Decisions you must make to Start Getting Back to the Good Life
Lawsuits are Scary
The “Bartleby Defense”
Get Back to the Good Life
In this article we’re going to talk about filing a response to the lawsuit. We have some videos we’ll show you on Answering and defending yourself. We’re going to talk a little bit about your choices of how you defend yourself, and I want to give you some “caveats” to consider.
Then we’ll get to the Answer so you can see how that’s done. Our point here is to “orient” you to the lawsuit so that you have a basic idea what to do. Our materials are designed to help you through the lawsuit and let you represent yourself the whole way if you choose.
In our next article we’ll move on to the other phases of the program
You’ve Been Served a Law Suit – What Now?
As we’ve discussed in other videos, if you’ve been served with a lawsuit, you have only four basic choices. If you’re here, we’re assuming you’ve decided to fight one way or another, and if your second decision was to hire a lawyer, you should let him or her guide you in making the other decisions. We’re going to assume, for purposes of this series of messages, that you have decided to represent yourself – or that you want to learn more for yourself even though you’re getting a lawyer. That’s always a good idea.
If you are going to do this, you will have to decide whether to attack the court’s jurisdiction over you or not. If there was something fishy about the way you got served, our materials can help you with a motion to quash service, but that is beyond the scope of this informational series. We don’t have a specific product for just this motion because it is highly fact-specific and depends heavily upon state laws of civil procedure – and because it is just a first step in a litigation defense. If you need help attempting to quash a lawsuit, you will also need help in defending it the rest of the way. You will need the Debt Defense System.
Most people actually do not need to concern themselves with motions to quash – most process servers get the job done right, and so your next decision is whether to attack the suit through a motion to dismiss or to file an Answer.
Here’s a brief video on Motions to Dismiss.
Motions to dismiss are filed for a variety of legal reasons, and again they are too fact specific, and depend too much on your own state’s laws, for us to be able to demonstrate here how you would do such a motion in your case if you think there is one. The Debt Defense System materials do help with that, and we would just suggest that you check your rules of civil procedure to see if you need to be filing a motion to dismiss before answering.
What we’re going to do today is show you how to file an Answer and Counterclaim. The Answer is pretty generic and will probably be easily applicable to your situation. The counterclaim may or may not apply – it would depend on whether you are being sued by a debt collector, and if so what, if anything, it has done wrong. So you should definitely not just cut and paste the counterclaim part of this message. The Debt Defense System will help you look at debt collector behaviors that might have violated the Fair Debt Collection Practices Act (FDCPA) and file a counterclaim if you have one.
Here’s a warning
Deciding to represent yourself is not quite a one-way decision. That is, it is possible to find a lawyer,
sometimes, if you start representing yourself, but it can be very difficult. Many lawyers will not touch
a case where the client filed anything. And many will charge you the same, or even more, than they would have if you had never filed anything. That’s because if you file something, the lawyer has to spend time reviewing that to see whether you’ve made any damaging admissions and what, if any, response the other side has made.
So if you’re thinking that you will represent yourself for a while to save money and then turn it over to a lawyer, you should consider that carefully – getting a lawyer to come in at the last moment is hard and not necessarily a good idea anyway. And may be more expensive than hiring one in the first place.
If you think you need a lawyer and can afford one, get one now – that’s my advice.
On the other hand, you can do this – and if you think you need to do any of it, better to plan to go all
the way if necessary. Most cases don’t go to trial, but if yours does, we will have you ready for it. As a pro se defendant you do have certain advantages going for you, and if you are willing to work at it a little bit, you can do this as well as most lawyers would do it.
Even if you have a lawyer or plan to get one, our materials could still be for you. It is a reality of legal life that lawyers charge for their time – and if yours is not charging you for his or her time, they’re either preferring to keep the chat down to a minimum or are spending less time on your case. Either of those could be unsatisfying. An educated client is a good thing.
Answering the Petition
Answering the Petition
Okay – so what is an Answer? It is your formal reply to the lawsuit. If you’re being sued, the debt collector is saying you owe money and, at least in general, why.
Your Answer is basically going to deny that. You’ll see a sample answer below. Notice how brief it is, in the first place. Doing an Answer is easy. Notice that there’s no hifalutin talk, nothing fancy. They say you owe money. You say you don’t. The point of the Petition and Answer is to establish what will be the main points of dispute of the lawsuit.
Notice also that the sentences or paragraphs are numbered. Those numbers correspond to specific paragraphs (called “allegations”) in the debt collector’s suit.
You won’t argue over your name and address or residence in most cases, but you will dispute the debt collector’s ownership of the debt, the amount, and the claim that you owe anything. And anything else that makes sense to object. The hurdle here should be very low. You will likely dispute almost everything.
You don’t swear to your Answer, and you aren’t required to admit anything. You are setting out the factual points you want to make the other side prove.
Debt Negotiation and Settlement
This article talks about what I guess you might call the second-to-last piece of the bad debt puzzle. In the first couple of articles of this series we talked about getting sued and either getting a lawyer or representing and defending yourself. We got you started on that. Then we moved on to credit repair. In a way, maybe, that was taking things out of order, but everybody being sued for debt will eventually need to fix his or her credit report, and probably for many things other than just the lawsuit.
We discussed the ethics and morality of credit repair because many people we’ve talked to over the years have been burdened by their ethical and moral concerns – guilt, really. The debt collectors encourage guilt because it makes people easy to handle. Tomorrow we’ll move on to something a little more “esoteric” you might say: lifestyle.
But today, as I say, we’re going to discuss debt negotiation.
Pretty much everybody knows what debt negotiation is, at least in theory. It goes like this. Obviously there’s somebody who says you owe a bunch of money, you negotiate, and you end up paying either less than or none of what you supposedly owe. That’s the view from a mile up. Sweet, isn’t it?
It sounds like free money, but it really isn’t. If you think of it as an opportunity for something free, you will not be able to do it – you’ll be left wondering what went wrong as your financial security goes out the window. Instead, debt negotiation and settlement is cross between a hard-nosed, back-room negotiation and a game of “chicken.”
So What Are You Negotiating? What Are You Settling?
You know, it’s interesting that people rarely ask what debt negotiation is all about – what are you “giving up?” What are they getting in return for the large amounts of debt you hope for them to give up? Suppose you owe a credit card company $20,000 and you have been making the minimum payments most of the time – but sometimes you can’t, so they have hit you with a bunch of fees, and you’re watching the debt pile up at an incredible rate. What do they get if they agree to take a single payment of $1,500?
It feels like you’re stuck – there may be no way you can make payments that would significantly reduce that debt. So what do you have to negotiate with? A whole lot of “nothing.”
You have risk and the difficulty of collection. In other words, you have the fact that unless you agree to pay and really try to do it, they will likely get nothing at all – or will get much less than they could.
That doesn’t sound like much, does it? And yet it is much more powerful than you might suppose. Anybody you owe a lot of money to is feeling the pinch. Even a large credit card bank, which doesn’t need your money for its survival by any means, is watching that debt mount and realizing that every time it gets higher, you get less likely to pay it. At the bottom of your options may be the possibility of bankruptcy, but they know that long before that you will simply stop paying and dare them to sue you.
In essence, that it what makes debt negotiation work. You stop paying them and dare them to sue you – and then you offer to pay them again, only much less. Sounds crazy, doesn’t it? But it works if you take it seriously and don’t think of it as some sort of gold mine or a way to “get away” with something. Instead, think of it as a significant part of a serious turn-around in your life. It has several costs – you should have no doubt about that, and it is something you do when there are no better choices available. There’s a chance that withholding payments will result in your being sued, and it almost certainly will result in at least a temporary trashing of your credit report. How you manage these risks and costs will determine, more than anything else, how well you do in negotiation.
There are ways to make it work much better than others, though. There are things you can do to manage your risks of being sued, and when the negotiations actually begin, a few techniques that can help. The main thing about debt negotiation and settlement, however, is that it, like other kinds of negotiation, is much less about negotiation than positioning. People only give you what you want because they believe it is the best outcome for them, too – the question is, how to do you give them that feeling when you’re asking to pay ten cents on the dollar of debt? And how do you make the risks to yourself “acceptable?”
How you answer those questions will determine how good a deal you get from your creditors.
Debt Collector Licensing and Regulation Requirements
Most states require debt collectors to register with them in order to do business with people within their borders. As of the time of this writing, the states below have this requirement. You should look up the law for your own state and check with your attorney general to see if the collector bugging you is obeying this law. Somewhat incredibly, this law is also frequently ignored by the debt collectors, and this may be, and probably is, grounds to get a lawsuit dismissed and also be a violation of the FDCPA. It may also trigger regulatory enforcement action.
States Requiring Licensing, Registration, Exam, and/or Bond
Alaska, Arizona, Arkansas
Idaho, Illliois, Indiana, Iowa
Maine, Maryland, Massachusetts, Michigan, Minnesota
Nebraska, Nevada, New Jersey, New Mexico, New York in some cities, North Carolina, North Dakota
South Carolina (business license required)
Utah Washington, West Virginia, Wisconsin, Wyoming
States Requiring License Tax
No Bond or License Required
District Of Columbia
Mississippi, Missouri, Montana
Ohio, Oklahoma Pennsylvania
You should check on the requirements for you state and, if they are not met by a debt collector contacting you, take appropriate action.
In this article we discuss something that almost everybody will need going forward: credit repair. This is a relatively new focus for our site because it steps away a little bit from the Fair Debt Collection Practices Act and focuses more on the other side of debt trouble – what it does to you in the long run financially. Of course everybody reading these words knows how much anxiety and trouble being sued can make for you, but the longer term effects may not be quite so much in your face right now.
Still, the price of bad credit information is big, and it adds up over time in ways that matter. A bad credit report may not scare you as much as a lawsuit right now, but it drains your hope and adds costs to everything you do.
So what is in your credit report? Obviously it includes information from your credit-involving transactions. But it also includes “lifestyle” information like judgments or liens, arrest and conviction records, and even job investigations under some circumstances. Actually, very little is safe from the reports.
Let’s be blunt here. There is a lot of wrong or expired information out there on most people’s credit reports, but there is also a lot of true information that might be hurting you. We are not concerned here with whether the information is true – our only goal is to help you remove bad information. Like debt law, the businesses and systems that control the process are set up to handle people in mass – this gives you an opportunity to remove harmful information. We think this is both moral
We do consider the moral and ethical questions as separate questions. Think of the moral question as involving the bigger questions of right and wrong – is it morally right for you to try to get rid of “bad” information from your credit report even when it’s true? In our opinion it is because you did not ask for credit reports to be pervasive and all-intrusive. The reporting system makes many mistakes, includes false negative information and does not include all positive information, and exists to serve the interests of people who are opposed to you in economic transactions. Why should you be forced to play their game? But if you are forced to do so, why shouldn’t you do the best you can within the rules?
Ethically, the rules are designed to let you challenge information – other people will be doing as much as they can, and the companies using the reports will assume you are doing so. If you don’t, you’ll be overcharged.
We think you should use every tool at your disposal to repair your credit report. Our Credit Repair Manual is designed to guide you through the process, showing you what information to attack and how to do it. In some cases there are things you should not do if you want to increase your chances of winning, and we show you those things and discuss them as well.
Winning in Debt Litigation – Play the Game for Keeps
Most of us spend most of our time in various sorts of cooperation. We help each other, or at least we try to do what is morally right. In litigation, however, the system is not cooperative and not hierachical. Instead, it is adversary. Litigation is an adversarial system – that means you put aside all the questions about why you’re playing and try to win. If sports, the saying is that “the best team or person wins.” The legal system is designed the same way – the idea is that in a generally fair contest the best case will win. That means you fight hard.
And if you win, you deserve the victory. It helps to be fired up a little bit – then you can do the things that will eventually make you unstoppable. If you are having any trouble getting motivated, you should also look at Debt Collection is a Social Justice Issue.
There are a lot of “unfortunate” or downright crazy ideas out there in the internet world. Too many, actually, for us to keep up with in terms of warning you specifically about each one. We would urge you to use your common sense in evaluating the things people say. Remember that the law is a practical system developed over hundreds of years to deal with practical problems. Remember, too, that the legal system is a sort of battlefield between the rich and the “masses” – to put it in currently political terms, between the 1% and the 99% – and that the 99% don’t win that many of the battles. That means you should be extremely skeptical of “shocking” or “secret” ways to beat the debt collectors (who are of the 1%).
Myths that Can Really Hurt People in Debt
You have tools at your disposal – they’re the basic tools of litigation. You have a very good chance to win if you will use those tools because of the way the system is designed and used. It’s designed to cause people to default and to profit quickly and easily from those who do and, by and large, to get rid of suits against people who do not default. That should make you doubly and triply suspicious of any system, by anybody, that might lead to your defaulting. Anything that makes you default plays right into the hands of the debt collectors.
With all that said, here are a few of the wilder ideas that I have seen lately:
“Sovereign Man” Theory
Rejecting Service of Process on any Basis
Other Dangerous Myths in Debt Defense and Negotiation
Because any negotiation is about persuasion, and persuasion can result from a mixture of things from threats, inducements, or simply friendliness, debt negotiation either before or during (or even after) litigation will include various arguments regarding legal rights as well as other things.
But not all arguments are equal.
For the most part, you want to make arguments that are reasonable. That isn’t to say that there aren’t times when sheer energy or aggressiveness (as discussed above in the section on personalities) will win – like playing a game of “chicken,” in which it’s just a question of which person is willing to be more reckless, but in general, business between creditors and debtors is not done that way. That is because, beyond a certain point, legal rights will control things, and in commercial law those legal rights are usually pretty clear.
In general, any actual belief (as opposed, for example, to a stated position taken purely for negotiation purposes) that there is some special or secret way “out” of debt that does not take into account economic and practical reality is a dangerous myth for people in debt. Our economic and legal systems were not created by geeks. They have developed over the past 800 years by people working for a living – or living off of the work of others – and a bunch of lawyers resolving literally millions of conflicts. Does it seem remotely likely, therefore, that something impractical and mystical will give you a magical “loophole” out of all your troubles? Not on your life.
With that in mind, let’s discuss a few of the loopy ideas that seem to have gotten some respect out there.
1. You Must Have a Contract with the Collector in Order to Have Debt
There are many people out there on the internet saying that there must be a “contract” in order for there to be a debt. In the first place, this is simply not a true statement of the law, as anybody with a speeding ticket can say. A contract is not necessary for a debt to exist.
In the second place, contracts can arise in many ways, not all of which involve documents signed by both parties, which is what the people talking about the “requirement” of a contract actually mean. A typical law school example of contract is a challenge: “if you lose 50 pounds, I’ll pay you $1,000” or some variation on this “if you do X then I will do Y” idea. Most of the time, these things do create a contract when either side does what the agreement calls for. (These are called “unilateral contracts.”)
What must happen for there to be a contract is for there to be an offer and an acceptance. Where both sides give up something or do something for one another (or say they will), and even something like losing weight or walking across a bridge in exchange for money or something else can satisfy that requirement, and the “contract” will be implied in the law. Using a credit card after receiving an offer certainly creates an obligation to repay – remember, the law was not created by nerds: it was created by business people to make business work. You may hear the phrase “meeting of the minds,” as a necessity for a contract, but this is not a literal necessity; it’s a question of reasonable interpretation.
And in the third place, contracts can be “transferred” or “assigned.” That simply means that, in general, the obligation to pay somebody can be sold or given away, and the person receiving it can collect on it. In reality, this sort of movement of debt obligations is largely responsible for our country’s prosperity (or addiction to consumerism, if you look at it that way), since this allows for the freer flow of money and goods to people who can use them. In any event, it is a fundamental part of our economic system. Do you seriously believe it could be toppled as easily as denying that money can be owed without an agreement between the suer and the sued? If you think so and act or negotiate based upon that belief, you will soon have a judgment to worry about in addition to everything else. Be realistic.
2. Debt is not Debt because Money is not Money
There has long been a theory that because the constitution said that money was to be gold or silver, and the Federal Reserve creates money out of a banking process that relies on debt to bring what we call money into existence, that debt is somehow not debt. This argument is made in many different ways. Some argue that because Federal Reserve Notes are created out of debt, they are somehow “paid off” as soon as you buy something. Others say that there is simply no such a thing as money any more, and therefore nobody owes anybody anything. We have also heard some weird argument about Social Security numbers creating automatic bank accounts, although how this would relate to a credit card debt isn’t clear.
However the argument is made (and we have some sympathy for the argument that the founders intended to and did put a gold and silver as money requirement into the constitution), it’s a pipe dream now. The Supreme Court has “read” the gold and silver requirement out of the constitution, and in any event the actual existence of debt does not require the existence of money. This whole argument about not owing anything for valuable things you have received is a fantasy. We believe that if you even state it as a position to your counterparty or the court, you will damage your credibility and seen as a flake.
3. There Must be a “Conflict” for the Court to Obtain Jurisdiction
Again, this is simply not so, as the argument is made, although it is true in theory.
The inventors of this idea seem to have taken it from the constitutional requirement that there be a “controversy” for a court to have jurisdiction. But the fact that a debt collector wants money that you do not pay (it doesn’t matter whether you “want” to or “refuse” to pay or not) is plenty enough controversy to establish that aspect of jurisdiction. Do you seriously think this hasn’t been addressed in 800 years of law? That it waited until the invention of Youtube for someone to figure this out? No.
This is another idea that will hurt you in the eyes of the counterparty. And to be specific, not only will the other person discount your words, but it is likely that he or she will believe you are weaker as an opponent. This means that taking this position makes litigation more likely, and you will lose that litigation if you take this position in the lawsuit.
4. You Must “Consent” to the Court’s Jurisdiction
One of the dumbest ideas I’ve heard recently is that you must somehow consent to the court’s jurisdiction over you in order for it to have power over you. Again, this is simply not so, as any captured bank robber could tell you. Jurisdiction does not depend on the agreement of the people trying to avoid their debts. One of the darling notions of democracy may be that people who are governed must “consent” to be governed, but this is hardly true in any literal way at all. In fact, jurisdiction depends on the power of the governing body. If you try not to pay debts and to keep the police from taking stuff when a court says they can, you will be put in jail. Consent to jurisdiction is implied by your having certain minimum contacts with it, and it is certainly not a matter to which you could revoke or deny that consent if sued.
Everybody actually knows this, it’s just that people create elaborate fantasies that they dress up and sell to people (sometimes themselves) who are desperate to avoid problems. If you are talking about or considering negotiating your debts, this is not you – you are attempting to solve, rather than avoid, your problems.
It is equally true that “refusing” the “benefits or burdens of the court’s jurisdiction,” whether you write it at a 45 degree angle or not (!) simply has no effect in the law other than to distract you and make it less likely that you will defend yourself. Don’t try to use any of these hare-brained schemes as negotiating points, as they will simply mark you as a loser in the eyes of your counterparty. Complete silence would probably be far better.
Start from Reality
If you are facing debt problems, pretending that there is some magical solution to them, some way to wave a wand or recite a few words and have the debts go away, is just dangerous thinking. If you follow any of the paths listed above, you will probably ignore the things that actually work and get yourself into a truly terrible place very quickly. Be realistic and practical. Don’t believe people who try to sell you moonshine. And above all, don’t try to sell this nonsense to the people trying to get money from you when you are negotiating. You will lose their respect if you do, and this will negatively affect your ability to make a deal.
You will find a lot of materials throughout this site that will help you develop a true and accurate understanding of your situation. You have some real advantages in your situation, whether you are negotiating or in a lawsuit. They want your money, and they have to follow some pretty tough rules if you make them. Our articles, videos and products are designed to help you do that. It doesn’t always sound easy – and it isn’t always easy – but it works if you will put in the work.
Debt collectors have one concern, and they only want one thing: your money. Beyond that, they don’t want to help you deal with your problems – they have no interest in those except as a way to persuade you to send them money.
And at least in most cases, professional debt collectors don’t much want to hurt you, either – although there are some sadists.
You’ll do better looking at them in the same way. You need to handle them in order to succeed, but you don’t get anything for trying to make them feel bad. In fact, that desire in itself might be a hook that lets them hurt you.
Debt collection is a social justice issue. But the first step in fighting it is to keep them from getting any of YOUR money.
How Debt Collectors Can File so Many Suits
Debt collectors frequently file lawsuits based on little more than a “computer tape” containing some very basic information about the alleged debtor and debt. A computer program files the suit. This means that if you are being sued, there’s a good chance you will win if you defend yourself. This article shows you some of the debt collectors’ weaknesses.
Automated Debt Collection Causing Suits without Merit to be Filed
As anyone who visits our site or reads any of our writings can attest, we often point out that debt collectors frequently file lawsuits based on little more than a digital file containing some very basic information about the alleged debtor and debt. The New York Times recently confirmed that essential insight in their article, “Automated Debt Collection.”
One Law Firm – 80,000 Law Suits per Year
In the article, the Times points to a firm named Cohen & Slamowitz, a Woodbury, N.Y., firm that specializes in debt collection. The firm has been filing roughly 80,000 lawsuits a year.
With just 14 lawyers on staff, that works out to more than 5,700 cases per lawyer. That in turn works out to filing about two cases per hour, every hour of a 365 day year. Of course, this leaves the lawyers no time at all to do anything else on the suit.
Computer Software Files the Suits!
How is it possible? Cohen & Slamowitz relies on computer software to help prepare its cases, and the lawyers merely process the paperwork. As the Times article points out, typically, a debt buyer sends a law firm an electronic database that contains various data about consumers, including name, home address, the outstanding balance, the date of default and whether interest is still accruing on the account.
Once the data is obtained by a law firm, software like Collection-Master from a company called Commercial Legal Software can “take a file and run it through the entire legal system automatically,” including sending out collection letters, summonses and lawsuits, said Nicholas D. Arcaro, vice president for sales and marketing at the company. Although legal ethics requires a lawyer to perform an independent analysis to make reasonably certain a case is well-founded in law and fact, there is little time for such niceties when you’re filing two suits per hour every hour of the year.
Something Rotten in Denmark
The Federal Trade Commission has also weighed in, saying the system for resolving disputes over consumer debts was broken and in need of “significant reforms.” The agency urged states to adopt measures to make it more likely that consumers would show up in court to defend themselves; currently, most do not, resulting in default judgments. A court judgment gives debt buyers the ability to collect on the debt through actions like wage or property garnishment.
“We are pushing very hard to make certain that debt collectors have sufficient substantiation, particularly when a consumer challenges the debt,” said David Vladeck, director of the commission’s Bureau of Consumer Protection. Of course, this documentation does not exist in many cases.
This website provides people being sued for debt all the information they need to take action to protect themselves. If more people used it, they could probably force the debt collectors to change their business practices.