Videos Strike First and Our Case Their Case

Two basic concepts relating to discovery: our need as pro se defendants to serve our discovery first and quickly (not necessarily the same things, as debt plaintiffs often don’t serve discovery at all). And to understand that our case requires that we prove certain things, while we need to know other things in order to defend against their case. Again, the idea may be obvious, but you must separate our case and their case analytically in order to understand exactly what you need for the case.

Strike First and Fast

Two Principles of Conducting Discovery When You’re Sued for Debt

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Your Case – Their Case

What’s Important to Each Side When You’re Sued for Debt

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Assignment Contracts – Holy Grail for Debt Defendants

We say that there are “no magic bullets” in debt defense, but every so often we find a few things that seem almost like they would or should be. However, the sort of “magic bullets” we refer to, and that don’t work, are simple, formulaic things like writing the word “refused” on the summons or claiming that it is illegal to use your name, or that using all capital letters matters in some way. Some people think these things have magical attributes that will bring you easy victory. In fact, they really have no legal . . .

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Tip 8 of Uncommon Common Sense

Tip 8: Lots of proof of one thing doesn’t make up for not enough proof of something else.

Today’s tip concerns proof.

Once you get past the risk of defaulting or losing (or winning) on some technicality, there remains the challenge of actually winning your case. If you are the defendant, you might put this as “not losing” your case by motion (for summary judgment) or at trial. To do this, you need to know about proof and evidence.

You’ll Win or Lose Based on Evidence

As you know, debt lawsuits are about proving that, for some reason, you owe the debt collector money. What they have to prove, and how much evidence they need are important questions.

Their case

In debt law, the debt collector must prove ownership of the debt or some other right to collect the debt, the amount owed, the fact that it hasn’t been paid already (as aspect of amount owed), and that it is due. In “contract” language: that there is a contract, that the contract gives the plaintiff the right to collect, that payment is due and owing, and that payment has not been made. Each one of these things must be proved separately.

Burden of Proof

The burden of proof is just what you’d think. It’s the amount of proof that must be put forward. In civil cases, this is not the “beyond a reasonable doubt” standard that you might have heard of in criminal cases, but a much lower burden. This burden is called a “preponderance,” which is just a fancy way of saying a “majority,” or, as jury instructions usually say, “more likely than not.”

We all know these cases are almost never going to come down to a delicate balancing of uncertain evidence. In 999 out of 1,000 cases, the issue will just be whether the debt collector can put on legitimate evidence to prove its case. And it normally will not have any legitimate (truly admissible) evidence of some of the issues. Remember, they have to prove each element of their case.

The Tip

And thus we come to our tip: Lots of proof of one thing doesn’t make up for not enough proof of something else. The debt collector may have a lot of proof that it owns the debt. It may have a lot of proof that you owe somebody the debt. Although to tell the truth it often will not have proof of either of these things. They will likely have a few “statements” that you were supposedly sent (although they won’t have evidence that they actually were sent), an affidavit claiming that you owe a certain amount, and they’ll try to bluff it through from there.

Remember at every stage of the actual proof that the debt collector must prove each part of its case, and a lot of evidence of one part does not in any way lesson the burden of proving every other part. When you are attacking their case, therefore, you attack every part of it. Challenge every piece of evidence and show that the evidence isn’t admissible. Learn the important rules of evidence and prepare your objections before trial. This is not something you can “wing.” To give yourself a chance to win, you must prepare your objections in advance.

 

Create an Affidavit to use as Evidence

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Beware this Rule of Evidence – You Could Lose Your Right to Object

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Should you try to hide evidence from the debt collector?

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Rule against Hearsay Evidence

The Rule against Hearsay is as close to a silver bullet as you get in debt litigation. I’ve often said that debt collectors don’t have and can’t get (cost effectively) what they need to beat you. The rule against hearsay is the rule that lets you keep the records they do have out of evidence.

A Critical Definition

Hearsay is an out of court statement offered for the truth of whatever was said. That is, a statement that was made (or written, usually in debt cases) somewhere other than a courtroom, under oath.

For example, if you testified that “Mr. Smith said the dog was white,” this would be hearsay if you wanted the jury to believe the dog was white. That’s because in order to believe that, the jury would have to believe Mr. Smith – and he hasn’t testified under oath in the presence of the jury.

If you testified that “Mr. Smith said the dog was white” would not be hearsay if you wanted to prove that Mr. Smith could talk, though, because in that case the jury could evaluate your statement that he did talk and would not need to form a belief as to whether the statement was correct.

In debt collection cases, the debt collectors often seek to use affidavits or business records that say the debt was a certain amount, that certain procedures were followed, etc. But these are only helpful if you believe the records – and thus the records are hearsay. To keep the judge from allowing the records to count, you must object to their admission. And you will probably have to be prepared to argue they aren’t subject to the “business records exception.”

 

 

Business Records Exception

The Rule against Hearsay is as close to a silver bullet as you are going to get in debt litigation, but the debt collector will try to get in their often bogus records using what’s called the “business records exception.”  You need to understand this rule and prepare to defend against it. In this video we discuss this rule of evidence.

This should be obvious, but it’s easy to forget things in the rush of trial or argument. In order to argue the rule against hearsay or the business records exception, you must know those rules for your state. You should also have a copy of a court decision stating the rule (and ruling the way you want it to) WITH YOU at the argument or trial. You want to be able to hand the judge the case and point to specific language in it highlighted in bright yellow ink. That way there can be no mistakes.

Otherwise, mistakes are easy to make, and it’s easy to ignore the arguments of pro se defendants.

 

Affidavit – what it is and how to make one

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