you can force the other side to do something, you are both getting what you need (or getting closer to getting it) and forcing the lawyer to spend time on the case – time that is increasingly less justified. You can do all this with appropriate pleadings and filings, and I am not suggesting you file motions that are not legally justified. There can be a cost to doing that. Rather, I am saying to exploit your natural advantages as much as possible.

You will have many opportunities to take control of things and give the other side something to do. You should take advantage of every chance you get – it will suck the will to win right out of the other side.

Tomorrow we will send Tip 6.

Tip 6 of Uncommon Common Sense

June 6, 2018

Tip 6: Know Your Friends

And Know who Isn’t a Friend

Today’s hint is a friendly reminder to know who your friends are and not to expect help from people who are actually against you or are the “referees” in the match. That is, you might be surprised how many people call up or ask the lawyer on the other side what to do, or how many hope or expect some sort of help or guidance from the judge.

Relying on the kindness of strangers – or of people with interests contrary to yours – will get you in trouble in the law. Instead, you must be able to rely on yourself and someone or some source that you trust. That’s one reason we emphasize finding and knowing the rules so much. You shoul never ask the other side “what” or “when” something is due. That is your responsibility, and it may even be unethical for the other side to give you any help.

The Lawyers

The lawyer on the other side, and the judge and his or her staff, should not tell you anything that is remotely like “legal” advice, and most people take a very broad view of what that might be in the context of an actual suit. The other lawyer should not tell you anything because you are not a client and in fact have interests contrary to the client. And the judge is not supposed to take sides in any way. Do not look to them for any sort of advice, from when something is due to what, in any way, you should say or do.

The only time the lawyer will seriously consider what you should do is in order to argue that you have not done something you needed to do. In other words, in order to beat you. This is the nature of an adversary system.

The Judge and Clerk

Likewise, the only time a judge will consider the question is when you have missed a deadline or done something wrong. Again, it’s just the nature of the beast.

Clerks will only sometimes answer basic questions, they will almost never anything that starts with “what should I do it…” Instead, you can ask questions like “how long do I have to respond to…” or “is it necessary to set a hearing for argument in order for a motion to be considered, and how do you prefer me to do that?” You can ask scheduling type questions, but their job is never to tell you what the law requires or permits, or to guide you towards any particular action, because that sort of information might be considered legal advice or taking sides.

Helpful Sources

On the other hand, there are sources that might be helpful to you. Your Legal Leg Up, of course, has a great variety of information you can use, and there are some other websites that also have some information or people in the same boat as you are. Just remember that no one has the same interest in defending you that you have. The sites that are run by people who are or have been in the same boat are not always reliable in their suggestions because the things that worked for them don’t always work for everybody. For more on this, see Sometimes a Rain Dance is Just a Dance.

Stay on top of things. You can do this.

Tip 7 of Uncommon Common Sense

June 6, 2018

Tip 7: You won’t believe the tricks the other side will play in discovery until you see them

Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.

I’ll give you a preview.

Games Debt Collectors Play

The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.

In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.

In short, they will play games with you.

Take Advantage of What they Do

You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.

Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.

If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.

When they do Their Discovery

And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.

Tomorrow we will send Tip 8.