Discovery – Starting to Win your Case

It is not necessary to begin discovery at the time you file your Answer and Counterclaim, but if it is at all possible for you to do, it gives you a big advantage.

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Push or Be Pushed – Get that Discovery Started

In the law, it is push or be pushed. That is, if you aren’t already pushing the debt collector to give you discovery or respond to motions, chances are good that they will be giving you things to do. When you’re pushing them, your chances of winning go way up. When they’re pushing you, they go down.

You might not think it would have to be that way. There’s usually plenty of time given to do everything that needs to be done and that the law expects both sides to do things at basically the same time. But theory aside, the reality is that people – lawyers included – will usually do what is pressing them first. And then they may – or may not – do the rest of what they should do.

People in general, and lawyers especially, make sure they’re pretty close to being as busy as they can be. And this inevitably means that choices will have to be made when and if things get tighter. If you push the debt collectors to answer your discovery, in other words, they very well may choose to skip discovery on you. If you skip discovery on them, you will soon discovery they have plenty enough time to keep you busy. That’s just the way things work.

So if you’re in a case where they’ve already served discovery on you, you’re going to have to do double duty – make sure you serve your discovery on them before you give them your answers. If you don’t, the next thing you know they’ll be filing a motion for summary judgment against you.

Better yet, make sure you are first out the discovery gate – and then keep tightening the screws. Serve discovery on them along with your Answer. This requires you to be prepared for your case pretty quickly, but it will pay off in a big way down the line.

Make them Answer Discovery

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Importance of Early Discovery

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Original Creditor or Debt Collector?

The question of the month has to do with a petition brought in the name of the original creditor – is that who is suing you?

Member question is, if the summons and complaint list the original creditor but at the bottom of the summons and complaint it has “this communication is from a debt collector” am I dealing with the original creditor through their attorneys or is this a debt that they have transferred/sold?

My answer to this question used to be, always, that if the case was brought in the name of the original creditor, that’s who you should think actually was suing you, but my answer has changed somewhat. Now I would say that if you have any doubt about who is suing you, you should pursue the question in discovery. Specifically, that means asking interrogatories regarding whether the debt has ever been sold, and if so, to whom.

It Can Be Hard to Know Who Is Suing You

My new-found skepticism on this issue comes from talking with an ex debt collector who reports to me that debt collectors do (often, he says) sue in the name of the original creditor.

As I pointed out in In the Shoes of the Original Debt Collector, it is deceptive for the debt collector to pose as an original creditor. While certain of the rights of the debt collector are the same as, and are derived from, the rights of the original creditor, the law very definitely and explicitly regards debt collectors are different from original creditors. And original creditors are treated more favorably in the law than debt collectors. So it is a violation of the Fair Debt Collection Practices Act (FDCPA) for debt collectors to bring suit pretending to be the original creditors. That is so obvious, and bringing suit in the name of the original creditor would be such a blatant violation of the law, that I have always doubted that any debt collectors would dare to do it.

I, of all people, should know better! However, it is still true that the mere fact that the petition says “this is a communication from a debt collector…” does not mean you are being sued by a debt collector and not the original creditor when the original creditor’s name is on the suit. Lawyers are often cautious, and do a lot of things by routine and with forms, and so they could have put the warning on there unnecessarily.

However, if you have any suspicion that your debt has changed hands, but you’re being sued in the name of the original creditor, you should explore the question in discovery. And if you find out you are, in fact, being sued by a debt collector, I suggest you very strongly consider bringing a counterclaim under the FDCPA for deceptive and unfair debt collection practices. It should be a winner.

Local Rules and Discovery Limits

The Local Rules are rules enacted by the specific court your case is in, and they often control the timing and form and number limits of discovery as well as containing extremely important information about how a trial will proceed and what you have to do to place evidence in front of the court. In other words, finding the local rules is absolutely crucial to defending yourself.

Rules of Civil Procedure

Let’s start with rules that every legal jurisdiction has: Rules of Civil Procedure. You can easily find these by Googling the name of your state and the phrase “rules of civil procedure.” Or you can go to Rules of Civil Procedure and find your jurisdiction.

Organization of Rules of Civil Procedure

In most jurisdictions, the rules of civil procedure are part of a larger body of court rules enacted by the legislature (in the states) or the Supreme Court (in the case of the federal rules). These are the rules that control every aspect of the legal process, from the qualifications and ethical rules of lawyers and judges, through the appeals and other “collateral” challenges. They cover everything, and they are, as much as possible, in an order related to how they would come up in an ordinary case. That means that for the most part, the rules controlling the beginning of a case – filing it and getting it served – are at the beginning of the rules, and stuff that comes later, like discovery, comes a few rules later. That will help you figure out where things are.

Federal Rules

In the federal jurisdictions, courts are governed by the Federal Rules of Civil Procedure. Most of the jurisdictions also have what are actually called “local rules.” These rules are, in many courts, numbered exactly like the Federal Rules of Civil Procedure. Which is to say that the Local Rules controlling discovery have the same number as the Rules of Civil Procedure that they are modifying. An example might make it easier to understand.

Federal Rule 26 is the general rule that controls discovery in federal cases – there are several other rules that apply to specific parts of the discovery process. Rule 26 provides a general framework for the discovery process, but it does not limit how many questions you are allowed to ask in interrogatories or what the form of those questions must be. That’s what the Local Rules do, fill out the general rules and apply various limits that will apply within certain “local” jurisdictions, so there is a “Local Rule 26.” The local rules might provide, for example, that a party can only ask 25 or 50 interrogatories, or that those interrogatories must take a certain form.

Other Jurisdictions

Other jurisdictions do NOT follow the federal rules. They have their OWN rules, starting, of course, with the state rules of civil procedure. They may have local rules that would govern your specific court or type of court, including, most likely, the discovery process. And some jurisdictions have “approved” interrogatories or requests for production. These are in a form that the courts have specifically ruled is acceptable, although that wouldn’t stop you from objecting on other grounds (e.g., that they are not relevant to your case).

It is beyond the scope of this article, or my materials generally, to provide the location of every jurisdiction’s rules. They all have different ones, if they have them at all (and not all courts do). Nevertheless, knowing those rules for your jurisdiction is crucial. You must find the rules that control the game you are playing.

Finding the Local Rules

In the federal courts – which will only apply where you have brought a claim under a federal consumer protection law – finding the local rules is simple. You can either look it up in the federal website for your jurisdiction under “local rules” or ask a court clerk to point you in the right direction.

It’s tougher in the state courts. In the state courts, you start with finding the correct rules of civil procedure. As I have often pointed out, debt cases are often brought in courts of lower jurisdiction – called “Associate Circuit Courts” in Missouri, for example. These courts often operate on slightly different rules than the Circuit Courts which must follow the state rules of civil procedure. Sometimes the rules for your court will be embodied in a special rule within the rules of civil procedure, and sometimes the rules will occupy their own area of the rules of civil procedure.

First, figure out what jurisdiction you are actually in. Is it the courts of general jurisdiction? Or is it some sort of more limited court? At the top of the petition will be a header that looks like this:

In the Associate Circuit Court
          of St. Louis County
            State of Missouri

That tells you what your jurisdiction is. Google that court. So in this case, Google “Associate Circuit Court,” “St. Louis County,” and “Rules of Civil Procedure.” This will bring up references to the specific rules that control your jurisdiction. Or go to your court’s website and look up “Rules of Civil Procedure” or “rules of court” or “local rules” or something like that and see if you can find the rules that will control your case.

Discovery – Requests for Documents

This is going to be a brief article. For a fuller discussion and samples, look in the Litigation Manual and Forms. Still, you should be able to create your own after reading this. If you do not already own the Debt Defense System, you should consider it. Membership with us allows us to help and guide you every step of the way.

As with other discovery, Requests for Documents are controlled by the rules of civil procedure for your jurisdiction. And there are two sets of rules you must consider: your state rules in general and, if you are in some sub-court of the state, the rules regarding your court; and your “Local Rules” if your court has them.

Sub-Courts

An example of what I mean by “sub-court” might be what we have in Missouri, Associate Circuit courts. These are courts that are designed to handle smaller amounts of money. Or small claims courts (even less money). Many states have similar types of arrangements, and these sub-courts will have their own special rules, and these rules always control when and how much discovery you can conduct. I normally suggest that people avoid these courts because the can be a little too relaxed about the rules. Relaxed rules may seem “easier” for you, but in reality what they do is let the debt collectors get information in that they couldn’t otherwise – and your best chance of winning is to keep that evidence out.

Even if you’re not in that sort of sub-court, your court may have “local rules,” which are rules designed to elaborate on your state’s rules of civil procedure. The rules of civil procedure will create the general structure of discovery and set the penalties for not cooperating – the local rules will establish certain limits: only a certain number, for example, or that they must be in a certain format (not “compound,” usually, meaning without sub-parts).

Whatever the situation, you must find the rules controlling your discovery, or you may do something wrong, giving the debt collector an easy out. To find your rules of civil procedure, follow this link. Any special rules may be mentioned in your rules of civil procedure or in your court’s web-page. I am not aware of these rules – but you must be.

Content of Requests for Documents

The term “document” for purposes of requests is very broad and contains things like electronic records, facsimiles, any non-identical copy of a record, etc. The term is usually defined in the rules of civil procedure, and the way you would define it is to refer to that rule: “by requesting documents, defendant intends all documents as defined by Rule ___, ____Rules of Civil Procedure.

What You Request

You want everything thing the debt collector could use to support its case or attack yours. At a minimum you should ask for any document in their possession or control which you signed or which they contend applies to you in any way. You want all documents relating to the amount or terms of any alleged debt, every document showing or relating to any agreement you made with them, including any notes or comments. You want every document showing or relating to anything you said. If you have a counterclaim, you’ll want to create requests that get everything they have related to that.

Standard

The standard for requests for production is that you are asking for documents in their possession or control. Possession is obvious, but control includes documents that other people have created for them or in support of their business: accountant’s records, for example, or account records (of your account) if the original creditor agreed to provide them if requested. If these documents are not provided or objected to, but then they try to use them at court, you should request to have them excluded from trial.

Objections

When the other side objects – as they will, to everything you ask – you will, eventually, have to eliminate those objections so that you can be sure you have everything they have. Just because they deny having something you would expect them to have, though, does not mean you can file a motion to compel. Rather – once they have answered, you pretty much have to take them at their word for not having stuff they say they do not have. That is, unless you have evidence they are actually hiding something.

Discovery – Requests for Admissions

Like my article on requests for documents, this is going to be a brief article. For a fuller discussion and samples, look in the Debt Defense System. Still, you should be able to create your own after reading this.

As with other discovery, Requests for Admissions are controlled by the rules of civil procedure for your jurisdiction. And there are two sets of rules you must consider: your state rules in general and, if you are in some sub-court of the state, the rules regarding your court; and your “Local Rules” if your court has them.

Sub-Courts

An example of what I mean by “sub-court” might be what we have in Missouri, Associate Circuit courts – courts that are designed to handle smaller amounts of money, or small claims courts (even less money). Many states have similar types of arrangements, and these sub-courts will have their own special rules, and these rules always control when and how much discovery you can conduct.

Even if you’re not in that sort of sub-court, your court may have “local rules,” which are rules designed to elaborate on your state’s rules of civil procedure. The rules of civil procedure will create the general structure of discovery and set the penalties for not cooperating – the local rules will establish certain limits: only a certain number, for example, or that they must be in a certain format (not “compound,” usually, meaning without sub-parts).

Whatever the situation, you must find the rules controlling your discovery, or you may do something wrong, giving the debt collector an easy out. To find your rules of civil procedure, follow this link. Any special rules may be mentioned in your rules of civil procedure or in your court’s web-page. I am not aware of these rules – but you must be.

What Admissions Are

I have done my best to warn you throughout this series, in my Debt Trouble series, and elsewhere, about the risks of admissions. Whereas requests for admissions are covered in the rules of discovery, they really are not discovery: they are a sort of agreement that certain issues do not need to be argued about. You aren’t seeking information or evidence, you are asking the other side not to dispute the issue – to make evidence unnecessary. That means that while you can argue about what documents or interrogatory answers mean and whether they “establish” any fact, once an admission is made, the issue is resolved and decided. When it comes to answering their requests for admissions, that means you should be very, very cautious. One reason I encourage people to send out discovery first is that I want you to see how they handle yours before you try to answer theirs.

Content

If you have unlimited requests for admissions, you should make sure, at least, to ask them to admit to no knowledge or information regarding each part of their petition. For example, if their first allegation is that you owe them money, you ask them to admit that you do not. And then you ask them to admit they have no evidence that you do. (That’s two separate requests, because requests for admissions must never be “compound” – they can’t have more than one part.)

Special Warning Regarding Requests for Admissions

It should be obvious from the above that requests for admissions are basically just traps for suckers. They will deny or object to every single request you make on any basis, however flimsy. If your rules limit your total discovery to a certain number of requests and include requests for admissions in that number (so that for every request for admission, you lose an interrogatory), I suggest you skip the requests for admissions altogether. On the other hand, many jurisdictions do not limit them this way. The reason you use requests for admissions is that you want to have the materials you need for a motion for summary judgment even if they don’t respond to your discovery at all.

Discovery in Debt Law – Our Discovery

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Conducting Discovery When Sued for Debt Part 3

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Conducting Discovery When Sued for Debt Part 1

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