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Mediation, as opposed to arbitration is a form of settlement discussion where another person -preferably who knows something about the law controlling the issues in dispute – can help “bring the parties together” in settlement.
Most frequently this arises in a litigation setting, after suit has been filed, or in divorce, for example, where suit is contemplated. In theory, however, it could happen any time. It just only happens in litigation in practice.
Mediation is sometimes required by the courts as a condition to litigation as a way to increase the chance of settlement, and it can sometimes even be helpful. But much of the time you will be involved with a mediator who pays too much attention to the debt collector’s lawyer and doesn’t know the laws or realities of debt collection himself or herself. What’s a pro se defendant to do? This video will help.
Just remember, you never have to settle in a mediation, but if you do, you’re stuck with what you agree to. Go into a mediation with a plan, remember that you have a good chance of winning, and remember also that this will not be your only chance to settle. You should also remember that one of your jobs may be to teach the mediator a little law on debt collection and the rules of evidence. You should be ready to discuss the rule against hearsay in your state and the business records exception and talk about how they apply or not to your case.
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The Telephone Consumer Protection Act is a powerful (fairly) new law aimed at businesses that call you on your cell phone without being invited – or that send you annoying, unsolicited faxes. Unfortunately, there are all too many companies that do this. Fortunately, every time they do do it, they are liable to you for $500 (plus the costs of the suit and – if you actually do have real damages – for any actual damages you can show, if they are more than the $500.
The National Do-Not-Call Registry (will help in asserting rights under TCPA)
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In this article we’re briefly going to jump right in – actually all the way in – to the topic of debt collection. That’s because I want you to know, in a solid, specific way, why you have such a good chance to win if you get sued by a debt collector. You’ll see that by the time we finish this video.
There’s much more to learn, of course, and we’re even going to go back and fill in a few of the gaps from today’s discussion, but for now I want to show you that defending yourself from debt collectors isn’t – and doesn’t need to be – magical in any way. There are no secret methods here, no weird or bizarre tricks like writing things at angles or declaring that your mother sold you into slavery when she signed your birth certificate. There’s just knowing who the debt collectors are and how they operate, and knowing what to do about that in court.
Anybody can do it. Really. And if you do it, you will probably win your case.
Now before I get started, I want to tell you a little bit about lawyer-speak. I do that sometimes, and I want you to know how to take it. For example, I said above that if you understand what I’m about to tell you and do it right, you will “probably” win your case. Against almost all debt collectors and except in rare situations, I mean that you absolutely should win your case. But… nothing in legal life is guaranteed. It’s drilled into us in law school and later in practice that unexpected things happen, and people do wrong – they don’t know something, pay attention, or care sometimes when they should. That stuff happens, we all know it does, and it’s why I say things like “probably” when other people might sound more certain. I have a habit of speaking more precisely. Marketing and advertising is usually the opposite of that. So don’t worry – I wouldn’t tell you stuff if I didn’t think the chances were overwhelming that it would do you good. See that? I did it again! And I’ll probably do it all through these videos and articles. Don’t worry about that.
Okay, so you didn’t know it, but we were talking about what’s called the “Rule against Hearsay.”
That’s what’s called a “rule of evidence.” Rules of evidence control what a court is allowed to consider in rendering its decision. In debt collection cases, this is absolutely critical. I estimate that fully 95% or more of every debt collection case that actually goes to trial or is resolved on motion for summary judgment, will be determined by the way the rules of evidence are applied.
We’ll go into this in more detail later. For now, I want you to understand that courts are allowed to consider only evidence given under oath in court – unless there’s a specific rule that would allow something else to be considered. Think about it – among other things, that means that business records are not allowed – because they’re not evidence given under oath in court – unless there’s a specific rule that would allow them in.
The rule that debt collectors use is the “business records exception” (to the rule against hearsay). That rule is slightly different in different places, but it always requires someone who is familiar with the way records are kept to testify to certain specific things. And DEBT COLLECTORS ALMOST NEVER CAN TESTIFY TO THE WAY RECORDS WERE KEPT BY THE ORIGINAL CREDITORS. That means that if you object and know what to say, the debt collectors can virtually never get their most important evidence in front of the court. They must lose their case then, and you must win.
We’ll talk more about the specifics later, but bear in mind that debt collectors buy vast quantities of debt at a time, and they so rarely need effective affidavits from the original creditors that they really essentially never get them. They probably won’t have them in your case, and won’t be able to get them, either. If you know how to object and (1) invoke the rule against hearsay and (2) point out their inability to follow the business records exception, you should be able to win your case.
Sometimes judges aren’t ready to listen to you, and we’ll talk about that in a later video, too. But for now: learn how to use the rule against hearsay, and you should win your case. No magic. Just the rules of evidences as they SHOULD be applied.
Find the rules that will apply to your case, learn them, and follow them even if you have good reason to think you could get away without doing that. That’s because it’s the debt collectors who need the court to “relax” (ignore) certain rules, and there’s a risk that a court that gives you a break on some procedure ALSO gives the debt collector a break on the rules of evidence.
That’s what you don’t want.
Why people don’t do the things they need to do. Procrastination is murder in debt defense, where you often have only a few days to respond to a suit. And over the longer haul, debt is a problem that tends to get worse. Why don’t people do whatever is necessary to protect themselves? Maybe you just need a little extra motivation.
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