How Ability to Pay Affects Your Defense

I am often asked about what effect a debt defendant’s ability to pay any judgment would have on the outcome of the case. Or perhaps more often, people tell me that they “plan to tell the judge” that they do not have any money and could not pay any award – as part of their defense. Does this work?

In a word, “No.”


If you are being sued for debt, take a look at the Petition that was filed against you. It will normally state everything that the plaintiff must prove if it wants to obtain a judgment against you. If it does not include every element that it needs to prove, you should consider filing a motion to dismiss the case. Look at the petition – you will notice that it says that the debt collector has some right to collect money on the debt (normally because it has been “assigned” the debt) and that you owe the money and have not paid it back. It may say it “lent” you money (breach of contract), that it sent you bills that you did not dispute (account stated), or make other allegations. It may claim that you have “failed and refused” to pay.

What the petition will never say – or at least I’ve never seen one that did – is that you have money or other resources, or that you have any ability to pay at all. Ability to pay is simply not a part of the case they must prove. To put that into legalese, your ability to pay is not “relevant.” This means that (1) they should not be able to ask about your resources or job in discovery; and (2) your ability to pay cannot be used as a defense to the debt.


In addition to lacking legal relevance, your ability to pay (or not) is also potentially “prejudicial,” meaning that telling it to a jury could sway it to act in a way that is not consistent with the real evidence in the case.

Make Them Bleed

Of course you want the debt collector to know that you do not have any money as soon as you can in the lawsuit. You want them to know that they may be spending large amounts of money and itme to pursue you – money they will never get back. My own experience with that, though, is that lawyers do not tend to believe the information they know you want them to have. My philosophy on that, then, is to make them work for everything they get – including the evidence you want them to have. They won’t believe anything you don’t “make them bleed in order to get.” It’s just a fact of legal life.


If you do not make them work to get the information regarding your financial condition, they may attempt to use it against you in a boomerang fashion. In that situation, they’ll tell the judge that “he says he can’t pay no matter what – so why should we have to spend so much time arguing about this issue…” In that situation judges do tend to become impatient with the trial, but more with you for fighting a meaningless battle. They’re likely to make their rulings fairly quickly and all too casually. On the other hand, if you do make them work to get the 

information and it comes out in trial, the judge will probably lean on them “for wasting everybody’s time.” It may be subtle difference in the way the material comes out to the judge’s attention, but believe me it can be important.