The Debt Collectors Laughed at Me
When I Said “Here!” in Court
But When I Gave Them My Answer …
It looked like a typical day at court – – the debt collection lawyers were circling the table in front of the judge like vultures flying around some unfortunate animal on its last legs. There must have been ten –maybe fifteen—of them, and each time the judge called out a defendant’s name – – “Smith!… Jones!… Williams!… Thompson!…”- – there was silence, and then one of the lawyers would say in a bored voice, “Call for default.” And the judge said, “Default.”
– – Just like that, the debt collectors had their judgments, and as soon as that court session was over, they were going down to start the garnishment process. Start taking some poor guy’s paycheck.
The judge must have given the debt collectors fifty defaults before they reached my name, and it looked like there were more than a hundred more to go after me.
“Westmore!” the judge called out.
“Here!” I said.
In the shocked silence that followed I heard someone laugh. And I could see people nudging each other with their elbows. “What’s he doing?” one woman whispered, just loud enough for me to hear. I heard someone snicker. “Just a regular guy,” someone else said. “They’ll eat his lunch!” The debt collection lawyers smirked among themselves. That’s what they thought, too. No one EVER fights back.
Then I handed the Court My Answer
I walked up to the court clerk and handed her my Answer to the Petition.
It looked good.
Sharp and professional.
And it had a counterclaim. She raised her eyebrow with a new respect as she took the document and entered it onto the record. The vultures got strangely quiet and looked away when I dropped off a copy of my Answer and Counterclaim with the debt collection lawyer (I’ll call him “Mr. Nice Guy”) who had raised his hand on my way back to my seat.
The people who had been laughing at me could feel the change that had come over the court room. They got quiet, and I could sense their new respect.
They smiled and moved over to make room for me when I wanted to sit back down. Mr. Nice Guy was still smirking when he took the documents I handed him, but the smile started to fade when he noticed the counterclaim. And it was ancient history by the time he noticed I’d attached interrogatories, requests for admissions, and requests for documents to my Answer and Counterclaim.
He knew he was in for a fight. He knew it was going to cost him. He knew he was going to lose money if he kept after me. And he knew he might lose the case. He had come expecting a patsy—all those vultures had, you could see that just by looking at their smooth, scornful faces. I doubt if a single one of those lawyers ever did a day’s worth of real work in their lives!
Well, he’d run into a buzz saw this time.
A Complete Success!
Two days later I received a letter that said:
Dear Mr. James Westmore, My client has agreed to offer to settle our cases against each other as a mutual dismissal with prejudice. If that is acceptable to you, please sign the attached stipulation for dismissal of the lawsuits the parties have against each other and return them to me for filing.
Sincerely,
Mr. Nice Guy
I decided to let the debt collector go. I could have said “no” and tried to make him pay me something to get out of it (I think I had him cold), but… who wants to spend the rest of his life in court if you don’t have to?
It was as easy as that, although I know it isn’t always that easy – not by a long shot. Still, when you start fighting everything is leaning your way. It’s just that no one knows it.
I suddenly had a whole new life in front of me. So I made a quick call to the lawyer and said his offer was acceptable to me…if they would cancel the debt I supposedly owed and revoke any damage they had done to my credit report.
After a pause, Mr. Nice Guy gave in. So I wrote that right into the stipulation of dismissal, signed and sent it back to “Mr. Nice Guy & Associates.”
It was over. Just like that, a $7,000 credit card bill that debt collectors had harassed me about for three years was gone. And all the reports they had made to the credit agencies were gone with them.
How I Learned to Protect Myself in Court
Just by chance, I bumped into one of the “bystanders” who had seen me say “Here!” on that fateful day in court. He wanted to know how it had turned out for me.
When I told him, he asked me if I was a lawyer or “knew” somebody!
He was shocked when I told him that the only thing I knew about the law was stuff I had learned from YourLegalLegUp – a business that gives regular people everything they need to defeat the debt collectors. I told him how I’d learned all about the debt collectors and how they usually didn’t have what they needed to win their lawsuits. I told him I’d even gotten the forms I needed, too – “just a few easy changes was all I needed to make!”
“Wow,” he said. “It cost me over $1500 to hire a lawyer. And he didn’t even get my credit report changed!”
I was almost embarrassed to say how little it cost me to defend myself.
Look in the Mirror – What Do You See?
These days, when I look in a mirror I see a winner looking back. You won’t believe how much that is worth.
Before the debt collector sued me, back when they were just calling me every day, I got so that I hated to hear the phone ring. To tell the truth, there were many times I just couldn’t answer the phone at all. If an old high school friend tried to reach me, and I didn’t recognize his phone number, well, that was too bad. I missed the call. I wouldn’t answer the doorbell, either, unless I was expecting someone.
It’s hard to be a good friend or neighbor if you dread answering the phone, you know? It’s also hard to be a good neighbor if you’re afraid to answer the door when the doorbell rings or walk outside on the porch on a nice night when other people are out there.
And after a while it can be hard to look yourself in the mirror.
That’s all changed for me now, though. Now I like what I see, and you can too.
Why’d I Do It?
I won’t kid you – – it was scary to stand up and say “Here!” that first time. It was a little embarrassing to have all those people looking at me – – even though I’d never met them before and didn’t expect to meet them again. So why would I care what they thought? I cared because I’m like most people. We do care. I didn’t want to be the center of attention and didn’t want to be laughed at or pitied or scorned by strangers. That’s human nature.
I did it, though, because I was fed up. I was sick and tired of those debt collectors and their nasty voices. Sick of their contemptuous looks. Tired of being bullied and threatened by some anonymous punk on the phone. Plus I didn’t have the money to hire a lawyer –or to lose the case, either.
And I was fed up with feeling hopeless and pushed around.
It Changed My Life
And now that I’ve done it, it’s changed my point of view completely. The whole world looks and feels different to me in ways I never would have believed. I look in the mirror and like what I see again because I know I’m the guy – – yeah, that guy right there in the mirror!- – that’s the only one who stood up in court and said “Here!” that day.
I’m the one who fought back.
And I’m the one who won’t have to hear from the debt collectors any more or try to scrounge every cent I possibly can to keep the wolves away from the door. That’s me! It feels great to know I was brave enough to do what it took. No one will ever take that feeling away from me again.
To tell you the truth, the whole thing was absurdly easy. (The work was all in my head.) I spent a few hours reading the Manual, a few hours watching videos, and an hour or two putting together the documents I gave the court. The lawsuit was for about $7,000, so I figure I “made” about $1,000 per hour defending myself. It’s better than what I usually get at my job, let me tell you!
Other people sometimes have to do much more, but once you start fighting things should go your way. That’s because they really usually don’t have what they need and everything you do makes them spend $200 per hour fighting you. That’s money they know they might never get back even if they win because they don’t know if they’ll ever be able to collect it. It’s sweet.
I like what I see when I look in the mirror now, and I feel good about answering the phone or the door.
It’s the little things in life that are so big, isn’t it? Now I’m a good friend and neighbor again. I hold my head up when I’m out in public. Little things that are so huge.
I’m a new man!
My wife has certainly noticed the difference. Not only do we both have a sense of security we’d been missing for so long, but she also says she’d about lost the man she fell in love with. And she lets me know she’s glad I’m back every night! It’s like a second honeymoon.
………………………………………………………………………………………………….
Defend Yourself from the Debt Collectors
– Protect What’s Yours
You too can defend yourself from the debt collectors. You can have the good feelings “Jim Westmore” has. The above is a fictitious letter, but it’s drawn from the things real people have written to me many times. The results are not fictional.
Let me share just a few of the things some real people have said in their own words –and I’ve never paid, or even asked, for any of these testimonials. Notice the confidence and joy in every word they say.
Thanks for your work, Kenneth, I believe you have done a great job creating yourlegallegup.com. It helps in many ways, not only I fought against unfair debt collectors, but also I was educating myself.
I went through your work and crafted it to fit my case circumstances. Your “legal bundle” gave me ideas and the direction I should follow and, together with research skills, it made great power in defending the case.
One more thing. I’ve got the letter from the lawyers last night. The letter is addressed to the court and it says it is plaintiff’s “voluntary dismissal…”
Yes, it works. Yes, it wins. I appreciate you sharing your great knowledge.
Thanks, Andrew, Georgia
Hi Ken,
You have GREAT videos!! There’s something about seeing the videos and hearing your voice that makes the material all the more easy to absorb!
Thanks again for your continued support and help!! 🙂 Christine, Michigan
Ken, Just a quick email to say THANK YOU for your well-written manual! I was scared to death when I got a summons and complaint served on me by a debt collection attorney. I did exactly what you said, though, and basically let them know I wasn’t going away….and that was pretty much it. The attorney folded like a cheap suit, and I have to say it almost felt better than sex!
Thanks again,
Gary, Ohio
I settled and it was a victory on my terms! Thank you for the manual and working with me thru my emotions and getting me to the end….I waited to respond to until I saw for myself….It works to fightback! THANK YOU …THANK YOU…Ken.
I saved several thousand dollars….money well spent on the manual….
Olivia, California
Again Thank you very much for all your great advice-hints. I wont keep messaging you because I know you have a life over there too! But again Thank you so very much. If you make it out to Seattle let me know. Star bucks is definitely on me as well as dinner.
And I’m serious.
Kevin, Seattle
Today I received in the mail an offer “Stipulation For Dismissal With Prejudice”,which basically states the Plaintiff will dismiss their Complaint if I dismiss my counterclaim.
Its a done deal. Over five thousand dollars just like that!
Your litigation materials were clear, vital and necessary tools for me to win. All the examples,logic and powerful arguments presented in your materials helped me beyond belief! I am eternally grateful,and right now quite ecstatic!
Your materials are simply the best and finest of its type anywhere for pro se defendants facing debt lawsuits!
Thanks Ken,
Frank, Arizona
The great thing about your materials is that they take away the fear of going to court. I can never thank you enough for that!
Thank you from the bottom of my heart!
Barbara, Maine
The Secret of Their Success
As anybody who knows me or has visited our site (Your Legal Leg Up) can see, we have devoted a great deal of blood, sweat and tears to helping ordinary people stand up to the debt collectors. As a former attorney who represented hundreds of people being sued by debt collectors, I know what it’s like to be harassed and sued, and I know what it takes to fight back. We have written dozens of articles, several full length books, and created over a hundred videos on defending yourself from debt collectors.
What makes it work, though, is actually very simple. Here’s the “secret.”
Debt collectors usually don’t have what they need to win a lawsuit from you when they file suit against you… And they usually can’t get what they need without spending more than the lawsuit is worth… if you fight back with knowledge and determination.
It isn’t hard! The main battle is in your head. Once you get used to the idea of speaking to the lawyers and the judge, once you see that they’re just people who don’t usually have to work very hard and who really don’t like to work hard, you’ll have all the advantages in your case.
The debt collectors win about 80 to 90 percent of their cases without a fight. If you convince them that you know how to fight and that you will fight – – to the bitter end if need be – – they’d rather leave you alone. That’s the secret.
Our materials tell you what you need to know so that you can fight back. And we’re there to encourage you to do it when things seem a little scary so that you will fight back.
You’ll Deserve the Credit!
We offer our help. Our materials will inform you and give you the tools… but in the end the victory is yours. And you will deserve the pride you feel when you look in the mirror. And the peace of mind that comes from knowing that debt collectors will never push you around again. Because you are part of that very exclusive club of people who will actually stand up and fight.
You’ll deserve all the credit and peace of mind you earn for yourself.
And you will see the world differently – we guarantee it.
Our Materials are Guaranteed
If you’re being sued (or being pursued) by a debt collector and get our materials… we like your chances of winning –they’re great!– but we can’t guarantee you will win or that they’ll take the settlement you offer. Sometimes the debt collectors can get what they need and are willing to spend what it takes to get you even though it means they will lose money. That’s just life. What we can and do guarantee, though, is that you will be satisfied with the materials and the service you get, or you can have your money back. We wouldn’t want it. We also guarantee that if you decide to settle your case (instead of going all the way to trial), you will save at least twice what the materials cost you. Probably much much more.
One customer decided to pay the debt collector $500 rather than fight to the very end. But he had been sued for $12,000. And he made them clear his credit report.
We thought he would win the case –maybe make them pay him something—but he decided he had better things to do. If you ever feel the same way—that you’ll do better in your life if you settle for a small fraction of what they claim you owe—you’ll get a settlement offer that saves you at least twice what you paid for the materials—or you get your money back from us.
We’ll take that risk. Gladly. That way you don’t risk anything on the materials.
Now you just need to move quickly. And that’s mainly because if they’re suing you – or about to sue you – you don’t have time to waste.
They Laughed at Me but Then
The Debt Collectors Laughed at Me
When I Said “Here!” in Court
But When I Gave Them My Answer …
It looked like a typical day at court – – the debt collection lawyers were circling the table in front of the judge like vultures flying around some unfortunate animal on its last legs. There must have been ten –maybe fifteen—of them, and each time the judge called out a defendant’s name – – “Smith!… Jones!… Williams!… Thompson!…”- – there was silence, and then one of the lawyers would say in a bored voice, “Call for default.” And the judge said, “Default.”
– – Just like that, the debt collectors had their judgments, and as soon as that court session was over, they were going down to start the garnishment process. Start taking some poor guy’s paycheck.
The judge must have given the debt collectors fifty defaults before they reached my name, and it looked like there were more than a hundred more to go after me.
“Westmore!” the judge called out.
“Here!” I said.
In the shocked silence that followed I heard someone laugh. And I could see people nudging each other with their elbows. “What’s he doing?” one woman whispered, just loud enough for me to hear. I heard someone snicker. “Just a regular guy,” someone else said. “They’ll eat his lunch!” The debt collection lawyers smirked among themselves. That’s what they thought, too. No one EVER fights back.
Then I handed the Court My Answer
I walked up to the court clerk and handed her my Answer to the Petition.
It looked good.
Sharp and professional.
And it had a counterclaim. She raised her eyebrow with a new respect as she took the document and entered it onto the record. The vultures got strangely quiet and looked away when I dropped off a copy of my Answer and Counterclaim with the debt collection lawyer (I’ll call him “Mr. Nice Guy”) who had raised his hand on my way back to my seat.
The people who had been laughing at me could feel the change that had come over the court room. They got quiet, and I could sense their new respect.
They smiled and moved over to make room for me when I wanted to sit back down. Mr. Nice Guy was still smirking when he took the documents I handed him, but the smile started to fade when he noticed the counterclaim. And it was ancient history by the time he noticed I’d attached interrogatories, requests for admissions, and requests for documents to my Answer and Counterclaim.
He knew he was in for a fight. He knew it was going to cost him. He knew he was going to lose money if he kept after me. And he knew he might lose the case. He had come expecting a patsy—all those vultures had, you could see that just by looking at their smooth, scornful faces. I doubt if a single one of those lawyers ever did a day’s worth of real work in their lives!
Well, he’d run into a buzz saw this time.
A Complete Success!
Two days later I received a letter that said:
Dear Mr. James Westmore, My client has agreed to offer to settle our cases against each other as a mutual dismissal with prejudice. If that is acceptable to you, please sign the attached stipulation for dismissal of the lawsuits the parties have against each other and return them to me for filing.
Sincerely,
Mr. Nice Guy
I decided to let the debt collector go. I could have said “no” and tried to make him pay me something to get out of it (I think I had him cold), but… who wants to spend the rest of his life in court if you don’t have to?
It was as easy as that, although I know it isn’t always that easy – not by a long shot. Still, when you start fighting everything is leaning your way. It’s just that no one knows it.
I suddenly had a whole new life in front of me. So I made a quick call to the lawyer and said his offer was acceptable to me…if they would cancel the debt I supposedly owed and revoke any damage they had done to my credit report.
After a pause, Mr. Nice Guy gave in. So I wrote that right into the stipulation of dismissal, signed and sent it back to “Mr. Nice Guy & Associates.”
It was over. Just like that, a $7,000 credit card bill that debt collectors had harassed me about for three years was gone. And all the reports they had made to the credit agencies were gone with them.
How I Learned to Protect Myself in Court
Just by chance, I bumped into one of the “bystanders” who had seen me say “Here!” on that fateful day in court. He wanted to know how it had turned out for me.
When I told him, he asked me if I was a lawyer or “knew” somebody!
He was shocked when I told him that the only thing I knew about the law was stuff I had learned from YourLegalLegUp – a business that gives regular people everything they need to defeat the debt collectors. I told him how I’d learned all about the debt collectors and how they usually didn’t have what they needed to win their lawsuits. I told him I’d even gotten the forms I needed, too – “just a few easy changes was all I needed to make!”
“Wow,” he said. “It cost me over $1500 to hire a lawyer. And he didn’t even get my credit report changed!”
I was almost embarrassed to say how little it cost me to defend myself.
Look in the Mirror – What Do You See?
These days, when I look in a mirror I see a winner looking back. You won’t believe how much that is worth.
Before the debt collector sued me, back when they were just calling me every day, I got so that I hated to hear the phone ring. To tell the truth, there were many times I just couldn’t answer the phone at all. If an old high school friend tried to reach me, and I didn’t recognize his phone number, well, that was too bad. I missed the call. I wouldn’t answer the doorbell, either, unless I was expecting someone.
It’s hard to be a good friend or neighbor if you dread answering the phone, you know? It’s also hard to be a good neighbor if you’re afraid to answer the door when the doorbell rings or walk outside on the porch on a nice night when other people are out there.
And after a while it can be hard to look yourself in the mirror.
That’s all changed for me now, though. Now I like what I see, and you can too.
Why’d I Do It?
I won’t kid you – – it was scary to stand up and say “Here!” that first time. It was a little embarrassing to have all those people looking at me – – even though I’d never met them before and didn’t expect to meet them again. So why would I care what they thought? I cared because I’m like most people. We do care. I didn’t want to be the center of attention and didn’t want to be laughed at or pitied or scorned by strangers. That’s human nature.
I did it, though, because I was fed up. I was sick and tired of those debt collectors and their nasty voices. Sick of their contemptuous looks. Tired of being bullied and threatened by some anonymous punk on the phone. Plus I didn’t have the money to hire a lawyer –or to lose the case, either.
And I was fed up with feeling hopeless and pushed around.
It Changed My Life
And now that I’ve done it, it’s changed my point of view completely. The whole world looks and feels different to me in ways I never would have believed. I look in the mirror and like what I see again because I know I’m the guy – – yeah, that guy right there in the mirror!- – that’s the only one who stood up in court and said “Here!” that day.
I’m the one who fought back.
And I’m the one who won’t have to hear from the debt collectors any more or try to scrounge every cent I possibly can to keep the wolves away from the door. That’s me! It feels great to know I was brave enough to do what it took. No one will ever take that feeling away from me again.
To tell you the truth, the whole thing was absurdly easy. (The work was all in my head.) I spent a few hours reading the Manual, a few hours watching videos, and an hour or two putting together the documents I gave the court. The lawsuit was for about $7,000, so I figure I “made” about $1,000 per hour defending myself. It’s better than what I usually get at my job, let me tell you!
Other people sometimes have to do much more, but once you start fighting things should go your way. That’s because they really usually don’t have what they need and everything you do makes them spend $200 per hour fighting you. That’s money they know they might never get back even if they win because they don’t know if they’ll ever be able to collect it. It’s sweet.
I like what I see when I look in the mirror now, and I feel good about answering the phone or the door.
It’s the little things in life that are so big, isn’t it? Now I’m a good friend and neighbor again. I hold my head up when I’m out in public. Little things that are so huge.
I’m a new man!
My wife has certainly noticed the difference. Not only do we both have a sense of security we’d been missing for so long, but she also says she’d about lost the man she fell in love with. And she lets me know she’s glad I’m back every night! It’s like a second honeymoon.
………………………………………………………………………………………………….
Defend Yourself from the Debt Collectors
– Protect What’s Yours
You too can defend yourself from the debt collectors. You can have the good feelings “Jim Westmore” has. The above is a fictitious letter, but it’s drawn from the things real people have written to me many times. The results are not fictional.
Let me share just a few of the things some real people have said in their own words –and I’ve never paid, or even asked, for any of these testimonials. Notice the confidence and joy in every word they say.
Thanks for your work, Kenneth, I believe you have done a great job creating yourlegallegup.com. It helps in many ways, not only I fought against unfair debt collectors, but also I was educating myself.
I went through your work and crafted it to fit my case circumstances. Your “legal bundle” gave me ideas and the direction I should follow and, together with research skills, it made great power in defending the case.
One more thing. I’ve got the letter from the lawyers last night. The letter is addressed to the court and it says it is plaintiff’s “voluntary dismissal…”
Yes, it works. Yes, it wins. I appreciate you sharing your great knowledge.
Thanks, Andrew, Georgia
Hi Ken,
You have GREAT videos!! There’s something about seeing the videos and hearing your voice that makes the material all the more easy to absorb!
Thanks again for your continued support and help!! 🙂 Christine, Michigan
Ken, Just a quick email to say THANK YOU for your well-written manual! I was scared to death when I got a summons and complaint served on me by a debt collection attorney. I did exactly what you said, though, and basically let them know I wasn’t going away….and that was pretty much it. The attorney folded like a cheap suit, and I have to say it almost felt better than sex!
Thanks again,
Gary, Ohio
I settled and it was a victory on my terms! Thank you for the manual and working with me thru my emotions and getting me to the end….I waited to respond to until I saw for myself….It works to fightback! THANK YOU …THANK YOU…Ken.
I saved several thousand dollars….money well spent on the manual….
Olivia, California
Again Thank you very much for all your great advice-hints. I wont keep messaging you because I know you have a life over there too! But again Thank you so very much. If you make it out to Seattle let me know. Star bucks is definitely on me as well as dinner.
And I’m serious.
Kevin, Seattle
Today I received in the mail an offer “Stipulation For Dismissal With Prejudice”,which basically states the Plaintiff will dismiss their Complaint if I dismiss my counterclaim.
Its a done deal. Over five thousand dollars just like that!
Your litigation materials were clear, vital and necessary tools for me to win. All the examples,logic and powerful arguments presented in your materials helped me beyond belief! I am eternally grateful,and right now quite ecstatic!
Your materials are simply the best and finest of its type anywhere for pro se defendants facing debt lawsuits!
Thanks Ken,
Frank, Arizona
The great thing about your materials is that they take away the fear of going to court. I can never thank you enough for that!
Thank you from the bottom of my heart!
Barbara, Maine
The Secret of Their Success
As anybody who knows me or has visited our site (Your Legal Leg Up) can see, we have devoted a great deal of blood, sweat and tears to helping ordinary people stand up to the debt collectors. As a former attorney who represented hundreds of people being sued by debt collectors, I know what it’s like to be harassed and sued, and I know what it takes to fight back. We have written dozens of articles, several full length books, and created over a hundred videos on defending yourself from debt collectors.
What makes it work, though, is actually very simple. Here’s the “secret.”
Debt collectors usually don’t have what they need to win a lawsuit from you when they file suit against you… And they usually can’t get what they need without spending more than the lawsuit is worth… if you fight back with knowledge and determination.
It isn’t hard! The main battle is in your head. Once you get used to the idea of speaking to the lawyers and the judge, once you see that they’re just people who don’t usually have to work very hard and who really don’t like to work hard, you’ll have all the advantages in your case.
The debt collectors win about 80 to 90 percent of their cases without a fight. If you convince them that you know how to fight and that you will fight – – to the bitter end if need be – – they’d rather leave you alone. That’s the secret.
Our materials tell you what you need to know so that you can fight back. And we’re there to encourage you to do it when things seem a little scary so that you will fight back.
You’ll Deserve the Credit!
We offer our help. Our materials will inform you and give you the tools… but in the end the victory is yours. And you will deserve the pride you feel when you look in the mirror. And the peace of mind that comes from knowing that debt collectors will never push you around again. Because you are part of that very exclusive club of people who will actually stand up and fight.
You’ll deserve all the credit and peace of mind you earn for yourself.
And you will see the world differently – we guarantee it.
Our Materials are Guaranteed
If you’re being sued (or being pursued) by a debt collector and get our materials… we like your chances of winning –they’re great!– but we can’t guarantee you will win or that they’ll take the settlement you offer. Sometimes the debt collectors can get what they need and are willing to spend what it takes to get you even though it means they will lose money. That’s just life. What we can and do guarantee, though, is that you will be satisfied with the materials and the service you get, or you can have your money back. We wouldn’t want it. We also guarantee that if you decide to settle your case (instead of going all the way to trial), you will save at least twice what the materials cost you. Probably much much more.
One customer decided to pay the debt collector $500 rather than fight to the very end. But he had been sued for $12,000. And he made them clear his credit report.
We thought he would win the case –maybe make them pay him something—but he decided he had better things to do. If you ever feel the same way—that you’ll do better in your life if you settle for a small fraction of what they claim you owe—you’ll get a settlement offer that saves you at least twice what you paid for the materials—or you get your money back from us.
We’ll take that risk. Gladly. That way you don’t risk anything on the materials.
Now you just need to move quickly. And that’s mainly because if they’re suing you – or about to sue you – you don’t have time to waste.
If They Never Have Evidence Why Do Discovery
People ask me why they should do discovery in debt cases when everybody knows the debt collectors don’t have any evidence. The answer to that question might seem obvious once you’ve been around, but it’s a critical part of defending yourself from the debt collectors.
As we point out in The Most Dangerous Myth, you can’t depend on anybody to do anything for you. You can’t depend on the courts to get rid of debt cases that don’t have evidence. If they did that, they’d get rid of most of them, but that isn’t their job. It’s going to be up to you.
There are a couple of fundamental reasons to do discovery as soon as possible. You have to make them show you what they have or admit what they don’t have. And the process of discovery costs the debt collectors money and often drives them away by itself. In addition, conducting discovery will likely make the judge and the other side take you more seriously and be more cooperative when you need it.
Make them Admit what they Have or Don’t Have
The first, legally-based reason, for pushing discovery despite all their objections and BS is that to win the case you must PROVE they have nothing. Or rather, you must prove that what they have, if anything, is not enough for them to win.
Ideally you could do that by motion for summary judgment, which would spare you the risk and effort of trial.
If you can’t do that, then you must prepare to win at trial.
On the other hand if they do have things, you need to know about it so you can prepare for them.
Now, to be clear, debt collectors, who are always represented by lawyers (they have to be), start with the advantage of the court’s attention and respect. You, on the other hand, as a non-lawyer, will have to earn the court’s respect. Maybe it’s not fair, but that’s just the way it is.
And one result of this is that you simply cannot count on the court to pay close enough attention to any arguments you make unless you give it time. A motion for summary judgment – win or lose – is the best way to present your arguments about the debt collector’s evidence to the court.
In order to do that, you must know, in detail, what that evidence is and where it comes from.
Discovery is Expensive for Debt Collectors
The debt collector is almost certainly going to object to every single request or interrogatory you give it. They can’t help themselves, and it’s usually a good tactic because it drives so many defendants into submission. But it’s a two-edged sword, and when you’re pro se and determined, their objections will be a large advantage for you.
Part of filing a motion to compel answers is an “informal conference” and attempt to negotiate discovery disputes. You will have to call the other side’s lawyer up, ask him or her why she objects to each item of discovery, tell her why you want it, and argue each objection. And their objections will be numerous, absurd, and repetitive. They’ll object, for example, to your request for information about the alleged purchase of your debt on the basis of attorney-client privilege. In all likelihood no lawyer will have been involved – or it will be strictly in an arms-length transaction where no attorney-client privilege ever applies. And they’ll make many other absurd arguments.
Take your time. Take their time. And know that it’s costing them about $200 per hour for you to do so.
Find out whether they actually have anything they aren’t giving you. If they say they don’t, then once you confirm the message you’ll have what you need for the summary judgment motion. If they say they do, keep fighting until you know exactly what it is. Again, all this is costing them a LOT of money.
And nothing makes a debt collector rethink the wisdom of suing you more than having to spend money. Not even it looking like you can win the case outright.
Conclusion
So go through the process. Chances are good that they’ll either give up or you will have what you need to win by the time you get through. And there’s no other way to get to that point.
The Most Dangerous Myth for Consumers in Debt
The Most Dangerous Myth for Consumers in Debt
For a free copy of this article in PDF format, click here: the Most Dangerous Myth
Consumers who owe money – debtors – often believe a lot of myths that are bad for them. Debtors can be desperate and will look for what seems the easiest, fastest way out of trouble. That makes sense – if you’re being sued you do need immediate action. But you must be on guard for myths that will hurt you by luring you into the wrong action, or no action.
And the worst myth being played to people being sued is the idea that somehow someone else will take care of them. It shows up in many ways and is always bad news. It isn’t necessarily your fault if you have believed this destructive myth – there are a lot of people peddling it. But your chances to beat the debt collectors and protect your money depend on your taking charge.
The Myth – where does it show up and how does it do so much damage?
Let’s look at some of the biggest examples of the myth that someone ELSE will take care of you.
People Think the Debt Collectors will Try to be Fair
Everybody KNOWS this: Debt collectors make very little effort to be fair once a lawsuit is filed – and they don’t try much before that, either.
Once you’re in a debt collector’s sights, the only thing they really care about is getting your money. At the “harassment stage,” the debt collectors are paid depending on how much they can get you to pay, and not many people think they trust them to tell the truth. And yet so many people tell me they have offered information or money to the debt collectors or asked them to give them a break in some way. They SAY they don’t trust them, but then they depend on them to make a fair or helpful offer. And when they’re talking to them about “how much they owe,” they believe the debt collector instead of demanding proof.
You’ve learned to tell the truth, so you trust and believe the debt collector on the phone will tell you the truth. And you do that even while you, yourself, might feel free to lie to them at any given point.
The debt collectors know all that, and you can’t trust a word they say. You must take care of yourself, and with debt collectors, that means checking every fact they claim and making them write down every promise they make. Anything short of those things is trusting someone you don’t know, who doesn’t care about you, and has strong financial incentive to rip you off, to do the right thing. That’s naïve and foolish – and it happens all the time.
People Think the Lawyers Will be Fair
I know, you’ve probably heard the joke: “How do you know if a lawyer is lying?” – “His lips are moving.” It’s fashionable to say bad things about lawyers, and everybody knows, in the abstract, not to trust them. But there are two major forces going against you in a debt case. First, lawyers are not all untrustworthy, and most of them don’t sound like they are. They make their living by getting people to believe and trust them, after all. The second reason is more insidious: it is power. Lawyers in debt cases have the power to make your life very difficult. They can embarrass you, put you to enormous stress and expense, and they often treat you like dirt. In addition to that, they represent large, rich companies, while you are a financially stressed individual.
Faced with such a difficult situation, it’s easy to hope for the best. And if you can hope it, you can believe it, right?
Legal Ethics
The lawyers are supposed to be careful, at least, before filing suit. They have an ethical obligation not to bring meritless suits.
Do you believe they make that effort when suing debtors? Probably not – and you would be right. The courts wink at the collection process, allowing lawyers to “rely” on the statements of the creditors that you owe the money. In the case of debt buyers, ironically, the very agreements by which they buy debt say that the records cannot be trusted and are not guaranteed. But the lawyers forge ahead usually without the slightest idea of what’s in the case, let alone whether it’s right or not.
And the courts let them.
On a more fundamental level, a lawyer’s main and almost exclusive duty is to the advantage of his or her client. It isn’t ethical for a lawyer to “cut you a break” at the expense of his or her client. They won’t ever do it.
And yet debtors share information and throw themselves on the mercy of these sharks by the thousands per DAY. That’s trusting the myth.
Trusting the Courts
Most people trust the courts. They know that a lot of judges are bozos in black gowns, and they know that most judges come from the plaintiff’s side of the law. They know the legal system is skewed in favor of the rich even as the laws are skewed in favor of the rich. They know, theoretically, that trusting judges to take care of them is a big mistake.
And yet you would not believe how many people tell me the judge should have seen through something or not allowed the debt collector to do something – often without even having asked the judge for what they wanted.
Know this: it is not the courts’s job to take care of you. They give only the briefest look, if any at all, at the outcomes of debt cases – they don’t have time, they don’t care, and they aren’t even supposed to care. The legal system is designed as an “adversary” system. That is, it is a fight, and in any fight people could use various strategies. The court will let you use almost any strategy you choose, and if that causes you to lose it isn’t their fault or concern.
The courts will not require the debt collectors to put on admissible evidence. If they did, most debt collectors would never win their cases. Instead, it is up to you to object to evidence you don’t like and make the court keep it out. If you don’t do that, the court lets it in.
And yet people expect the court to try to make the outcome of cases fair. They do not. Believing they will is believing the myth that someone else will take care of you.
In daily life, people do look out for each other quite a bit. In legal life, NEVER.
You wouldn’t believe how many people do not even show up in court “because they don’t owe the money.” They somehow trust someone to see that and care, but this is just foolish.
The Myth, outside of Court
People in debt frequently look to other people for help in the belief that those people will, in fact, help them. On the internet, there are people earnestly telling you that no one owes anybody anything (the “Accept for Value” idea), yet they’d be outraged if you didn’t pay them – just as you would be outraged if you went to work and your boss told you that. To believe the A4V theory is to believe that someone is taking care of you. More than that, to believe the people hawking that, or any other program, is also to believe the myth.
Even Me
Everything I’m saying here applies to me, too. You might be surprised how often I get emails or messages asking me what they should do and presenting pages of facts or laws. They want me to take care of them – they are trusting me to take care of them.
Representing yourself pro se means developing your OWN judgment. It requires carefully weighing facts and motivations and coming to your own conclusions. It means figuring out the facts and how to get them.
It takes work, and it takes time.
When debt collectors sue you for debt, you have a very good chance to win. But it is up to you to make that happen. Our materials and memberships exist to help you know what you need to do and to help you do it. We want to teach you how to defend yourself. Once you learn that, it changes your whole view of the world. It frees you from the myth that someone else will do it for you and lets you soar on your own wings.
Your Legal Leg Up
Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.
In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.
Products Related to this Article
Because this is a general article, there are not any products specifically related to this post. I do suggest asserting your rights early and often, and you might find our Take Control of your Life product helpful in that. I also suggest great care in researching and analyzing facts and law. You might find our Guide to Legal Research and Analysis product helpful for that.
Beyond that, if you are facing significant debt problems, I’d suggest our memberships.
Memberships
Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.
Sign Up for Free Information
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What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.
What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.
Ending the Debt Nightmare Pt 3
This was originally part of a promotional series. In that series we discuss the way people often run into debt trouble. It starts with some difficulty – often medical bills or a lost job (or both, obviously). Then is spirals out of control because the bills don’t stop coming even if you’re having trouble paying them.
The banks are often only too willing to lend to people having trouble paying debts. In fact, they target people like that because one of their main sources of income is the exorbitant fees they charge for anything that goes wrong.
And then the debt collectors get involved…
Ending the Debt Nightmare Part 3
Barbarians at the Gates
Are “Strategic Defaulters” Barbarians at the Gates of Rome?
Are people who are “strategically” defaulting on their home mortgages akin to barbarians looting Rome? Does the fact that more people are defaulting result in a weakening of the rule of law in our society? Justice Litle writes convincingly that the rise of strategic defaults means our country is on the road to ruin. But I would argue that it is not the strategic defaulters who are greasing our descent into hell. They’re just minor bit players in an overall drama.
This Happened because of Accounting Regulations
The changes to the accounting regulations governing how banks and other financial institutions report the value of their speculative holdings have done the real damage to our economy. Strategic defaults are merely an inevitable consequence of that change. Specifically, before March of 2009, banks were required to mark their investments to market. “Marking to market” means that a company holding assets must periodically reassign values to its assets for book-keeping purposes.
An example of that would be a stock market account. Every night-and actually at all times during the day-you can look at your stock market account and get an up to the minute idea of the value of the stocks you hold. That is easy for stocks, which are priced by the market on a continual basis, but much harder for more complicated assets. Marking to the market means that the company must attempt to determine the current market value of its assets at certain intervals. And in the case of the banks, the values of these assets can determine whether the bank is insolvent or running afoul of reserve requirements.
When mortgage backed securities (mbses) became “troubled” banks and investment firms were being forced to show large losses of capital, losses which in fact revealed that years of wild speculation had left the banks in a precarious position. Rather than allow the market to sort things out and deep-six some of the largest banks in existence, several bail-outs were instituted.
The most important of the bail-outs was perhaps least publicized: the dropping of the mark to market requirement. Under the new FASB regulations, banks are permitted to assign “historical” values to their investments. If they paid a dollar for mbses, they could carry the mbses as assets worth a dollar even though they had become worthless. This equally applies to home mortgages themselves. Many people call this “mark to make-believe.” Notice that the banks balance sheets then lost any relationship to reality, and any investor relying on the supposed strength of the underlying business was defrauded.
With a stroke of that pen, the banks became “solvent” again, the banking crisis was over, and the 2009 “bull market” began. Well. It sounded good, anyway. But the changes actually were an early abandonment of the “transparency” Obama claimed to want to restore to government and a wholesale adoption of fraudulent accounting within the very heart of our economy. The “bull market” that followed, and all the claims of “economic recovery,” have rested on the deception permitted by that regulatory change. And the rosy condition of the largest banks is a deception. Despite the regulatory changes, banks have been shut down at historic rates this year, and many of them are holding mbses which they have valued for their book-keeping purposes as 100% or more in excess of their actual value.
Banks with their Hands Tied
Of critical importance to the strategic home mortgage defaulters, however, is the fact that the banks are maintaining mortgages at their “historic” rather than (much smaller) actual value. Foreclosing is a historical event that would force a revaluation of the assets under the regulations.
That means the banks cannot foreclose on mortgages without revealing their actual financial condition, and since their actual condition is insolvency, their hands are tied. Accordingly, the banks have adopted a policy of “extend and pretend.” They are extending the loans and pretending they were not in default. But this has left observant, savvy people free to stop paying their mortgages but still remain in their houses, and naturally more of them are doing so as they see others doing it.
Bothered by Debt Collectors
Debt – both a personal problem and a social issue
We know that if you are facing any kind of debt problems – and most definitely if you are being sued or threatened with suit – you have a situation facing you, personally, that is extremely important. We take that very seriously, and most of our efforts are designed to help you solve the problem on a personal basis. If you’re being sued, for example, that means we want you to win – and then to repair your credit report so that it doesn’t hurt you anymore.
If you are being harassed by debt collectors or have a negative credit report already, we want to help you fix those things at the personal level. Thus we are strong and committed advocates for you. We’re on your side all the way.
There’s also a social justice issue here which is worth keeping in mind. You will not always find the courts sympathetic to you or willing to listen – or to do their job at all, frankly. We believe that this reflects a larger issue where the powers that be seem to think it is perfectly fine to rob from the poor and give to the rich. In this area, we think that the more people who represent themselves in cases like this, and the stronger and better you are at standing up for yourself… the better everybody else will be. And the more who do it, the better for everyone. So we are also strong social advocates.
In other words, sometimes the courts may seem unwilling to listen to you or actually hostile. If you persist, though, you will still have an excellent chance to win.
Stand up for yourself in every way. Don’t let the debt collectors rip you off – which they will certainly do if you give them the chance. Fight back! Even if you used the credit card or borrowed the money, you have to defend yourself to make sure they don’t get any more than they should and don’t do any more harm than they’re entitled to. And in reality, you have a really great chance to win. Completely.
The law is an adversary system, and the up-side to the fact that if you don’t take care of yourself the debt collectors will rip you off is that if you do take care of yourself you will probably be in better shape than you can even imagine possible right now.
Sued for Debt – What’s Reasonable to Want out of Settlement
What’s Reasonable to Want and How do you Get it?
If you’re being sued for debt and have at least some money, you may be thinking about settling the case. What’s reasonable to pay? What’s reasonable to want in return for your money? And how do you go about it all?
These are questions that came up in a recent case evaluation. The answers are dynamic, but in a general way they point to some useful ideas.
Settlement Happens When Both Parties Agree they Can’t Do Better
In lawsuits, and perhaps all of life, you take actions you think will give you the best possible outcome. That’s a simple idea, but what it means is that if a company is suing you, they will settle if and only if they think it will give them a better outcome than pursuing the case to trial. In evaluating their case they look at “risk” (of losing) and cost (to pursue the case). When they file the suit, they fully expect to win the case either by default or within a few short weeks without having to spend any significant effort on it. Their only concern is whether you’ll be able to pay, but they do have a serious concern about this issue and will likely either settle for less than they demanded. But not much less.
If you want a better settlement, you’re going to have to take actions to change the way they view the suit.
Look at the Overall Case
Not all lawsuits or claims for money are created equal. If the plaintiff is a debt buyer (and not an original creditor), they will very likely have some or all of the weaknesses we mention in our Three Weaknesses Report. That is, they probably cannot win the case if you fight it intelligently. But they don’t expect many people to fight at all, and of those who do fight, they don’t expect many to know what they’re doing.
That means that when they file suit they completely discount all risk of losing, and they expect costs to be minimal. You need to change those opinions, and if you fight you can change their opinions about both of those things… eventually.
If the plaintiff is an original creditor, there is still a chance they’ll have the three weaknesses. But again they will completely discount any risk of losing. And remember, the lawyers bringing these cases scarcely if at all look at the cases – they have no real idea of what they have. They base their lack of concern over losing on the fact that so few people fight the cases.It’s a waste of money, they figure, to spend even one minute per case looking at the file when almost none of them will actually be disputed.
Again, you can change that by fighting. In discovery you can find out whether they have what they need – and at a minimum you will be adding to their risk (since they’ll have to start spending money to pursue the case, and they’re worried about whether they’ll get it back).
Therefore, it almost always makes sense to start fighting – and to do as good a job at it as possible – whether you have a debt buyer or original creditor, and whether or not you want to settle or try to win.
When it’s Time to Talk Settlement
After a while, you may be able to get the other side to take settlement more seriously. When you do, what can you reasonable expect from them? Well, in short, that all depends on just how worried they are about their risk of losing and the cost of continuing. If they’re very worried, you could get them to clear whatever credit damage they have done to you, take little or no money to walk away, and give you a dismissal with prejudice.
If they’re not worried, you won’t get much from them. Simple as that.
Factors to Consider in your Favor
Some things that could help your case – you’ve shown them that:
Factors that Could Hurt Your Case
There are some things you can do to make settlement more difficult. And understand, the better your chances of winning are, the more likely they are to settle, so these factors should be considered damaging to your chance of winning at trial.
Do you see how all of these things lower their risks or uncertainty regarding getting money from you?
Note that one thing that is NOT a factor is how much they paid for the debt (if they’re debt buyers). They probably did not pay much, and this might have a small effect on the amount of money they insist on, but their rights are measured by the amount of the original debt. And they will push for the most they can get according to the factors we mentioned above. How much they paid for the debt makes almost no difference. Whether they have “written off” the debt is an accounting matter that also has no impact on your negotiations or the case in general.
Conclusion
If you can do a lot of the things that help you and avoid most of the things that hurt you, you have a very good chance of winning at trial. The better your chance of winning is, the better a settlement you could get if you settle. It all starts with knowing what you’re doing as soon as you can (and of course that’s what our membership is for).
We often say there are no free lunches, and that most definitely extends to settling lawsuits. They will only settle with you and give you what you want because they think that is better than the alternative of continuing to fight. Don’t expect them to settle as a favor to you or from the goodness of their hearts. It just doesn’t work that way.
Vehicle Repossession and Breach of Contract Lawsuit
Vehicle repossession is not “debt law” in the sense we mean it at our site.
If you’ve read many of our materials, you know that we consider debt law as good as it gets for self-representation. That is because debt buyers buy vast quantities of debt and essentially take a “factory” approach to bill collecting and lawsuits. You can expect pretty much every case brought by a debt buyer to follow a similar approach – the petitions are almost always virtually identical, and the whole process is usually shoddy. Typically, the debt collectors don’t have what they would need to win a contested fight – and they don’t want to get what they would need to win because they are designed to catch the 80 – 90% of the people who do not fight.
And debt cases are “document-intensive,” meaning that the debt collector’s whole case will usually depend on getting some documents into evidence. There is very little testimony and no expert witnesses. So that means a pro se litigant can focus on a few simple evidentiary questions and not worry too much about arranging testimony or other trial tactics.
But our materials do not apply to vehicle repossessions and the surrounding issues. Those cases present a different set of issues and opportunities.
What is a “Vehicle Repossession?”
When you buy a car on credit, you will typically sign a contract agreeing to pay a certain amount per month (plus a variety of other terms, obviously). And these contracts and their terms are, in general, a terrible, terrible deal for the customer. One of these terms is a lien and right to repossession, and there is a whole body of somewhat specialized law on all of the repossession process.
If you fail to make payments, the company may have installed tracking and disabling devices in the car – so the car may stop working. And then the repo guys come and get the car. And then the REAL scam begins.
When dealers repossess a vehicle, they are not “collecting a debt.” They are, in legalistic terms, exercising their liens and cutting off your right to a security. It looks like a collection, and it is one, but the law of most jurisdictions does not see it that way.
Still, the idea is for them to get their money back, and what they plan to do is sell the vehicle at an auction.Early in the process, then – before they get your car – you can talk to them and negotiate terms more effectively than later.
Once they get your car, they will want to sell it. If they do this in a “commercially reasonable” way, you will be on the hook for whatever amount of your car note remains. And inevitably, this is a shocking amount. For various reasons (some good and some bad) the courts are extremely lenient as to what constitutes “commercially reasonable.”
But the fact is that the dealers get almost nothing for the cars they repo. They sell them to each other, at auction, so this is one of the all-time scams – and the courts wink at it. In any event, repossession law focuses extensively on this question of “commercially reasonable” and on certain notice provisions. State laws in this area are complex for most people, and the court decisions are not easy to understand.
And the car dealerships have stacked the deck in most cases. Their lawyers specialize in this law, know the facts of the cases they bring (much more than debt collectors, anyway), and will almost always have the contract you signed. They’ll have people who can swear to them, too, because most car dealerships are built around the repossession process.
This doesn’t mean you don’t have a chance to win. It just means that this isn’t the best kind of law to go pro se. Fortunately, if you are broke, most of the legal service organizations that help people without money are good at this. It’s a problem a lot of people with money problems have. We suggest you find one of these places – many law schools have clinics that do this, too – and see if you can get help.
If you can’t do that, it still makes sense to fight, and on a simple dollar basis, joining us to help you do that will probably be worth your money. Your chances of winning aren’t great, but they do use a factory approach, and some of our tools will apply to that. And by fighting you can reduce some of the damage they will do to you.
Repossession and Suit to Collect the Difference Happen Fast
Unfortunately, vehicle repossession cases can happen very quickly. Our advice is to make every effort to find help. Filing an answer by yourself could very well hurt your case. If you must do it by yourself, our membership can give you SOME help – and in that case you simply must join and talk to us before answering the suit. Trying to represent yourself without any help is just not a good idea.
Our Case Evaluation Service
One of the services we provide to members and non-members alike is a “case evaluation.” It’s a great deal for people being sued by debt collectors who would like some guidance about their case. We do not recommend this service for people facing vehicle repossession, though. If you send us one, we will have to spend the time to figure things out (so we will keep your money for the time we must spend) – and then we’ll almost certainly give you pretty much what we say here. Save your money and your time and look for a lawyer who can handle this case for you.
Motions to Dismiss Part 2
Motions to Dismiss in Debt Collection Cases, Part Two
When you’re being sued on a debt by a debt collector, motions to dismiss can come up in one or both of two ways: you could file one against them – or they could file one against you. More specifically, (1) you could file a motion to dismiss their lawsuit, or (2) they could file a motion to dismiss your counterclaim.
It is also possible that either or both of you could file a motion to dismiss certain affirmative defenses, although this does not happen very often in debt cases.
This is the second part of a two-part article. For the first part, click here. For a video on arguing motions in court, click here.
What Motions to Dismiss Are
So what is a motion to dismiss? A motion is always the way a litigation party asks the court to take some official action. A motion to dismiss is a motion asking the court to get rid of some part of the other party’s case on the grounds that, even if what the other side says is true, it doesn’t give them the right they claim. For this reason, motions to dismiss are sometimes called motions “for judgment on the pleadings” or “demurrers.” The crucial fact in all of these motions is that all the facts alleged in the pleadings are taken, for purposes of the motion, as granted just as if they had been proven. If the motion is denied, the facts will still have to be proven later in trial.
In the Litigation Manual I illustrate the concept by supposing that a policeman has issued a ticket for exceeding the posted speed limit, but the ticket says you were going 25 mph in a 30 mph zone. There, even if what the ticket says is true (and in this case, specially if it is), it simply does not state a violation of the law. A similarly basic example in the debt law would be where you sued the other side under the Fair Debt Collection Practices Act without alleging an action that violated the act.
Many motions to dismiss really seem to be calling the court’s attention to some obvious mistake, a simple oversight, perhaps. Naturally, however, many motions to dismiss are not so simple. In many cases, although the facts are clear, what the law provides or requires is not, and these would be cases appropriate for motions to dismiss.
You can move to dismiss any claim or count of the petition. If you do not seek to dismiss the entire petition, you have to answer the part you do not try to get dismissed.
Because the motion assumes that every fact alleged is considered true, motions to dismiss are said to be “testing the sufficiency of the pleadings.” Most courts will go ever further than that, and state that, if any set of facts (alleged or not) consistent with the pleadings could result in a valid claim, the motion to dismiss is to be denied, but from the point of view of a pro se defendant, this rule has limitations. Depending on unalleged facts can be a dangerous occupation for someone wanting to avoid a motion to dismiss.
Defendant’s Motions to Dismiss vs. Plaintiff’s Motions to Dismiss
Technically, a defendant’s motion to dismiss is treated in the same way as a plaintiff’s motion to dismiss, the only differences being who brings them and when. In any event, what is up for grabs is purely a legal question: does the law allow or prohibit certain action, and does it give a right to the person claiming it?
Despite the legal equivalence of the motions brought by plaintiff and defendant, it makes sense for us to look first at defendant’s motions, which you are likely to file against debt collectors, and secondly at plaintiffs’ motions to dismiss counterclaims or affirmative defenses, which debt collectors are likely to file against you.
Motions to Dismiss by Debt Defendants
When Petitions (or counterclaims) are filed, they are supposed to be following one of two types of pleading: “notice” pleading or “fact” pleading. The type of pleading required can make a very large difference, and it is determined by State law. In other words, your state requires either fact pleading or notice pleading. One of your first actions as a defendant in a debt lawsuit should be to find out which rule your state follows. Most states require fact pleading.
Fact Pleading
If your state requires fact pleading, then filing a motion to dismiss is as “simple” as looking at the elements (parts) of the case the plaintiff is alleging (its “prima facie” case), seeing if every fact necessary to prove that case is alleged, and moving to dismiss if any parts of the prima facie case is missing. You might think that debt collectors, who file millions of these cases per year, would never omit a part of their case in the pleadings. In fact they do so quite often, and this is simply because of the nature of their business: they buy huge numbers of supposed debts with minimal paperwork, file cases by the truckload, and rarely get challenged by defendants or the courts. In reality, lawyers are creating forms that secretaries fill out much of the time. They are not sharp, in other words, nor do they need to worry very much about their petitions. It is easy for them to make mistakes in the pleadings, and they often do. And sometimes they do it on purpose.
For a simple example, consider the filing of a claim of breach of contract in Pennsylvania, where a plaintiff on such a claim must either state the terms of the contract or attach a copy of it. Debt collectors almost never do this despite the rule – because they can’t. They don’t have the contracts. The huge majority of the cases are won by default, but those who defend simply file a motion to dismiss (called “Preliminary Objections” in Pennsylvania). Eventually the cases of persistent defendants get dismissed with prejudice, but for each case that gets dismissed, probably thousands of inadequately pleaded cases result in default judgment for the debt collectors. And the debt collectors are never punished for flouting the law. See the attached sample motion and judgment.
Notice Pleading
Where the jurisdiction is “notice” pleading, a motion to dismiss is much more difficult to win. Notice pleading means that a petition must give the party being sued some “general idea” of what he is being sued for, and in some courts this is such a vague standard that it is almost impossible to succeed in your motion to dismiss. Unless the debt collector actually names its theory in a heading (as they often do), if it does not state all the elements of an obvious claim, your motion may well be a “Motion for More Definite Statement.” In this motion you point out that the plaintiff has not alleged any specific claim and you ask that the case be dismissed or that the debt collector be required to state the elements of a claim. Your argument there is that the vague petition fails to give you adequate notice of the claims being brought against you. This type of motion (for more definite statement) has many of the advantages of a motion to dismiss and should probably be brought if possible.
If you win that and the plaintiff then files an Amended Petition that is also inadequate in stating a claim, you will either oppose the amendment or file a new motion to dismiss.
Timing – When to File
There are two aspects of time you must consider when filing a Motion to Dismiss (or for More Definite Statement). The first of these is whether you must file your motion to dismiss before filing an Answer. In my opinion it is always a good idea to file a motion to dismiss – on any basis – before filing an Answer.
Copy of the FDCPA
If you have any kind of debt problems or just want to understand the laws that apply to debt collection, you should start with the Fair Debt Collection Practices Act.
For most purposes, who the FDCPA covers and what it requires and allows are easily found just by googling the act. But sometimes you need the actual statute. And here it is free to download fdcpatext.