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What if they are Suing me and my Business

Sued not Served

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

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

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

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

What do you do?

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

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

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

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

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

Obviously, if that happens, we can help.

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

Discovery for Debt Collectors

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

Discovery for Debt Defendants

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

They don’t want you to do that.

New Trick for Debt Collectors

Debt Collectors have a new tactic.

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

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

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

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

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

How to Defend Yourself from this Trick

Start Quickly! Don’t waste time.

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

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

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

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

Motion to Stay

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

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

Find the Rule and Follow It

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

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

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

Our New Workbooks Can Help

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

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

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

What if You’re Not in this Situation?

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

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

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

To Get the 20-20 Membership and Our Workbooks

Click here for general information on the 20-20.

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

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