If They Never Have Evidence Why Do Discovery

People ask me why they should do discovery in debt cases when everybody knows the debt collectors don’t have any evidence. The answer to that question might seem obvious once you’ve been around, but it’s a critical part of defending yourself from the debt collectors.

As we point out in The Most Dangerous Myth, you can’t depend on anybody to do anything for you. You can’t depend on the courts to get rid of debt cases that don’t have evidence. If they did that, they’d get rid of most of them, but that isn’t their job. It’s going to be up to you.

There are a couple of fundamental reasons to do discovery as soon as possible. You have to make them show you what they have or admit what they don’t have. And the process of discovery costs the debt collectors money and often drives them away by itself. In addition, conducting discovery will likely make the judge and the other side take you more seriously and be more cooperative when you need it.

Make them Admit what they Have or Don’t Have

The first, legally-based reason, for pushing discovery despite all their objections and BS is that to win the case you must PROVE they have nothing. Or rather, you must prove that what they have, if anything, is not enough for them to win.

Ideally you could do that by motion for summary judgment, which would spare you the risk and effort of trial.

If you can’t do that, then you must prepare to win at trial.

On the other hand if they do have things, you need to know about it so you can prepare for them.

Now, to be clear, debt collectors, who are always represented by lawyers (they have to be), start with the advantage of the court’s attention and respect. You, on the other hand, as a non-lawyer, will have to earn the court’s respect. Maybe it’s not fair, but that’s just the way it is.

And one result of this is that you simply cannot count on the court to pay close enough attention to any arguments you make unless you give it time. A motion for summary judgment – win or lose – is the best way to present your arguments about the debt collector’s evidence to the court.

In order to do that, you must know, in detail, what that evidence is and where it comes from.

Discovery is Expensive for Debt Collectors

The debt collector is almost certainly going to object to every single request or interrogatory you give it. They can’t help themselves, and it’s usually a good tactic because it drives so many defendants into submission. But it’s a two-edged sword, and when you’re pro se and determined, their objections will be a large advantage for you.

Part of filing a motion to compel answers is an “informal conference” and attempt to negotiate discovery disputes. You will have to call the other side’s lawyer up, ask him or her why she objects to each item of discovery, tell her why you want it, and argue each objection. And their objections will be numerous, absurd, and repetitive. They’ll object, for example, to your request for information about the alleged purchase of your debt on the basis of attorney-client privilege. In all likelihood no lawyer will have been involved – or it will be strictly in an arms-length transaction where no attorney-client privilege ever applies. And they’ll make many other absurd arguments.

Take your time. Take their time. And know that it’s costing them about $200 per hour for you to do so.

Find out whether they actually have anything they aren’t giving you. If they say they don’t, then once you confirm the message you’ll have what you need for the summary judgment motion. If they say they do, keep fighting until you know exactly what it is. Again, all this is costing them a LOT of money.

And nothing makes a debt collector rethink the wisdom of suing you more than having to spend money. Not even it looking like you can win the case outright.

Conclusion

So go through the process. Chances are good that they’ll either give up or you will have what you need to win by the time you get through. And there’s no other way to get to that point.

 

2 replies
  1. Syvella says:

    Before I file a case against the collection agency, should I first give them the opportunity to validate the debt that is being reported on my credit report? OR should I not contact them at all and just file the suit and then do a discovery immediately?

  2. Ken Gibert says:

    If you want to sue them for false information on your credit report, you will likely want to request validation first. If it goes beyond that, and you want more specific help, you should join us, as the answers to your questions are not likely to be very simple.

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