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I often tell people that they might simply deny every allegation of the petition and put the plaintiff to the burden of proving the case. In some jurisdictions, however, a pleading must be “verified.” That is, you must swear to the accuracy of your pleadings – although I don’t know what the consequences of verifying a pleading that later turns out to be untrue are. Very likely, except in unusual circumstances, there are no consequences if you have any basis for denying at all. It seems likely, although I am not completely certain, that California is a jurisdiction requiring verification. Or to put it slightly differently, in many situations verification is required – I don’t know if there are any in which it is not. Check your rules of civil procedure.
Here is the rule:
Code of Civil Procedure section 437 authorizes denials based upon lack of information or belief “If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint,” it is established in this state that denials in this form are limited to situations where the defendant is not able to deny or admit positively. [5a] Accordingly, if the matter is within the defendant’s actual knowledge or by its nature is presumed to be within his knowledge, or if the defendant has the means of ascertaining whether or not it is true, a denial on information and belief or for lack of either will be deemed sham and evasive and may be stricken out or disregarded. (Mulcahy v. Buckley, 100 Cal. 484, 486-489 [35 P. 144]; Bartlett Estate Co. v. Fraser, 11 Cal.App. 373, 375 [105 P. 130]; [242 Cal. App. 2d 792] Zenos v. Britten-Cook Land etc. Co., 75 Cal.App. 299, 304 [242 P. 914]; Goldwater v. Oltman, 210 Cal. 408, 424-425 [292 P. 624, 71 A.L.R. 871]; Dietlin v. General American Life Ins. Co., 4 Cal. 2d 336, 349 [49 P.2d 590]; Zany v. Rawhide Gold Min. Co., 15 Cal.App. 373, 375-376 [114 P. 1026]; Taylor v. Newton, 117 Cal. App. 2d 752, 760 [257 P.2d 68]; Oliver v. Swiss Club Tell, 222 Cal. App. 2d 528, 538-539 [35 Cal.Rptr. 324].) [6] Consistent with this rule, therefore, “if the answer fails otherwise to put in issue the material allegations of the complaint, judgment may be rendered and entered on the pleadings.”
In other words, under some circumstances, you can deny on the basis of lack of knowledge or information, that might be disregarded if you are presumed by the law to know the truth of the allegation. Whether a person is presumed by the law to know about old credit card bills is not clear. The best solution might be to deny on the basis of lack of information and belief, and then follow up immediately with a demand for a bill of particulars. If the plaintiff can present you a bill of particulars (unlikely), you might then have to take a second look at the issue.
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The nearly universal advice of process servers and collection lawyers is that you should never attempt to avoid service of process. Many lawyers who represent people being chased by debt collectors also recommend the same thing. Is this good advice, though?
That depends.
Debt collectors are usually not the most energetic litigants, and anything that increases their costs of suit makes them think twice. On the other hand, it is not extremely difficult or expensive for them to get you served by alternative means. Our conclusion is that avoiding service can have some benefits, but there are risks, and you must pay attention to the lawsuit.
In answering the question, it will help to clarify the purpose and effect of service of process, and then to define “avoiding service” more carefully. Then, we will look briefly at what you are attempting to avoid.
Obtaining “effective” service of process is necessary for a court to have jurisdiction over any person. This is because of a constitutional requirement of “notice” any time the state exercises judicial power against a person.[1] The most effective form of service is by physically handing a copy of the lawsuit to the defendant. The process server gives you the suit, fills out an “affidavit of service” (sworn statement that you were served), and the case proceeds.
Given the lives most of us lead, it is not possible to avoid service of process if the process server is determined and a little bit resourceful. Many, and perhaps most, of them are, but debt collection is characterized by a factory approach at every level. You have a better chance of avoiding service of debt collection cases than other kinds of cases. Even for process servers, time is money, and a very significant number of cases are dismissed for failure to obtain service. This is at least partly because so many debtors move from place to place – process servers are never sure whether you’re still living where they’re trying to find you, and they hate to waste the time looking if you aren’t.
Getting you physically served is obviously not always possible, and it isn’t required. Under some circumstances, other things can be allowed. What these other things are is established by state law but can include giving the suit to certain members of your household, or serving you through mail or “publication” (which is basically advertising in a legal publication). None of these things would normally require any sort of acknowledgment by you to be effective – which means that the suit could go forward whether or not you ever heard about it. If you avoid service, this is the risk you take.
Let’s consider the crudest way to avoid the process server. The service processor meets you in front of your house, says “Are you Mr. Smith,” and when you say “yes,” attempts to hand you the lawsuit. You run away without accepting it.
That would be considered “constructive service” – in the eyes of the law, you are “served” when you are offered the suit regardless of whether you take it or not. If you run away after the introduction and offer, you have probably been served. How far does that go? What if you see the process server and run away before the introduction, and the process server never gets closer than 20 feet? Or what if you see the process server coming and close and lock the door? He knocks and introduces himself, but you don’t answer or make a sound?
These are gray areas in the law. As a practical matter, sometimes the process server will swear that he served you, and the court will accept that unless you challenge it. Process servers do NOT always tell the truth. On the contrary, they frequently lie, and if they claim, rightly or wrongly, that you have been served, our suggestion, usually, is to defend yourself from the lawsuit.
What if you move to a different residence? Will that prevent service?
It might, and the wisdom of this would depend largely on what you’re trying to accomplish. If you don’t mind being served by publication, and you’re just hoping that the collectors won’t find you to collect the money, then moving might be effective. One would think that they have plenty of means to find you even then, but the practical fact is that they often don’t spend the money. A judgment would hurt you, though, in various ways other than just collection.
Of course, it is very possible that if you move the debt collector will just drop the case – they often do.
If you think you may be getting sued sometime, it makes sense to watch the courts and see if you are. If you find that you are being sued, then the next question is whether they ever claim to have served you. Watch for that – if they do make that claim, then you will need to do something about it or else they’ll get a default judgment.
Avoiding the process server is one of the things that people hate most about being in debt – you never feel safe about opening your door, you worry about strangers, and you’re afraid to answer your phone. As we discuss below, if you are being chased by a debt collector, there is no need to be afraid – you can and should win that case. We don’t suggest that you try to make the process server’s job easier, but there’s nothing to fear and no need to hide from strangers.
Our position has been that you should never go out of your way to make things convenient or easy for the process server. It’s their job to get you – if they can’t do it, that isn’t legally your problem and in fact will benefit you. If they leave you a note asking you to come get the suit or asking when you’ll be around to be served, you don’t have to answer and probably shouldn’t. This method of (the process server) trying to ease the job shows a willingness to use cunning and trickery, though, in my opinion. If you receive some sort of request for help or cooperation, you must be careful that the process server doesn’t lie about serving you. Again, process servers often lie.
The chief danger, once you have been sued, is that the debt collector will claim you have been sued one way or the other. If you have become alerted to a suit against you, you will need to monitor the case and see if that happens. Sometimes it will happen, but often it will not, and where it does not, the case will eventually be dismissed. When it does happen, however, you will need to take action to defend yourself. Until it is dismissed, you must not forget about the case even if they never serve you. You are gaining some time. Use this time to learn how to defend yourself or to put yourself in a better position to settle or win the case.
We have treated this lawsuit as a danger and suggested that avoidance is not always a bad idea. It will result in delay of the suit and sometimes its complete dismissal, both of which are good things. Lawsuits are always dangerous and often expensive, so we’re confident our approach makes sense. On the other hand, lawsuits are not all created equal by any means. Your chance of winning a suit brought by a junk debt buyer, if you have the resources in time or money, is very good – debt collectors would lose almost all their cases if they were fairly run and intelligently fought. Many original creditors should lose their cases, too. So fighting is a good idea.
Our suggestion is not to make the process servers’ jobs easier, but if they do get it done, you should certainly not lose heart. Fighting will give you an excellent chance of winning, and even if you can’t win, fighting will delay the suit and improve your chances of settling on better terms.
[1] In cases of real estate and certain other things, the thing being sued over – your apartment, for example, in an eviction action – is considered the “defendant” in the eyes of the law. The thing is adequately given notice by stapling or taping a notice of suit on the door, perhaps. There are lots of interesting legal cases and theories describing and explaining this, but debt collection cases typically involve jurisdiction over the person being sued, so that discussion is beyond the scope of this article.
Have you seen some of those sites by people who have been sued by debt collectors? They start out saying something like “I was sued by a debt collector and won. Let me show you how I did it…”
Everybody’s an expert. And capitalizing on a person who is being harassed by debt collectors’ natural distrust and dislike of lawyers, this new expert is going to show you a way to defeat the debt collectors. Just like he or she did. You’ll learn from someone just like you – someone you can trust.
There is a problem.
As you know if you have spent much time on my site, sometimes debt collectors drop lawsuits simply because you file an answer. Sometimes a debt collector will stop harassing you because you seek verification of the debt. Sometimes they’ll drop a suit because you request discovery – sometimes they’ll drop the suit because you show up the first day. Sometimes they don’t even show up. I hear stories like that all the time. And for you, as a defendant who has been harassed by a debt collector, the relief is wonderful.
But it doesn’t make you an expert. It makes you “lucky.”
I put “lucky” in quotation marks because in almost all the scenarios above, you had to take some action to trigger the dismissal by the debt collector. Just by taking some action – good or bad, right or wrong – you are, as they say, putting yourself “on the side of the angels” – you’re helping to make your own luck. And if you get lucky and win you deserve it, in my opinion.
But there are right things and wrong things you could do at every stage of a lawsuit. If you do the right thing, your chances of winning go up. If you filed something that wasn’t the right thing but still happened to win, for every 100 people who follow in your footsteps, 98 of them will lose and wonder why. And the reason is, that without understanding the debt collectors and debt law, anything you do is just a dance – it happened to rain for that guy in Texas that one time, but it still wasn’t a rain dance. You do that dance and you’re going to get burned.
That make sense? The more you know, the better the chance you will do the right things that make it more likely the debt collectors will walk away or that you will still win even if they do not walk away. This is where YourLegalLegUp, with a long history of helping a lot of people in widely different situations win a lot of cases brings something to the table most sites do not. The value of experience, practice and knowledge.
In the next part of this article we will look at the steps of litigation – how each one presents you an opportunity to get lucky – and the better you do them, the more likely you are to get lucky. Sometimes a Rain Dance is Just a Dance (Pt. 2)
Sometimes it just rains.
This is the second part of this article. Click here for the first part. In the first part we talked about how people sometimes get lucky in defending themselves from debt lawsuits, but that doesn’t make them “good” – it makes them lucky. The question is, how can you increase your chances of being lucky, too. Should you do what worked once for somebody? or do what has repeatedly worked for a lot of people in a lot of ways over time? The answer is obvious. The rest of this article talks about how you can be lucky, too.
A debt lawsuit starts with a “petition” – although it is sometimes called a “complaint,” and there may be other names for it, too: it’s the statement that you supposedly owe the debt collector money, some legal reasons why the court should order you to pay, and a “request for relief” (also known as the “wherefore clause”). The debt collector files this petition with the court and needs no permission to do so. When they file it, the also get a summons.
Some courts let the debt collectors issue the summons, too, although technically it comes from the court. The debt lawyer, as an _ of the court, writes it up, a clerk stamps it (or they may come pre-stamped), and the power of the court – over the case and over you – has been invoked. The summons tells you when to be at court and what to expect (“default judgment for the amount sued upon”) if you fail to show up. In all courts of which I am aware, proper service of the summons, which can happen in several ways, is necessary for the court to have jurisdiction over you.
What the debt collectors know is that somewhere between 80 and 95% of people who are served will not show up in court. If you do show up, and the other side does not – you should immediately ask the case be dismissed, and many courts (perhaps most) will grant that motion. That would be lucky – but only if you were there and knew enough to request the court to dismiss the case, as absent the request the courts will often simply continue (postpone) the case until the next court date.
Assuming the other side actually appears for court as scheduled, your next step is either to move to dismiss the case or answer the petition. Check your rules to see what the rules of pleading are, and if the plaintiff’s case does not comply – and they almost never do in Pennsylvania, for example – you might file a motion to dismiss or its equivalent (Preliminary Objections in PA). Often enough they don’t comply in whatever jurisdiction you may be in, and a motion to dismiss can be a quick way out of the lawsuit. Or you file an Answer. Whichever action you take, the debt collector might choose to walk away from the suit at this point: as I have often pointed out, there are a lot easier people to chase than those who file bothersome Motions to Dismiss or Answers.
Often the debt collector will not walk away at this point, so the next thing you must do is both serve discovery on it and answer discovery if they serve it on you. It is important for anybody to serve discovery on the other side first, but especially for pro se debt defendants: you would never believe the games the debt lawyers play – you want to see those games in action before you start responding to their discovery.
Sometimes the mere service of discovery drives the debt collectors away, but most often, of course, it does not. You will receive vague and unresponsive “answers” like “pursuant to national banking regulation, credit card applications need not be retained beyond a period of two years” (What does that say, anyway?) or “Plaintiff is conducting a search for records and will make them available to defendant as they come into Plaintiff’s possession.” It is the task of the pro se defendant to push past these objections and vague statements to discover what, if anything the debt collector has, and to force it to admit it has nothing more. This, of course, is the reason for a motion to compel. If you do that appropriately, the chance of the debt collector dropping the case is actually pretty good.
Performing legal actions with no reason other than to increase the cost and effort the other side must undertake in order to win its case is “bad faith” in litigation. An action with no reasonable basis in law or fact is “frivolous.” Both of these sorts of forbidden actions and motives can create significant problems for a person caught doing them. None of the actions listed above, however, come anywhere close to these forbidden zones: they all accomplish purposes for which the discovery and pleading rules were designed. The motions seek to weed out unwinnable claims, and the discovery probes the other side to find out what, if anything, they have in support of their claims. Following this broad pattern, you are not only increasing the chances that they will walk away at any point leading up to trial, but you also increasing your chances of winning if the matter does go to trial.
Lawyers are constantly performing a balancing act, always deciding whether it is potentially more profitable to act in one way rather than another. This is not because lawyers are greedy – although many of them are, of course – but is in fact part of their ethical responsibility to act in ways which promote their clients’ interests. These interests are virtually always financial, and thus as you continue to defend yourself with skill, you raise the issue more and more insistently that the lawyer would be better off pursuing other claims. When your skill has actually pushed the lawyer to take the step of cutting you loose, you are “lucky,” and the debt collector drops its suit. If you have a pending counterclaim at this point, you can force it to do so “with prejudice.”
If you will stand up for yourself, you can probably make the debt collectors go away even if they could win the suit against you. (Which they usually can’t.)
Why?
It’s all about money, right? They want to make money. That’s why they’re suing you. If you will defend yourself it becomes too expensive for the company to pursue the litigation against you.
Consider the question from the point of view of the debt collectors. They buy debt cheaply (very, very cheaply), file sut in large numbers, and win the vast majority of cases without a fight. In St. Louis County, the “call dockets” often have 300-600 defendants, most of whom are being sued by a handful of debt collectors represented by two or three lawyers. If it takes an hour or two for the lawyers to get one hundred judgments totaling (by my guess) approximately $400,000 to $1,000,000 dollars, that’s a pretty good hour’s work.
Now look at the Petition in your lawsuit, down at the last paragraph near the end (where it says “wherefore, plaintiff prays…”). If the company is asking for attorney’s fees against you at all, they’ll usually say so right in the “wherefore clause,” and you may be surprised at how small the number is. In Missouri, the number is typically 15% of what they’re suing you for. If the company is suing you for $5,000, the attorney’s fees might be around $750, but that’s only if they are suing on a contract that allows attorney’s fees. In fact there is often no request for attorney fees at all in the suit.
They ask for the same amount whether or not you fight.
If you don’t fight the case, they get a windfall. If you do fight the case, they usually don’t get any more money even if they win. Instead of hoping for several hundred thousand dollars per hour of work, they’re trying to get $150 per hour-if that. That’s a lot less fun.
And if they are not suing you on a contract that specifically provides for attorney’s fees, they don’t get any fees for fighting no matter how long it takes. Every second you make them spend fighting with you costs them money that they will not get back. Everybody on the other side knows all this, and they never forget it. Neither should you.
What would you do if you were a debt collector who was bogged down in a suit for a few hundred (or even thousand) dollars-but which could cost just as much in attorneys fees. And on the other hand you could make a hundred thousand dollars in an hour of work by picking out other people to sue instead? Debt collectors are practical people. If you stand up for yourself in a way that shows them they will have a real fight on their hands, they will usually drop the suit. It isn’t worth it with so many other people around who will not fight.
Isn’t that what you would do?
If you’re being sued on a debt by a debt collector, you have an excellent chance of winning. Debt collectors rarely have what they need to beat you – and often they can’t even get it without spending more money than the case is worth to them. If you know how to fight a little bit your chances of winning are good, and most of the time you don’t even need a lawyer to do it. Watch this video to see why your chances are so good.
We can help either way. Click on the Articles button on the menu bar above to go to publically available videos and articles,
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