Tip 2: Always know the rules of the game you’re playing.
Every game has rules, and if you want to win, you need to know the rules of the game you’re playing. It is obvious, but when your head is spinning and you feel threatened – maybe nothing is all that obvious.
The legal game has rules too. In fact, the legal game may have more rules than any other game, and these rules definitely matter at every stage of the game. You have to know them – or know how to find them when you need them.
Rules of Civil Procedure
The overall, “starting” rules of the “civil litigation” game (which is what debt litigation is) are the Rules of Civil Procedure. Every jurisdiction (court) has them, and the rules in state courts, which is where you will be if you are being sued, can be different from state to state. If you are in federal court, it will always be the Federal Rules of Civil Procedure. You can google “federal rules of civil procedure” for the federal rules, or “your state” plus “rules of civil procedure” to get the rules of your state.
If you are involved in the litigation process, you must have these rules. They tell you what can be done, and when it must be done. If the other side files a motion, the rules tell you how much time you have to respond, and if you file a motion it tells you what happens next as well as what belongs in the motion.
Local Rules
Many state courts, and all federal courts as far as I know, have “Local Rules” in addition to the Rules of Civil Procedure. These basically amount to an interpretation of the rules or set the standards for your particular court. A common one, for example, says that documents are “produced” when they are actually delivered to the other side (not just “made available.” You must know whether these rules exist for your court, and if so, what they are. Most courts have a physical copy of them available in the clerk’s office where you file things, and if they have a website, they should be online.
Rules of Evidence
The Rules of Evidence ane the other “most important rules.” These rules tell you what “counts” in court. They are obviously important for trial, but they also will determine what can be used in motions as well. They will be critical to your case. In addition, knowing these rules helps you evaluate your case and the other side’s case. Therefore, it is important to find and get them (you can google them as you would the rules of civil procedure, only using “rules of evidence” as your search term). In the very early stage of the case, however, you won’t need to spend a lot of time on them. Just have them ready. Our materials will tell you which of the dozens of rules of evidence will be most important to your case.
Other Rules
We’ve discussed the formal rules that control the case, and if you can establish what you want clearly enough within these rules, you will be okay. But there are other “rules” as well. There are rules of “custom” or “habit,” and there are social rules. A rule of custom or habit might be the way a specific court proceeds – for example, it is customary for a party bringing a motion to speak first to the court. The best way to observe these rules is, simply, observation. Not knowing them will not usually hurt you too much, except for the “social rules,” as I will discuss below.
Social Rules
Social rules are not really rules of court at all and do not play a formal part in your case at all. But they certainly exist. And here we are talking about the “rule” that says people with money or experience are given more respect and authority. This rule says that you should dress fairly well – but not so well that you look like someone “trying” to make an impression. And this rule says that lawyers, unfortunately, will carry more “believability” into court than you will. It is a good idea to observe your court before you must be in it, so you can get a sense of the way these rules work, because they do matter.
Regarding the “rule” that lawyers get more respect, the only thing you can do is prepare hard for everything that is going to happen and then stay as “cool” as possible when things are happening. Remember that, no matter what else happens, by being there and forcing the other side to be there, you are winning a battle even if the court rules against you.
If you do that, and if you know pretty well what you’re supposed to be doing at every step of the way, you can swing that respect factor in your direction. The fact is, if you read the materials from my site, and particularly the Debt Defense Manual, you will know more than most lawyers do about the debt law. Being able to use it may be a different story, but you will at least know more than almost everybody else the debt collector has ever dealt with – including opposing lawyers. That’s an advantage, and you can use it if you take care of the other parts of the process. The teleconferences will give you a HUGE advantage if you take advantage of them.
Conclusion
Every game is played by rules, both obvious rules and rules that are not so obvious. Knowing the rules in any given situation will give you a much better chance to win. You can get and know them, and you should.
Repossession in the Real World
Repossession of cars and trucks, like making sausages and politics, undoubtedly has its benefits, but the actual process can be extremely unjust and disturbing to watch. This article is going to pull back the veil and let the average consumer take a look at what goes on in repossession. This article should help you decide what foreclosure could do to you if you’re struggling with car payments and wondering what actions to take.
Deal Gone Wrong
It is well-known that, when you buy a new car it depreciates substantially as soon as you drive it off the lot. In plain English, that means the car is worth much less money right after you buy it than before you own it. Depending on the size of your down payment, then, you could very well be, and most often probably are, “under water” on the loan-the car is worth less than you owe. For this reason, I prefer to buy used cars, myself, but if you don’t, and you buy well, things will eventually straighten themselves out. Provided you can continue to make the payments, the car will lose value more slowly than the note does. But what if something comes up and you can’t make the payments? That’s when you’re in for a rude surprise.
After missing a payment, you will find the auto dealership has become very interested in you. They will call and write. And they’ll keep calling and writing until your payments are current. If you can’t pay, the dealership will eventually suggest you return your car-or the idea might occur to you. If you don’t return the car, the dealership may send out “repo men” to repossess the car. You may go to your accustomed parking place only to find the car gone. They won’t leave a note, either.
But not too long later, you will probably get notice that your car is to be sold “at public auction” within a certain amount of time. They may tell you about a “right to redeem,” which at least in some states is your right to make good on the payments and get the car back. Let’s assume for the present example that you can’t do that. Let’s say (to keep the numbers simple) that the purchase price of the car was $15,000, and you made a down-payment plus other payments of $5,000. The car is two years old now, and its “blue book value” is down to $8,000. So you figure that after the company sells the car, you’ll owe about $2,000, right?
Repossession in the Real World
Wrong! A month later, you’ll find out that the car was sold for $2500. They charged you $250 for the “repossession fee” and another $250 for “reconditioning.” So they “credited” your account with $2,000 against the $10,000 you owed, and now they want another $8,000 from you. They send you a letter outlining everything they’ve done. You had a camera worth $200 in the glove compartment, and you ask about that. They tell you it’s “lost.”
That’s repossession in the real world.
Outsmart Dirty Debt Collectors – Make them Pay
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What You Need to Know about Debt Settlement
Most debt reduction plans play a sort of “chicken” with your creditors. The way they work is that, when your situation becomes really dire, you stop paying as many bills as you can and start saving a pot of money that you will eventually use to pay all of them off. When you have saved enough, and when your creditors have become desperate enough, you negotiate to make them go away.
It sounds like a plan that might work – and it often does.
It works because of the crazy way the debt system works. There are unbelievably massive amounts of personal debt in the world, and a system set up to handle it. In this system, many people try to avoid paying their bills, but if the debt collectors keep after them long enough, they will pay. True commitment to debt avoidance is actually rare, and people being chased by debt collectors usually hide, but they don’t resist. That means the average low-level debt collector is trained and required to keep after you and has little, if any, authority, to negotiate with you. And these are the only people you will encounter until your resistance has passed a certain level. You must go higher up “the food chain” to reach people with real authority to negotiate with you, and this does not happen easily. In many cases it won’t be until the company has hired a lawyer.
So the idea behind debt relief is to withhold payment until the company moves you up the debt collection food chain to the bigger guys with more authority.
Of course the company will sometimes sue you instead of negotiating at that point, and this has been one of my objections to the whole debt relief scheme. You will undoubtedly be doing your credit report some short-range damage if you do not pay bills you could, and you may increase the likelihood of being sued. A debt relief company will often encourage you to take risks and sustain damage before they will or can negotiate for you. If it doesn’t work out that way, you are the big loser, and they simply find someone else to try it with.
My other objection to the way debt relief companies have done business is that they charge a lot for their services. It is my belief that most people can, if they really decide to do it, probably do as good – or almost as good – a job at debt settlement negotiations as the “pros” they hire to do it for them. After all, most of what these pros have going for them is simply the knowledge that that most creditors will, eventually, negotiate.
I have been asked about doing debt relief often enough that I have simply had to recognize that some people would feel more comfortable having other people negotiate for them even if they have to pay for that service. I have found a service that helps address some of my other concerns as well, the prepaid legal program I represent.
Class War and Debt Law
Class War – How it Applies to Debt Law
There is a class war going on, but is an “undeclared war,” where the wealthy and politically connected are being allowed to do anything they want andtake anything they want, and the poor and working classes are left to foot the bill. We at YourLegalLegUp believe that Debt Collection is a Social Justice Issue, both in who is targeted, and the methods used. If you are being targeted, you can and should defend yourself. Use our materials to start protecting what’s yours.
As we often say, around 90 percent of people being sued for debt do not defend themselves. Consider what that means: it means that it’s really more expensive for a debt collector to find out whether it has a good case against you – much less to build it and beat you in court if you fight – than just to bring cases and dismiss them if things get tough. And that’s exactly what most debt collectors do. Therefore, rather than look for words to scare the debt collector away, it makes sense to build a tough defense that makes them work hard to try to beat you. That’s what the our materials help you do. No magic words or secret loopholes, just intelligent defense which makes the debt collectors think they’ll lose money by chasing you and gives you a chance to win even if they do.
You may know that the value of time worked has gone down quite a bit in the past forty years, while the value of things – stocks, bonds, collectibles, etc., has gone up. As has the cost of living. What that means in plain English is that the rich have gotten richer, and the poor have gotten poorer. This is not some sort of weird accident or fluke of nature. Rather, it is the result of deliberate policies by the government and banks.
Don’t let them rip you off in court.
Business Debt and the FDCPA
The Fair Debt Collection Practices Act (FDCPA) does not apply to “business” debts. According to its terms, the law only applies to “consumer” debts, and this can mean two things: a consumer is the “end-user” of the product, so the debt cannot have been generated in purchasing something for commercial resale; and the purchase cannot have been for business purchases. What does all this mean to you?
Is it a Business Debt?
For most people using my materials, this limitation may be more of a pleading issue than anything else. I say that because if your business is a legally distinct entity, you are not allowed to represent yourself anyway – because only lawyers are allowed to represent people other than themselves, and that rule applies to legally distinct businesses (i.e., corporations even if owned completely by you). If you are being sold personally, though, how would they know that your debt was generated for business purposes? Usually this is difficult if not impossible (but there are times when it is obvious that it is a business and not consumer debt, of course – as, for example, equipment leasing or purchase), and the debt collector simply pleads or alleges that it is business-related. Unless you admit that, however, it is going to be tough in most cases for them to prove it – and until it is proved, you can counterclaim under the FDCPA.
Don’t Claim Something You’ve Expensed as a Consumer Debt
As I’ve pointed out before, however, this can cause tax complications you want to consider carefully, because if you have claimed the expenses as tax deductible business expenses you can create several severe problems by turning around and claiming them as consumer expenses in a lawsuit. On the other hand, the courts will not regard your previous tax treatment of debt as necessarily deciding the question. It’s just that you can get in OTHER trouble if you claim things you have previously deducted were consumer transactions.
You Still Need to Defend Yourself Even if It Is a Business Debt
If the debt is a business debt and not a consumer debt, and everybody knows it, then the FDCPA does not apply to it. That means you cannot sue the debt collector for violating the Act. Does that mean that the Litigation Materials won’t be useful to you? Not at all. You still need to defend yourself, and all the basic rules and principles of defense still apply, and this is true whether or not the entity suing you is a debt collector or original creditor.
Alternatives to the FDCPA for Counterclaims
Beyond defense, though, consider what the FDCPA was designed to do. It makes “unfair” collection practices illegal. It was designed to level the playing field and give relatively unsophisticated consumers fairly clear rights against the debt collectors. It eased the requirements of proving damages and “wrongful” intent. In a general sense, it was designed to extend certain legal and practical rights to consumers, whereas congress considered businesses more capable of defending themselves from the day-to-day intrusions of the debt collectors and to hire lawyers to protect their legal rights.
In plain English, what I am saying is that many of the claims a consumer might bring under the FDCPA could, with slight alterations, be brought by businesses under other state laws. For example, the FDCPA makes it illegal for a debt collector to call you before 9:00 a.m. or after 9:00 p.m. without some reason to believe that’s okay. A debt collector calling a business owner at 8 a.m. Is probably going to be okay, but calling at 6 a.m. mightt rise to the level of “outrageous conduct,” which is a basis for suing regardless of whether or not the debt was business related.
State Tort Laws
Bad language or harassing calls might be similar. There are many other laws (these are called “tort law”) that might also apply to ruthless debt collection. The FDCPA certainly has its advantages if you can use it, but most of the things it applies to are, to some degree or another, already illegal under tort law. Your challenge as a pro se lawyer is to find your state’s tort law. To search for that you will be better off actually going to a law library, finding your state’s legal digest (a multi-volume – in Missouri has more than fifty volumes – that pretty much discusses all the state’s laws) and looking up some of the following terms: defamation, libel, slander, invasion of privacy, outrageous conduct, assault, harassment, and debt collection. Some states have broader protections than the FDCPA provides.
What if it Is Your Business Being Sued?
If the debt collector is suing your business rather than you, can you defend it? The answer here is a “qualified no.” If the business is a partnership or “C” corporation, the answer is almost certainly not. If it is a “sole proprietorship” (really just you as owner of the business), on the other hand, the answer is that you can defend yourself. There are some gray areas, however – if the corporation is an “S” corporation you may or may not be able to represent the corporation – some courts seem to allow it, although there are some good reasons not to do it. If you are being sued along with the company as a guarantor of the debt, you can defend yourself, but you will probably need a lawyer at least to file an answer to the suit against the company.
Conclusion
It’s a little more complicated, and a little tougher to prove, but there’s a good chance you can find a counterclaim even if the debt collector is after you for a debt that is clearly not a consumer debt. You just cannot bring it under the FDCPA.
Blaming the Victims
Blaming the Victims – Defending Banks by Ridiculing Consumers
Debt collectors often ridicule consumers who got in over their heads, but the banks themselves have set up their business models to encourage debt and debt troubles. Don’t fall for debt collector false morality – fight back.
Blaming the Banks for the Problems they Caused
Has it occurred to you that all or most of your problems were caused by the very bank that is now suing you or that the debt collector purchased the debt from and is now suing you for? Would that work as a defense against their claims?
My feeling about saying the banks caused all the problems with their various practices -either by lending to you when you were a bad credit risk or by crashing the economy in general – is that it will not work. It’s a kind of “unclean hands” argument, but I believe the concept of “proximate cause” will prevent the argument from working. The people who argue that this argument will work in court have my sympathy, and everybody knows that I do believe the banks caused many of the difficulties people have in paying their bills. The argument has or may have some effect as a social-movement type force, but legally… very iffy. In my opinion it should not work – which is not to say that it never will, of course, so you must make your own judgment.
Proximate Cause
The problem with arguing that “the banks” caused your problems is “proximate cause.” Proximate cause means the “specific problem” must be linked to specific actions by a specific entity. Viewed in that light, how can you argue that, say, Capital One, by extending credit cards and maintaining their policies, has really “caused” anything to happen in society? Many people may believe that the banks, collectively, caused big problems that resulted in raising taxes and sucking resources away from regular people, but how can you assign a specific role in that to Capital One?
Likewise, how do you prove that Capital One caused you problems that you could not have, and should not have, overcome? If we were truly in a capitalistic society the argument simply could not be made: the fact that you did not overcome the problem would be proof that you should not have done so. But we live in an age of bailouts and government interference, of course.
Tell that to the judge, a life-time public employee wielding far-reaching government power every day of his or her professional life.
And then the final zinger: how do you prove what specific action by your specific bank caused some specific injury to you?
Cigarette Litigation
This whole complex of proximate cause issues prevented anyone from winning cigarette litigation for decades. What finally allowed people to get through and win some of the cases was very strong evidence of conspiracy to hide specific facts that the companies knew and had a duty to disclose. There may be evidence of banking conspiracy – there is in some cases – but unlike a cigarette plaintiff who died of lung cancer, you will be hard pressed to show how your injury came from the banks’ action unless there are more specific grounds for applying the doctrine of unclean hands.
Cutting Edge Arguments and a Warning
As I say, I have my sympathies for the position that banks should not be permitted to profit from disasters they themselves caused. And many arguments that end up winning started out as sounding a little far-fetched. So you could consider it. On the other hand, the courts sometimes punish what they consider to be “frivolous” arguments and disputes. Arguments talking about banks and banking, like arguments claiming that our monetary system is completely corrupt live on the edge of “frivolousness” from the point of view of the courts. It would be possible that they could make you pay for taking that position.
Practical Defense
If you are actually defending yourself from a debt collector or defending against a foreclosure, there are weapons available for you to use against the banks, but you will probably not win by arguing the broader social issues or “justice.” You will need to take the practical steps you can.
Things you Should Know before you Settle
Things You Should Know before You Settle with the Debt Collector
If you’re being sued by a debt collector, you’re probably worried–of course you are–but think twice before settling the case just to make it go away. Sometimes that can be a very bad idea, and if you will hang in there and fight a little bit, you’ll be in much better shape.
A Few Basic Facts about Settling Debt Cases
The lawyers for the debt collector never worry about losing a suit – they always assume they will win. And has nothing to do with the evidence, because they rarely have any idea of what the evidence is or what they could prove if they have to. Their confidence comes from two things: they don’t worry about losing a case because they have many of them and they’re cheap. And they don’t think you – a non-lawyer – have much of a chance against them anyway. So going to court and claiming they’ll win (if you try to negotiate) is nothing to them at all – and it should mean nothing to you, either.
So what do the lawyers for the debt collector fear? They fear wasting time – or spending it at all. That’s why they never do more than glance at your case before you show up. They have the business down to spending just a very few minutes per case.
They can do this because they do lots of cases at the same time and because most people give up or default.
So in Order to Settle in Any Meaningful Way
In order for you to get them to take you seriously, you will need to do a little work – and you will need to make them do a little work. Before that happens, they might knock off 20-30% of what the case is seeking if you ask (or they might not), but they won’t do serious negotiation. To settle, you have to file an answer and begin to defend yourself. Once you file an Answer and serve them some discovery, they start noticing you, and after that the chances of settling just get better and better.
And so do your chances of winning outright.
So hang tough for a bit and do a few things – they’re easy to do and not really scary. And if you want to settle eventually you can be sure that you will have made that easier and better. Or keep fighting and see if you can make them give up.
Tip 1 Uncommon Common Sense
Tip 1: Standing up for yourself isn’t hard – it’s just different
And it gets easier
You probably wouldn’t believe how often I get asked the question: “is it hard to defend yourself from the debt collectors?”
Or maybe you would.
If you’re being sued or harassed by a debt collector, one of the very first decisions you face is whether or not to defend yourself. And it is tempting to walk away, no doubt. So what you want to know is, how hard is it not to run away, but to stay and fight?
And luckily, it isn’t really hard.
One Step at a Time
I’ve started a lot of things in my time that if I’d had any idea how much work they would involve I probably never would have started in the first place. Fighting debt collectors is probably not going to be one of these things for you. But what makes it possible even to do the truly difficult things in life is simply to concentrate on the one step in front of you. As a debt defendant you will have a series of these steps. That’s what lawsuits are – a series of things to do, like steps. How many steps it will actually take, no one can say. What I can say, with certainty, is that if you are reasonably smart and willing to work a little bit, you can do every single step. One at a time.
Debt law isn’t rocket science.
You’re going to need to file an Answer or Motion to Dismiss. Could you do that if you set aside ten hours to do it? Yes. Using our litigation materials, it will take you half an hour to draft an answer, and you can do it yourself without our litigation materials in a somewhat longer time.
You’re going to need to draft “discovery,” which is the formal way you ask the other side what they have to use against you – what could hurt or help you. Could you do that? Yes, you could. Our materials make it relatively easy, but again you can do this on your own.
You may need to file or respond to a motion. Or more than one motion. Can you do it? Certainly you can.
And so it goes. You need to develop a broad strategic plan and then take a series of very manageable steps to get there. You may or may not need to take them all – again, only the debt collector really knows how far it will take things – but you can take every necessary step from being served with the suit through trial if necessary. Each step is relatively simple.
The Difficulty is in your Mind
What is “hard” about standing up for yourself is not the actual standing up or doing what needs to be done. What is hard is to do something different than you have done. Debt troubles are usually not an accident. They are usually the result of certain actions that you or someone took (or failed to take). They are often the result of certain habits. And these habits often accompany a habit of not “taking charge.”
Habits can be hard to break, but anyone can do it if they’re determined enough, right?
Standing up for yourself is “taking charge.” It’s just a different mind-set. Easy as pie – and hard as the devil! I won’t kid you – if you are going to defend yourself you must be willing to start to make the shift from “letting things happen to you” to “taking charge.” It isn’t “hard,” in the sense of physical labor or even intellectual challenge, but it does require paying attention to things you haven’t paid attention to before. And it requires looking at something you’d probably rather not look at, right?
It does require “growth.”
This growth is why people who do stand up for themselves and beat the debt collectors feel so good about doing it. Even more than the money, maybe, standing up for yourself and growing into that sort of person is deeply satisfying and – yes – liberating. You will never be sorry if you take on the debt collectors. Any work you do on it will be “good” work. You’ll know that right from the very beginning, and you’ll get to like it more and more, probably.
The difficulty is just in changing. It’s like stepping through a wall that isn’t really there. So if you’re going to do this, start today to look out for yourself. And watch for the next tip tomorrow.
Tip 2 Uncommon Common Sense
Tip 2: Always know the rules of the game you’re playing.
Every game has rules, and if you want to win, you need to know the rules of the game you’re playing. It is obvious, but when your head is spinning and you feel threatened – maybe nothing is all that obvious.
The legal game has rules too. In fact, the legal game may have more rules than any other game, and these rules definitely matter at every stage of the game. You have to know them – or know how to find them when you need them.
Rules of Civil Procedure
The overall, “starting” rules of the “civil litigation” game (which is what debt litigation is) are the Rules of Civil Procedure. Every jurisdiction (court) has them, and the rules in state courts, which is where you will be if you are being sued, can be different from state to state. If you are in federal court, it will always be the Federal Rules of Civil Procedure. You can google “federal rules of civil procedure” for the federal rules, or “your state” plus “rules of civil procedure” to get the rules of your state.
If you are involved in the litigation process, you must have these rules. They tell you what can be done, and when it must be done. If the other side files a motion, the rules tell you how much time you have to respond, and if you file a motion it tells you what happens next as well as what belongs in the motion.
Local Rules
Many state courts, and all federal courts as far as I know, have “Local Rules” in addition to the Rules of Civil Procedure. These basically amount to an interpretation of the rules or set the standards for your particular court. A common one, for example, says that documents are “produced” when they are actually delivered to the other side (not just “made available.” You must know whether these rules exist for your court, and if so, what they are. Most courts have a physical copy of them available in the clerk’s office where you file things, and if they have a website, they should be online.
Rules of Evidence
The Rules of Evidence ane the other “most important rules.” These rules tell you what “counts” in court. They are obviously important for trial, but they also will determine what can be used in motions as well. They will be critical to your case. In addition, knowing these rules helps you evaluate your case and the other side’s case. Therefore, it is important to find and get them (you can google them as you would the rules of civil procedure, only using “rules of evidence” as your search term). In the very early stage of the case, however, you won’t need to spend a lot of time on them. Just have them ready. Our materials will tell you which of the dozens of rules of evidence will be most important to your case.
Other Rules
We’ve discussed the formal rules that control the case, and if you can establish what you want clearly enough within these rules, you will be okay. But there are other “rules” as well. There are rules of “custom” or “habit,” and there are social rules. A rule of custom or habit might be the way a specific court proceeds – for example, it is customary for a party bringing a motion to speak first to the court. The best way to observe these rules is, simply, observation. Not knowing them will not usually hurt you too much, except for the “social rules,” as I will discuss below.
Social Rules
Social rules are not really rules of court at all and do not play a formal part in your case at all. But they certainly exist. And here we are talking about the “rule” that says people with money or experience are given more respect and authority. This rule says that you should dress fairly well – but not so well that you look like someone “trying” to make an impression. And this rule says that lawyers, unfortunately, will carry more “believability” into court than you will. It is a good idea to observe your court before you must be in it, so you can get a sense of the way these rules work, because they do matter.
Regarding the “rule” that lawyers get more respect, the only thing you can do is prepare hard for everything that is going to happen and then stay as “cool” as possible when things are happening. Remember that, no matter what else happens, by being there and forcing the other side to be there, you are winning a battle even if the court rules against you.
If you do that, and if you know pretty well what you’re supposed to be doing at every step of the way, you can swing that respect factor in your direction. The fact is, if you read the materials from my site, and particularly the Debt Defense Manual, you will know more than most lawyers do about the debt law. Being able to use it may be a different story, but you will at least know more than almost everybody else the debt collector has ever dealt with – including opposing lawyers. That’s an advantage, and you can use it if you take care of the other parts of the process. The teleconferences will give you a HUGE advantage if you take advantage of them.
Conclusion
Every game is played by rules, both obvious rules and rules that are not so obvious. Knowing the rules in any given situation will give you a much better chance to win. You can get and know them, and you should.
Understanding Opportunity Costs in Debt Litigation