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!!
Motions to Dismiss for Failure to State a Claim
A Motion to dismiss is a request to the court to “kick out” the case against you. It isn’t based on evidence that you have or could produce or show (a motion for summary judgment is the way you do that), but rather is designed to “test the sufficiency of the pleadings.” Debt defendants tend to overuse the motion to dismiss – or to “over-rely” on them. They often do not work, but filing them can be a way to familiarize yourself with the law and to slow the pace of the lawsuit – things which are helpful to pro se debt defendants.
In plain English, a motion to dismiss argues that the plaintiff has not alleged enough facts – even if everything it does allege is considered true – to make a claim against you that the law would recognize. I have, in other articles, compared it to a speeding ticket for “driving 25 mph in a 30 mph zone.” It just isn’t illegal to do that, and the case would get kicked out.
Of course it is rarely so simple. From time to time I suggest possible violations of the Fair Debt Collections Practices Act (FDCPA). For example, I have suggested that including the supposed right to verify in the Petition is deceptive and unfair. Eventually someone will allege that in a counterclaim, and the debt collector will probably file a motion to dismiss, arguing that including that language in the petition does not violate the FDCPA. So you can see from that example that motions to dismiss can be brought against counterclaims as well as claims in a Petition.
Procedure for Motions to Dismiss
Motions to Dismiss are controlled by the Rules of Civil Procedure for your jurisdiction. Find the appropriate rule by looking up “motions” or “motion to dismiss.” You will see that there are many enumerated bases for motions (at least in Missouri). In general, if the argument is that there simply isn’t a right to the relief requested from the court (as in my examples above), you can usually file this motion at any time because the court really lacks the power or authority to do something the law doesn’t allow. If the argument is about whether the court has authority over you, on the other hand (because you weren’t served correctly, for example), you would probably need to bring a motion to dismiss before answering the petition.
You can, and probably should, in general, bring a motion to dismiss before you answer a petition. In other words, if you file a motion to dismiss, you almost certainly do not need to file an Answer. The motion stops the clock on the time for responding. If you lose the motion, the court will order you to respond to whatever part of the petition or claim that remains.
It isn’t always clear who needs to “set” the motion to dismiss for a hearing. In general I suppose it is whoever wants the case to move forward – and that usually means the debt collector. The case will not move forward until the motion to dismiss is resolved. Sometimes courts will dismiss the entire action for “failure to prosecute” if the debt collector does not call the motion. Sometimes the judge will pressure the defendant to argue the motion or will deny it if it isn’t set for argument. This seems to depend on the personality of the judge.
For a sample Motion to Dismiss a simple debt collection, please click here.
Incidentally, these motions are sometimes called “motions to dismiss for failure to state a claim,” and that is the name of federal rule 12(b)(6) (and many state court rules as well, which are usually identical). Remember that you won’t be bringing your motion under federal law but whatever your applicable state law is.
Real Talk about Debt Lawyers
We appreciate most debt lawyers. Many of them are dedicated to the well-being of people being harassed or sued by debt collectors, and most of them can, if they know the law, increase your chances of beating the debt collectors. However, almost all of them are too expensive for a lot of people, and some of them really do not know the law.
The main problem facing debt lawyers, however, is simple economics. The debt buyers and collectors are able to do things on a large scale, and this includes attending several hearings at the same time. If you have a pretrial conference, for example, you go there and wait for the judge, participate in the conference, and drive back to the office. If you can set five hearings at about the same time, you nullify the waiting and driving time and do things for one-fifth the price. Defense lawyers can’t often do that, but it is routine for the debt collection lawyers.
And debt collection lawyers, who specialize in debt collection, have all the documents saved on their computers so that paralegals can make the necessary changes to individualize them. Debt defendant lawyers, because they must wait for individual clients, usually don’t have this advantage, so they create new documents every time – at great expense.
The economics change when you represent yourself, especially if you use a service like ours. In that case, you can attend the hearings yourself at modest cost and create your own documents using our models. It is somewhat more trouble than hiring a lawyer, and there will be moments of anxiety, but if you can handle those, you make it more expensive for the debt collectors to chase you than to let you go. And that’s the first step in winning.
The second step, of course, is to do the things you need to do in order to win.
If you think you’d do better on your own, we can help.
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
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Demanding a Bill of Particulars in California
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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
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