Tip 3: Time is Always of the Essence
Everything in law is tied to a due date – a deadline. The rules provide very specific amounts of time for everything you must do, and missing those deadlines, while not always fatal in itself, will usually lead to dire consequences.
On the other hand, the deadlines can seem so far away as to be unlike deadlines at all, so that you are tempted to hang around doing nothing without any regard to time at all.
Time is ALWAYS Limited – You’re Either Gaining Ground or Losing it – All the Time
It is tempting to believe in litigation, as in life, that time is unlimited – that there will always be time to do the things you need to do. And the truth in law, at least, is that if you know how to do things and you are willing to take extreme action at some given points in time, it is possible to stave off disaster most of the time.
Rising to the serious occasions that come up while ignoring developing problems most of the rest of the time is very stressful, and you are likely to try to rely on someone else to do something for you on very short notice. If you are defending yourself pro se – that is, without a lawyer – you simply do not know enough about the law to be able to afford to operate “by the seat of the pants” in this way. You don’t know what it takes to do most of the tasks set before you, and you don’t know how long it will take. Therefore, you have to start long before you feel like you’re running out of time.
I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. You’re trying to trade your time for money.
So what do you do? What do you do in order to stay on top of the deadlines?
First, of course, you must know how much time you are allowed by the rules to do each step. We are going to discuss that tomorrow. Today, however, I just want to emphasize something we all know all the time, and yet we ignore most of the time: time passes. If you want to win your case, you have to use the time you’ve got carefully – even when it appears that you have more than you need.
Staying On Track
The main trick of having “enough” time in litigation is knowing exactly how much time you have to do any given task. And then you must give yourself that time to do what it takes. Since you won’t be experienced in the law, you won’t be able to predict very accurately how much time things will take. Therefore you must start immediately when things come up and not stop until you’re finished.
The Time Allowed for Tasks will be Revealed in One of Two Places
There are two sources of time limits for the things that come up in your case: the Rules of Civil Procedure, and the court itself (your judge).
Time in the Rules of Civil Procedure
The Rules of Civil Procedure give you a certain amount of time for everything that happens in a case. You’ll either find this in the specific rule applying to whatever you’re doing, or in more general rules. Discovery – interrogatories, requests for documents, and requests for admissions – and Motions for Summary Judgment all have their own specific rules, and these rules will include how much time there is for response. For other motions, more generally, there’s usually a “notice” rule which will require that you give (or be given) a certain amount of time after a motion is filed before the motion can be argued. This is the time for response.
Court Scheduling Orders
Another main way time is determined is simply by the judge, usually by means of a “Scheduling Order.” This order will give the parties a certain amount of time to complete some phase of a case – to conduct discovery, for example, or to file a “dispositive” motion (a motion that could end the case). These orders DO NOT NORMALLY alter the amount of time you have for a specific task. If you’ve been given a set of interrogatories, you’ll have the amount of time allowed by the rule to answer, not the end point of the scheduling order. However, if you submit discovery to the other side without enough time for them to answer before the scheduling order ends the discovery process, they may not have to answer at all. Thus you must make sure your answers will be due before the discovery cut-off in the scheduling order.
Leave for Additional Time
Whether you have a iscovery cut-off or need more time for discovery (or need them to answer quicker), the solution is to ask the court for a special order that does what you need. Remember that you’re asking for something special, and such a motion would need to be justified.
Your Problem is Not Someone Else’s Crisis
I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. Remember the saying, “your deadline is not my crisis.” Most people already have too much to do to take on some massive problem of yours on short notice. You must remember this.
So what do you do? You have to stay on track as much as possible every step of the way.
Tomorrow we’ll discuss the “other side” of time – the way you can use time pressure to weaken the debt collector’s resolve to keep suing you. Do that enough, and they’ll drop the case.
See you then.
Tip 4 of Uncommon Common Sense
Tip Four – More about Time
In yesterday’s tip, I discussed managing case time. In today’s message we speak about part of why that matters so much, and why time can be one of your best advantages — if you make the debt collector’s lawyer spend a lot of it.
The Way Lawyers Value Time
I have often talked about the way lawyers value time. In debt cases there are two primary ways lawyers look at their time. First and most simplistically, they value their time according to their hourly rate. Most debt lawyers charge somewhere between $75 and $250 per hour of time, depending on their experience and “rank” in their firm and community. This is probably a lot more than you would value your time, and that gives you an ability to spend much more time on the case than they do.
The other, more realistic way lawyers look at their time is in relation to “opportunity costs,” or what they’re losing by chasing you. For more of a discussion on this topic, check out my article Understanding Opportunity Costs. I also consider this topic in detail in the Debt Defense Litigation Manual. In brief, however, consider that a typical debt lawyer might represent a few clients in cases against 100 people. If the lawyer can obtain judgments of $5,000 per case in 90 of those cases by default, those judgments total $450,000.00. If they can collect even a small percentage of those cases, a 15% attorney’s fee is going to be around, say, $75,000. For an hour or two of attorney time.
As crazy as that may seem, it is what they expect – and usually manage.
In order to take advantage of the lawyer’s need to make a lot of money for their time, you will need to spend your time making the lawyer do actual legal work. You can do this simply by defending yourself, by filing motions, and contesting the things they do. But I am not suggesting that you do things that “waste” time. Rather, the debt collectors have certain habits you can take advantage of. One of these is that they tend to be quite careless in their pleadings, and they often forget to put things into their lawsuits that are necessary to state a real claim against you. If you attack this, you force the lawyer to defend what he did and create something new.
Another, even better, example, is the way that debt collection lawyers ALWAYS object to every question you put forth in discovery. This stops most people, but for you, it will be a perfect opportunity to question the lawyer about what she means, argue with the lawyer about whether the objection is valid (they often are not, because they are “boilerplate” objections used regardless of what you asked in your discovery), and to file a motion to compel. All these things require the lawyer to spend time on a case without increasing the value of the case.
The Value of YOUR Time
If you look at the spending time, you have to consider how much money you could get by doing something else than defending yourself and comparing that to how much money you will save by beating the debt collector. Suppose you’re being sued for $5,000. How many hours would you work or be willing to work to make $5,000? Whatever your answer to that question, there’s probably plenty of reason to work hard protecting yourself. While the lawyer only gets between 15 and 25% of the value of the case, you will save ALL the value for yourself, so even if you valued your time at exactly the same as the lawyer does, it will still make sense for you to spend five times as much time as they do.
A Game of Nerves
The difference in monetary value of your time is actually a large advantage for a pro se defendant. The lawyer suing you on behalf of the debt collector is always watching the clock and needs to be “making” at least the billing rate all the time. You only need a small fraction of that to justify the actions you take, and this means that you should plan to use a lot of time to learn and implement your defense.
But to use a lot of time, you must have a lot of time, and this means that you cannot afford to spend weeks not working on the case. This is definitely a situation where “slow and steady wins the race.” Plan to spend all the time necessary on your case, and then do it.
Tomorrow we will send Tip 5.
Tip 3 of Uncommon Common Sense
Tip 3: Time is Always of the Essence
Everything in law is tied to a due date – a deadline. The rules provide very specific amounts of time for everything you must do, and missing those deadlines, while not always fatal in itself, will usually lead to dire consequences.
On the other hand, the deadlines can seem so far away as to be unlike deadlines at all, so that you are tempted to hang around doing nothing without any regard to time at all.
Time is ALWAYS Limited – You’re Either Gaining Ground or Losing it – All the Time
It is tempting to believe in litigation, as in life, that time is unlimited – that there will always be time to do the things you need to do. And the truth in law, at least, is that if you know how to do things and you are willing to take extreme action at some given points in time, it is possible to stave off disaster most of the time.
Rising to the serious occasions that come up while ignoring developing problems most of the rest of the time is very stressful, and you are likely to try to rely on someone else to do something for you on very short notice. If you are defending yourself pro se – that is, without a lawyer – you simply do not know enough about the law to be able to afford to operate “by the seat of the pants” in this way. You don’t know what it takes to do most of the tasks set before you, and you don’t know how long it will take. Therefore, you have to start long before you feel like you’re running out of time.
I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. You’re trying to trade your time for money.
So what do you do? What do you do in order to stay on top of the deadlines?
First, of course, you must know how much time you are allowed by the rules to do each step. We are going to discuss that tomorrow. Today, however, I just want to emphasize something we all know all the time, and yet we ignore most of the time: time passes. If you want to win your case, you have to use the time you’ve got carefully – even when it appears that you have more than you need.
Staying On Track
The main trick of having “enough” time in litigation is knowing exactly how much time you have to do any given task. And then you must give yourself that time to do what it takes. Since you won’t be experienced in the law, you won’t be able to predict very accurately how much time things will take. Therefore you must start immediately when things come up and not stop until you’re finished.
The Time Allowed for Tasks will be Revealed in One of Two Places
There are two sources of time limits for the things that come up in your case: the Rules of Civil Procedure, and the court itself (your judge).
Time in the Rules of Civil Procedure
The Rules of Civil Procedure give you a certain amount of time for everything that happens in a case. You’ll either find this in the specific rule applying to whatever you’re doing, or in more general rules. Discovery – interrogatories, requests for documents, and requests for admissions – and Motions for Summary Judgment all have their own specific rules, and these rules will include how much time there is for response. For other motions, more generally, there’s usually a “notice” rule which will require that you give (or be given) a certain amount of time after a motion is filed before the motion can be argued. This is the time for response.
Court Scheduling Orders
Another main way time is determined is simply by the judge, usually by means of a “Scheduling Order.” This order will give the parties a certain amount of time to complete some phase of a case – to conduct discovery, for example, or to file a “dispositive” motion (a motion that could end the case). These orders DO NOT NORMALLY alter the amount of time you have for a specific task. If you’ve been given a set of interrogatories, you’ll have the amount of time allowed by the rule to answer, not the end point of the scheduling order. However, if you submit discovery to the other side without enough time for them to answer before the scheduling order ends the discovery process, they may not have to answer at all. Thus you must make sure your answers will be due before the discovery cut-off in the scheduling order.
Leave for Additional Time
Whether you have a iscovery cut-off or need more time for discovery (or need them to answer quicker), the solution is to ask the court for a special order that does what you need. Remember that you’re asking for something special, and such a motion would need to be justified.
Your Problem is Not Someone Else’s Crisis
I often receive messages from people with a court date a day or two away, or a response to a significant motion due in a day or two. I cannot respond to many of these messages. If you had money you could hire a lawyer and trade money for time, to an extent. For most of the people reading this, however, that is simply not going to be an option. Remember the saying, “your deadline is not my crisis.” Most people already have too much to do to take on some massive problem of yours on short notice. You must remember this.
So what do you do? You have to stay on track as much as possible every step of the way.
Tomorrow we’ll discuss the “other side” of time – the way you can use time pressure to weaken the debt collector’s resolve to keep suing you. Do that enough, and they’ll drop the case.
See you then.
Tip 5 of Uncommon Common Sense
Tip 5: In the Law you are Always Either Pushing or Being Pushed –
and It’s Much Better to Push than Be Pushed
We all know that it’s true in any sort of contest, that one side or the other takes “the initiative,” while the other gets pushed around. It is possible to win even if the other side has the initiative most of the time, but it is unlikely, and the game is much more fun if you are ahead throughout the play. It is really the same way with litigation.
Advantages and Disadvantages as a Defendant
If you are defendant, you start the lawsuit with both an advantage and disadvantage in the initiative. By filing suit against you, the other side took the initiative, but the rules of most jurisdictions give you an opportunity to take control. In addition, you have two huge advantages that you must use to your benefit: the debt collectors are either lazy or busy (or don’t expect you to put up a fight); and the debt collector lawyers must always justify the amount of time they spend on the case and are trying to keep it to a minimum. You, on the other hand, can and must take all the time necessary to take control.
This means you can take control of the case by giving the other side things to do. You should begin doing that immediately.
Stages of Litigation
There are a number of stages throughout the litigation: pleadings, discovery, motions, and trial. And they’re not completely distinct, of course. When the debt collector files suit and gets you served, you are forced to respond either with an Answer or a motion to dismiss. They have the initiative at that point, because you will lose the case if you do not take one of those actions. If you file a motion to dismiss, you will take the initiative of the pleading stage, since they will need to respond – but there is also the discovery stage. If you also serve discovery on them when you file your motion or Answer, you will have taken the initiative in that stage as well.
Game Planning
A good game plan will take the initiative into account. It’s a good idea to form one early in the lawsuit, and the Debt Defense System includes materials to help you do that.
If you are drafting and serving discovery, you can take all the time you want to do it, and then when you give it to the other side they have only a certain amount of time to reply. In debt collection cases, they will never give you what they are supposed to at first – it’s a fact of life. You could think of this as frustrating, as it will be in some ways. Mostly, however, consider it an opportunity for you to keep the initiative: push and keep pushing until you make them give you everything you can get. As long as they are being pushed by you in that way, they will not be pushing you back as much as they could.
The Difference between Pushing and Being Pushed
It is impossible to explain the difference between pushing and being pushed. It takes just the same amount of effort to serve discovery before the other side does as after it does – but it feels completely different. And that feeling – of being empowered rather than disempowered – makes all the difference in reality, especially for pro se defendants. But also for lawyers – it’s a drag always to be behind. Stay on top!
That is true at every stage of the game. Every time you can force the other side to do something, you are both getting what you need (or getting closer to getting it) and forcing the lawyer to spend time on the case – time that is increasingly less justified. You can do all this with appropriate pleadings and filings, and I am not suggesting you file motions that are not legally justified. There can be a cost to doing that. Rather, I am saying to exploit your natural advantages as much as possible.
You will have many opportunities to take control of things and give the other side something to do. You should take advantage of every chance you get – it will suck the will to win right out of the other side.
Tomorrow we will send Tip 6.
Tip 6 of Uncommon Common Sense
Tip 6: Know Your Friends
And Know who Isn’t a Friend
Today’s hint is a friendly reminder to know who your friends are and not to expect help from people who are actually against you or are the “referees” in the match. That is, you might be surprised how many people call up or ask the lawyer on the other side what to do, or how many hope or expect some sort of help or guidance from the judge.
Relying on the kindness of strangers – or of people with interests contrary to yours – will get you in trouble in the law. Instead, you must be able to rely on yourself and someone or some source that you trust. That’s one reason we emphasize finding and knowing the rules so much. You shoul never ask the other side “what” or “when” something is due. That is your responsibility, and it may even be unethical for the other side to give you any help.
The Lawyers
The lawyer on the other side, and the judge and his or her staff, should not tell you anything that is remotely like “legal” advice, and most people take a very broad view of what that might be in the context of an actual suit. The other lawyer should not tell you anything because you are not a client and in fact have interests contrary to the client. And the judge is not supposed to take sides in any way. Do not look to them for any sort of advice, from when something is due to what, in any way, you should say or do.
The only time the lawyer will seriously consider what you should do is in order to argue that you have not done something you needed to do. In other words, in order to beat you. This is the nature of an adversary system.
The Judge and Clerk
Likewise, the only time a judge will consider the question is when you have missed a deadline or done something wrong. Again, it’s just the nature of the beast.
Clerks will only sometimes answer basic questions, they will almost never anything that starts with “what should I do it…” Instead, you can ask questions like “how long do I have to respond to…” or “is it necessary to set a hearing for argument in order for a motion to be considered, and how do you prefer me to do that?” You can ask scheduling type questions, but their job is never to tell you what the law requires or permits, or to guide you towards any particular action, because that sort of information might be considered legal advice or taking sides.
Helpful Sources
On the other hand, there are sources that might be helpful to you. Your Legal Leg Up, of course, has a great variety of information you can use, and there are some other websites that also have some information or people in the same boat as you are. Just remember that no one has the same interest in defending you that you have. The sites that are run by people who are or have been in the same boat are not always reliable in their suggestions because the things that worked for them don’t always work for everybody. For more on this, see Sometimes a Rain Dance is Just a Dance.
Stay on top of things. You can do this.
Tip 7 of Uncommon Common Sense
Tip 7: You won’t believe the tricks the other side will play in discovery until you see them
Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.
I’ll give you a preview.
Games Debt Collectors Play
The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.
In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.
In short, they will play games with you.
Take Advantage of What they Do
You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.
Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.
If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.
When they do Their Discovery
And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.
Tomorrow we will send Tip 8.
Tip 8 of Uncommon Common Sense
Tip 8: Lots of proof of one thing doesn’t make up for not enough proof of something else.
Today’s tip concerns proof.
Once you get past the risk of defaulting or losing (or winning) on some technicality, there remains the challenge of actually winning your case. If you are the defendant, you might put this as “not losing” your case by motion (for summary judgment) or at trial. To do this, you need to know about proof and evidence.
You’ll Win or Lose Based on Evidence
As you know, debt lawsuits are about proving that, for some reason, you owe the debt collector money. What they have to prove, and how much evidence they need are important questions.
Their case
In debt law, the debt collector must prove ownership of the debt or some other right to collect the debt, the amount owed, the fact that it hasn’t been paid already (as aspect of amount owed), and that it is due. In “contract” language: that there is a contract, that the contract gives the plaintiff the right to collect, that payment is due and owing, and that payment has not been made. Each one of these things must be proved separately.
Burden of Proof
The burden of proof is just what you’d think. It’s the amount of proof that must be put forward. In civil cases, this is not the “beyond a reasonable doubt” standard that you might have heard of in criminal cases, but a much lower burden. This burden is called a “preponderance,” which is just a fancy way of saying a “majority,” or, as jury instructions usually say, “more likely than not.”
We all know these cases are almost never going to come down to a delicate balancing of uncertain evidence. In 999 out of 1,000 cases, the issue will just be whether the debt collector can put on legitimate evidence to prove its case. And it normally will not have any legitimate (truly admissible) evidence of some of the issues. Remember, they have to prove each element of their case.
The Tip
And thus we come to our tip: Lots of proof of one thing doesn’t make up for not enough proof of something else. The debt collector may have a lot of proof that it owns the debt. It may have a lot of proof that you owe somebody the debt. Although to tell the truth it often will not have proof of either of these things. They will likely have a few “statements” that you were supposedly sent (although they won’t have evidence that they actually were sent), an affidavit claiming that you owe a certain amount, and they’ll try to bluff it through from there.
Remember at every stage of the actual proof that the debt collector must prove each part of its case, and a lot of evidence of one part does not in any way lesson the burden of proving every other part. When you are attacking their case, therefore, you attack every part of it. Challenge every piece of evidence and show that the evidence isn’t admissible. Learn the important rules of evidence and prepare your objections before trial. This is not something you can “wing.” To give yourself a chance to win, you must prepare your objections in advance.
Never Make Part Payments
Never Make a Partial Payment
For a free copy of this article in pdf form, click here: Never Make a Partial Payment
The Set-Up
Suppose you get called by a debt collector about a debt that you might want to pay. That is, you think it’s legitimate, you think the company calling you may be legitimate (subject, always, to proof!), and for other reasons you’re inclined to pay. But you don’t have enough money. “Not a problem!” says the debt collector. “You owe us $2,500, but why don’t you just make a payment of $75 tonight? Then you can pay the rest whenever you can afford it.”
Should you do it?
What you should do
This is a made-up situation, of course, but some variation of it occurs many times every day all over the country. The collector is either nice, and you want to help him out by chipping in “just a little” to help his statistics, or the debt collector is mean, and you think that making a payment will be the fastest way to get her off the line.
Of course you know they’re paid to make you feel the way you do, but that doesn’t really matter. There are times when the way you feel trumps whatever you know – and the debt collectors are paid to know about that, too.
The question is, should you make that little payment?
To Pay or Not to Pay
The question you need to answer first is NOT whether you want to pay. The first question you must ask yourself is whether you can see exactly how you will be able to pay – and not just the payment you’re being asked to make, but all the rest of it. The debt is $2,500. Can you see how you would pay all of that? Can you think of terms that would actually work – as you can see at the moment and without hoping for something surprising and unusual happening?
To be frank, most people being contacted by a debt collector on a bill they thought they should pay can’t see a way to pay it. If that’s you, you should not pay any part of it.
If you can see a way to pay the debt and believe you should, and if the debt collector will agree – in writing – to the terms you think are necessary, THEN you can ask whether you think it’s the right thing for you to do. Often people may conclude it is, for a variety of reasons, and if this is you, then make the deal and whatever payments you agree to. We’re not here to tell you not to pay legitimate debts – only to make sure the debt collectors don’t crucify you.
Why Should You Act as we Suggest?
You should ask the questions in the way we suggest, and act according to the answers you come up with because making a payment is not a legally neutral act. It has major legal consequences.
Making Payment CAN Admit the Debt
We tell people all the time that one of the biggest difficulties debt collectors have is establishing by legitimate evidence that you owe them the debt. Can you see how making a payment seems like admitting you do? The debt collectors will argue that it is an admission, and some courts will buy that argument. Your argument that you only made the payment to make the debt collector feel better or to get them off the phone will cut no legal mustard because that is not a rational thing to do. The courts will hold you to a standard of reasonability, often, that ignores either your compassion or fear or desire for peace and quiet. Paying someone you don’t owe isn’t rational, and there’s a good chance the court will view your payment as admitting you do owe.
Making Payments WILL Restart the Statute of Limitations
One thing most courts agree is that making any payment at all will restart the statute of limitations. That is, if the debt is four years old and the statute of limitations is set to run out next month, your payment of any amount will give them four more years to harass and possibly sue you. And the fact that you paid them will almost guarantee that they’ll use the opportunity since they know you’ll roll over.
I have argued that making a partial payment that does not “cure the breach” (isn’t enough to say you haven’t broken the contract) should not restart the statute of limitations because the breach still dates back to the time you failed to make payment. I think that makes sense, but as far as I know, no court has ever agreed. Every decision I’ve seen on the issue has held that any payment starts the clock running from the very beginning again.
And this is a large part of why debt collectors are so eager to get you to make a payment. It’s also why I emphasize that in asking whether you can afford to pay, I refer to the entire debt. Making a partial payment is a commitment to paying the whole thing whether you mean it that way or not.
Never Make a Partial Payment
All the above factors suggest that, for almost every person being contacted by a debt collector, making a partial payment is a terrible idea. If you are that rare “other person” and can afford to pay the whole thing – and want to – then it’s fine if you do. Most people should steer far clear of the temptation. You can hang up on an angry caller and even make them stop calling. And the nice caller will find her victim somewhere else. Don’t let it be you.
Should I talk to a Debt Collector and What Should I Say
If you are being called or harassed by a debt collector, one of the purposes of that debt collector is to get you to talk. Should you? This is going to depend on whether you have anything to say.
Debt Collectors Target Struggling People
As I have mentioned before, the debt collection business is targeted at distressed people. The debt collectors already know you don’t have much money, and they know you probably have other people trying to get money from you. Their job is not to force you to pay somebody—it’s to force you to pay them. Another way to put that is that they are not competing with you—they’re competing with other debt collectors. You are the football in a game between the debt collectors, the string in a game of tug of war. Does that make sense?
Silence Can Be Golden when Dealing with Collections
The job of the debt collector is to get you to pay them instead of someone else. They can do this either by annoying you so much that you pay them to get them off the phone or by establishing a sympathetic connection to you so you gladly do it for the voice on the other end of the line. Both of these methods involve keeping you on the phone and the connection open, and neither of these methods is directed at your well-being. Also, if they can get you to reveal information about your job or bank, or any kind of assets you have, they can improve their chances of making you pay against your will. So unless you have your own purpose for communicating, you shouldn’t do it.
Sometimes it Makes Sense to Talk to Collectors
What might be a good reason for you to communicate? Well, because you want something tangible from the debt collector to whom you are speaking. You could want them to reduce interest rates, waive penalties, agree not to give information on your debt to the credit reporting agencies, or any number of actual, materially beneficial things. If you’re hoping to get a friendly voice or understanding, a debt collector is the wrong person to talk to: they already understand everything they want to know about your situation. Talk to someone else for that.
Negotiate—And Get It in Writing
Don’t be afraid to negotiate. You can ask for anything from them, and in most cases the debt collector could give you anything you might request. So be bold. If you want to settle for ten cents on the dollar, you can ask. They may laugh—but laughter is just a part of the negotiation and doesn’t mean they won’t do it. And if they agree to do anything, you must get the agreement in writing. In a practical sense, it doesn’t count if you don’t get it in writing. You won’t be able to prove it, and in some cases an oral “modification” would not even be legally recognizable even if you could prove it. It must be in writing.
They’ll want something in return. An immediate payment, an agreement to pay by a certain date, something. You can agree to this if you can do it, but you’re spinning your wheels if you cannot, so it makes sense to limit your promises to things you’re sure you can perform. Don’t over-commit, as this may negate the agreement you reach and will almost certainly increase the number and hostility of the phone calls you are receiving. Remember that the debt collector is keeping records of everything you say (so don’t tell them where you work or bank).
Stop Talking to Collectors When You’ve Said What You Need to Say
And when you run out of reasons to keep talking to the debt collector, make sure that you actually stop talking to them. There is always a price for anything you say – you’re giving them free information that they will use to decide to sue you. Sometimes talking to them is worth that price, but if that changes, you should feel no obligation to keep talking.
What about Partial Payments?
We think partial payments are bad unless you know exactly how you will pay the whole debt and unless you understand what making the payment will do to you. To read more on this issue – and you really should if you’re even thinking about making a partial payment, click here: Never Make Partial Payments.
Filing a Motion to Amend your Answer
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Don’t Talk to Debt Collectors
When should you talk to a debt collector? And why shouldn’t you talk with them otherwise?
You Should Only Talk to them If you Have a Good, and Immediate, Reason to Do so
As a recent commenter pointed out, debt collectors are often “not nice.” But whether they are nice or not, their job is to take your money away and give it to their company. That means that, personality aside, their interests are against yours, and you should never mistake politeness with being on the same side. Likewise, you shouldn’t polite discourtesy for power or anything other than what it is. In this video we review the basic rule of communications with debt collectors: it is rarely a good idea.
Hang up when you’ve said what you need to say
Once you have said what you need to say to the debt collector, if anything, you should hang up.
There are too many bad things that can happen for you to stay on without a good reason. You could make admissions that damage your case (if they get around to suing you), you could give them information they could use to take your money if they sue you and win.
Remember that what lawyers usually hate more than anything is a lack of definite information. Every time you open your mouth and speak to a debt collector, you’re giving some lawyer what he or she needs to decide to sue you. And even telling them you don’t have any money may not be helpful because that could tell them it would be easy to beat you in court.
Less is definitely more when it comes to talking with debt collectors.