Three Questions and Answers about Discovery

When Does the Process Begin, What Is the Court’s Role, and How Do the Methods of Discovery Relate to One Another?

I get certain basic questions about the discovery process quite often.

  • When can you begin conducting discovery? And when can the debt collector do it?
  • How do interrogatories, requests for documents, and requests for admissions relate to one another?
  • And What is the Court’s involvement in the discovery process?

The answers aren’t always clear, but this article will answer these questions to the extent they can be answered.

When Does Discovery Begin?

The simplest answer to this question is no answer at all: Discovery begins when the Rules of Civil Procedure for your jurisdiction say it begins. I have discovered that the discovery process begins at very different times for different courts.

Federal Courts

In the federal courts, the defendant can serve discovery immediately upon being served with the summons, whereas the plaintiff must wait for some time before beginning the discovery process. I guess this is a way of allowing a defendant to focus on investigating the complaint and filing an answer.

Most State Courts

In most state courts, the parties can begin discovery at the same time, either immediately or after some period of time, usually thirty days after service. In debt law cases, though, I have rarely observed that debt collectors begin discovery as quickly as they could. My guess is that they are hoping everybody will default (and most defendants do), so it would be wasteful to start the discovery process before the time for default has passed. This gives a defendant an advantage to begin the discovery process before the debt collector does, and this advantage should not be allowed to slip away.

Some State Courts

In some state courts, most often courts of limited jurisdiction (i.e., for smaller amounts, as most debt cases are), the parties are not allowed to begin discovery without an order of the court that allows it. I think this is a terrible rule. But regardless of my opinion, you need to know if that’s the rule in your jurisdiction, and if it is you need to seek an order permitting discovery as quickly as possible. Remember that discovery is an important part of your defense. There is even one jurisdiction of which I am aware where no discovery is allowed at all. In this jurisdiction, though, you can seek a trial “de novo” if you are not happy with the result. That is, you can start the whole case over in a higher up court that does allow discovery. In Maryland, on the other hand, discovery begins immediately upon service of the suit – and ends about a month later – unless you receive permission from the court.

The important “take-away” from all this is that state laws vary, and you need to know your state’s law as soon as possible. Not finding this out is asking for trouble.

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Coaching and Training Others

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Debt Litigation Manual – Pre-suit

If you are in the “pre-suit” stage, you are at least pretty sure that you are either going to sue or be sued. Of course this is not true of most debts – a vast majority of them never get litigated at all. But you almost never know for sure whether a debt will, or will not, go to litigation. Therefore you must make efforts to protect your rights.

As soon as the possibility of litigation enters the picture – and for as long as it stays there – you must remember that you are playing by different rules than you would in ordinary life. In ordinary life, for example, people think it admirable to admit your wrongs and try to make them right. To pay at least a little even if you can’t pay it all. And above all to communicate with the other people to minimize bad feelings and maximize possibilities.

This all changes if the possibility of litigation is there. All those usual things would just hurt you then. For example, admitting the debt and trying to work out terms might – and most likely would – constitute an admission that made it easier for them to sue you. And making it easier to sue you means making it more likely. Making any partial payment would “re-age” the debt, making it start all over from the point of view of the statute of limitations.

Thus if litigation seems at all likely, you need to start acting more strategically: make them think that suing and winning isn’t likely or at least that it will be expensive. Any doubts you can encourage about their ability to get any money even if they win are good ones. And if you don’t see how you will pay it all, you probably shouldn’t pay anything.

 

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Tip 8 of Uncommon Common Sense

Tip 8: Lots of proof of one thing doesn’t make up for not enough proof of something else.

Today’s tip concerns proof.

Once you get past the risk of defaulting or losing (or winning) on some technicality, there remains the challenge of actually winning your case. If you are the defendant, you might put this as “not losing” your case by motion (for summary judgment) or at trial. To do this, you need to know about proof and evidence.

You’ll Win or Lose Based on Evidence

As you know, debt lawsuits are about proving that, for some reason, you owe the debt collector money. What they have to prove, and how much evidence they need are important questions.

Their case

In debt law, the debt collector must prove ownership of the debt or some other right to collect the debt, the amount owed, the fact that it hasn’t been paid already (as aspect of amount owed), and that it is due. In “contract” language: that there is a contract, that the contract gives the plaintiff the right to collect, that payment is due and owing, and that payment has not been made. Each one of these things must be proved separately.

Burden of Proof

The burden of proof is just what you’d think. It’s the amount of proof that must be put forward. In civil cases, this is not the “beyond a reasonable doubt” standard that you might have heard of in criminal cases, but a much lower burden. This burden is called a “preponderance,” which is just a fancy way of saying a “majority,” or, as jury instructions usually say, “more likely than not.”

We all know these cases are almost never going to come down to a delicate balancing of uncertain evidence. In 999 out of 1,000 cases, the issue will just be whether the debt collector can put on legitimate evidence to prove its case. And it normally will not have any legitimate (truly admissible) evidence of some of the issues. Remember, they have to prove each element of their case.

The Tip

And thus we come to our tip: Lots of proof of one thing doesn’t make up for not enough proof of something else. The debt collector may have a lot of proof that it owns the debt. It may have a lot of proof that you owe somebody the debt. Although to tell the truth it often will not have proof of either of these things. They will likely have a few “statements” that you were supposedly sent (although they won’t have evidence that they actually were sent), an affidavit claiming that you owe a certain amount, and they’ll try to bluff it through from there.

Remember at every stage of the actual proof that the debt collector must prove each part of its case, and a lot of evidence of one part does not in any way lesson the burden of proving every other part. When you are attacking their case, therefore, you attack every part of it. Challenge every piece of evidence and show that the evidence isn’t admissible. Learn the important rules of evidence and prepare your objections before trial. This is not something you can “wing.” To give yourself a chance to win, you must prepare your objections in advance.

 

Your Rights under the Fair Credit Reporting Act

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What if I Think I Owe the Money?

What if I Really Owe the Money – or Think I Do?

What if you think you really owe the money? Should you defend yourself? Here’s why you must defend yourself. If you don’t you run the risk of having to pay twice. And if you do defend yourself, you probably won’t have to pay. If that bothers you, give the money to somebody who really needs it.

Most People Being Sued Actually DO Owe Someone Some Money

If you’re being sued by a debt collector, you probably think you owe them the money, although it’s surprising how often people who do NOT owe anybody any money get sued. If that’s you – you still need to fight the case, it won’t go away by itself. But if you actually do owe somebody the money for which you are being sued, you still need to be careful.

And you should still defend yourself as well as you can.

You must make the debt collector prove every part of its case – not only that you owe the money, but that you owe it to them. And exactly how much you supposedly owe. That’s because old debts get sold – often more than once – and if you don’t make the debt collector prove it owns the debt, you may pay the wrong person. And then you might have to pay again if you get sued by the person that actually owns the debt.

In addition, most people who get sued for debts do not owe what the debt collectors are trying to collect. They routinely add fees and interest they should not, and consumer protections agencies and organizations routinely estimate that almost all debt collection suits include extra charges – and many of them are for far more than is owed.

“Double-Banging”

Because of the extremely lax regulation of debt collectors, and the frequent erosion of those regulations that do exist, debt collectors develop many dirty tricks. One of the dirtiest is known as “double-banging.” This is the repeated collection of the same debt by the same debt collector.  You may wonder how such a thing is possible, and it would be difficult, no doubt, if these double-bangers didn’t have a couple of things going for them.

One thing that makes double-banging easier is “spoofing.” That’s a technology that allows debt collectors to cause your phone to think the phone call is coming from another number, usually a local exchange. Thus, while your phone tells you the call is from your own telephone area code, it’s actually originating far away. And of course the debt collectors often change their names – not just the people calling, but the companies they’re supposedly representing. So you are receiving a call from a company that already collected from you, and now it is collecting the same debt again under another name. And they don’t necessarily wait till you have paid the debt off the first time, either. In one known case, a debt collector collected the same debt TEN times.

And that was without even suing the victim. They can do that, too.

Ultimately, what makes all this possible is that people let it happen. That is, they get scared, or feel guilty, or get angry… any number of feelings cause you to relax your guard, and then they get you. Instead of requiring them to provide proof, you’re asking how to pay.

And once they get you, you go on a “sucker list.” That’s just what you probably think it is – a list of people who will fall for various scams. Debt collectors sometimes trade these sucker lists to each other, so after one of them has collected as much as possible, they trade your name to another who will do the same thing.

The Good News

The good news about debt collectors is that they usually CANNOT prove their cases if you make put them to the test. The whole process by which they get these debts is so sloppy and careless that they usually cannot find or obtain the proof that they need to win their case. IF you defend yourself.

Protect Your Rights

Our mission is to protect people from the debt collection process. If you are being sued by debt collectors, or if you are being harassed for money, you need to take action to defend what’s yours. For much more information on defending yourself, go to Fast Track to Debt Defense.

Procedure for Moving to Vacate a Default Judgment

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