Do I Respond, How do I Respond, What do I Respond


DO I Respond, HOW do I Respond, and WHAT do I Respond?

We talk elsewhere about what constitutes valid service of a lawsuit, and you should check out that video and article if you have any questions about whether you’ve been served.

We also discuss elsewhere whether you should respond to a debt collection lawsuit you find out about if you have not been served the complaint. To boil that down to its most essential point, if you have not been served at all – you hear about the suit from a neighbor or look your name up in court files, or a lawyer sends you a letter saying you’re being sued – we suggest that you take no action if you don’t have a lawyer. If you do have a lawyer, and the lawyer thinks it’s best to get on with it, that might be a good idea, but as a pro se defendant you won’t be able to shut the case down the way a lawyer might.

Let them serve you if they can, but you have no obligation to help with that process. You don’t have to go down to the sheriff’s office or call the firm suing you or its process server. See if they can get you, and if they can’t the case will be dismissed against you. It actually happens a lot, although not a statistically huge percentage of cases.

If you go this route, you will want to keep an eye on the court files to see if, whether or not they HAVE served you, they claim to have served you, and that brings up a special issue that we discuss elsewhere, too.

If you get served, your next question will be HOW to respond. If you fail to respond at all, the other side will get a default judgment and start trying to get your stuff, so this is probably not a good idea for you. You’ll need to Answer or file a motion. To answer this question, you should first consider what kind of court you’re in. Are you in a small claims court, sometimes called a “magistrate” court? Or are you in a “real” court.

If you’re in a small claims or magistrate court, see our video and article on that.

Assuming you’re in a real court, you’ll need to do two things right off the bat. First, find your state’s Rules of Civil Procedure and look up the part about service of process and motions to dismiss. Some motions to dismiss have to be filed before you answer the petition. Find out if you have one of those – the petition is vague, names the wrong person, or violates certain procedural requirements some states have for debt collectors. If you have one of the motions that has to be filed before answering, you might be waiving your right to bring the motion if you answer first.

One of those motions is to whether you were legally served. If they claim you were served, but you have some reason to dispute that, you probably need to bring what’s called a “motion to quash” service before you answer, since answering will be regarded as your consent to the court’s jurisdiction.

If none of those concerns apply to you, you will need to answer the suit. In some states, they have what’s called a “verified petition,” which means that someone swore to the truth of the allegations. If you have that sort of petition, you will need to swear to your answer, and this means getting a notary public to witness the document. But this is rare. In most instances, the petition is an ordinary one signed by the lawyer for the debt collector. If that’s what you’ve got, you will simply want to deny almost all of the paragraphs, one by one, in the petition. Don’t go to absurd lengths and deny your name or address, if those are correct, but you should generally deny all of the other substantive allegations. The legal effect of your denial is to say, “prove it.”

In some states you can file what’s called a “general denial,” which does in one sentence what I just suggested.

If you think you have a counterclaim against the person suing you, you will want to add that to your answer.

We discuss “affirmative defenses” elsewhere, but in general they are facts that, even if what the debt collector says in its petition is true, would mean you don’t owe them money. Most typical of these sorts of defenses are some sort of agreement to settle or address the claim, or the passage of too much time before they brought the suit, called the statute of limitations.

The essence of an affirmative defense is that you bear the burden of proof in showing that these factors exist.

Finally, let’s talk about demanding a jury. Our position is, generally, that debt defendants should ask for a jury. We discuss this in greater length in our article and video on juries, but if you think you want a jury (as we recommend), you need to find out how your court and state require that you demand one. In federal court and some states, it’s enough to say it as part of your answer. In some states, you have to make a separate request by separate pleading. Find out what you are required to do and do that.

If by chance you’re just finding out about this after already starting to defend your case, that doesn’t mean it’s necessarily too late. If you have a right to jury trial, the right is absolute when you raise it in the proper way and time, but even if you don’t do it when you should, the court should normally grant your request anyway absent some sort of misbehavior or the passage of too much time, and they are required to be “liberal” in their interpretation of what’s too late. That is, they are supposed to lean towards granting your request for a jury, so even if you’re late, you should go for it if you want one.

What to Expect as a Poor Person in a Rich Man’s Game

Real Words about the Law and Being Sued for Debt

What to Expect as a Poor Person in a Rich Man’s Game

You may have heard that “justice is blind,” which oddly enough was meant to suggest that justice is fair in America – it’s blind to class and race, and all the rest, supposedly. But if you’re being sued for debt you’ve probably heard of another saying: “it’s a big club, but you aren’t in it.”

I’m afraid that second saying is probably more relevant to what you can expect in the courts. If you’re going it pro se, that is to say representing yourself, you’re going to have some trouble getting the
attention of most judges. They’re not going to value what you say as much as they’d value what a lawyer would say, especially a lawyer for a corporation. Most judges are on that side of the fence, and they’re DEFINITELY from that side of the tracks, if you know what I mean.

So let’s just say there’s an institutional bias  – prejudice – against you. But I am saying “most” judges, after all, and some don’t share that bias.

And as a general rule judges do have a sense of fair play as far as playing by the rules, although again this is just a “general rule.” If they care about the outcome of a case, I’d say they can be pretty results driven, never minding the rules, but in fact most of them do NOT care about the outcome of debt cases. On the whole they seem not to like them, and we’ve all heard that debt collectors are notoriously heartless and… dirty. The judges are aware of all this, and I think they do regard them, on the whole, as the vultures of the legal kingdom. Judges often come from the more high profile sort of law.

But these are generalizations, and you should observe for yourself what your judge is like.

And here’s yet another general rule of the courts: the judges regard cases involving less than a couple
of million dollars as being sort of trifling and not worth their time. That’s a thing you should never forget. It’s a question of who they blame for your case wasting their time. I think they start with the sense that YOU are to blame, if you bother defending yourself, but this can change, and we want it to change. You didn’t bring the suit, after all, but you are one of the few meaningfully opposing the debt collectors, and so the judges might blame you for that. It has often seemed that way to me, anyway.

This is all hardly a ringing endorsement of the process, I know, but probably nothing new to you, either.
So why do I still think you have an excellent chance of winning if you fight these cases? Because the debt collectors really don’t usually have what they need to prove the things they need under the rules, and courts do have respect for rules. They’ll forgive corporate counsel a few transgressions, but in the final analysis they want the rules to be followed, and the case can be reversed on appeal if they don’t. So you have your chance.

And judges are people. The more time you spend with them, providing you keep your goals in mind, the more the judges will like you, the more they’ll listen to what you have to say. And you will have the law on your side. That does matter. It usually makes all the difference if you know what you’re doing.

And that’s why we’re here – to make sure you do know what you’re doing. Just be aware that whatever
they say about cutting a break for non-lawyers in the justice system – and they do in certain unimportant ways – you’re probably going to be held to a higher standard than the lawyer representing the debt collector rather than a lower one. You’re going to have to know more and do a better job than the other side.

You can do that, it just takes work and a certain humility. The lawyers on the other side are not the greatest legal minds. The debt collection business draws business people, and the business they’re in
means they won’t spend a lot of time on your case. They won’t have a lot of the stuff they need or the
time to get it. Your job is to show that to the judge in a way he or she will listen to. It’s a challenge, but it can usually be done. We’ll be helping you.

The lawyers for the other side have a job to do, and that’s to beat you. Some of them will treat you with respect, and others with contempt (which will be controlled), but remember their job, and however they present themselves to you it will be part of their overall plan to beat you. Don’t expect to go out with them for drinks after it’s all over.

 

What if they are Suing me and my Business

What if they are Suing me and my Business

Who is Suing Me for an old Debt?

Who is Suing Me for that old Debt?

One important thing to know is whether you’re being sued by a debt buyer, a debt collector, or an original creditor. Knowing this will help you focus your strategy.

First, some definitions.

An “original creditor” is someone who claims you borrowed money from them. It could be a loan or a credit card or anything else creating debt, but the point is that they claim THEY are the ones who originally were involved in the transaction.  For example, you’re being sued by American Express, and they say you signed up for and used an American Express credit card and didn’t pay them. “But I never signed up for an American Express credit card!” – That’s good, but it doesn’t matter for the purposes of this definition.  Whether or not you owe the money doesn’t matter for this. If you’re being sued by someone who claims you borrowed from them, it’s an original creditor case.

A “debt buyer” is someone who bought the debt from the original creditor. This person may also be a debt collector, but the point here is they’re claiming you owed money to someone else and the debt was assigned to them. As you probably know by now, selling old debt is big business in America and throughout the world. Look for the word “assigned.” If a debt buyer is NOT a debt collector, your rights to countersue will be limited (because the Fair Debt Collection Practices Act won’t apply to them), but they will still have most of the weaknesses in establishing their case that we usually talk about.

A “debt collector” is someone who either is acting on behalf of a debt owner (rare, these days) or a debt buyer whose primary business is the collecting of debts (i.e., they buy debts and sue people without providing any real service to the people they’re suing). These people will have weaknesses in their case AND may give you a chance to countersue.

So Who Is Suing Me?

To determine this on a preliminary basis, look at the name of the case. It will be “X Company vs. You” Normally, this means that X Company is the plaintiff. Their lawyer is NOT suing you for most purposes, and the lawyer is not, by virtue of being the lawyer on the case, a party to the action. Companies can only act through lawyers (in court), and the lawyers are generally only “mouthpieces” for them. So most of the time you can forget about them as you consider your rights.

I did say “on a preliminary basis.” What I mean is that you start with the basic assumption that the person named as plaintiff IS the plaintiff, but it turns out this isn’t always true. Sometimes debt collectors (including lawyers) buy debts and bring the lawsuit in the former owner’s name. I think this violates the FDCPA, but for now you just need to know it CAN happen and does happen sometimes, and you need to know if it’s happening in your case. The only way to find out is by conducting discovery, and our model discovery therefore includes some questions about whether the debt has ever been transferred, and to whom.

Sued not Served

Sued not Served

What Should I Do if I Know a Debt Law Suit Has Been Filed but not Served?

Sometimes people find out they’re being sued before the plaintiff gets around to serving them. How does this happen? And what do you do if you find that out?

People can learn about a suit before being sued – it is public knowledge, after all, so it could happen
in a lot of different ways. Mostly though, it happens in one of two ways. Sometimes debt collectors bug you for money, and you go out of your way to check court files to see if you’re named in a suit, or you find out from a neighbor who gets curious when they see someone trying to serve you. I guess these ways are actually rare, but they can happen. The other way is more common.

There are lawyers who want to represent people in these cases, and they may send you a letter telling you you’re being sued. It may be news to you that anybody is even after you, much less actually suing you. So you check the court files and find out it’s true.

What do you do?

There have been times people brought these cases to me, back when I was practicing, and wanted to take action. In that situation they had a lawyer and a counterclaim (usually), and where that’s the case, it could make sense to waive – or let go – your right to service and just enter on the case. We were sure we’d win, and we had a counterclaim, so why wait?

If you’re pro se these days, the situation is very different. You can’t be sure you’ll win however much you think the facts are on your side, because you can’t count on the courts to see it your way. No matter how clear you think it is, you just can’t count on winning. And you’re less likely to have a counterclaim because the courts have narrowed the definition of counterclaim and debt collectors have gotten a little more careful.

So for those reasons I think it makes sense to watch the court docket (without identifying yourself to the court) to see if they ever claim to have served you. Or until they actually do serve you.

You have no obligation to make it easier for them to serve you, and if they can’t get you served they will eventually have to drop the case – or get it dropped (for “failure to prosecute”). I think it makes good sense to give them that chance. But watch to make sure they don’t claim you were served. Likewise, if they “serve by publication” (which is putting an ad in a small local paper) you’ll probably need to answer, but it’s rare, and they have to get permission to do it. Still, you should watch for it.

If they don’t serve you, you might get lucky and have them drop the case. Or you will get served and have to defend.

Obviously, if that happens, we can help.

Small Claims Court Report

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New Tricks of Debt Collectors

New Trick for Debt Collectors: File Motion for Summary Judgment before you Complete Discovery

Discovery for Debt Collectors

When debt collectors file suit, they usually start with everything they think they’ll need. It generally is only the very most basic information about your case – no more than two or three old statements and a balance claiming you owe a certain amount of money. If you don’t defend, or don’t know how to defend, these things will be enough to get a judgment. They have no proof you ever owned the account or signed up for it, made any payments or failed to make any payments, or much of anything else. They don’t expect to need any of that because most people default (fail to answer) or fail to defend themselves intelligently. If they’re thinking ahead, they might use discovery a a way to find out about your job and resources or to trick you into admitting you owe them money. But most often debt collectors are not interested in conducting discovery.

Discovery for Debt Defendants

Debt defendants start in a completely different place than the collectors do, obviously. If you’re being sued by a debt collector, you need to know what exactly they have and how to attack it. You need to know whether they are defined by the law as “debt collectors,” what they have regarding you and how they got it, and what they’ve done or failed to do in attempting to collect the debt. You need, in other words, to find out ALL about the debt collector’s case, your defense, and whether you have counterclaims.

They don’t want you to do that.

New Trick for Debt Collectors

Debt Collectors have a new tactic.

It isn’t strictly new – they’ve been known to do it before, and it’s common enough in other kinds of litigation, but it’s happening much more often now in the “Covid era.” Or should I say, the “post-covid era?”

The courts are back up and running, in a way, but nobody is excited to have in-person trials. So the debt collectors have found a safer way to get what they way – one that uses all their favorite ways to take advantage: stonewall discovery and file a motion for summary judgment before you can get what you need to defend. Let the courts take the shortcut if they will – and they often do.

I’m talking about motions for summary judgment, but with a twist. The new plan is to file the motion early – before you have a chance to conduct or complete discovery. With a little luck they’ll scare you into giving up, but even if you don’t you have a tough job in courts which all too often are not equipped to listen to complicated legal arguments about complex issues.

What they’re doing is serving the lawsuit, waiting just a bit, and then filing the motion for summary judgment. If you’ve dragged your feet on starting discovery – or even on pushing it towards a motion to compel – you’re presented an extremely difficult challenge: how to get discovery you need to defend yourself is a small amount of time.

And how to bring a motion to compel and respond to a motion for summary judgment at the same time. That’s hard to do under the best of circumstances, but now you won’t even have enough time to do it all unless you can counter the tactic.

How to Defend Yourself from this Trick

Start Quickly! Don’t waste time.

The single most important thing you can do to protect yourself from this trick is, as always, to start serving discovery on the other side immediately. You may be able to avoid this trap altogether if you can jump right onto it. A few days could make the difference.

But what if it’s too late to start discovery “immediately?”

If it’s too late to start immediately, start NOW.

That isn’t a word game. If you haven’t started discovery and they file a motion for summary judgment, you must figure out and start discovery now. You’re going to have to show the court what you need in order to defend the motion for summary judgment and why you need it. And you will also need to show that you’ve taken steps to get it.

Motion to Stay

After you serve discovery on the other side, you will probably need to ask the court to hold (that’s “stay” in legalese) the motion for summary judgment while you conduct the discovery you need. You aren’t asking the court to delay its decision: you’re asking it to put the entire motion on hold until you’ve had a fair amount of time to do what you need. The complication is that, since they’ll be claiming all the facts are uncontested, you have to show how your discovery would help establish factual issues that would prevent the court from reaching a judgment. In legalese, you have to show the court how answers to your discovery might show the existence of “genuine issues of material fact.”

And to do that you must painstakingly link the possible answers to what you’re asking for in discovery to the claims they make.

Find the Rule and Follow It

The rule on summary judgments does contemplate that this could happen, and there is a rule that tells you what to do if you need more time to conduct discovery. In the federal courts, you have to make an affidavit that says certain specific things. In state courts, the rules can vary and may not require an affidavit – but they will require some statement of what you’ve done, what you’re looking for, and why it matters. You have to find the rule for your jurisdiction and follow it carefully.

It’s much easier to describe than to do, believe me, and of course the debt collectors know that. It isn’t easy at all for you to figure out how it works, file your motions, make the arguments you need to make and persuade the court to do something that all too many judges don’t want to do: take your case seriously.

The debt collectors rely on you, or the court, to get careless – and  you know that often happens. The debt collectors do it to people representing themselves, and the judges sometimes turn a blind eye to real issues of fairness.Defending yourself from this trick frankly can be overwhelming.

Our New Workbooks Can Help

We have a new product that can help you with this issue if you’re facing it. It’s a workbook that addresses the necessary topics one by one in the order and way you will need to do it. It will show you how to analyze the motion for summary judgment, compare it to your discovery requests, and show how the answers might affect the outcome of the motion for summary judgment. It shows you how to do your motion to compel – and how to do the motion to stay the summary judgment.

Under the best of circumstances, it still won’t be easy, but the workbook should help you get a grip on the issues and process and give you the chance you need.

The workbook comes free with our 20-20 memberships, and that’s the only way you can get it for now because it’s still a work in progress and because I want to emphasize that the membership all but a very few people should be getting is the 20-20.

What if You’re Not in this Situation?

The product we’re discussing is intended for a specific situation, where you have discovery outstanding and they file a motion for summary judgment. But if you’re not in the situation I discuss here, our materials can help you avoid it by streamlining your discovery process. In fact we can help you from the beginning to the end of your case

If you’re being sued for debt you have enough problems. Dealing with slick collector tactics shouldn’t be one – but it is.

We can help. Our 20-20 memberships should help you all the way. If you are already a member other than 20-20, contact me for information on a discount code that will enable you to convert your membership. You should have the 20-20 – it’s our best deal by far for most people.

To Get the 20-20 Membership and Our Workbooks

Click here for general information on the 20-20.

If you want the short summary of the program, though, it’s just this: with the 20-20 you get everything we offer (excluding physical products) – all the reports, packages and teleconferences we have, for free with the membership for a year. The 20-20+ will include some bonuses and includes everything the 20-20 includes for 18 months. The idea is to get you through your lawsuit without a second charge.

To get the membership, you click on the top menu “about Memberships” and select your membership option.

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