I’ve had many customers and clients who were hampered by all sorts of beliefs—from guilt or doubt to a misguided sense of fair play—when it came to defending themselves from debt collection law suits. When it comes to litigation, though, remember that you are in a contest rather than a search for truth. It’s the “Law of the Jungle.”
I find that pro se litigants make two big mistakes. They think that the court will somehow look after them to make sure things are right and fair. And they believe that the normal rules of human decency and responsibility apply to litigation.
The Role of the Trial Court
There are two types of courts that relate to debt litigation: trial court and appeals courts. A trial court is a “court of justice,” meaning that there is, in the abstract at least, a search for justice at a trial. But you must bear in mind that the judge, even in trial court, is more like a referee than a participant. The court’s job is, very basically, to enforce the rules and maintain order in the courtroom. But unlike a referee, the judge only whistles fouls when asked to do so. The judge has very little inclination or responsibility to initiate a call—you have to ask for it either by objection or motion. The judge has very little responsibility to insure any sort of fair play in other than the broadest sense, and none at all to try to even out the balance of power between two parties to a lawsuit.
Just as the lion eats a careless gazelle without interference from the game warden, so debt collectors prey on the unwary defendants in court.
The Role of the Appeals Courts
And there is even less help from the courts of appeals, in general. Appellate courts are “courts of error,” meaning they review the decisions of the trial court and, on occasion, correct mistakes.
Life in the “Jungle”
Much of litigation is contested outside of the court and even out of the court’s attention. Most cases are won or lost during the discovery phase, where the parties ask each other for documents and other information. If one side is particularly uncooperative in this process, then the court can be asked to intervene through a “motion to compel,” but the court will never intervene without being asked—and shown why it should intervene.
Normal Rules of Behavior
Collection people talk a good game about paying what you owe or doing the right thing, but you should not be fooled. As I have pointed out many times, the Federal Trade Commission caught one debt collector it said made 80% of its money from people who never owed the debt, and collectors do not routinely check to see if their lawsuits are good or just or anything. They file them and win if they can without regard to what anybody actually owes. They often don’t know if you really owe them the money or not, and because the junk debt buyers buy and sell debt without informing you of their actions, you can’t know either without making them prove it in court.
All you have to do is defend yourself to see how very little most collection lawyers allow their behavior to be controlled by normal ideals of decency and cooperation. Don’t be fooled by their talk.
It Isn’t All Bad News
The inactivity of the court and impersonality of the debt collectors isn’t all bad news for someone being sued for debt. It does mean certain things, though. It means that informed action will work for you, while faith in the court system or other side to look out for you will not. It means you could be being sued for a debt you don’t owe even if you think you do. It means that the debt collectors will almost certainly test your resolve and willingness to fight by not cooperating with you during part or all of the discovery, and you must take decisive and vigorous action to enforce your rights. And it means that cooperating, being “reasonable” or easygoing, or any of the niceties of debate may not pay off for you. The debt collector (usually) doesn’t know or care whether you “really” owe it the money; they care whether or not they can make you pay it.