Motions in Limine – to Exclude Evidence

What Pro Se Debt Defendants Need to Know about Motions in Limine

You can get a copy of this article in PDF form by clicking here: motions in limine article

In this article we discuss a sort of motion that we think pro se parties underuse – motions in limine to exclude evidence at trial. They give you a chance to explain how the rule against hearsay prevents documents created out of court from being used as evidence unless there’s an exception. And they give you a chance to show how the plaintiff’s evidence does not meet the exception it’s planning to invoke, the business records exception. On a motion in limine, you can make your arguments before the trial begins, when things are likely to be overlooked in the heat and action of the trial.

What are Motions in Limine?

Motions in Limine are motions filed before trial. “Limine” is Latin for “threshold,” so these motions are usually brought right before trial, when it’s pretty clear what the other side plans to do.

They are usually directed at evidence, but they could also be directed at legal theories or arguments.

Why Use Them?

Like other parts of litigation, they are directed at the legal merits of the case but could have their most powerful impact on negotiations. Thus you bring your motion and attempt to win it for legal reasons, but if you do manage to win it, you will be able to keep the debt collector from putting on the most important parts of its evidence. And if that happens, it may give up without your needing to go to the trial at all.

Thus motions in limine can be very significant turning points. Or they can simplify matters for you at trial if that happens.

There’s another reason for pro se parties to use motions in limine. As a pro se party in a system run by lawyers and judges, it can be hard to get listened to. Judges may or may not mean to pay more attention to lawyers, but they themselves WERE lawyers, their friends are lawyers, and lawyers are the ones they see day in and day out.

They naturally pay more attention to them for just those reasons.

And then there’s the fact that lawyers understand the system and are trained in it. They can do dumb things, of course, but usually they don’t. Judges know that, and they know that pro se parties lack this training, so they naturally take what you say with a grain of salt.

And then there’s the fact that trials move very quickly, and the judge will be watching the clock very carefully. Will everything you say get heard? Not at trial.

You have a much better chance to get heard at a hearing on a motion to exclude. That will give you a chance to make an impression on the judge, explain some of the legal concepts behind the case, and make your arguments regarding evidence at a time when the court is freer to give what you say some thought. And it helps the judge get to know you a little bit and to be reminded of certain rules of evidence.

All of these things are absolutely vital to your chances of success.

What Motions in Limine are NOT

Motions in limine are not motions for summary judgment. That is, you could argue in a motion in limine that the other side should not be able to introduce certain evidence or make certain arguments, but a motion in limine is not the place to ask for a ruling on the entire case in your favor. For that you need a motion for summary judgment, and this comes much earlier in the process.

What Happens after a Motion in Limine?

What you’re hoping for is a ruling on the spot that the debt collector will not be able to use certain evidence or arguments, and that does happen sometimes. More often, perhaps, the court will withhold its ruling until the debt collector tries to use the evidence. The theory behind this is that the court wants to judge from the context of the case whether the evidence is necessary and fair.

In reality, courts should not wait on most of the issues you’re likely to move on. That’s because your arguments will likely be addressed to the legal admissibility and sufficiency of the evidence, and no amount of case context can substitute for presenting the necessary bases for the business records exception, for example. But courts can be reluctant to rule on a motion that destroys one party’s chances of winning before trial.

Timing

While you could bring a motion in limine fairly early in a case, the court will likely not rule on it before the eve of trial. And either the court will order, or your local rules may provide, a date before which motions in limine must be brought.

In other words, there’s going to be a deadline for filing your motion. You need to know that deadline and abide by it. Most typically what happens is the court wants lists of witnesses and exhibits a week or two before trial, followed by a (final) pretrial conference. You would write your motions in limine in time to be heard at that final pretrial conference.

Work on Motion in Limine

In a debt case everything about their case is predictable, even if you don’t know for sure what they’ve got.

Where the person suing you is a debt collector, you know that the debt collector’s case depends on getting some bills that it did not create into evidence. You should know (from discovery) exactly what those bills are and where they came from long before trial. And you also need to know how they plan to get them into evidence. You find these things out through the discovery process.

Rulings on Motions in Limine are not Permanent

Rulings on motions in limine are subject to change. The court could grant your motion before trial and then change its mind, or vice-versa. That means you will still need to object at trial – or be prepared to argue even if you won – in order to protect your rights. And if you lost, you should take another shot at it. Don’t be intimidated – the court will tell you if it is willing to hear your arguments or not.

What makes motions in limine useful is that they give you a chance to make your arguments in the cool light of reason rather than the heat of trial. That might be your best chance to get heard for the pro se.

For Help

You can find help on this site by just looking around, or by doing a site search using the search bar in the header or footer of every page, and of course we have many products that will simplify whatever you’re trying to do in debt defense. You can find those in the products and membership pages. Sign up here for free information.

What to Do if Sued

Sued for Debt

So You’re Being Sued for Debt

You have learned, one way or another, that you are being sued for a debt. If so, you are in a club containing many millions of people, but you probably feel all alone. What do you do? And how do you do it? Where do you turn, and who can help?

Since you’re here, you know that WE can help. We help people beat the debt collectors and protect what’s theirs.

Fight

We don’t make any bones about it – we think that if you’re sued by a debt collector you have a great chance of winning. And if you lose, it hardly ever costs you anything more than not fighting would have done. If you want to settle, you always start by fighting because debt collectors never settle to make YOUR life easier, they only settle make themselves more profit, and if you fight you instantly drive the value of the suit down in their eyes. Thus you have everything to gain and little to lose in most situations. You should fight.

Lawyer or Not?

We’ve addressed this question many times in various posts, and we do in our First Response Kit, too. But for this article we’re just going to talk about the cost of a lawyer. For most of our members, the cost of a lawyer is the most important thing, and they are expensive.

The average lawyer in a city tries to make $200 per hour these days. They’re running a business, have a staff, and need to make a profit. In debt defense, they also know that not everyone is able to pay. Thus, those who do pay, have to pay more.

With $200 per hour as a target, the lawyer either has to charge you that as an hourly rate or create a flat fee that will, she hopes, bring that average return. Through it all, most people discussing legal fees with us say that lawyers are trying to get them to pay at least $2,500 for their cases. For most people, this is simply too much, and the lawyer will want much of that up-front. So lawyers are simply out of reach for most people in debt trouble.

But here’s the thing: debt law, unlike most kinds of law, is well-suited to pro se (self-representation) defense. And with a little help from us, you’ll know more than most lawyers you talk to will know about this kind of law anyway.

Debt Law is Good for Pro Se Defense

There are a few reasons debt law is good for pro se defense. First, debt law is mostly about rules of evidence. They’re going to want to get some records into evidence, and you’re going to want to stop them from doing that. If you can keep those records out and avoid a few basic mistakes, you should win. This is not the kind of law that involves extensive testimony or cross-examination – you won’t need to be brilliant. You will need to do basic things that you can learn – we can teach you.

The other main reason debt law is good for self-representation is economic. They want to make $200 per hour, but you don’t have to get that much. And the debt collector/lawyer is trying to get that from half of what he can collect from you (the debt buyer gets the other half), while you’re saving 100 percent of what you can save. Thus you can spend more time on the case. It’s your life, and it matters more to you than anyone else. Every time you do something to defend yourself the lawyer on the other side will be worried about whether she’ll get paid for working on your case – this is a big, big advantage.

What to Do?

Your defense will start with an answer or a motion. Our First Response Kit will guide you through that. We also suggest that you get right onto the process of discovery, and the First Response Kit will do as much to help make that easy for you as possible. It includes samples of all the documents you’ll probably need. You’ll have to do SOME work for sure, but it doesn’t get any easier for you than this.

Our First Response Kit

A great place to start your defense is our First Response Kit. It helps you consider your chances of winning (vs. not fighting at all) and whether to fight, whether to get a lawyer, and if you’re going to represent yourself, how to do that. We get you started with a sample Answer and sample discovery that you can modify to fit your situation. This is as easy a way to get started with your defense as is possible. Read about it here.

Debt Verification – How to Protect Yourself

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Understanding the Petition in a Debt Lawsuit

Understanding the Petition in a Debt Lawsuit

For a copy of this article in PDF form, click here: Understanding the Petition

If you are being sued by a debt collector, the first step in defending yourself is knowing who is suing you and what you are being sued for. You’ll want to know what facts the plaintiff thinks it can and needs to prove, and you’ll want to look for initial weaknesses in the case. In all of these things, you will need to understand how to read the petition and understand what it is doing.

Below, you will find a sample petition. The petition (also called “complaint” in some jurisdictions – the terms refer to the same thing) is in black, and my comments about what the petition is doing is in red ink. You will see that every part of the petition has its purpose and function.

For purposes of this article, I will refer only to a few parts of the case, as these areas are often discussed in the teleconference calls and people have shown that they do not understand them. But if you look at the annotated sample petition, you will see much more. Knowing what things are called is an important part of the process of understanding what they are and do and an important first step in defending your rights.

Caption

The caption of the case is the part where it says “Debt Collector vs You” and also the name of the court and jurisdiction. Although it has come up, very rarely, that the named plaintiff may not, actually, be the plaintiff (see our article and video on assignment in the glossary), normally the person named as plaintiff is the plaintiff.

In plain English, that means that if First National Bank is named as plaintiff, that’s the person suing you and not a debt buyer. If you have any reason to doubt that, you will want to use the discovery process to pry the truth loose.

And you are the defendant along with anyone else named as defendant in the caption.

The jurisdiction is also important, as this will either tell you that the court has dollar limits to its jurisdiction or not. At a minimum, you can use this part of the caption to find out whether the court does, indeed, have such limits. In general, if it does, the lower the limits, the less likely the court is to follow the rules of evidence rigorously. We usually want the highest court possible because it is critical to debt defense that the rules should be followed.

Title Heading of Suit

The title headings in a lawsuit are not formally treated as part of the lawsuit but are, instead, guidance. But what you need to know is that if you have different “counts” of the lawsuit there will be either more than one set of facts involved or, much more likely, more than one legal theory involved. If Count One is breach of contract, and Count Two is for Account Stated, you know you are being sued under two laws. In order to win your case, you will have to win on every count.

If you have no heading, or no heading that refers to counts, you are being sued based on one law (almost certainly), although it isn’t always perfectly clear from the petition what that is.

Wherefore Clause

This is the part of the suit that says, “wherefore, plaintiff requests…” In other words, it’s the part of the lawsuit that says what the plaintiff wants. If you want to know how much they’re suing you for, this is the place to look.

The wherefore clause is usually the last paragraph of a count. If your suit has more than one count, it will have more than one wherefore clause, one at the end of each count. If it does not have more than one count, it will probably be the last paragraph of the petition.

You need to know what the debt collector is suing you for. This is where you find that.

Sample Petition for Money Owed

 

IN THE ASSOCIATE CIRCUIT COURT        “Associate” means limited jurisdiction
OF THE COUNTY OF XXXXX                        County or city jurisdiction
STATE OF XXXX

DEBT COLLECTOR COMPANY, LLC,                     This is the “Caption,” This name is the
ASSIGNEE OF CC COMPANY (Mastercard),          plaintiff [the lawyer signing is not
Plaintiff,                                                                          plaintiff, nor is Mastercard]

vs.

JOHN Q. PUBLIC,
Defendant.

COUNT ONE – SUIT ON MONEY OWED   [Title. “Count One” indicates this claim has more than one legal basis. Lots of suits are brought on only one basis and don’t have “Count __” in them]

Comes Now Plaintiff and for its cause of action against the Defendant states as follows: [Intro, sometimes much longer]

  1. Plaintiff is a limited liability company duly organized and existing under law and is the lawful assignee of this debt. [Paragraph allegations – you have to respond to each paragraph – this one identifies the plaintiff and alleges it was assigned the debt.]
  2. That defendant is a resident of xx county, state of x. [paragraph establishing court’s jurisdiction over defendant, so important – don’t admit if wrong]
  3. That defendant is in default under the terms of the documentation attached hereto, incorporated herein and marked Plaintiff’s Exhibits A and B in the amount of $1,332.14. [This is ‘breach of contract” language, often more involved than this, including claims of issuing cards or credit, etc.]
  4. That plaintiff has performed all conditions on its part required to be performed. [Establishing right to remedy – plaintiff did not breach contract]
  5. That demand for payment has been made and payment refused. [Formality, sometimes but not usually required, usually included though]

Wherefore, plaintiff prays judgment against defendant in the principal amount of $1,332.14 together with interest of 39% per annum from December 7, 2005, and for costs and attorneys fees herein. [the “Wherefore clause.” Says what the plaintiff wants. Usually if it does not say “attorney’s fees,” they won’t be able to get them if they win]

COUNT TWO – ACCOUNT STATED      [second claim, this one under law of account stated]

  1. Plaintiff realleges and incorporates paragraphs 1-5 of this petition as if fully stated herein. [“reincorporation clause” – standard. You will simply reallege your previous responses in the same way]
  2. Plaintiff had a regular billing arrangement with Defendant whereby each month Plaintiff would send Defendant an accounting of money due and owing either as a result of new charges made by Defendant or for charges based upon an existing balance. [necessary to show that bills, or “accounting,” were a regular thing, expected by defendant]
  3. Plaintiff sent Defendant a bill showing a charge of $1,332.14 due immediately on X date.[the “new contract,” because it was actually or “impliedly accepted”]
  4. Defendant did not dispute this bill showing a balance of $1,332.14 and accordingly accepted it. [Your supposed agreement]
  5. Defendant did not pay the amount due and is thereby in violation of the law. [The “breach” of the contract created by accepting the accounting – note that new agreement does not have any terms other than the money allegedly owed]

Wherefore, plaintiff prays judgment against defendant in the amount of $1,332.14 together with costs of this action and such other relief as this court deems appropriate under the law. [The “wherefore clause” for the account stated – note that it should not include attorney’s fees or (probably) interest]

Collection Law Firm [law firm’s signature, usually illegible. Both the named lawyer and the firm are representing plaintiff (but are NOT plaintiff) and would be on the hook for possible violations of FDCPA]

______________________

Collection lawyer,
Law Firm

Address

[There is usually some sort of affidavit to the effect that the defendant is not in active military service – if you are not, this is purely a formality. If you are in active military service, special rules apply to your case]

Class Warfare in America

There’s a myth in America that people can move up in life more here than anywhere else. It is also widely believed that because of this social mobility there isn’t a conflict between the classes.

In recent times, those myths are coming a little bit under fire. Partly we can thank the Democratic Socialists for this – AOC has done a lot to highlight the vast differences in income between the poor and the rich, and she, and other politicians, are beginning to suggest various things that might be done to address those differences. This, of course, has alarmed the right wing and the wealthy, and they are talking a lot about class warfare, too, but the only thing they’re worried about, of course, is the possibility that they will be targeted for special taxation.

We take a different view and sometimes discuss what we believe are the true causes of the wealth inequality in America and what should be done about it. Our point in the video below, however, is just that there has been a class war going on for a long time – and it’s being waged by the rich against the poor.

And the poor are losing big time.

Two of the “trenches” of the current class war are in debt litigation and foreclosure law. Over the past few years, foreclosure has been a little less frequent, but we believe it will soon accelerate. Debt litigation has not slowed down as far as we can tell. The supposed boom in employment has not led to higher wages in real terms or in greater opportunities for the working classes – they’re falling further behind.

Class Warfare in America

The Banks have you in their sights – Fight Back!

__________________________

California Debt Law

California State-Specific Materials

This will be a long-term project, as we begin to write more articles that will address issues that arise in specific states. We will eventually have member-only material catalogued here for greater convenience.

California-specific Articles and Videos

A powerful weapon in fighting debt collectors in California – the bill of particulars

Demanding a Bill of Particulars in California, Part 2
If you are in California, you have a powerful tool against the debt collectors – a request for a bill of particulars

California-specific Products

California Bill of Particulars Pack – Californians have a tool, halfway between pleadings and discovery, that can force debt collectors to provide all the information you need to defend yourself from most of their claims. The bill of particulars will often make them drop all or part of their case – or to give you what you need to hammer them in court.

Oklahoma Law on Debt Collection

Oklahoma Debt Law

This will eventually be an article on small claims courts in Oklahoma.

Small claims courts are a frequent bane to debt defendants because they apply loose rules (of evidence and civil procedure) designed for pro se, unsophisticated parties disputing small amounts of money. Debt collectors, however, have discovered that these lax rules can make it easier for them to get even more default judgments and to win cases on obviously insufficient evidence. Oklahoma put a stop to that by enacting rules that forbid debt collectors from bringing their claims in small claims courts.

Of course this hasn’t stopped them.

Here is the rule: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438809

Here’s an article. There will be more: https://www.okbar.org/freelegalinfo/smallclaims/

Debt Collector Dirty Tricks

The Debt Collection Business

For a free copy of this article in pdf form, click here: Debt Collector Dirty Tricks

Debt Collectors

At its best, debt collection is a hard business. They’re trying to force people who are already making tough choices to make different choices. To make a person give up food or insurance to pay a bill for something that’s already come and gone is hard to do. And even when the choice isn’t quite that stark, there’s always the challenge of making someone give up what they want NOW for what they used to want THEN.

On the other hand, most people do want to pay their bills, and they feel guilty and embarrassed when they don’t. The debt collectors know and use those facts regularly. You might consider efforts to trigger those feelings “dirty tricks,” but we won’t discuss them other than in certain extreme ways the debt collectors play their cards.

Debtors

People who owe money also usually feel, and are, vulnerable to various bad things, and many of the dirtiest tricks use this fact against them. From a slightly different angle, one of the things that get people into debt trouble in the first place is hope or optimism – they overestimate what they can or will do or they look for an easy way out. This can make them easy suckers for scams, from get-rich-quick scams to get-out-of-debt scams. But what concerns us most for purposes of this article is that it causes them to overestimate what they can pay or for how long they can do it. Thus there’s a tendency for people to make agreements they can’t keep.

In this article, we’ll discuss a few of the tricks the debt collectors play to use the weaknesses of people in debt against them so that you can recognize and prepare for them. We also have a report that you can get for free that has many more of the worst of the tricks.

I have found that a lot of people come to us after doing some things that hurt their rights. Part of our mission is to protect some of those rights before they get lost or damaged. We want to catch people earlier in the debt cycle, in other words. If you give the wrong person money, it’s almost impossible to get it back.

A Few Preliminary Words

There are a few things I will say before getting into the scams and tricks. First, the Fair Debt Collection Practices Act (FDCPA) makes almost all of the tricks we discuss here illegal. But some of them are not, as we will discuss.

The FDCPA generally requires fair-dealing and honesty of the debt collectors, and it makes deception and “misleading” behaviors illegal. It also gives them certain affirmative requirements. But it applies only to “debt collectors” as that term is defined, and there is currently a lot of uncertainty about exactly what the term means and just who is a debt collector even among legitimate operators, and there are a lot of crooks out there, too.

What there is really no doubt about at all is that debt collectors, whether they are within the definition of the FDCPA or not, will do almost anything to get your money. You know that. We can only list and describe a relatively few of their tricks, but you need to develop the habit of extreme caution and skepticism towards anybody who’s trying to get you to give them some money. You need PROOF of every aspect of what they’re saying, because, as we all know, paying the wrong person a bill we really owe doesn’t do any good at all – it just means we’re going to double-pay.

No legitimate debt collector will require you to act immediately the first time you hear from them. Don’t let them hurry you into lowering your standards of proof – that’s the key to all of their other tricks.

A Few of Their Tricks

The tricks here are only a few of what they have come up with, and they will constantly be coming up with more. These are merely examples. The tricks don’t all have formal names, but I have given them names to make them easier to remember.

Asking for Post-dated Checks

Sometimes a debt collector will urge you to send a post-dated check. That is, a check with a date on it that’s different than the actual date. You think the money will be there in a week, so you write the check for next week.

Debt collectors love to get you to do this. Why?

There are some legitimate reasons, and this isn’t always a scam or dirty trick. It is a fact that people get busy, have second thoughts, or simply change their minds – especially when it comes to paying money for something that doesn’t bring them pleasure. A debt collector has a legitimate interest, assuming the debt is valid and the collector is honest (which you should almost never do), in getting your money before any of that happens. He or she has talked you into doing something, and he doesn’t want it to come undone as soon as you hang up. A post-dated check is a good way to make your intention stick.

The problem is that you cannot trust the debt collector, yourself, or the world around you with this.

You can’t trust the debt collector because most debt collectors will say anything that comes to mind to get you to do what they want. They are under intense pressure to perform, and to perform quickly. Therefore, chances are good that the debt collector will not remember – and not even try to remember – that your check is post-dated check. That will be forgotten before you hang up.

So even if by chance your check goes to the debt collector who called you, she will put the check in the pile to go to the bank immediately. And it isn’t likely the person who called you will see the check – it will automatically go out for payment when it arrives in the office.

And you can’t even trust yourself on this. If you were just trying to get the debt collector to go away, or if you made a slight miscalculation, or if something unforeseen happens – as so often happens – you will be in trouble.

Attempt to Collect from Relatives of the Dead

With few exceptions, a parent or spouse’s debts do NOT transfer to anyone else. A deceased’s debts are claims against the decedent’s estate. That means, if there’s a will, that any claimants will have to make a claim against the estate in probate. If for some reason that doesn’t happen, then in some situations the “residuary” beneficiary of the will might be liable.

If the will says, “I leave $100 to Mary and the rest to John,” John is the residuary beneficiary, and John might under some circumstances be liable for a debt. But of course it almost never happens because the creditor would have to prove a variety of things that aren’t easy to prove. Most debt collectors want nothing to do with that. They’d rather try to get you to pay.

All you need to know is that if a debt collector is asking you to pay someone else’s bills it’s probably a scam.

Debt collectors know most people do not know the law and have never thought they might owe someone else’s bills.  People who are grieving are less likely to question or oppose someone who asserts that they owe something. In other words, this scam requires catching you at a vulnerable time and taking advantage of it.

The FBI’s After You

In this scam, someone calls you up “from Washington” (or wherever) to let you know you’ve been implicated in some vague crime or misdeed. They’ve tried this one on me a couple of times, as a matter of fact, only the person was supposedly calling from the Social Security Administration to tell me my account had been “frozen” because someone was using the number to launder money.

The agent spoke fast and had a number to call for verification, but things were close to a boiling point. I was supposed to act quickly or expect the FBI to show up within the next day, or possibly hours. Of course the first thing I had to do was verify a few numbers for them…

This is obviously a criminal scam, with only the barest pretense at being debt collection when there is one – sometimes the threat is that agents are on the way to pick you up for non-payment of some debt, or whatever. The critical features are the urgency, the authority, and the threat.

The people doing this one are clearly not legitimate debt collectors, they’re criminals, but it may show up as a debt collection, and chances are good you’ve been targeted because of some perceived vulnerability. Tell these guys to take a hike.

There’s more in the report

You will find many more examples of debt collector dirty tricks in our free Bestiary of Debt Collector Dirty Tricks. You can find that by clicking here: https://yourlegallegup.com/blog/debt-collector-dirty-tricks/.

 






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