Deadlines in the Law Are Always Critical
When you are involved in litigation – either willingly or unwillingly, either as the plaintiff who initiated the suit, or as a defendant dragged into court – time is always critical. You will have deadlines for every single thing that you do. These deadlines are either:
- obvious, explicit deadlines set forth and given to you by a court “Scheduling Order;”
- less obvious but just as explicit deadlines established by either your state’s Rules of Civil Procedure or your own court’s “Local Rules;” or
- not obvious or explicit – but implied by the fact that there is a date set for trial.
Deadlines: Explicit or Implicit
Courts will often create what is called a “scheduling order” which puts down the times by which times must be completed. You have to count back the days to figure out when you need to get started. For example, if the court sets April 30 as the date by which discovery must be completed, if you’re in Missouri you figure everything out in this way. Parties get 30 days to respond to discovery – they will object to everything, and you must send them a “good-faith” letter before filing a motion to compel. They get 5 business days to respond to a motion to compel, and it will take you 10 days to write one. Therefore, you must serve your last discovery 30 + 5 + 10 + a week for the good-faith letter + any time added by the Mailbox Rule + the amount of time the court will give them to give you the discovery. That means you need to file your last discovery at least 3 months before the end of the discovery period. In that example, you had one explicit courrt-imposed deadline, and several other “implied” deadlines in order to get it done.
One of Your First Steps
Your very first step as a litigant must be to find out what rules control your case – and most specially what rules control the deadlines in your case. When it comes to missing a deadline, excuses are for losers. If you’ve missed a deadline, you must make your excuse and hope for the best! But never forget that there is a price to pay. You lose ground, either legally or in the eyes of the court and the other side, for every deadline you miss. You also add extreme stress to your life and risk to your case if you are always near and sometimes miss deadlines. I cannot make that any plainer, can I?
And another thing to keep in mind: time may be the cross on which your case could die, but it has two other aspects: organization and discipline. Find out what you need to do and when you need to do it. Then set up things so that you can do what you’re supposed to do (organization) and then, actually do it (discipline).
Having read this, you have no excuse for coming to me (or anybody) and saying that you didn’t know when something was due.
Why Time is So Important
Why is time so critically important to everybody, and most particularly to pro se parties? Let’s answer the second question – the most important one – first: why it matters above all to you.
Pro se parties in general, and specially in debt cases, must understand the way time works in their cases more than anyone else for three reasons:
- your actual lack of resources;
- your perceived lack of resources;
- and your actual and perceived lack of experience.
The added “kicker” in debt cases is that you are maving into a headwind caused by the fact that so few people (represented by lawyers or not) defend debt cases with intelligence. Everybody expects you to “roll over” or, as the Beatles song goes, “get back to where you once belonged”
Actual Lack of Resources
Most debt defendants or people involved in debt-related litigation (as, for example, filing a claim for violation of the FDCPA where you are the plaintiff) simply do not have very much money. This type of law, in general, was designed for people without much money, and that’s a problem that many, but not all, pro se parties face. An actual lack of resources means that you have to scramble to get the things you need, from law books to typing paper, from trips to the library to trips to the court room. And daycare – to mention just a few resources that may not be readily available to you. To offset these actual resources you must schedule time enough to overcome them.
Click here for Part 2 of this article, Time! Time!!
Take Control of Your Debt
Take Control of Your Debt
– Take Control of Your Life
If you have been watching bills pile up or fear answering your phone because of debt collectors, this product will be good for you. It includes information about your right to require “verification” of debt and a sample letter you can simply copy and use on debt collectors that will often make them simply go away.
Also includes an article about your right to force debt collectors to stop talking to you at all (“cease communication letter”) and advice as to what effects this might have on you in the future, along with a sample letter to use to make the debt collectors stop communicating with you.
And it includes an article about finances and planning that will help you get ahead and keep the debt collectors from ever bothering you again.
These materials are designed to help you gain control of your debt, whatever it may be. The first step is to control the way and times the debt collectors contact you – if at all, and to assert your rights to force them to verify the debt. Beyond that, though, you need to take back control over your life by controlling your budget and improving your ability to earn and keep money.
You’ve probably seen (we have) simple debt verification letters selling for fifty or a hundred dollars. With this package you get two sample debt verification letters designed by a professional who has been in the business a long time. In addition, you get a “cease-communication” letter you can use to make the debt collectors stop contacting you altogether, along with information that will help you know how to use the letters with confidence. Plus you get actually meaningful and helpful advice on reining in your debts permanently. Click here to see more on this product.
Time is Critical in Debt Defense Part 2
Time! Time!! – It’s All about Time
This is Part 2 of this Article. For Part 1, click here: Time! Time!! It’s All about Time.
Perceived Lack of Resources
Because of the nature of the beast, you are also going to be seen as having fewer resources. Does that mean anybody gives you a break? Wake up – this is life in the jungle where predators eat the weak. You must learn how to battle the perception of weakness. Again, this involves the careful use of time. You are perceived as poor, distracted, and ignorant by the high and mighty debt lawyers. You must overcome that perception by staying on top of things from the very beginning. You’ll be tested in discovery because motions to compel are time-consuming and boring. But you will be tested in many ways. Stay on top of it!
Notice, too, that perception of lack of resources is different than any actual lack. Their perceiving that you lack resources will cause them to try to take advantage of you (debt collectors) or blow you off so they can get to “more important” things (judges and their office staff). Staying on top of things can reduce the number of tricks they try and the impact of the ones they do try.
Actual or Perceived Lack of Experience
I lump these together because almost all pro se parties are unfamiliar with the law – and expected to be so by the lawyers on the other side and the court. Expect that to mean anybody will help you? Again, get real. It means you will be patronized by the lawyer and ignored (to some extent) by the judge. You must counter this lack of experience through preparation. You should take the time to watch a trial and other court proceedings, and you must also take the time to think through your points and locate authority for the positions you take. You can do all this, but it takes time.
Some Resources
As I pointed out above, the three “faces” of the issue you deal with are time, organization, and discipline. I can’t help you with discipline, but all my materials, and specially the membership, are designed to save you time. The Litigation Manual was created to make you familiar with the process in general, and the motions packs should help you with time at certain critical points. And of course my website in general is a resource.
Two New Products
Two products designed to give further help are the trial binder and the Guide to Legal Research and Analysis. The Trial Binder helps you put the materials you need into the most useful order, while the Guide to Legal Research and Analysis helps you get started on the ways you think about and prepare for your case.
Using Time – critical in debt law pro se
Deadlines in the Law Are Always Critical
When you are involved in litigation – either willingly or unwillingly, either as the plaintiff who initiated the suit, or as a defendant dragged into court – time is always critical. You will have deadlines for every single thing that you do. These deadlines are either:
Deadlines: Explicit or Implicit
Courts will often create what is called a “scheduling order” which puts down the times by which times must be completed. You have to count back the days to figure out when you need to get started. For example, if the court sets April 30 as the date by which discovery must be completed, if you’re in Missouri you figure everything out in this way. Parties get 30 days to respond to discovery – they will object to everything, and you must send them a “good-faith” letter before filing a motion to compel. They get 5 business days to respond to a motion to compel, and it will take you 10 days to write one. Therefore, you must serve your last discovery 30 + 5 + 10 + a week for the good-faith letter + any time added by the Mailbox Rule + the amount of time the court will give them to give you the discovery. That means you need to file your last discovery at least 3 months before the end of the discovery period. In that example, you had one explicit courrt-imposed deadline, and several other “implied” deadlines in order to get it done.
One of Your First Steps
Your very first step as a litigant must be to find out what rules control your case – and most specially what rules control the deadlines in your case. When it comes to missing a deadline, excuses are for losers. If you’ve missed a deadline, you must make your excuse and hope for the best! But never forget that there is a price to pay. You lose ground, either legally or in the eyes of the court and the other side, for every deadline you miss. You also add extreme stress to your life and risk to your case if you are always near and sometimes miss deadlines. I cannot make that any plainer, can I?
And another thing to keep in mind: time may be the cross on which your case could die, but it has two other aspects: organization and discipline. Find out what you need to do and when you need to do it. Then set up things so that you can do what you’re supposed to do (organization) and then, actually do it (discipline).
Having read this, you have no excuse for coming to me (or anybody) and saying that you didn’t know when something was due.
Why Time is So Important
Why is time so critically important to everybody, and most particularly to pro se parties? Let’s answer the second question – the most important one – first: why it matters above all to you.
Pro se parties in general, and specially in debt cases, must understand the way time works in their cases more than anyone else for three reasons:
The added “kicker” in debt cases is that you are maving into a headwind caused by the fact that so few people (represented by lawyers or not) defend debt cases with intelligence. Everybody expects you to “roll over” or, as the Beatles song goes, “get back to where you once belonged”
Actual Lack of Resources
Most debt defendants or people involved in debt-related litigation (as, for example, filing a claim for violation of the FDCPA where you are the plaintiff) simply do not have very much money. This type of law, in general, was designed for people without much money, and that’s a problem that many, but not all, pro se parties face. An actual lack of resources means that you have to scramble to get the things you need, from law books to typing paper, from trips to the library to trips to the court room. And daycare – to mention just a few resources that may not be readily available to you. To offset these actual resources you must schedule time enough to overcome them.
Click here for Part 2 of this article, Time! Time!!
Special Conditions in Pennsylvania Debt Law
I often tell people that they might simply deny every allegation of the petition and put the plaintiff to the burden of proving the case. In Pennsylvania, however, there is a much more powerful method for most debt cases: “Preliminary Objections.”
Preliminary Objections are a form of motion to dismiss based on the inadequacy of the pleadings brought against you. PA Rule of Civil Procedure 1019 requires that a plaintiff bringing a lawsuit based on a writing (which every credit card is) must have the contract attached to it or else include allegations in the petition from which the whole sum of money claimed could be derived.
The only catch to Preliminary Objections is that they must be filed before answering the petition or the objections are considered “waived” (let go). If you are in Pennsylvania, then, you should strongly consider getting my Silver Bullets package (for Pennsylvania, obviously). The package also contains an extremely powerful motion to dismiss any claim for “account stated,” which is the way the debt collectors have used to try to avoid Rule 1019.
Demanding a Bill of Particulars in CA Part 2
Hey there! This content is available to MEMBERS only! Consider registering for an account.
Demanding a Bill of Particulars in California
Hey there! This content is available to MEMBERS only! Consider registering for an account.
Special Considerations for California
I often tell people that they might simply deny every allegation of the petition and put the plaintiff to the burden of proving the case. In some jurisdictions, however, a pleading must be “verified.” That is, you must swear to the accuracy of your pleadings – although I don’t know what the consequences of verifying a pleading that later turns out to be untrue are. Very likely, except in unusual circumstances, there are no consequences if you have any basis for denying at all. It seems likely, although I am not completely certain, that California is a jurisdiction requiring verification. Or to put it slightly differently, in many situations verification is required – I don’t know if there are any in which it is not. Check your rules of civil procedure.
Here is the rule:
Code of Civil Procedure section 437 authorizes denials based upon lack of information or belief “If the defendant has no information or belief upon the subject sufficient to enable him to answer an allegation of the complaint,” it is established in this state that denials in this form are limited to situations where the defendant is not able to deny or admit positively. [5a] Accordingly, if the matter is within the defendant’s actual knowledge or by its nature is presumed to be within his knowledge, or if the defendant has the means of ascertaining whether or not it is true, a denial on information and belief or for lack of either will be deemed sham and evasive and may be stricken out or disregarded. (Mulcahy v. Buckley, 100 Cal. 484, 486-489 [35 P. 144]; Bartlett Estate Co. v. Fraser, 11 Cal.App. 373, 375 [105 P. 130]; [242 Cal. App. 2d 792] Zenos v. Britten-Cook Land etc. Co., 75 Cal.App. 299, 304 [242 P. 914]; Goldwater v. Oltman, 210 Cal. 408, 424-425 [292 P. 624, 71 A.L.R. 871]; Dietlin v. General American Life Ins. Co., 4 Cal. 2d 336, 349 [49 P.2d 590]; Zany v. Rawhide Gold Min. Co., 15 Cal.App. 373, 375-376 [114 P. 1026]; Taylor v. Newton, 117 Cal. App. 2d 752, 760 [257 P.2d 68]; Oliver v. Swiss Club Tell, 222 Cal. App. 2d 528, 538-539 [35 Cal.Rptr. 324].) [6] Consistent with this rule, therefore, “if the answer fails otherwise to put in issue the material allegations of the complaint, judgment may be rendered and entered on the pleadings.”
In other words, under some circumstances, you can deny on the basis of lack of knowledge or information, that might be disregarded if you are presumed by the law to know the truth of the allegation. Whether a person is presumed by the law to know about old credit card bills is not clear. The best solution might be to deny on the basis of lack of information and belief, and then follow up immediately with a demand for a bill of particulars. If the plaintiff can present you a bill of particulars (unlikely), you might then have to take a second look at the issue.
The Answer and Some Early Defense of Debt Litigation
Hey there! This content is available to MEMBERS only! Consider registering for an account.
Enjoy some Free Time
41 Things You Can Do for Free
A big part of America’s debt problem is systemic – we live in an economic system that exploits people and takes from the poor to give to the rich. However, that’s at the “macro” level. At the individual level, one part of the problem is that we are taught that the only way to be fulfilled or feel valuable is to consume things. To spend. And many people find it difficult to pass a day without spending a lot of money. They can’t think of things to do, and if they do, it may leave them feeling unfulfilled.
Even if you have it to spend, it can be liberating not to do that. It’s important to break that cycle.
Below is a list of things, almost all of which are almost free. Nothing, in a sense, is actually free, since as long as you’re alive you’re burning calories and needing a place to live, and for many, those things cannot be taken for granted. Likewise, electricity and internet bandwidth are negligible for most people these days, but they’re not completely free. But once those things are covered, most of the things below are actually free – or very nearly so – with the one spectacular exception of Six Flags.
I explain the reason for its inclusion below, and that reasoning would also perhaps apply to many types of memberships. I would caution you against too many things like that, though, because they do imply an expense that can be quite substantial. Six Flags, as I point out, is NOT free even in the scenario I posit. We do like to keep the expense of any one trip to a minimum, however, and that can be basically free.
My list does not include some items many people’s lists do include, things like watching television in your man-cave or window-shopping at Saks Fifth Avenue or the like. That’s because these things are first cousins to expense, and they are indulgences that will likely eventually lead to your feeling the need to buy stuff. They’re a part of our consumption-based culture, and they imply the previous purchase of expensive things, or the envy or admiration of others who have expensive things. My list is designed to take you out of the consumption-oriented world and to a simpler, truly less expensive place.
Free Things
Talking with Debt Collectors – Periscope
Our Periscope Scopes (on Youtube)
The first one: Talking with Debt Collectors