Many debt defendants love the idea of affirmative defenses – they just sound stronger, don’t they? But in the law, they are specific things, and they are not better than general defenses. They’re just different. If you have an affirmative defense, that’s fine, and you probably wouldn’t want to ignore it. But general defenses are really the “bread and butter” of defense.
So what are these two types of defense?
General Defense or Denial
A general defense is one of two things. It CAN mean a general denial of every allegation in the petition. You’re saying, “prove it” to everything. Since the debt collector has the burden of proof, I would suggest you consider this if it is available to you. It’s easy, fast, and comprehensive. But of course your next move is on to discovery and the rest of defense.
Generically, a “general defense” is one where you deny an allegation. So, above, you could file a “general defense” which denies all paragraphs (if your jurisdiction allows this). Or normally you would simply deny all or most of the paragraphs of the plaintiff’s petition. Every denial is a “general defense” that leaves the burden of proof on the plaintiff.
Affirmative Defenses
Affirmative defenses are something else. They amount to a statement that, “even if what the plaintiff is true, I don’t owe because …”
One example of this might be a settlement – suppose you entered an agreement to pay and did pay the other side, but they sue you anyway. If so, your general denial will be to deny the allegations of the petition, but then you’ll add an affirmative defense: On x day, the parties entered into settlement discussions and formed an agreement. Defendant fully performed this agreement on y day, paying z dollars for a “complete settlement of all claims.” See, attached (a copy of the agreement).
Thus, the facts that you have alleged amount to a complete defense to the action (known as “accord and satisfaction). And note that the facts are pleaded with “particularity” (in detail), and the defendant has the burden of proof of these things.
Other examples of affirmative defenses include collateral estoppel, res judicata, unclean hands, statute of limitations, and laches. There could be others. In each case the defendant would bear the burden of pleading the facts constituting the defense and proving them at trial. Since a general denial leaves the burden of proof on the plaintiff, they’re usually more important.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-03-23 20:20:532019-03-23 20:20:53A Question of Burden – General versus Affirmative Defenses
Debt collection is a very big business in the U.S., with debt collectors feeding like vultures on the hardships of people having debt problems. They don’t care about you, they don’t care whether you owe or whether the amount they want is unfair – they only care about getting as much of your money as possible.
They need to be stopped.
to join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – or click here – and choose FastTrack Membership.
Courts as Cogs in the Debt Collection Machine
The debt collectors have been using the courts as part of their collection machine for many years. And they use the threat of lawsuits even more. This lets them scare millions of people into paying whatever they can, sacrificing whatever they must to do so. And it lets them use the machinery of the law whenever they get a judgment to start garnishing wages or seizing assets.
Unfortunately, the courts have allowed the debt collectors to get away with things they wouldn’t allow other litigants – things like filing claims without any real idea of whether the claims have merit, presenting obviously fraudulent and deceptive affidavits, and using clearly inadmissible evidence, to name a few things. But these are things that happen more often when people are not paying attention. They happen in debt law because nearly everybody getting sued by a debt collector gives up.
This needs to change.
How to Stop Them
I am not suggesting that you hide, drop out, or do anything radical. There are reasonable things you can do to protect yourself and what you have without turning your life upside down or inside out. The law doesn’t have to be your enemy in this… you can make it your friend, and we can help.
As I have often pointed out, debt collection is “assembly-line” or “factory” work. That is, debt collectors buy millions of accounts and feed them into a collection machine. The machine then writes letters, calls, and often sues you. Are there any humans involved in this process? Perhaps a few. The letters and signatures are probably all automated, and the phone dialers often are as well. I wouldn’t be surprised if the “person” calling you wasn’t actually a computer – if they aren’t doing that now, they could, and they soon will be.
And then there’s the lawsuit. Do you know they have software programs that draft entire lawsuits? The lawyers who go to court swear that they have seen the files, but I have my doubts about that. If you have ever asked a debt lawyer about one of his cases, you’d know what I mean – they have no clue. But of course that doesn’t stop them from claiming they have everything they need to win.
Factory Approach
The debt collector’s approach is simple and fiendishly effective. They file a million lawsuits and collect 700,000 default judgments. They can’t find and serve some of the people they sue, and they let them go. Two hundred thousand people go to court to give up one way or the other, and you can see long lines of people waiting to ask the lawyer where to sign whatever the lawyer wants.
In perhaps 50,000 cases of a million, there is some defense. Most of the lawyers doing it simply look for a slightly better settlement number than the debt collector asked for in the petition. SOME of the lawyers know what’s going on and don’t settle at all. A few people defend themselves. Of these, many don’t really have an idea of what they’re doing and end up losing.
The Few, the Proud
A very few people represent themselves and do know what they’re doing. They learn a few rules and a few of the things they need to do… and start doing them. Almost all of these people win.
To put it in a nutshell, our goal at Your Legal Leg Up has been to put our members into this group.
Because the debt collectors are built for the factory work, most of the people who put up serious resistance, and who know what they’re doing, “fall through the cracks.” Quite often, the debt collectors simply drop the cases. In others, they pursue them a little bit. But the underlying economic reality is that it makes little sense for them to do that. They can buy a lot more cases and make a lot more money by getting the people who give up than by fighting any number of cases.
Fighting cases costs debt collectors money. If you fight long enough, they’ll be losing money on your case. We try to make that happen.
Legitimate Defense
But we don’t try to make it happen with foolish claims or time-wasting strategies. That might not be such a good idea.
We understand that debt buyers, and companies suing on debt generally, have certain legal problems. They have a hard time getting or presenting some of the critical evidence. If you want to defend yourself, you need to know what they have and what they don’t have. And you need to know it before trial. The way you find out is through a process called “discovery.”
Debt collectors don’t want you to know what they have or don’t have. In addition, I think they just can’t help themselves – they’re going to object to everything you ask in discovery because that’s just what they do. We call it “stone-walling,” and it’s a favorite strategy that basically every debt collector uses every time. It makes preparing your case harder, but it gives you a legitimate reason to make them spend money, so it’s a two-edged sword.
If you can handle it. We help you handle it. Our materials tell you what you need to do, and they help you do it, too. Our teleconferences boost your confidence and energy, and they clear up doubts.
That’s why so many of our members win their cases. We help you know what you need to know and prove what you need to prove.
testimonials for Your Legal Leg Up
Turning the Tide
I believe the debt collection process is bad for our country, and that it grinds the working and middle class into poverty. Thus I have argued it is a “social justice issue.”
And since we’re talking about social justice, this seems to be a good time to introduce myself. I’m Ken Gibert, and I was a lawyer for about fifteen years, starting as a “clerk” (assistant to judges) in the U.S. Court of Appeals for a year, and then several years as a civil rights lawyer, first as the associate of a prominent local attorney, then on my own. I practiced consumer law for several years, first putting a number of fraudulent businesses OUT of business, and then defending people being sued by debt lawyers. Then I left the practice and started Your Legal Leg Up.
I’ve marched for … well, if I haven’t marched for it there probably hasn’t been a march for it. I’ve been called lots of names, had rocks thrown at me and had my mind blown away (in a good way!) by some of the people I was marching with. I’ve hobnobbed with some real movers and shakers, run my own business, and made some mistakes, too.
Your Legal Leg Up has been in the business of helping people beat debt collectors since 2007. Twelve years as I speak. Obviously, we’ve been around for a long time. I’m proud of that and of all the people we’ve helped, but I’m a little impatient, too – it’s time to make some bigger changes.
And you probably know that I have created perhaps hundreds of videos and written thousands of pages on debt law in America. It’s safe to say I’m one of THE authorities on the subject.
Your Legal Leg Up has been in the business of helping people beat debt collectors since 2007. Twelve years as I speak. Obviously, we’ve been around for a long time. I’m proud of that and of all the people we’ve helped, but I’m a little impatient, too – it’s time to make some bigger changes.
The theme running through my whole life has been that people deserve opportunities. Given a chance, people can do some amazing things, from inventing things, to taking care of people, from building empires to raising children. People need a chance to do what they’re called to do. Thus I have fought against discrimination that prevented that, and I’ve fought against the people and businesses that seek to profit by taking unfair advantage of other people.
And right now, there may not be anything that seeks to profit more by taking advantage of people than the debt collectors. They need to be stopped.
Why I’m Telling You This
The reason I’m going into my own history and the issue of social injustice is that I want to expand our services so that we aren’t just helping people slip through the cracks of the debt factory.
I want to change it.
First, I want a LOT more people to get through the cracks, and that means dramatically increasing the reach of our services and the number of our members.
Then I want so many people to fight for themselves that they overrun the debt collection machine and the courts that serve them force them to change.
Consider the following.
The Courts
On an average day in St. Louis County, a pretty average county in mid-America, there are between two and four courts that spend the first two hours of their day processing debt claims. In each of these courts, you’ll have approximately twenty to thirty lawyers – five or six for the debt collectors, five or ten for debt defendants, and others who are there for miscellaneous reasons. You’ll have 50-100 people milling around, and a court staff consisting of a deputy (security), judge, court clerk, and sometimes a secretary or two.
Over the next two hours, each of those courts will process between 100 and 500 debt cases. It’s a rare day with under a hundred judgments; it’s common to have far more than that. And they do this every single business day of the year. It’s a profit center for the court, which charges about $50 per case (note the volume discount! It would cost you more to file suit). So at the end of the day, the court has collected, say, $15,000, and the debt collectors have garnered 250 or more judgments.
Now I ask you a question, and the answer is going to be obvious: Do you think they could do that if people stood up for themselves?
A low-priority criminal case could easily take half a day. A high-profile case – civil or criminal – could take a week. Imagine what would happen to the courts if 200 debt cases took just half a day to process. It would take almost an entire year for the court to handle what it does now in two hours of one morning.
I’m not making these numbers up – this is what I saw day in and day out where I practiced.
It would take one day. Just one day, for the court to get nearly a year behind schedule, and if you think the judges are going to stand for that… well, none of the judges I’ve ever met seem likely to appreciate anything like that.
The Lawyers
And what about the debt lawyers? They handle at least 50 cases each in an hour every morning. They get judgments of, say, approximately $250,000 in that hour five times per week. Imagine if they could only handle one case per morning and it took them four hours to do. That would reduce their judgments from $250,000 per hour to perhaps $1,000/hour. If they won.
And they wouldn’t win a lot of them because they don’t have what they need to win.
How long do you think they’d last at that rate? And it’s actually worse than that because if you were defending, the lawyers would have to spend hours with you – arguing about their ridiculous objections (which would probably stop pretty quickly), talking about the merits of the case, figuring out scheduling orders… the law can take time. When you fight.
The Debt Collection Companies
And then there’s the debt collection companies, which are designed to obtain minimal information from the creditor banks (and pay very little for it), not to pay for witnesses, not to spend money on anything other than a fraction of an hour of a lawyer’s time plus the costs of an automated collection system. Suddenly they’d need witnesses from the banks, documents, back-up staff, and all the rest of the things ordinary lawyers need and use for ordinary lawsuits. Their costs would absolutely skyrocket. Not ten times as much, a thousand times as much is what it would cost.
The whole debt collection system would come crashing to an end.
And the credit system that feeds the collection industry? That would have to change too.
You Don’t Have to Care about all that
I’m not saying you should join hands with me to end the debt collection industry that plagues the country and harasses innumerable people. I’m not suggesting anybody should march in the streets. I’m just explaining why you should join with us as a way to solve YOUR problem with the debt collectors. Because if you are being sued or harassed, you have a problem with them, and they want your money.
Our system will help you slip through the cracks of their factory… and if we get enough people fighting, you won’t have to slip through the cracks of the factory because it won’t be there anymore. The more people we get, the better off ALL of them will be.
That is my Mission
You don’t have to worry or care about the bigger picture. You’ve got plenty to do for yourself, and doing that instead of giving up will help you – and everybody. But I care about the bigger picture, and I want more people to join with us. That’s why I’m going to make the offer I’m preparing to make, and why I’m creating a special new kind of membership for the “fast-trackers” who are reading this.
Membership at Your Legal Leg Up
We have three levels of debt litigation memberships at Your Legal Leg Up right now: Gold, Platinum, and Diamond, and you can find out all about them here if you want. Let me tell you why we went to membership rather than just offering manuals or other one-time products that would help you know what you need to know.
To put it briefly, there’s a big difference between “knowing” and “doing.” Giving you lots and lots of information (as we do) won’t necessarily make you win your case. In order to win, you have to do things. You have to do the right things, consistently, and it’s a moving target because the company is also trying to win or make you give up. They stonewall you on discovery, making foolish, repetitive and numerous objections to everything you ask for. They file motions to dismiss your counterclaim, to get the judge to keep you from asking things, or to win the case outright. Sometimes they refuse to talk to you at all…
They have a lot of tricks, and beating them means staying on the job and pushing things the way you want them to go. It can be exhausting, confusing, and discouraging.
None of that is news to you if you’ve been in a case with them before. But what’s news is that we can help.
Our memberships exist to keep you from getting exhausted, confused or discouraged. To do this, we give our members a Litigation Manual to help orient them to the case and people involved, and this is not just a little pamphlet. It’s a book of about 250 pages plus links to materials on the website (you can read more about it here if you like). We also have our document bank that reduces the difficulty and confusion in creating or responding to routine things. And again, this is no little thing, consisting of hundreds of pages of materials prepared by lawyers in cases like yours (click here to find out more on our document bank). And we have teleconferences, where you can ask questions and get answers in real time, and a large collection of member-only articles and videos.
As a FastTrack member, you will get all of the benefits of Gold Members except one thing. Instead of two teleconferences per week, you’ll get two per month.
They normally pay $100 for an initiation fee, but you’ll only pay $50.
They normally pay $25 per month for membership dues, but you’ll only pay $15.
Is This a Good Deal?
Is this a good deal for you? I’m pretty sure it is, and I know for sure you won’t find another way to defend yourself that costs anything close to this. To decide whether it works for you, though, you need to look at two things: the lawsuit against you; and the price of a lawyer. There isn’t another program like ours at all, as far as I know.
The Lawsuit against you
One option for anybody being sued is just to give up. If you are “judgment proof,” meaning you have no money that a collector could get, this might make sense. More generally, you would want to look at the amount of money you’re being sued for and compare it to what our membership will cost. If you remain with us for a year, that’s going to be $205. If you stay with us for two years, it’s going to be $385.00.
And then you have to figure the value of your time, which is a little harder to do because you never know how long the debt collector will stay in it. If you have one lawsuit, I would guess you will between 10 and 50 hours. At $10/hour (remember it’s tax free), that’s $100 – $500 worth of your time.
If they’re suing you for under $500, you might not want to defend. Anything over that and you should strongly consider defending. Of course most debt cases are for much more than that these days, but some are not. You can figure out what you need to for yourself.
But what about hiring a lawyer instead?
What about a Lawyer?
If you’ve ever tried to get a lawyer, you will know that they charge a lot. How much? That varies quite a bit. Members have told me that $2,500 to start isn’t unusual. Some charge a flat fee, others hourly – and some seem to base the amount on the amount you’re being sued for. What you can bet is that any lawyer, anywhere, is going to try to make sure he gets paid at least $100 per hour, and often it will be much more than that. You’ll have to look around, but in most cases what the lawyers want is too close to the amount you’re being sued for to be worth it. Consider that just a motion to compel discovery could easily take 20 or 30 hours of attorney time to bring (for a lawyer who doesn’t handle a lot of these cases – much less for one who does). You’ll be paying at least $100 per hour for that time.
But there’s another problem that’s just as big.
It’s hard to find a good lawyer for debt cases
It isn’t that debt law is particularly difficult, and debt collectors aren’t particularly difficult opponents, but there are things you need to know that are just not obvious. The main example of this is that most lawsuits that most lawyers bring have been checked by the lawyer bringing suit, so although the case might be stronger or weaker, it’s usually at least got some validity. Almost all the cases most defendants see are pretty good cases. Thus it makes sense to talk from the very beginning about settling the case – and it makes sense to talk about settling for half or more than half of what the plaintiff is asking. Debt law is just the opposite. Almost none of the cases have any justification at all, and it rarely makes sense to talk about settling, especially not before doing some of the back-up work (discovery).
But lawyers don’t like to turn down work, and this means that there is all too good a chance that you will hire a lawyer who doesn’t know debt law at all.
You’d be much better off representing yourself than to have most lawyers who don’t know debt law.
Think it out for yourself – we know you can, since you’re reading this letter. Our conclusion is that using Your Legal Leg Up is the best deal out there. ByFar. In fact, we can’t guarantee results because there are too many unknowns, but we can guarantee that you will agree with us that our membership is a great deal.
It has to be. Because you can drop it at any time you want. And you can get your money back for up to two months if we aren’t everything you need.
In Conclusion
In conclusion, if you’re being sued by a debt collector, you have an excellent chance of winning or of settling the case for a small fraction of what the debt collector is seeking.
With our help, you will probably win by “falling between the cracks” of their debt machine and making it unprofitable to sue you. If they pursue it, you will probably win. The more people who defend themselves, the easier it will be for you.
It does take some effort. You will learn a lot about the law and the courts. Most people find they enjoy it much more than they expected.
And it will change you. Standing up and defending yourself when everybody thinks you can’t is POWERFUL. It changes the way you see the world and yourself. It feels great. And of course it will keep the debt collector from taking things you’ve worked hard to get for yourself and your family.
Join us as a FastTrack Member. Win your case and change your world.
To join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – click here – and choose FastTrack Membership.
When you do, you will receive:
Access to member-only areas of the site, including our document bank and articles and videos;
The Debt Defense Litigation Manual;
Our special report, Three Weaknesses Most Debt Collectors Have; and
Two teleconferences per month.
Do not worry if some of these things do not appear immediately! We will send you most of the materials by email and will make certain you are able to get into the site in a short time.
I’m looking forward to meeting you!
Ken
Remember: to join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – or click here – and choose FastTrack Membership.
Your Legal Leg Up has always taken a pragmatic approach to debt defense: they sue on a huge scale and take a factory approach – and our job is to help you slip through the cracks of their system. To do this, you have to understand the law a little bit and do some right things, but your defense doesn’t really hurt the profits of the debt collectors. You get out of trouble, and they continue their business in the same way as ever.
What if a lot more people defended themselves?
We think that if a lot more people defended themselves, they would ALL win. And they would change the way the debt industry, including the courts, handles people who allegedly owe money. Right now the debt industry files approximately a million lawsuits per year, producing shockingly inadequate evidence… and winning approximately 80% of the those suits (almost all of them that where the defendants get served). And to do this, my guess is they spend an average of about 20 minutes (no exaggeration!) per case.
What if every case took five hours?
What if every case took twenty-five hours?
It would shut them down and turn things around completely – instead of them controlling everything, they’d be on the run.
Debt defendants should be scaring debtors
Our goal is to help 10,000 people defend their lawsuits. Will this change everything for the industry? We don’t know. But will it change everything for you to win your lawsuit? We’re pretty sure it will – and we think we can help make your chances of winning a LOT better. Please sign up here for information that can help you win your case.
Sign up for Information if You’re Being Sued!
If you’re being sued by a debt collector, you need information about your options, and we can help. Please sign up here for a series of emails regarding the actions you can take, what your chances are, and whether and how we might help you.
https://yourlegallegup.com/wp-content/uploads/2019/01/testimonials2a.jpg5501208Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-03-01 18:51:122019-03-02 21:13:25Our Drive for 10,000 Members
I often say that the trick to beating the debt collectors is “defending intelligently.” You have to know a few things and do a few things right. If you do, you’ll probably win.
So what, exactly, do I mean by defending intelligently? What do you have to do?
It’s simple. You have to find out what they have in the way of evidence and weigh their chances of proving their case. If it’s the rare situation where they have what they need, then you will probably want to think about settling the case – you’ll be able to do it for much less if you’ve done some work defending it. But most of the time you’ll find weaknesses in their case. Then your job is to push the case to some sort of resolution where they either drop the case or you win.
It is simple, and taken in small enough steps, it isn’t all that hard, either.
Remember, this isn’t much like most legal work, where the lawyers tend to be quite smart and to work very hard on every case. This really is more like factory work. They’ll get their 99, and if you fall through the cracks? It isn’t usually worth it to chase you. That’s the way debt law works. Most debt buyers, and a lot of original creditors, too, don’t have what they need to win if you fight, and frankly they don’t care. They get their 99. Your job is to be the one that slips through the cracks.
Now, do you need us for all of that?
Yes and no. Of course you could probably figure things out… if you had time, but time can be scarce when you’re being sued, and there’s a lot to know. We give it to you in manageable bites.
And speaking of manageable bites, let’s go ahead and talk about memberships with Your Legal Leg Up and you probably want one if you’re thinking about defending yourself from the debt collector.
First, why not get a lawyer?
You know the answer to this: money. Lawyers are expensive, and debt defense lawyers often charge almost as much as the debt collectors want to get from you. It’s a business, right? But for most people, getting a lawyer is out of their price range.
And there’s another problem: getting a GOOD debt defense lawyer. Our members tell us that most of the lawyers they talk to seem more interested in settling the case than defending it. They want you to pay – a lot – to get this done. I’m not saying this kind of lawyer won’t do you any good at all, but chances are you can do much, much better for yourself.
Your Legal Leg Up
You probably know us from our videos – we’ve done quite a few, and while I must admit that the sound quality hasn’t always been the best, our ideas HAVE been, and they’ve saved a lot of people a lot of money. They can do that for you, too. If you’ve looked at the comments on our videos at Youtube, you know a lot of people have found our materials helpful.
If you’ve seen our videos, you know we know what we’re talking about, based on a lot of years of experience, both back when I was a lawyer in court, and since then in helping people with their cases through Your Legal Leg Up. I don’t think it’s an exaggeration to say I’m one of the foremost authorities on debt law in America. And more than that, on helping pro se litigants win their cases.
We have a record of success – and our success comes only when our members succeed in beating the debt collectors.
Memberships
We have three levels of membership that cover three areas of the law. We have a Gold Level Membership in Debt Defense, in Credit Repair, and Debt Negotiation. Our Platinum Membership combines the Gold Memberships and gives you all three for the price of one. And our Diamond Memberships give you even more.
If you join us at our Gold Litigation Member level, you will four main things:
Litigation Manual
Document Bank
Teleconferences
Three Weaknesses Report
They work together to orient you to debt litigation, help you figure out what you need to do, understand what they’re doing, and know the main points of attack you should consider. Through it all, you’ll learn enough to apply your own judgment and knowledge to the situation as it develops so you can be ready to handle anything that comes up.
Litigation Manual
This was our original product. It explains the litigation process from start to finish, talks about the people and companies involved, and tells you what they want. It also tells you what to expect, what things will be called, what to expect in court… pretty much everything you need explained in about 250 pages. When you finish the Litigation Manual, you’ll understand what’s going on.
Document Bank
But we’ve figured out that there’s a difference between knowing what’s going on and what to do and actually doing it. There’s a lot of repetition in litigation, and most people involved in lawsuits are going to face some similar issues. What if we could give you a little help there?
We can’t give you ready-made forms because you might just use those without making sure they’re right for your case. And the fact is, people’s cases are different enough from each other so that we couldn’t tell you what to do if we wanted to. But our document bank does the next best thing: it’s got samples and examples of things that have worked. You’ll find questions to ask, things to say, ways to object, and many more things that could help you along the way. You’ll still have to use your judgment, but this will save you many hours of trying to figure out what to say and how to say it.
Teleconferences
No matter how well prepared you are, how much you study and learn, there are still going to be things you don’t understand. They come up because the other side is trying to trick you, wear you out, or in some other way make you give up – that’s the way they make their money. To counter this, we have our teleconferences.
Teleconferences are live conversations that happen at least twice a week for gold members. It’s a chance for you to ask questions about what something means, what the other side is doing, or what you might want to do next. They’re strategy and coaching and teaching sessions all put together. If you’ve watched my videos and had questions, this is how you get to ask them. They last anywhere from fifteen minutes to an hour and a half – I never like to leave a question unanswered.
And there’s another thing about the teleconferences. You’ll hear other people in the same boat talking about what’s happening to them, what they’re doing, and what the bad guys are doing. Everybody knows that millions and millions of people are being sued by the debt collectors, but when it comes to YOU being sued you feel all alone. This reminds you that you aren’t, that there are lots of other people in the same boat. And their ideas can be your ideas. What they do that works might work for you. As the saying goes, advice, answers, consultation, worth about $100 per hour. Knowing that other people are facing the same thing… priceless.
Three Weaknesses Report
In addition to the materials we’ve developed to help teach you about the debt collection process in general and to develop your judgment when new things come up, we’ve discovered certain things that are common to almost all debt collectors, and even many original creditors. Because this is something that can help so many people, we’ve put together a report called “The Three Weaknesses almost Every Debt Collector Has, and How you Can Use them to Blow their Case out of the Water.”
A long title for an exceptionally useful report.
I tell people that I almost always try to write in plain English and avoid “lawyer-talk” or other stuff that’s hard to understand. But the Three Weaknesses Report is a little tougher than a lot of stuff I write because it applies close legal reasoning and analysis to a situation that is probably a lot like yours. I don’t usually cite case law or speak of the law in specific jurisdictions. In the Three Weaknesses Report I do, though. You’re still going to have to decide what part of it applies to your situation, but for those parts that do, this will go a long way towards winning the case for you.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-02-19 22:47:332019-02-19 22:47:33Follow-up 7A to People being Sued for Debt
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
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-02-19 22:31:392019-02-19 22:31:39Follow-up 5A to People being Sued
All members should by now have received an invitation or confirmation – I’m not sure what it will be called – which you need to click in order to receive emails from us. This is not a marketing device and won’t lead to a lot of commercials. Instead, it will allow us to send you reminders of teleconferences, time changes… and other member-related updates.
Future members will get this automatically when they sign up.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-01-31 18:52:152019-01-31 18:52:15Please sign up for notifications
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.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2018-12-14 20:53:272018-12-14 20:53:27Rule 11 Federal Rules Civil Procedure
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.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2018-06-20 17:37:182018-07-06 21:57:08South Dakota Stats of Lims
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.
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.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2018-06-19 17:31:572018-07-09 23:42:15Local Rules and Discovery Limits
