Various South Dakota Statutes of Limitations
Contract: 6 years, (SDCL 15-2-13).
Domestic Judgments: 20 Years, (SDCL 15-2-6).
Foreign Judgments: 10 Years, (SDCL 15-2-8).
Claims of Fraud: 6 Years, (SDCL 15-2-13).
Sealed Instrument: (except real estate): 20 Years, (SDCL 15-2-6).
Actions not otherwise provided for: 10 Years, (SDCL 15-2-8).
Open Accounts: 6 Years, (SDCL 15-2-13).
An “open account” is usually what a charge or credit card is considered. Remember that the statute of limitations does not start “running” on the date the debt is incurred (in the case of credit card debt) but on the date the debt is defaulted on. It is a clock that only ticks after a “wrong” has occurred. Then you are given that amount of time to file suit. The statue of limitations does not apply to the time a lawsuit takes to develop, but only refers to how much time you have before you have to file suit or lose your rights.
The Fair Debt Collection Practices Act (FDCPA) is the centerpiece of legal protections for debtors against debt collectors. The law was passed in its essential form in 1977, and its goal was to protect debtors against the abuses of debt collectors. This article discusses what makes this law great, and some of its limitations.
The Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (FDCPA) was enacted to put an end to some of the worst practices of the debt collection industry. It’s been a very good law, but the debt collectors are still doing many of the things the law was designed to present. You may be able to sue them or prevent them from suing you..
The Debt Collection Industry
Before the act, the debt collection industry was routinely engaging in the most abusive sorts of behavior imaginable, from calling debtors at all hours of the day or night and subjecting them to streams of cursing and name-calling, to discussing their debt with children, neighbors, and employers. Debt collectors frequently misrepresented themselves as attorneys and often threatened legal action which they were powerless to initiate. And they often attempted to, and did, collect debts that either never existed or were long unenforceable because of statutes of limitation or bankruptcy.
Whatever the staid spokespeople of the debt collection industry may say, this is the background of their industry. The Fair Debt Collection Practices Act, 15 U.S.C. Section 1692, et seq., was enacted to put a stop to these extreme behaviors in 1977. Because the people intended to be protected by the act are underrepresented by lawyers, and because of the explosion of debt litigation over the past decade, many of the old abuses still continue, and as people increasingly defend themselves from the debt collectors, they develop new tricks all the time.
The FDCPA: A Pretty Good Law
Nevertheless, the FDCPA is in many ways a model piece of legislation. What makes the law so powerful is that, in addition to making certain enumerated acts illegal, the Act also more generally makes acts that are “oppressive,” “false or misleading representations,” or “unfair practices” illegal. This means that, whereas in most laws, the would-be wrongdoer is free to craft his actions around the specific language of the law and find “loopholes,” under the Fair Debt Collection Practices Act, at least, the consumer may argue that these actions are still unfair or oppressive. The Supreme Court has ruled that an “unfair” act can be shown by demonstrating that it is “at least within the penumbra” of some common law, statutory “or other established concept” of unfairness.
That’s pretty broad. The price for this flexibility, however, is that the remedies—what you get if you prove the case—are less powerful. And this may be why the practices are still occurring today.
As mentioned above, there are specific actions enumerated in the FDCPA, and these include most notably, suing on expired debts, filing suit in distant jurisdictions, publishing certain types of information regarding the debtor, calling outside of specified hours. And the list goes on. If the debt collector is acting in some highly offensive way, chances are he’s within the specific provisions of the Act. These can be found at 15 U.S.C. 1692c, d, e and f. You can find the specifics by Googling the Act or provision and determining whether the specific action you’re concerned about is within one of these provisions.
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.
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 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.
Decisions you must make to Start Getting Back to the Good Life
Lawsuits are Scary
The “Bartleby Defense”
Get Back to the Good Life
In this article we’re going to talk about filing a response to the lawsuit. We have some videos we’ll show you on Answering and defending yourself. We’re going to talk a little bit about your choices of how you defend yourself, and I want to give you some “caveats” to consider.
Then we’ll get to the Answer so you can see how that’s done. Our point here is to “orient” you to the lawsuit so that you have a basic idea what to do. Our materials are designed to help you through the lawsuit and let you represent yourself the whole way if you choose.
In our next article we’ll move on to the other phases of the program
You’ve Been Served a Law Suit – What Now?
As we’ve discussed in other videos, if you’ve been served with a lawsuit, you have only four basic choices. If you’re here, we’re assuming you’ve decided to fight one way or another, and if your second decision was to hire a lawyer, you should let him or her guide you in making the other decisions. We’re going to assume, for purposes of this series of messages, that you have decided to represent yourself – or that you want to learn more for yourself even though you’re getting a lawyer. That’s always a good idea.
If you are going to do this, you will have to decide whether to attack the court’s jurisdiction over you or not. If there was something fishy about the way you got served, our materials can help you with a motion to quash service, but that is beyond the scope of this informational series. We don’t have a specific product for just this motion because it is highly fact-specific and depends heavily upon state laws of civil procedure – and because it is just a first step in a litigation defense. If you need help attempting to quash a lawsuit, you will also need help in defending it the rest of the way. You will need the Debt Defense System.
Most people actually do not need to concern themselves with motions to quash – most process servers get the job done right, and so your next decision is whether to attack the suit through a motion to dismiss or to file an Answer.
Here’s a brief video on Motions to Dismiss.
Motions to dismiss are filed for a variety of legal reasons, and again they are too fact specific, and depend too much on your own state’s laws, for us to be able to demonstrate here how you would do such a motion in your case if you think there is one. The Debt Defense System materials do help with that, and we would just suggest that you check your rules of civil procedure to see if you need to be filing a motion to dismiss before answering.
What we’re going to do today is show you how to file an Answer and Counterclaim. The Answer is pretty generic and will probably be easily applicable to your situation. The counterclaim may or may not apply – it would depend on whether you are being sued by a debt collector, and if so what, if anything, it has done wrong. So you should definitely not just cut and paste the counterclaim part of this message. The Debt Defense System will help you look at debt collector behaviors that might have violated the Fair Debt Collection Practices Act (FDCPA) and file a counterclaim if you have one.
Here’s a warning
Deciding to represent yourself is not quite a one-way decision. That is, it is possible to find a lawyer,
sometimes, if you start representing yourself, but it can be very difficult. Many lawyers will not touch
a case where the client filed anything. And many will charge you the same, or even more, than they would have if you had never filed anything. That’s because if you file something, the lawyer has to spend time reviewing that to see whether you’ve made any damaging admissions and what, if any, response the other side has made.
So if you’re thinking that you will represent yourself for a while to save money and then turn it over to a lawyer, you should consider that carefully – getting a lawyer to come in at the last moment is hard and not necessarily a good idea anyway. And may be more expensive than hiring one in the first place.
If you think you need a lawyer and can afford one, get one now – that’s my advice.
On the other hand, you can do this – and if you think you need to do any of it, better to plan to go all
the way if necessary. Most cases don’t go to trial, but if yours does, we will have you ready for it. As a pro se defendant you do have certain advantages going for you, and if you are willing to work at it a little bit, you can do this as well as most lawyers would do it.
Even if you have a lawyer or plan to get one, our materials could still be for you. It is a reality of legal life that lawyers charge for their time – and if yours is not charging you for his or her time, they’re either preferring to keep the chat down to a minimum or are spending less time on your case. Either of those could be unsatisfying. An educated client is a good thing.
Answering the Petition
Answering the Petition
Okay – so what is an Answer? It is your formal reply to the lawsuit. If you’re being sued, the debt collector is saying you owe money and, at least in general, why.
Your Answer is basically going to deny that. You’ll see a sample answer below. Notice how brief it is, in the first place. Doing an Answer is easy. Notice that there’s no hifalutin talk, nothing fancy. They say you owe money. You say you don’t. The point of the Petition and Answer is to establish what will be the main points of dispute of the lawsuit.
Notice also that the sentences or paragraphs are numbered. Those numbers correspond to specific paragraphs (called “allegations”) in the debt collector’s suit.
You won’t argue over your name and address or residence in most cases, but you will dispute the debt collector’s ownership of the debt, the amount, and the claim that you owe anything. And anything else that makes sense to object. The hurdle here should be very low. You will likely dispute almost everything.
You don’t swear to your Answer, and you aren’t required to admit anything. You are setting out the factual points you want to make the other side prove.
Debt Negotiation and Settlement
This article talks about what I guess you might call the second-to-last piece of the bad debt puzzle. In the first couple of articles of this series we talked about getting sued and either getting a lawyer or representing and defending yourself. We got you started on that. Then we moved on to credit repair. In a way, maybe, that was taking things out of order, but everybody being sued for debt will eventually need to fix his or her credit report, and probably for many things other than just the lawsuit.
We discussed the ethics and morality of credit repair because many people we’ve talked to over the years have been burdened by their ethical and moral concerns – guilt, really. The debt collectors encourage guilt because it makes people easy to handle. Tomorrow we’ll move on to something a little more “esoteric” you might say: lifestyle.
But today, as I say, we’re going to discuss debt negotiation.
Pretty much everybody knows what debt negotiation is, at least in theory. It goes like this. Obviously there’s somebody who says you owe a bunch of money, you negotiate, and you end up paying either less than or none of what you supposedly owe. That’s the view from a mile up. Sweet, isn’t it?
It sounds like free money, but it really isn’t. If you think of it as an opportunity for something free, you will not be able to do it – you’ll be left wondering what went wrong as your financial security goes out the window. Instead, debt negotiation and settlement is cross between a hard-nosed, back-room negotiation and a game of “chicken.”
So What Are You Negotiating? What Are You Settling?
You know, it’s interesting that people rarely ask what debt negotiation is all about – what are you “giving up?” What are they getting in return for the large amounts of debt you hope for them to give up? Suppose you owe a credit card company $20,000 and you have been making the minimum payments most of the time – but sometimes you can’t, so they have hit you with a bunch of fees, and you’re watching the debt pile up at an incredible rate. What do they get if they agree to take a single payment of $1,500?
It feels like you’re stuck – there may be no way you can make payments that would significantly reduce that debt. So what do you have to negotiate with? A whole lot of “nothing.”
You have risk and the difficulty of collection. In other words, you have the fact that unless you agree to pay and really try to do it, they will likely get nothing at all – or will get much less than they could.
That doesn’t sound like much, does it? And yet it is much more powerful than you might suppose. Anybody you owe a lot of money to is feeling the pinch. Even a large credit card bank, which doesn’t need your money for its survival by any means, is watching that debt mount and realizing that every time it gets higher, you get less likely to pay it. At the bottom of your options may be the possibility of bankruptcy, but they know that long before that you will simply stop paying and dare them to sue you.
In essence, that it what makes debt negotiation work. You stop paying them and dare them to sue you – and then you offer to pay them again, only much less. Sounds crazy, doesn’t it? But it works if you take it seriously and don’t think of it as some sort of gold mine or a way to “get away” with something. Instead, think of it as a significant part of a serious turn-around in your life. It has several costs – you should have no doubt about that, and it is something you do when there are no better choices available. There’s a chance that withholding payments will result in your being sued, and it almost certainly will result in at least a temporary trashing of your credit report. How you manage these risks and costs will determine, more than anything else, how well you do in negotiation.
There are ways to make it work much better than others, though. There are things you can do to manage your risks of being sued, and when the negotiations actually begin, a few techniques that can help. The main thing about debt negotiation and settlement, however, is that it, like other kinds of negotiation, is much less about negotiation than positioning. People only give you what you want because they believe it is the best outcome for them, too – the question is, how to do you give them that feeling when you’re asking to pay ten cents on the dollar of debt? And how do you make the risks to yourself “acceptable?”
How you answer those questions will determine how good a deal you get from your creditors.
Debt Collector Licensing and Regulation Requirements
Most states require debt collectors to register with them in order to do business with people within their borders. As of the time of this writing, the states below have this requirement. You should look up the law for your own state and check with your attorney general to see if the collector bugging you is obeying this law. Somewhat incredibly, this law is also frequently ignored by the debt collectors, and this may be, and probably is, grounds to get a lawsuit dismissed and also be a violation of the FDCPA. It may also trigger regulatory enforcement action.
States Requiring Licensing, Registration, Exam, and/or Bond
Alaska, Arizona, Arkansas
Idaho, Illliois, Indiana, Iowa
Maine, Maryland, Massachusetts, Michigan, Minnesota
Nebraska, Nevada, New Jersey, New Mexico, New York in some cities, North Carolina, North Dakota
South Carolina (business license required)
Utah Washington, West Virginia, Wisconsin, Wyoming
States Requiring License Tax
No Bond or License Required
District Of Columbia
Mississippi, Missouri, Montana
Ohio, Oklahoma Pennsylvania
You should check on the requirements for you state and, if they are not met by a debt collector contacting you, take appropriate action.