Follow-up 5A to People being Sued

Yesterday I ended with something that may have surprised you – or you may possibly even have thought it was wrong to do, somehow. That is, I was talking about how the expense of your defense might eventually make the debt collector go away all by itself.

And that is true. But is it wrong to use the cost of litigation as a tool against the debt collector?

I could almost laugh at that, but in a way it’s a serious question.

It is, in fact, considered unethical in law to use the cost of litigation as a tool – if you aren’t doing legitimate things. That is, you aren’t supposed to drive up the costs needlessly. Now why did I almost laugh at that? Because the debt collectors do that CONSTANTLY.  You will see that when you ask “discovery” questions, no matter how reasonable, they will object with a bunch of the lamest stuff imaginable. It’s called “stone-walling,” and you should expect it – it’s standard in the debt collector’s playbook.

But you won’t be stone-walling. You will be legitimately probing their case for weaknesses, and chances are extremely good that you will find some, too. So at the same time you’re making the suit unprofitable for them you are also making it much more likely that you win it outright.

And it is likely that you win if it goes so far.

It goes back to the “factory” approach the debt collectors take. I’d be shocked to hear that the lawyer on the other side of your case has spent twenty seconds looking at anything in your case before going to court. Why should he? Ninety-seven out of a hundred cases never get litigated because the defendants give up. It doesn’t make sense to “waste” time on a case like that, and they almost never do. And because of the way the debt selling industry works, in order for them to get what they need, it would really take more time than they’ve got. Upshot? They rarely have what they need, and they’re rarely willing to get it if you push them for it.

Again, they aren’t worried about losing. They’re worried about spending time.

If you keep pushing, you’ll almost always win.

Almost Always??

Hmmm. So do you notice I keep saying things like “rarely” and “almost always” or “almost never?”

One YouTube commenter accused me of “waffling” – he liked the people who make guarantees better and figures I don’t know enough if I can’t make guarantees, too.

But that is actually ridiculous. The law is a process – usually pretty rigorous, and usually actually “honest” if not truly fair.  It’s a contest played by many, many participants. Some (on both sides) play harder than others, and judges do not always pay close attention or do the right thing. I’m not going to pretend otherwise.

What I can say for sure is that if you do, and keep doing, the right things, you will make suing you a money-losing proposition.  This makes it much less likely that they will keep doing it.

I can say for sure that a large majority of debt buyers – very nearly all of them, in fact – start the lawsuit against you without having what they would need to win in their possession. And they either cannot, or will not, do what it takes to get it. Could they, in theory? Yes they could. But I am not aware of a single time a debt buyer did what it took to deserve to win. Sometimes they do win if the judge isn’t paying attention or the deck is stacked (as it is in Massachusetts small claims courts), but this is rare if you fight, and it’s much rarer for them to win legitimately.

I will have guarantees about our products, of course, but you should know that if the debt collector is willing to do what it takes to win, and if the stuff is there, then it probably should win, and it probably will. That almost never happens, so you should probably win and probably will win, but there’s always a chance of some fluke happening. We can’t guarantee that you will win.

It’s important that you know about that chance, as small as it is, because it will encourage you to do things that protect you against that possibility. We do have some suggestions for that, too.

But that’s all talking about something with such a small chance of happening that I wonder sometimes whether I shouldn’t just say it won’t.

Remember, the debt collectors are only interested in making money – they don’t care about you or your suit at all (except as a way to make money). We can help you make sure they lose money by suing you. And we can make sure that if they don’t have what they need, which they almost never do, you can find out and know what to do about that. We can make sure you deserve to win, in other words.

Tomorrow we’ll talk about one more thing that makes people nervous, and then we’ll move on to tell you how we can help and what we offer.

Stay hopeful,

Ken

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Rule 11 Federal Rules Civil Procedure

Federal Rule of Civil Procedure Eleven (11) is the main rule in federal proceedings governing the  motives and actions of lawyers as to the content of what they say. Here are the all the rules, but below is Rule 11. Every state (as far as I know) has a rule comparable to this rule, and you should find and know your state’s rule.
Rule 11. Signing Pleadings, Motions, and Other Papers; Represen-
tations to the Court; Sanctions
(a) SIGNATURE.  Every pleading, written motion, and other paper
must be signed by at least one attorney of record in the attorney’s
name—or by a party personally if the party is unrepresented. The
paper must state the signer’s address, e-mail address, and tele-
phone number. Unless a rule or statute specifically states other-
wise, a pleading need not be verified or accompanied by an affida-
vit. The court must strike an unsigned paper unless the omission
is promptly corrected after being called to the attorney’s or par-
ty’s attention.
(b) REPRESENTATIONS TO THE COURT.  By presenting to the court
a pleading, written motion, or other paper—whether by signing,
filing, submitting, or later advocating it—an attorney or unrep-
resented party certifies that to the best of the person’s knowledge,
information, and belief, formed after an inquiry reasonable under
the circumstances:
(1) it is not being presented for any improper purpose, such
as to harass, cause unnecessary delay, or needlessly increase
the cost of litigation;
(2) the claims, defenses, and other legal contentions are war-
ranted by existing law or by a nonfrivolous argument for ex-
tending, modifying, or reversing existing law or for establish-
ing new law;
(3) the factual contentions have evidentiary support or, if
specifically so identified, will likely have evidentiary support
after a reasonable opportunity for further investigation or dis-
covery; and
(4) the denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based
on belief or a lack of information.

South Dakota Stats of Lims

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.

 

About the Fair Debt Collection Practices Act

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.

Local Rules and Discovery Limits

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.

Federal Rules

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

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.

Debt and Moral Duty

Read more

Straw Man Theory

Read more

Four Decisions

Decisions you must make to Start Getting Back to the Good Life

If you’re being sued for debt, you’re going to have to make four decisions.

 

Lawsuits are Scary

When a process server hands you a summons letting you know you’re being sued, or when you find out in some other way, if you’re like most people you will be terrified. It may be something you have feared for a long time, or it could be coming from straight out of the blue, but as Oliver Wendell Holmes (an early Supreme Court Justice) put it, next to death, most people fear being sued the most. It’s scary because it’s time-consuming, confusing, and seems to open a door to nearly unlimited expense and grief.

The “Bartleby Defense”

A lot of people respond to that by pretending that nothing happened – you aren’t being sued, and the service of process was just some sort of terrible mistake. Or – – you can simply “decline” to accept service. According to this idea, you can just tell the process server to go away – you’d rather not be troubled by the lawsuit (the “Bartleby Defense” – named after the character in Herman Melville’s story, “Bartleby the Scrivener, who found that he “preferred not to” do all the things that would have given him a normal, happy life). If you do this, you won’t be troubled by the lawsuit, and it will go away. The problem is, you will soon be troubled by a judgment and by people trying to seize your bank accounts and garnish your wages. And with the judgment against you, they’ll be able to do that, and you probably won’t be able to stop them.

Get Back to the Good Life

The Bartleby Defense invites years of misery. Don’t do that. Seize the bull by the horns. There are things you can do to protect yourself and what you have. It doesn’t take a genius. Get our free report and start taking control of your life and this lawsuit. It isn’t rocket science, and anybody willing to spend some time and effort can defend himself or herself. Learn how to do this and to get back to good life you always wanted. A life where you get the benefits of your work, where you can pick up your phone without worrying about it being a debt collector.

Responding to the Suit

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.

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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