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Do I Respond, How do I Respond, What do I Respond
DO I Respond, HOW do I Respond, and WHAT do I Respond when Sued for Debt?
We talk elsewhere about what constitutes valid service of a lawsuit, and you should check out that video and article if you have any questions about whether you’ve been served. That makes a large difference in what you should do, and if you have been improperly served, you likely will not want to “answer” the suit at all and may instead want to “move to quash” the suit.
We also discuss elsewhere whether you should respond to a debt collection lawsuit you find out about if you have not been served the complaint. To boil that down to its most essential point, if you have not been served at all – you hear about the suit from a neighbor or look your name up in court files, or a lawyer sends you a letter saying you’re being sued – we usually suggest that you take no action if you don’t have a lawyer. If you do have a lawyer, and the lawyer thinks it’s best to get on with it, that might be a good idea, but as a pro se defendant you won’t be able to shut the case down the way a lawyer might.
Let them serve you if they can, but you have no obligation to help with that process. You don’t have to go down to the sheriff’s office or call the firm suing you or its process server. See if they can get you, and if they can’t the case will be dismissed against you. It actually happens a lot, although not a statistically huge percentage of cases.
If you go this route, you will want to keep an eye on the court files to see if, whether or not they HAVE served you, they claim to have served you, and that brings up a special issue that we discuss elsewhere, too.
If you are Served the Suit
If you get served, your next question will be HOW to respond. If you fail to respond at all, the other side will get a default judgment and start trying to get your stuff, so this is probably not a good idea for you. You’ll need to Answer or file what’s called a motion (in some jurisdictions, like California, you could file what’s called a “demurrer,” which is just another kind of motion). To answer this question, you should first consider what kind of court you’re in. Are you in a small claims court, sometimes called a “magistrate” court? Or are you in a “real” court?
If you’re in a small claims or magistrate court, see our video and article on that.
Assuming you’re in a real court, you’ll need to do two things right off the bat. First, find your state’s Rules of Civil Procedure and look up the part about service of process and motions to dismiss. Some motions to dismiss have to be filed before you answer the petition. Find out if you have one of those – the petition is vague, names the wrong person, or violates certain procedural requirements some states have for debt collectors. If you have one of these, you might be (and almost certainly are) waiving your right to bring the motion if you answer first.
If they claim you were served, but you have some reason to dispute that, you probably need to bring what’s called a “motion to quash” service before you answer (as mentioned above), since answering will be regarded as your consent to the court’s jurisdiction.
If none of those concerns apply to you, you will need to answer the suit. In some states, they have what’s called a “verified petition,” which means that someone swore to the truth of the allegations. If you have that sort of petition, you will need to swear to your answer, and this means getting a notary public to witness the document. But this is rare. In most instances, the petition is an ordinary one signed by the lawyer for the debt collector. If that’s what you’ve got, you will simply want to deny almost all of the paragraphs, one by one, in the petition. Don’t go to absurd lengths and deny your name or address, if those are correct, but you should generally deny all of the other substantive allegations. The legal effect of your denial is to say, “prove it.”
In some states you can file what’s called a “general denial,” which does in one sentence what I just suggested.
If you think you have a counterclaim against the person suing you, you will want to add that to your answer.
We discuss “affirmative defenses” elsewhere, but in general they are facts that, even if what the debt collector says in its petition is true, would mean you don’t owe them money. Most typical of these sorts of defenses are some sort of agreement to settle or address the claim, or the passage of too much time before they brought the suit, called the statute of limitations.
The essence of an affirmative defense is that you bear the burden of proof in showing that these factors exist, and you also must plead them in your answer.
Finally, let’s talk about demanding a jury. Our position is, generally, that debt defendants should ask for a jury. We discuss this in greater length in our article and video on juries, but if you think you want a jury (as we recommend), you need to find out how your court and state require that you demand one. In federal court and some states, it’s enough to say it as part of your answer. In some states, you have to make a separate request by separate pleading. Find out what you are required to do and do that.
If by chance you’re just finding out about this after already starting to defend your case, that doesn’t mean it’s necessarily too late. If you have a right to jury trial, the right is absolute when you raise it in the proper way and time, but even if you don’t do it when you should, the court should normally grant your request anyway absent some sort of misbehavior or the passage of too much time, and they are required to be “liberal” in their interpretation of what’s too late. That is, they are supposed to lean towards granting your request for a jury, so even if you’re late, you should go for it if you want one.
This article updated 3/25/25
Receiving Summons: What is “Valid” Service of Process
Receiving Summons: What is “Valid” Service of Process
This question comes up a lot, and I have 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.
[updated 3/26/25]
What to Expect as a Poor Person in a Rich Man’s Game
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 that’s a little more apt: “it’s a big club, but you aren’t in it.”
But don’t give up. You have a good chance anyway.
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 and respect their time, 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 figure that out in your case and show it 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.
Debt Collection Lawyers
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.
If You’re Pro Se
If you’re trying to represent yourself, we can help. The best way for us to help is through membership, but we also have products that can help along the way.
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 thing 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 there could be reasons something else would be right for you, so I’ll talk briefly about your other options at the end of this article.
Teleconferences
I’m not aware of any other program on the market that offers anything like our teleconferences.
They 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.
Usury and Non-Bank Loans
I have had my hands full lately with the National Banking Act (NBA). Specifically, the question is whether the NBA, which protects national banks from usury claims, applies to debt collectors which buy the debts. It turns out that question has several possible answers.
National Banking Act Allows Usury
Here’s the background: some states have laws limiting the amount of interest lenders can charge. Under the NBA, a bank can issue credit cards that charge high interest in states with usury laws. Yes, it’s a scam (they call it “exporting interest rates”), but they can. What happens if your debt gets sold to a debt collector? The NBA applies to national banks, not other businesses, so you might think a debt collector would be committing usury by trying to collect illegal rates. That would also violate the Fair Debt Collection Practices Act (FDCPA).
Under Madden, Debt Collectors Don’t Receive NBA License to Commit Usury, Regulation Changes That
The Second Federal Circuit of Appeals found that debt collectors collecting usurious rates was, in fact, illegal in a case called Madden v. Midland Funding, LLC 786 F.3d 246 (2015). Some other circuits, notably the 8th, have tended in the other direction. The Supreme Court denied certiorari (review) of Madden, so it remains in place as law of the 2nd Circuit. Unfortunately, the debt collectors managed to sneak a new regulation through that negates Madden. That regulation is at: 12 C.F.R. part 331, 84 Fed. Reg. 66845.
Possible Outcomes
This leaves us in an odd place. If you are in the 2nd Circuit currently being sued by a debt collector on a card with interest higher than your state allows, you have a powerful defense and a counterclaim probably under the usury law and FDCPA. I think it is still good, though you can expect some fighting on the question of retroactivity of the regulation. What about claims arising in the future, though? What about claims outside of the 2nd Circuit?
Courts are supposed to give “great deference” to regulations duly issued by agencies charged with enforcing specific laws. Without going into details, this regulation would seem to fit that bill and should probably receive that deference. It is not unheard of for the courts to reject such a regulation, but it is rare, and, in my opinion, very unlikely in this situation – even in the Second Circuit. Thus I believe that in the future this defense will not be effective. I do believe it could be raised in good faith however, at present, and that may have some advantage for a pro se defendant. It will be a long shot even in the Second Circuit, however, and longer elsewhere.
What about claims existing now but outside the 2nd Circuit? Will the regulation affect the way the 8th Circuit, for example, reads Madden? It probably should not, but it probably will. The regulation is supposedly based on the FDIC’s reading of an existing statute rather than a new legislative enactment – it will probably be considered an authoritative interpretation of the statute even though, in practical effect it is a new legislative act. But this is not certain, and again, I think the issue may have advantages for pro se litigants to raise, and winning is not out of the question in my opinion.
What if you live in a state with a usury law and a debt collector is trying to collect higher rates – but is not suing you. Can you sue them? I believe the answer is yes – all the foregoing analysis applies to the attempt to collect the debt, not necessarily limited to litigation attempting to collect the debt.
Incidentally, the NBA explicitly extends to all FDIC-insured entities. This question came up in a teleconference relating to loans issued by WebBank, which apparently IS FDIC insured. Our consideration of whether WebBank itself can charge usurious rates, then, must conclude that it can indeed do so.
One might consider that enforcing an explicitly illegal contract (usury) would be void as against public policy under state law. And so it is. However, the federal preemption doctrine that the NBA invokes overrules that – states cannot claim a federal policy is against their public policy.
If you get a loan now and at some point in the future a debt collector tries to collect usurious rates that would have allowed to the original lender, I think you’re out of luck regarding the defenses and counterclaims we’ve discussed here. The new regulation permits it, as I read it. Of course you still have all the usual defenses and attacks we always use against debt collectors, so your chance of winning remains srong.
Could this Be a Good Time to Start Something New
This is a bad time in the world and in the economy. Could it be a good time to open a new business? Maybe – if it’s the right one. In this article I’ll take a look at a couple of ideas that occurred to me. This isn’t my normal mission here, but maybe it could help some people in what’s coming.
I do not believe the Corona Virus is finished with us. Although it looks like state authorities are about to open up businesses again, I have my doubts about the wisdom of doing that, and it also seems unlikely that things will stay open. On the contrary, I think we’re in for a longer haul. And when normal returns, it will be a new normal – I saw one study projecting that over 40% of jobs lost now will not come back. So an alternative could be a good idea.
I make one suggestion to people considering a new business. Make it pay immediately unless money isn’t an issue for you. This isn’t a good time to go out on a limb.
The two ideas I’m going to discuss are pretty different from each other. The first is something almost any adult with a car could do. The second is far more specialized but could be used as a template for anyone with such a specialized background in various things. Neither should involve an outlay of cash at all, and both are “scalable” (can be ramped up and leveraged). Both are based on current realities.
Restaurant Food Delivery
As everybody knows, most restaurants have been forced to shift from in-store dining to curbside pickup or delivery. And you may know that they are relying on certain delivery service apps. For a much fuller discussion of the way this is hurting restaurants and the way the companies involved make money and use their power, check out this link: Uber-Grubhub: How the Pandemic Is Launching the Era of Online Platform Regulation. To summarize the article very briefly, the delivery service apps are charging up to 30% of the price of the meal for delivery. Some (few) jurisdictions have mandated a maximum of 15%, and some have required that tips be given to the drivers, instead of what appears to be the prevailing custom of having them go to the apps.
The money charged restaurants is killing them. I’m told that there is also a direct charge to consumers as well sometimes, and there is another danger of which restaurant owners may, or may not, be aware. But I know.
The way most phone apps work is not by charging for their use. Do you know how they make their money? They make money by selling data the apps generate to big data processing companies (“Big Data”). Food delivery apps are creating a lot of data. Of what? Of restaurants and their customers, of addresses, food preferences, time preferences, spending habits, and net delivery income. If you owned Joe’s Pizza, would you want Sam’s Pizza, or Frank’s Italian Food, two blocks away, to know all these things about your business?
Not unless you’re crazy. And do you trust Big Data not to sell that information to your competitors? Again, not unless you’re crazy. But restaurant owners might not know what the delivery apps are, or could be, doing. And they may not have a choice.
You could give them that choice. You could call up Joe’s Pizza and offer to deliver for them. Make your best deal, and see if you can make it pay. It’s low risk physically if you’re careful, and if you already drive, you’re risking only your time, financially. You’d be local helping local business and local people, and you would be thwarting, to some extent, Big Data (which I think is a significant social benefit). There could be regulatory obstacles, of course, and eventually you will need to take it seriously as a business, of course, but those things wouldn’t stop you from starting. And as you learn, you can figure things out.
Dungeons & Dragons Dungeon Master
Dungeons and Dragons (D&D) is a “table-top role-playing game” (ttrpg) that several people can play. You create characters and navigate a “dungeon,” which is a made-up world inhabited by a large variety of creatures, many of them hostile, and some with missions for you to perform. Your character starts at a certain level of skill and talent and gains experience and items as you navigate the dungeon. I played the game in college and found it addictive just like that. There was a computer game based on D&D which had overall goals – a “game story” of which you were a part. Whether that’s part of a dungeon master’s trade I don’t know.
An amateur dungeon-master was facing eviction and a great need to earn money but was worried about leaving the house and possibly risking the life of at-risk members of his household. I suggested he consider being an online professional dungeon master. I know that gamers, and especially D&D gamers, are often techies who have not been as hurt by the Corona Virus or social distancing, so the customers for dungeon masters should have money. But if they’re social distancing, people who were playing the game in person might want to do it online, but how? They’d need an online dungeon master.
D&D is an intensely social game, with interaction between player-characters and the dungeon master, and between player-characters as they face various battle scenes and strategic choices. That’s what makes it such a fun game. An online dungeon master would need a video app. The person to whom I spoke also said he needed a computer program costing $300 and microphone, another $100. So that was a $400 risk – that he could not afford to take, and which I said everybody should avoid anyway.
Finding Out
And anyway, who knows whether online dungeon mastering would pay? How would you find out without spending a ton of money?
Here’s how you solve both of those issues. You advertise, for free, in Craigs List or whatever online advertising forum you can, as long as it’s free. And what do you advertise? Online dungeon mastering, of course. Figure out how much you would need to make for it to be worth it to you, and how much people are willing to pay, and if those two numbers intersect, you have a start. But you still have to get $400 to set it up, how do you do that? You sell prepaid subscriptions. If it was going to cost $50/month per person for one evening per weekend, you offer a prepay price of $25. When you have 16 customers paying that, you buy your equipment and start.
Note that I just made up all of the numbers I used (except the equipment), from what the market would pay to how many evenings per week you would do. I just wanted to illustrate the way prepaid subscriptions could get you started. That would be true of any board game or, actually, any other service you might sell, at a profit, if you needed capital to start. You can get it from the people who want your service – and looking for those people helps you learn how valuable the service is and what the demand for it is.
I believe the market is going to be very tough for wage-earners or people with jobs dependent upon physical customer contact for quite some time, and I also think that many jobs that previously existed simply won’t come back. If you can find something where you are not an employee and which does not require a lot of customer contact, I think that would be a smart thing to do.
Voidable Judgments – the Other Kind of Motion to Vacate
Voidable Judgments – the Other Kind of Motion to Vacate
For a free copy of this article in PDF form, click here: the other kind of motion to vacate
Most of the time when people talk about motions to vacate they’re talking about motions to vacate a default that occurred as a result of failure to respond to a properly served lawsuit. There is another kind of motion to vacate, though, for people where the court did not have proper jurisdiction. If that’s your situation, this is a better way.
A Quick Review
Once a lawsuit is properly served on a defendant, the court has “jurisdiction” (the power to address the claims made in the suit) at least provisionally. If a defendant fails to respond appropriately to such a suit, the plaintiff will probably get a default order and judgment. That is what happens in a large majority of debt cases.
An “appropriate” response that will prevent a default judgment is either:
- An Answer, or
- a motion to dismiss the suit.
It is also possible to file a motion “for more definite statement” in some states, as well. The point is, though, that every allegation in the petition must either be moved against or answered. If that happens, a default judgment should never be issued.
If you fail to answer and the court awards a default judgment, you can ask the court to give you another chance by asking it to “vacate” the default and allow you to defend the case. I discuss what this is, what the time limits are, and how to do it in several articles, see, e.g., Overcoming Default Judgments.
Voidable Judgments
But what if the court does NOT have or get proper jurisdiction over you?
This can happen in two common ways: the debt collector does not manage to serve you properly; or the debt collector sues you in a court that doesn’t have power over you (because you live somewhere else). Other ways are possible, but these are by far the most common.
If you find out that you are being sued in a court that lacks jurisdiction before judgment, you can move to dismiss the case on that basis, but that can defeat the whole purpose of the rule – since in order to do so you would have to appear (“specially”) in the court to do it, and if you’re far away, that’s impractical. Another way to handle the situation is to let the court rule and then attack the judgment in the correct court. That also has significant drawbacks, so if you know about the situation before judgment, it can present a tough question.
But most people do not learn about suits where the courts lack jurisdiction before judgment. They find out about them later. What do you do if that happens?
No Authority, No Judgment
The good news is that there is NO time limit on a voidable judgment. The court never had authority to enter the judgment, and “all” you have to do is establish that fact. You can do that at any time, and it completely undoes the judgment. It is called “void ab initio,” meaning “from the beginning” as if it never existed.
Burden of Proof
The bad news is that you can have a high burden of proving that the court did not have authority over you. Most courts require you to present “clear and convincing” evidence of the facts that you were not subject to the court’s jurisdiction. In the case of residency – you were living in California but sued in Florida, that isn’t necessarily so hard.
In the case of sewer service – where you weren’t served, but the process server swore you were, it can be much more of a challenge. Still, almost everybody I’ve known who tried it succeeded. That’s because the process servers normally describe the person to whom they theoretically gave the petition, and they usually won’t know your age or body shape, and often guess incorrectly your gender and race. If their affidavit says they served a woman 5’2” eyes of blue and you’re obviously not that, you’re good. Other things obviously aren’t as easy to prove.
What you Have to Prove
You have to prove by good evidence that the court lacked jurisdiction over you.
What you Do Not Have to Prove
You won’t have to prove you made any mistake (you didn’t) or that the substance of the judgment (i.e., you owe $2,000) was wrong in any way. You do not need to allege or prove any “defense” to the suit, in other words. Attack the jurisdiction, and the case goes away.
What you Should Not Have to Prove
You shouldn’t have to prove you didn’t receive notice of a sewer service filing. Suppose, for example, you found it in the trash in a nearby dumpster. Most courts require proper service and not “notice” of the suit. But I’m afraid you can’t count on the courts to apply that rule consistently. You will not want to offer proof or any indication that you heard about the case in any way prior to judgment. If you became alerted to the fact that a process server was around and do some research in the court files, you will want to disguise the fact and cover your trail.
Special State Rules
The rules for this sort of motion to vacate are NOT the easily found rules in the rules of civil procedure. You must research your state’s rules for voidable judgments and follow whatever rules you find there.
Products Related to this Article
We do not have a product directly related to this article if you are moving to void a judgment. You may find our Motion to Vacate Pack helpful in showing you the form of motions and proof, but it does not contemplate the rules you would need to follow. I emphasize, again, that in filing a motion to void a judgment entered without jurisdiction, you would not want or need to include a “proposed Answer,” and you would not need to allege a defense (although claiming a defense wouldn’t hurt and might help).
You would probably find our memberships useful, particularly if the situation with the debt collector that brought you here is not the only one you’re facing.
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If Everybody Defended, What Would Happen to the Debt Collectors?
What would Happen if Everybody Defended Debt Lawsuits?
To get a copy of this article in pdf format, click here: what would happen
Sometimes people ask me what would happen if everybody defended against the debt collectors. Would they fix things and be able to move back to business as usual without a second’s pause? Would the courts let it happen? And what would happen?
A Matter of Scale
To answer this question, consider the scale – first we’ll talk about the national scale, but then we’ll
bring it down to one member’s recent experience, an experience I had many, many times while I was representing people in this type of case.
On the national scale, it isn’t clear exactly how many of these suits are being brought. But there is over a trillion dollars of consumer debt out there, and a lot of it is “troubled.” And that doesn’t even count duplicates or old debt. We’re talking about a gigantic business here. You can see that by the fact that on any given day in St. Louis County – in the middle of Middle America – there are several thousand debt cases pending. That’s one small county in a mid-sized state.
How it actually works
You know that debt collectors buy huge amounts of debt at a time for small amounts of money. They ship them out for collection. The collectors either bug you for the money or just bring suit – they can do either one. They file – I’m guessing here – over a million suits per year, maybe many millions.
They file them in every magistrate court, small claims court, district court… all over the country.
In St. Louis County (which doesn’t include the city), there are ten courts that receive the bulk of these
cases, and it is not unusual to see 400 cases set for one hour of one day in ONE court. I’ve been there on days where there were 800 cases set for hearing. In one court, at the same hour.
One Member’s Experience
Now to discuss a member’s recent experience. He said there were 400 cases in the court his case was set in. He sat there for an hour while ALL of them “went away.”
In other words, the people being sued all either gave up to the lawyer (out in the hall, so the plaintiff related that the case had been “settled”) or the judge, or by default. Of the 400 cases set that day, ONLY ONE person chose to defend. That was our member.
What if People Defended?
Now consider that court again. It handled almost 400 cases in a little over an hour – and then it went
on to other business. What if all 400 people had said “No” and opted to defend themselves?
That would mean that the court would have to set 400 hearings and listen to the arguments one at a time. If they went to trial, it would have to set 400 cases and spend, at a minimum, two hours on each one – a hundred long days.
In ONE HOUR, the court would find itself half a year behind schedule.
Or consider the ten lawyers who handled those cases. Suppose that, instead of giving up, everybody
engaged in debt defense. They asked for discovery, haggled over objections, demanded real proof
of their supposed debts. In one hour, those ten lawyers would be a full year behind schedule. Instead of collecting $500,000 in judgments in an hour and shuffling those off to the machine to collect, they’d have to work a year for whatever judgments they got.
And they wouldn’t get nearly as many, either. Do you think they could keep doing that?
The System Would Simply Collapse
All over the country, the debt collection business would bog down and come to a screeching halt – the courts would have a backlog of cases two and a half years long after just one week.
I don’t think anyone knows what would happen after that.
If people being sued by debt collectors could just realize it, they’d see that they own the system. It all depends on everybody giving up. Stop giving up, and the debt business collapses. Every defense increases the burden on the system.
Your Legal Leg Up
Your Legal Leg Up is a website and business dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. As you can see below, we have a number of products as well as memberships that should help you wherever you are in the process. In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many are available to everyone.
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