When a debt collector sues you as the first thing you hear from it (they can do that), this does not give you a right to dispute and require verification. Your rights are through the legal process, and you must answer the petition or you will be defaulted. Sometimes debt collectors use people’s confusion over their rights and do things which suggest you could dispute the debt. This video discusses your rights.
You would be amazed how often people ask me whether they should “just send a verification letter” to the company or law firm when they get served with a debt lawsuit. Or as one person put it, “now that I’ve called the court to tell them I object, should I just send a verification letter? Or was that enough?”
No. It wasn’t enough – it wasn’t even anything at all.
Let’s take a quick step back here and review some facts and some rights.
When a debt collector first contacts you regarding a debt it is attempting to collect, it is required by law to provide you certain information. If the contact is not in writing, it must send you a notice in writing. If the contact is in writing, that contact must contain a notice. That notice must inform you of the debt collector’s identity, the nature and amount of the debt in question, and your right to dispute the debt and require verification. People often refer to this notice as the “verification letter,” although more properly it’s a notice of the right to dispute the debt. If you dispute, they must verify the debt before attempting to collect again, and you have thirty days to dispute the debt.
If they don’t want to attempt to collect again, they don’t need to dispute. It’s a law supposed to prevent continued attempts to collect on an unverified debt.
A Lawsuit is NOT a First Contact
If you’ve never heard from a debt collector, can they sue you for a past due debt? And if they do, must they give you notice of your right to dispute? Yes. And no. They can sue you without first bugging you for money. If they do sue you, the lawsuit is NOT a contact that triggers your right to dispute and verification. That’s what the Fair Debt Collection Practices Act (FDCPA) says, and the reason for that is simple: you’re in the court system and play by court rules once a lawsuit gets filed.
You Must Answer
And the court rules are that once you get served with a lawsuit you must file an Answer (or other “responsive filing” – a motion to dismiss, for example) or you will be in default. Put another way, if you don’t respond in court with an Answer denying liability or a motion to change or get rid of the lawsuit, you will lose. The lawsuit changes the rules, and you “aren’t in Kansas anymore.” [That’s what Dorothy says in the Wizard of Oz when all the weird things start happening.]
Don’t be a Verification Sucker
The debt lawyers know the rules very well, and one would like to think that it’s only an “excess of caution” that causes them sometimes to print the FDCPA language on their lawsuit. But given the fact that so many people have sent dispute letters instead of answers, and the fact that the debt collectors KNOW this, that might be naïve.
What I’m here to tell you is that whether or not such language is on your lawsuit, YOU MUST ANSWER THE SUIT or face a default judgment. Don’t be a sucker – file an Answer or other responsive document within the time allowed by the rules of civil procedure. You must defend yourself in court – you’re not in Kansas anymore, and the FDCPA no longer applies.
A Little Window, Maybe
Litigation does not technically rule out the FDCPA entirely, just the “first contact” rule. It may be that the debt collector’s attachment of the notice to a lawsuit is itself a violation of the FDCPA, as it may be an attempt to sucker you into seeking verification instead of answering the lawsuit. It might be an unfair attempt to get a default judgment. I have argued as much before. That might give you a counterclaim to their lawsuit.
And if you have sought verification rather than answering, and they got a default judgment, you should certainly consider moving to vacate that judgment either on the basis of that deception or your own confusion. The courts favor judgments on the merits rather than technicalities, so there’s a very good chance such a motion to vacate, if filed in time, would work.
But these are not exceptions to the rule that you must respond to the lawsuit in court. If you get sued, the FDCPA no longer applies in that way. You must respond or they will get a default judgment against you, and the next you will hear about it will be when they garnish your wages or bank accounts. Don’t let that happen.
Disputing and demanding verification would be much easier, no doubt, but it doesn’t work at this point.
Don’t look for the “easy” way. Look for the RIGHT way.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-11-22 22:16:442019-11-23 14:48:23Don’t be a “Verification Sucker” – When You’re Not in Kansas Anymore
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The videos on this page are part of our glossary and our efforts to make the public more aware of it. You will find a brief description of the videos and a link to the page on which they occur. Click here for the Glossary.
If you’re being sued for debt, your case is going to head for a show-down on a couple of main issues. These will probably involve some billing records or some record-keepers wanting to testify. And these are primarily “legal” issues – that is, the facts may be clear and undisputed, and the judge might be able to make the important decisions in the case. When a judge does that by motion and before trial, it’s called a “summary judgment,” and the parties ask for that by filing a “motion for summary judgment.” You will want to consider trying this.
Before we get deeply into motions for summary judgment, let’s discuss the way cases develop, go away, or are decided. It’s really just one process after the case is filed and you’ve answered.
The Way Debt Cases Develop
First, the parties conduct discovery which aims to find out what facts are, indeed, uncontested, which ones are disputed, and what evidence there is in support of them. What this really means is, discovery looks for what you can prove about your case or their case. In debt law, you either want to prove it was all a horrible mistake (if that’s what’s going on) or that the debt collector cannot prove its case. Since most debt cases come from what were at one time legitimate debts, most debt defense boils down to an attack on the debt collector’s case. And you will have an excellent chance of winning.
In your discovery, you will probe for what evidence they have and how they plan to get it “into evidence,” i.e., into the court’s consideration at trial. (Incidentally, our Discovery Pack is designed to help you do this.)
As facts emerge, and as work happens and becomes necessary, the debt collector might decide to drop the case. In fact that often happens, and of course it often doesn’t, too. Sometimes the debt collector will try to shorten things up by motion for summary judgment, but more usually they just want to get to trial as quickly as possible. If they do either one of these things before you have conducted your discovery, there’s a good chance you will be snowed under. Thus you should do your discovery quickly.
You want to aim for the motion for summary judgment right from the time you file your answer. If it doesn’t work, well, you’re halfway to being ready for trial anyway, and you will have started talking to the judge about the issues that matter.
Now to talk more specifically about motions for summary judgment.
Motions for Summary Judgment
A “motion” is just the formal way you ask the court to issue a ruling of some sort. A motion for summary judgment is asking the court to find that all the necessary facts for a ruling in your favor have been established, and to grant you a judgment as to them. It’s possible to get a summary judgment about some parts of a case but not others (a “partial summary judgment” in legalese). To end the case, you have to get a judgment on all of the claims.
What to Do
If you are being sued, you need to begin with the ending in mind. That is, right from the beginning you should think long and hard about what it takes to win your case. In debt law, the first big challenge most defendants face is to answer the petition – just to take that first step in defending yourself. If you’ve managed that, congratulations. Just by doing that you’ve given yourself a better chance to win than approximately 90% of the other people being sued. And in some cases, to be sure, that’s all you need – the debt collector may walk away right now. But in most cases they won’t.
So your next specific step is to start discovery – the sooner the better. And you should start discovery with the firm goal of finding and proving the things you need to win. We have a product that can help with that, but this video is about the next step following discovery: the motion for summary judgment.
In a way, it’s simple, although this is one time you should never confuse “simple” with “easy.” If they’re alleging a breach of contract, for example, you will discover that they must prove the existence of a valid contract, its breach (failure to pay as agreed), and damages. The burden of proof is on the debt collector as to each of these things, and they have to show it using admissible evidence.
In your discovery, you should have narrowed down exactly what they have to offer as proof. In the case of a debt collector this is usually documents created by some other person, usually the original creditor. And they may have documents or testimony by some of their own employees as well. This material is generally intended to try either to fool the court into believing the other evidence is admissible, or to pull it within the rules of evidence.
Your job will be to look at each bit of evidence and show why it cannot do what the debt collectors want it to do.
Filing a Motion for Summary Judgment
Of course this isn’t very easy, and there are significant procedural requirements, but going through this process increases your chances of winning dramatically in three important ways. First, if you can show your right to a summary judgment, you should win the motion and get the case kicked out. Before that happens, though, you will be putting the plaintiff to the expense and effort of responding, and if they think they will lose (and often even if they think they will win), they’d rather just drop the case than keep going. And finally, even if the court does not rule, or rules against you, you will have learned a tremendous amount about the law and begun the process of teaching the judge what he or she needs to know, improving your chances of winning at trial a lot.
There’s every reason to do it. You just need the energy and courage to try. We can help.
Product Information
Because much of this article involves taking action and creating legal document, we include an addendum of the products we have that can help. First, if you are at the beginning stages of your case and needing to answer (or otherwise respond to) the petition, our First Response Kit is designed to help with that. If you have already answered and need to start (or restart) conducting discovery, our Discovery Pack will help. The Discovery Pack is included within the First Response Kit, so don’t get both. If you are trying to force the debt collector to respond to your discovery, you may want our Motion to Compel Pack.
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If you sign up, you will receive a series of videos and articles over the next few days designed to help you get a grip on debt litigation. Then we will occasionally send you information on new materials we have added to the site. This is rarely products and almost always new publicly available articles. You will not receive sales messages regarding other products, nor will we sell your information to any third party.
https://yourlegallegup.com/wp-content/uploads/2019/06/15798060.jpg8781200Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-10-02 17:20:232019-11-22 18:04:40The Best Defense is a Good Offense
You may have heard of one of the magic-word fads going around lately, the “Accept for Value” response to bills. As you will see, it supposedly invokes certain very specific formulae to accomplish something that would seem to be impossible to anyone using common sense. As with most of the “magic word” fads, this one will get you in big trouble if you try it. Don’t.
A4V Sellers
I have had a chance to look at several accept for value videos and sites. They’re a little cagey, and it isn’t clear whether there is one main source and theory or whether there may be variations with slight differences. Often enough, of course, one person comes up with an idea, and then a lot of people copy it, adding bells and whistles both as sales gimmicks and also to differentiate themselves from the competition. That appears to be the case with the accept for value “movement.”
In any event, I’ll discuss them as if they’re one idea – if you encounter something a little different, look for the fundamental similarities and don’t get too hung up on specific words.
The Basic Idea behind “Acceptance for Value”
The idea behind “accepting for value” defies common sense. It appears to be based on a belief that everything is free – or “already paid for,” which is the same thing. Naturally, there’s a conspiracy keeping people from knowing this or from using their free resources, and the advocates of acceptance for value are the only ones who know the trick of how to do it. They say. It involves some special forms and formulas we’ll be discussing.
A Few Words of Commons Sense to Get us Started
Before getting deeply into the mechanics and theory of the “accept for value” idea, consider: if you were creating a law that you wanted to apply to everyone, would you write it in secret code that only a few people could understand?
Of course not. Now, not all laws are crystal clear (in fact, really none of them are), but they are designed to be known or knowable to everyone – because otherwise how could you expect people to obey them? And laws are meant to be obeyed, mostly. Whenever someone tells you there are “secret laws” or secret forms or language to use to obtain some publically available thing, you should instantly be deeply skeptical. It’s almost always a scam.
If everybody had an account, and the money was already there for everyone to get whatever they wanted, wouldn’t it make sense that politicians would LOVE to tell you about it? Some bad-guy bankers might not want it, since they couldn’t screw you out of money, but most politicians would love to tell you about it.
And if everything is free, why would the bad-guy bankers even want your money? If everything is free, what’s the point of being rich? This theory will only appeal to those who are so desperate they are willing to believe just about anything.
How to Accept for Value
Okay, let’s move on to the way acceptance for value is supposed to be done. To accept something for value, you apparently have to follow a specific formula:
On your bill, you write “Accepted for Value, Exempt from Levy.”
Then you sign and date it, and write “pay to the order of” your name in all capital letters, and put your Social Security number down twice – once with dashes, and once without.
In some variations, apparently you’re supposed to make some reference to the US Treasury or the IRS, a thing they very much do not appreciate, by the way – they’ve put out circulars referring to laws that make it illegal and calling the whole thing fraud.
It’s not clear whether anyone has ever gone to jail for trying the scheme, but it seems pretty risky to make any reference to government entities. Any suggestion that they will be the ones paying would be flirting with trouble for sure.
It would appear that the form used is intended to call to mind the form of a check, with your social security number being the account number. I believe one Youtuber said that was the idea, and that’s consistent with the main theory behind this idea, which is that when anyone is born, the government (or federal reserve, or whatever) creates a bank account in your name.
In some videos, they say to send the bill with the stuff written on it to some government agency, in some they don’t mention this, but regardless, when you do what you’re supposed to do, the debt is discharged. It’s paid by the government!
One Youtuber compared it to playing a game of Monopoly where each player starts off with a certain amount of money as part of the game. It’s automatically created and given to you when you join the game. Your using the magic formula is the way you access your game money.
Real Life is Not a Game of Monopoly
The problem is, this is not a game, and the real world does not work that way. You don’t start off with money, and things are not free.
When I make things for people to use, it takes effort, and I want to get paid for that effort. When you go to work, you want to get paid. Can you imagine the outrage you would feel if, at the end of the week, your boss simply handed you a slip saying that your work had been accepted for value?
A company doing that would soon be out of business.
If you start returning bills with “accepted for value” written on them instead of including payment, you may find yourself out of business as well. This is such basic common sense, and so plainly obvious, that it takes a lot of theory to gloss it over. And the accept for value idea has a lot of theory.
The problem is, the theory doesn’t work.
The “A4V” Theory
It all goes back, they say, to House Joint Resolution 192, June 5, 1933, Public Law 73-10, the law that “stole the people’s gold” – but made up for it by making everything free. As one person put it, “Your house is already paid for; your car is already paid for. You just don’t know it.”
The Gold Standard
Joint Resolution 192 goes back to the early 1920s and the aftermath of World War I. One thing about war is it is very expensive and tremendously destructive, right? Prior to World War I, most governments in the world were on a gold standard, meaning that if one country bought more stuff from another country, they settled the difference by paying gold.
During World War I, the governments ran out of gold, though, and started paying with their currencies. These, too, were theoretically backed by gold, and in 1920, if you wanted, you could go to the bank and exchange a dollar bill for a specific fraction of an ounce of gold. At the end of World War I, however, the governments owed large debts to businesses and other governments. They didn’t really want to pay them, of course, because who wants to pay a debt?
What governments can do about that is print more money.
Inflation
If I owe you a dollar but have a good printing press, I can just print up a new dollar to give you. Costs me practically nothing, right?
Well, Germany did that in 1920 in order to pay some of the reparations it owed for World War I, and the value of a German mark went from maybe 2 per dollar to over a billion per dollar and that was just before they stopped counting. It was cheaper to burn paper money than it was to buy logs for heat.
That was pretty extreme, but all the governments of the world, just about, had some lesser variation of the problem, and they were all printing up money as fast as they could go.
The Gold Clauses
Creditors don’t like lending money that is worth a lot and getting back money (in debt repayment) that is worth much less, so they began putting what were called “gold clauses” in their contracts. These attached the amount of money being lent to a more objective standard, the price of gold (for example). So they might say, “in exchange for $25,000, which is currently the equivalent of 50 ounces of gold, borrower agrees to make 100 payments of the equivalent of ½ ounce of gold” (along with other terms, of course). That way, the lender would get back the same value it had lent.
In a way it was fair, right? To make you pay back the same value as you had borrowed? But the problem was that so many people, and governments, couldn’t do that. So they passed a series of laws forbidding that (called the “gold clause abrogation laws”). Some of the laws prohibited equating debts to amounts of gold and required that they be named only in the local legal tender; other laws made sure that payment could always be made in that legal tender and that nothing else could be required.
You might say it was a huge rip off because it allowed debtors to pay big debts with little value and prevented creditors from protecting themselves.
House Joint Resolution 192 was a gold clause.
Legal Tender
Put another way, it was a “legal tender” law which made all debts payable with bank notes rather than gold, and required that they be denominated in dollars rather than expressed as something else. It also underlined the relatively new legal reality that “federal reserve notes” were legal tender (but that’s a story for a different day).
It was indeed a (good) break for people who owed money, and a very bad break for creditors
who knew about inflation and had taken steps to protect themselves from it.
But it didn’t make anything free for anybody.
The “Accept for Value” Fraud
The story behind the A4V idea is an interesting story about the way government manipulates money and favors one class over another. It’s also an interesting story of the ways the Constitution can develop in ways exactly opposite of the founders intended. But what it isn’t is a story of the government giving away stuff for free to YOU. That’s the fraud the acceptance for value people have added so they can sell it to you. Don’t fall for it, and be assured that no judge ever will.
Using the accepted for value argument will bring you only disaster and loss.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-09-27 16:59:192019-12-04 21:35:38Accept for Value
Why you Should Defend against Debt Collectors, and Why you Can Do it Yourself
Get a copy of this article in PDF format by clicking here: why defend yourself
When you are sued by a debt collector, you are presented with two questions that often merge into one because of money.
Should you defend yourself (at all) from the lawsuit?
And if you do defend, do you have to have a lawyer?
A lot of people answer the second question first. They decide they need to have a lawyer in order to get anything done, and then they decide they cannot afford a lawyer, so they fail to defend themselves at all. This is a mistake.
First: Should you defend yourself?
Our answer to this question is absolutely “Yes.”
There is a tendency for people to think that lawsuits (filed against them) are only filed because the lawsuit is “good,” and that the plaintiff will or should win. That isn’t really true of any kind of lawsuit. In most kinds of law, however, the plaintiff’s lawyer will have done some research into the law and facts and will have some confidence that it’s a winner. After all, in most kinds of lawsuit, one expects a defense – the lawyer anticipates spending a considerable amount of time and money on the case before collecting anything significant.
And most plaintiffs are at least somewhat reluctant to start a lawsuit because of time and expense; often they are extremely reluctant, and with good reason.
Debt Law is Different
These things are simply not true of debt cases. In debt cases, a debt purchaser buys hundreds of thousands or millions of dollars of supposed debt and files suit without ever doing ANY research into the validity of the debt at all. When they file suit, very few debt collectors have any idea at all of whether they have a right to the money, and they have little, if any, evidence of the debt. They think they might be able to get some if they have to, but they file suit expecting not to need any evidence at all. And they’re usually right.
They Expect you to Give Up
They design their cases to cause people to give up without fighting. Since most people, in fact, do give up one way or another, the whole debt collection business is based on not spending money or time on a case. As soon as you do anything at all to defend, you cause the company to diverge from its business model. Of course, they know some people won’t just give up – they know people hate them, after all. So even though you have stepped out of their business model by resisting, you haven’t really challenged them yet. To challenge them, you must make them spend time and money on your case alone. We’ll discuss that below.
What if you Don’t Want to Fight?
Actually, NO ONE really wants to fight. It takes time and involves various uncomfortable feelings, from insecurity to anger, to frustration. You will at some point need to weigh these lifestyle questions, but the appropriate place to start is with the legal questions. And our answer to those is that it makes sense, always, to fight the debt collector.
Regarding the more practical questions, it is also usually true that fighting the debt collector will pay off very well. For example, if they’re suing you for $5,000, it’s a fair bet that they have already damaged your credit, and they are obviously trying to get at least $5,000 from you. If you defend yourself, you can save the $5,000 and repair your credit: what hourly rate would that be if it took you 50 hours of your time? $100/hour.
And the amount at stake is often much more than $5,000, and the time required to defend often much less than 50 hours, but you will have to make your own estimates of these things.
What if you Really Think you Owe the Money?
We get this question a lot because for most people, debt lawsuits are not “lightning from a clear blue sky,” as the saying goes. They know they haven’t been paying some bill, and people have often been bugging them about it. So should you still fight?
Yes, absolutely.
And this is because although you think you owe money, you might not owe the person suing you the money, and you might not owe what they’re suing you for. On top of that, and behind our legal system, is that you only “owe” what they can prove you owe – and most debt collectors cannot prove you owe anything. So even if you think you owe, you should fight to make sure you’re dealing with the right person for the right amount – and that they can prove it.
What if you Want to Settle?
If you hope to settle, you still need to start out by fighting – people only settle lawsuits when they think doing so is the best outcome for them. In other words, they’ll settle if you persuade them that they’ll make more money by settling than by not settling. You do that by fighting – nothing makes them think the case is going to take money to win than by making them spend money. That’s just common sense, right?
Do You Need a Lawyer to Defend You?
The answer to the question of whether to fight or not is almost always “yes.” And if you doubt that, consider how many times corporations simply roll over when people sue them – it almost never, ever happens. You know that, right? But even if you decide you should fight, you have to decide HOW to fight. Do you need a lawyer? or can you do this by yourself?
Remember what we said about “most” lawsuits – the lawyers do back up work and have a pretty good idea they deserve to win. Additionally, they typically expect to, and do, spend quite a bit of time and money to make sure they do win. For these reasons, and others, you might not want to handle a typical lawsuit pro se.
Debt law is not like that at all.
Debt Law is Different
We discuss this question in great detail in a lot of places, and therefore we will only touch on it lightly here, but debt law is not like other forms of litigation. It will almost always come down to a dispute about whether certain records should be allowed as evidence. And of course you need not to admit or do things that will hurt you. You almost certainly will not need witnesses, and they probably won’t have any, either. Thus debt law is relatively simple, and people can defend themselves without a lawyer.
We can help you do that in a lot of ways.
You will find a lot of help on many topics related to debt law on this site by using our search button at the top of the page or in the footer. And you can sign up for free information by going to this link and signing up. Sign up for Free Information.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-07-17 18:06:212020-01-09 14:03:17Why Defend Yourself from Debt Collectors
In this article we discuss a sort of motion that we think pro se parties underuse – motions in limine to exclude evidence at trial. They give you a chance to explain how the rule against hearsay prevents documents created out of court from being used as evidence unless there’s an exception. And they give you a chance to show how the plaintiff’s evidence does not meet the exception it’s planning to invoke, the business records exception. On a motion in limine, you can make your arguments before the trial begins, when things are likely to be overlooked in the heat and action of the trial.
What are Motions in Limine?
Motions in Limine are motions filed before trial. “Limine” is Latin for “threshold,” so these motions are usually brought right before trial, when it’s pretty clear what the other side plans to do.
They are usually directed at evidence, but they could also be directed at legal theories or arguments.
Why Use Them?
Like other parts of litigation, they are directed at the legal merits of the case but could have their most powerful impact on negotiations. Thus you bring your motion and attempt to win it for legal reasons, but if you do manage to win it, you will be able to keep the debt collector from putting on the most important parts of its evidence. And if that happens, it may give up without your needing to go to the trial at all.
Thus motions in limine can be very significant turning points. Or they can simplify matters for you at trial if that happens.
There’s another reason for pro se parties to use motions in limine. As a pro se party in a system run by lawyers and judges, it can be hard to get listened to. Judges may or may not mean to pay more attention to lawyers, but they themselves WERE lawyers, their friends are lawyers, and lawyers are the ones they see day in and day out.
They naturally pay more attention to them for just those reasons.
And then there’s the fact that lawyers understand the system and are trained in it. They can do dumb things, of course, but usually they don’t. Judges know that, and they know that pro se parties lack this training, so they naturally take what you say with a grain of salt.
And then there’s the fact that trials move very quickly, and the judge will be watching the clock very carefully. Will everything you say get heard? Not at trial.
You have a much better chance to get heard at a hearing on a motion to exclude. That will give you a chance to make an impression on the judge, explain some of the legal concepts behind the case, and make your arguments regarding evidence at a time when the court is freer to give what you say some thought. And it helps the judge get to know you a little bit and to be reminded of certain rules of evidence.
All of these things are absolutely vital to your chances of success.
What Motions in Limine are NOT
Motions in limine are not motions for summary judgment. That is, you could argue in a motion in limine that the other side should not be able to introduce certain evidence or make certain arguments, but a motion in limine is not the place to ask for a ruling on the entire case in your favor. For that you need a motion for summary judgment, and this comes much earlier in the process.
What Happens after a Motion in Limine?
What you’re hoping for is a ruling on the spot that the debt collector will not be able to use certain evidence or arguments, and that does happen sometimes. More often, perhaps, the court will withhold its ruling until the debt collector tries to use the evidence. The theory behind this is that the court wants to judge from the context of the case whether the evidence is necessary and fair.
In reality, courts should not wait on most of the issues you’re likely to move on. That’s because your arguments will likely be addressed to the legal admissibility and sufficiency of the evidence, and no amount of case context can substitute for presenting the necessary bases for the business records exception, for example. But courts can be reluctant to rule on a motion that destroys one party’s chances of winning before trial.
Timing
While you could bring a motion in limine fairly early in a case, the court will likely not rule on it before the eve of trial. And either the court will order, or your local rules may provide, a date before which motions in limine must be brought.
In other words, there’s going to be a deadline for filing your motion. You need to know that deadline and abide by it. Most typically what happens is the court wants lists of witnesses and exhibits a week or two before trial, followed by a (final) pretrial conference. You would write your motions in limine in time to be heard at that final pretrial conference.
Work on Motion in Limine
In a debt case everything about their case is predictable, even if you don’t know for sure what they’ve got.
Where the person suing you is a debt collector, you know that the debt collector’s case depends on getting some bills that it did not create into evidence. You should know (from discovery) exactly what those bills are and where they came from long before trial. And you also need to know how they plan to get them into evidence. You find these things out through the discovery process.
Rulings on Motions in Limine are not Permanent
Rulings on motions in limine are subject to change. The court could grant your motion before trial and then change its mind, or vice-versa. That means you will still need to object at trial – or be prepared to argue even if you won – in order to protect your rights. And if you lost, you should take another shot at it. Don’t be intimidated – the court will tell you if it is willing to hear your arguments or not.
What makes motions in limine useful is that they give you a chance to make your arguments in the cool light of reason rather than the heat of trial. That might be your best chance to get heard for the pro se.
For Help
You can find help on this site by just looking around, or by doing a site search using the search bar in the header or footer of every page, and of course we have many products that will simplify whatever you’re trying to do in debt defense. You can find those in the products and membership pages. Sign up here for free information.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-07-08 20:12:312019-11-22 20:32:51Motions in Limine – to Exclude Evidence
You have learned, one way or another, that you are being sued for a debt. If so, you are in a club containing many millions of people, but you probably feel all alone. What do you do? And how do you do it? Where do you turn, and who can help?
Since you’re here, you know that WE can help. We help people beat the debt collectors and protect what’s theirs.
Fight
We don’t make any bones about it – we think that if you’re sued by a debt collector you have a great chance of winning. And if you lose, it hardly ever costs you anything more than not fighting would have done. If you want to settle, you always start by fighting because debt collectors never settle to make YOUR life easier, they only settle make themselves more profit, and if you fight you instantly drive the value of the suit down in their eyes. Thus you have everything to gain and little to lose in most situations. You should fight.
Lawyer or Not?
We’ve addressed this question many times in various posts, and we do in our First Response Kit, too. But for this article we’re just going to talk about the cost of a lawyer. For most of our members, the cost of a lawyer is the most important thing, and they are expensive.
The average lawyer in a city tries to make $200 per hour these days. They’re running a business, have a staff, and need to make a profit. In debt defense, they also know that not everyone is able to pay. Thus, those who do pay, have to pay more.
With $200 per hour as a target, the lawyer either has to charge you that as an hourly rate or create a flat fee that will, she hopes, bring that average return. Through it all, most people discussing legal fees with us say that lawyers are trying to get them to pay at least $2,500 for their cases. For most people, this is simply too much, and the lawyer will want much of that up-front. So lawyers are simply out of reach for most people in debt trouble.
But here’s the thing: debt law, unlike most kinds of law, is well-suited to pro se (self-representation) defense. And with a little help from us, you’ll know more than most lawyers you talk to will know about this kind of law anyway.
Debt Law is Good for Pro Se Defense
There are a few reasons debt law is good for pro se defense. First, debt law is mostly about rules of evidence. They’re going to want to get some records into evidence, and you’re going to want to stop them from doing that. If you can keep those records out and avoid a few basic mistakes, you should win. This is not the kind of law that involves extensive testimony or cross-examination – you won’t need to be brilliant. You will need to do basic things that you can learn – we can teach you.
The other main reason debt law is good for self-representation is economic. They want to make $200 per hour, but you don’t have to get that much. And the debt collector/lawyer is trying to get that from half of what he can collect from you (the debt buyer gets the other half), while you’re saving 100 percent of what you can save. Thus you can spend more time on the case. It’s your life, and it matters more to you than anyone else. Every time you do something to defend yourself the lawyer on the other side will be worried about whether she’ll get paid for working on your case – this is a big, big advantage.
What to Do?
Your defense will start with an answer or a motion. Our First Response Kit will guide you through that. We also suggest that you get right onto the process of discovery, and the First Response Kit will do as much to help make that easy for you as possible. It includes samples of all the documents you’ll probably need. You’ll have to do SOME work for sure, but it doesn’t get any easier for you than this.
Our First Response Kit
A great place to start your defense is our First Response Kit. It helps you consider your chances of winning (vs. not fighting at all) and whether to fight, whether to get a lawyer, and if you’re going to represent yourself, how to do that. We get you started with a sample Answer and sample discovery that you can modify to fit your situation. This is as easy a way to get started with your defense as is possible. Read about it here.
https://yourlegallegup.com/wp-content/uploads/2019/06/16953749.jpg1125750Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-06-18 18:43:102019-06-19 20:51:32Sued for Debt
Can your bank accounts be garnished by a debt collector? What about wages? Here are some things you need to know about garnishment.
If you have assets, and this includes either a job or money in the bank, you must be concerned about the possibility of being garnished if a debt collector (or anybody else) has a judgment against you. In other words, the short answer to our question about whether your wages can be garnished is YES. Wages can be garnished once a debt collector has a judgment against you.
Bank accounts can also be garnished when there’s a judgment against you.
The Surprise that Isn’t a Surprise
Lawsuits are divided into two main parts. The first part, which is what everyone thinks about in connection with “being sued,” is a determination of liability and damages. In plain English, the lawsuit is to decide whether you owe anything and how much. In debt cases, that’s usually determined by either a default (failing to show up to court in the first place) or “give-up settlements” (where you show up to agree to anything the debt collector wants, which often includes a “consent judgment”). That judgment just says you owe x-amount of dollars, or nothing, as the case may be.
In most cases, judgments are not “self-enforcing.” That means that after the debt collector gets a judgment that you owe some money, it must still either persuade you to give it to them or find it and take it away from you. This is called “enforcing a judgment,” or in plain language: “collection.” To do that, the debt collector tries to find your assets and then goes to the court’s garnishment office and starts garnishment proceedings.
The garnishment office does NOT tell you they’re at work, and neither does the debt collector. They want you to forget about the case and get comfortable. If you move or hide your assets, their job gets much, much tougher. And if they warn you they are at work, you’re more likely to move or hide the assets, right?
Incredibly, people are quite often shocked when the debt collector starts seizing assets, freezing bank accounts, or garnishing assets.
They are at Work
Let this be your warning. If they have a judgment against you, THEY ARE AT WORK. They still want your money, and they’ve taken a big and somewhat expensive first step by suing you. Why would they stop? You may forget about it, but they won’t.
The Way it Happens
You are always the last to know when collection activity happens. This way your funds are frozen before you can take any action such as withdrawing all your funds.
Banks
The debt collector serves a notice of garnishment on the bank, and as of the time the bank receives it, your account will be frozen. Their notifying the bank first is perfectly legal.
You typically receive the notice (including your rights) a day or two, or three, or four… after your funds have been frozen. In most states, the garnishment does not only freeze funds already in your account at the time of service on the financial institution, but can get money you put in afterwards for a period of time.
During the time the garnishment is in effect, the financial institution cannot honor checks or other orders for the payment of money drawn against your accountif it would leave a balance under the amount stated on the garnishment. For most people, this means any outstanding checks will more than likely bounce or be returned for NSF.
When the amount being garnished is paid, the freeze on your account must be terminated, but since many people do not have nearly enough money in their accounts to offset any significant judgment, this is not of practical significance. If they catch you by surprise, you probably have big trouble. Not only is your money gone, but checks (and automatic drafts, for example) are bouncing right and left – and there are other laws that punish you for that.
Jobs
Wages can also be garnished, and, again, your first notice that you are being garnished is likely to be when you receive a check that is less than you thought it would be.
Federal law limits the maximum amount that can be garnished by one or more garnishment orders to 25 percent of your disposable earnings for that week, or the amount by which your disposable earnings for that week exceed thirty times the Federal minimum hourly wage, whichever is less.
In practical terms, that means (as of this writing) that if you make $154.50 or more per week your wages will be reduced by about 25%. Since most people being sued for debt are already close to the line, a 25% reduction in their paychecks can be simply devastating. And remember, you won’t find out about it until the money is gone.
Don’t Let them Get a Judgment
All of the above means that you should work HARD to avoid letting the debt collector get a judgment. If they do manage to get one, you should EXPECT NOT ONE SHRED OF MERCY. They will take every penny they can with no concern at all for the consequences to you or your family.
Sometimes people think that things are so hopeless that it isn’t worth it to try to keep them from getting a judgment. You have nothing now for them to garnish, and you don’t expect ever to have enough for them to garnish. That’s called being “judgment proof.”
Don’t go there. Things could get better for you in any number of ways, from your job suddenly turning better, to people you don’t know dying or giving you money, or you getting some sort of great idea, or… just anything. The world is full of possibilities, and good things could happen. They’re much more likely to happen if you keep looking for them, too.
It isn’t all that hard to keep them from getting a judgment most of the time if you know what you’re doing, and of course that’s why we’re here.
Don’t Ignore the Possibility of Losing Even if you Defend
Of course, if you’re being sued there’s always a chance you could lose. ALWAYS A CHANCE.
That means that you need to keep personal information about jobs and assets out of the hands of the debt collectors whenever possible.
If you have ever written a check to the company who is the alleged original creditor, you must assume that the debt collector has your banking information. You might want to change banks.
Remember that garnishments are served on people (including corporations and banks), not accounts, so it doesn’t do any good to cancel your account and get a new one in the same bank. But changing banks will go a long way to keep you from finding out, one day, that your bank account has been emptied and your checks are now bouncing.
For a lot of people it’s harder to change jobs. I’m just saying that if you do, it will be harder for the debt collector to garnish your wages. If they have any reason to know where your present job is, you should expect them to come for it.
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
If history is any indication, many of the people reading this article are here because there’s a default judgment against them, and the debt collectors are now after their money. If that’s you, there’s still hope (even aside from the fact that your Social Security payments should be safe). You should consider attempting to undo the judgment – that’s called “vacating” it – and you do that by filing a “Motion to Vacate.” Click here to begin your research on that question. And we have a product that will help you file a motion to vacate.
Most of the rest of the people reading this will be because they are in the “collection cycle” somewhere and are either being threatened with suit or are being sued. If that’s you, you will want to take a look at what the risks of ignoring the suit are versus the costs and advantages of fighting it. I normally suggest fighting it because the risks if you lose are minimal (you won’t make things worse), while the benefits of winning are more substantial than you think, even if you aren’t worried about garnishment.
In any event, if you’re considering defending, I’d suggest you give some thought to our memberships.
Memberships
Members get the Litigation Manual and the Three Weaknesses Report for free with membership. They also get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences, where you can get unlimited real-time assistance, answers to questions, help with strategies, and encouragement. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.
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.
http://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.png00Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-05-14 12:29:482019-12-05 21:18:41Can Debt Collectors Garnish Wages or Bank Accounts?
Don’t be a “Verification Sucker” – When You’re Not in Kansas Anymore
When a debt collector sues you as the first thing you hear from it (they can do that), this does not give you a right to dispute and require verification. Your rights are through the legal process, and you must answer the petition or you will be defaulted. Sometimes debt collectors use people’s confusion over their rights and do things which suggest you could dispute the debt. This video discusses your rights.
You would be amazed how often people ask me whether they should “just send a verification letter” to the company or law firm when they get served with a debt lawsuit. Or as one person put it, “now that I’ve called the court to tell them I object, should I just send a verification letter? Or was that enough?”
No. It wasn’t enough – it wasn’t even anything at all.
Dispute and Verification
Click here for a copy of this article in pdf form: Don’t be Verification Sucker
Let’s take a quick step back here and review some facts and some rights.
When a debt collector first contacts you regarding a debt it is attempting to collect, it is required by law to provide you certain information. If the contact is not in writing, it must send you a notice in writing. If the contact is in writing, that contact must contain a notice. That notice must inform you of the debt collector’s identity, the nature and amount of the debt in question, and your right to dispute the debt and require verification. People often refer to this notice as the “verification letter,” although more properly it’s a notice of the right to dispute the debt. If you dispute, they must verify the debt before attempting to collect again, and you have thirty days to dispute the debt.
If they don’t want to attempt to collect again, they don’t need to dispute. It’s a law supposed to prevent continued attempts to collect on an unverified debt.
A Lawsuit is NOT a First Contact
If you’ve never heard from a debt collector, can they sue you for a past due debt? And if they do, must they give you notice of your right to dispute? Yes. And no. They can sue you without first bugging you for money. If they do sue you, the lawsuit is NOT a contact that triggers your right to dispute and verification. That’s what the Fair Debt Collection Practices Act (FDCPA) says, and the reason for that is simple: you’re in the court system and play by court rules once a lawsuit gets filed.
You Must Answer
And the court rules are that once you get served with a lawsuit you must file an Answer (or other “responsive filing” – a motion to dismiss, for example) or you will be in default. Put another way, if you don’t respond in court with an Answer denying liability or a motion to change or get rid of the lawsuit, you will lose. The lawsuit changes the rules, and you “aren’t in Kansas anymore.” [That’s what Dorothy says in the Wizard of Oz when all the weird things start happening.]
Don’t be a Verification Sucker
The debt lawyers know the rules very well, and one would like to think that it’s only an “excess of caution” that causes them sometimes to print the FDCPA language on their lawsuit. But given the fact that so many people have sent dispute letters instead of answers, and the fact that the debt collectors KNOW this, that might be naïve.
What I’m here to tell you is that whether or not such language is on your lawsuit, YOU MUST ANSWER THE SUIT or face a default judgment. Don’t be a sucker – file an Answer or other responsive document within the time allowed by the rules of civil procedure. You must defend yourself in court – you’re not in Kansas anymore, and the FDCPA no longer applies.
A Little Window, Maybe
Litigation does not technically rule out the FDCPA entirely, just the “first contact” rule. It may be that the debt collector’s attachment of the notice to a lawsuit is itself a violation of the FDCPA, as it may be an attempt to sucker you into seeking verification instead of answering the lawsuit. It might be an unfair attempt to get a default judgment. I have argued as much before. That might give you a counterclaim to their lawsuit.
And if you have sought verification rather than answering, and they got a default judgment, you should certainly consider moving to vacate that judgment either on the basis of that deception or your own confusion. The courts favor judgments on the merits rather than technicalities, so there’s a very good chance such a motion to vacate, if filed in time, would work.
But these are not exceptions to the rule that you must respond to the lawsuit in court. If you get sued, the FDCPA no longer applies in that way. You must respond or they will get a default judgment against you, and the next you will hear about it will be when they garnish your wages or bank accounts. Don’t let that happen.
Disputing and demanding verification would be much easier, no doubt, but it doesn’t work at this point.
Don’t look for the “easy” way. Look for the RIGHT way.
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Library of Glossary Videos
Library of Glossary Videos
The videos on this page are part of our glossary and our efforts to make the public more aware of it. You will find a brief description of the videos and a link to the page on which they occur.
Click here for the Glossary.
Glossary: Introduction Video
Glossary: Assignment
Glossary: Business Records Exception Video
Glossary: Charge-offs
Glossary: Dismiss, Dismissal
Glossary: Evidence – What Makes Something Evidence
Glossary: Small Claims Courts
Glossary: Statues of Limitations
The Best Defense is a Good Offense
Debt Law and Motions for Summary Judgment
Get a copy of this article in PDF format: Sometimes the Best Defense is a Good Offense article
If you’re being sued for debt, your case is going to head for a show-down on a couple of main issues. These will probably involve some billing records or some record-keepers wanting to testify. And these are primarily “legal” issues – that is, the facts may be clear and undisputed, and the judge might be able to make the important decisions in the case. When a judge does that by motion and before trial, it’s called a “summary judgment,” and the parties ask for that by filing a “motion for summary judgment.” You will want to consider trying this.
Before we get deeply into motions for summary judgment, let’s discuss the way cases develop, go away, or are decided. It’s really just one process after the case is filed and you’ve answered.
The Way Debt Cases Develop
First, the parties conduct discovery which aims to find out what facts are, indeed, uncontested, which ones are disputed, and what evidence there is in support of them. What this really means is, discovery looks for what you can prove about your case or their case. In debt law, you either want to prove it was all a horrible mistake (if that’s what’s going on) or that the debt collector cannot prove its case. Since most debt cases come from what were at one time legitimate debts, most debt defense boils down to an attack on the debt collector’s case. And you will have an excellent chance of winning.
In your discovery, you will probe for what evidence they have and how they plan to get it “into evidence,” i.e., into the court’s consideration at trial. (Incidentally, our Discovery Pack is designed to help you do this.)
As facts emerge, and as work happens and becomes necessary, the debt collector might decide to drop the case. In fact that often happens, and of course it often doesn’t, too. Sometimes the debt collector will try to shorten things up by motion for summary judgment, but more usually they just want to get to trial as quickly as possible. If they do either one of these things before you have conducted your discovery, there’s a good chance you will be snowed under. Thus you should do your discovery quickly.
You want to aim for the motion for summary judgment right from the time you file your answer. If it doesn’t work, well, you’re halfway to being ready for trial anyway, and you will have started talking to the judge about the issues that matter.
Now to talk more specifically about motions for summary judgment.
Motions for Summary Judgment
A “motion” is just the formal way you ask the court to issue a ruling of some sort. A motion for summary judgment is asking the court to find that all the necessary facts for a ruling in your favor have been established, and to grant you a judgment as to them. It’s possible to get a summary judgment about some parts of a case but not others (a “partial summary judgment” in legalese). To end the case, you have to get a judgment on all of the claims.
What to Do
If you are being sued, you need to begin with the ending in mind. That is, right from the beginning you should think long and hard about what it takes to win your case. In debt law, the first big challenge most defendants face is to answer the petition – just to take that first step in defending yourself. If you’ve managed that, congratulations. Just by doing that you’ve given yourself a better chance to win than approximately 90% of the other people being sued. And in some cases, to be sure, that’s all you need – the debt collector may walk away right now. But in most cases they won’t.
So your next specific step is to start discovery – the sooner the better. And you should start discovery with the firm goal of finding and proving the things you need to win. We have a product that can help with that, but this video is about the next step following discovery: the motion for summary judgment.
In a way, it’s simple, although this is one time you should never confuse “simple” with “easy.” If they’re alleging a breach of contract, for example, you will discover that they must prove the existence of a valid contract, its breach (failure to pay as agreed), and damages. The burden of proof is on the debt collector as to each of these things, and they have to show it using admissible evidence.
In your discovery, you should have narrowed down exactly what they have to offer as proof. In the case of a debt collector this is usually documents created by some other person, usually the original creditor. And they may have documents or testimony by some of their own employees as well. This material is generally intended to try either to fool the court into believing the other evidence is admissible, or to pull it within the rules of evidence.
Your job will be to look at each bit of evidence and show why it cannot do what the debt collectors want it to do.
Filing a Motion for Summary Judgment
Of course this isn’t very easy, and there are significant procedural requirements, but going through this process increases your chances of winning dramatically in three important ways. First, if you can show your right to a summary judgment, you should win the motion and get the case kicked out. Before that happens, though, you will be putting the plaintiff to the expense and effort of responding, and if they think they will lose (and often even if they think they will win), they’d rather just drop the case than keep going. And finally, even if the court does not rule, or rules against you, you will have learned a tremendous amount about the law and begun the process of teaching the judge what he or she needs to know, improving your chances of winning at trial a lot.
There’s every reason to do it. You just need the energy and courage to try. We can help.
Product Information
Because much of this article involves taking action and creating legal document, we include an addendum of the products we have that can help. First, if you are at the beginning stages of your case and needing to answer (or otherwise respond to) the petition, our First Response Kit is designed to help with that. If you have already answered and need to start (or restart) conducting discovery, our Discovery Pack will help. The Discovery Pack is included within the First Response Kit, so don’t get both. If you are trying to force the debt collector to respond to your discovery, you may want our Motion to Compel Pack.
If they’re filing a motion for summary judgment and you are not ready to file a motion for summary judgment yourself, our Motion for Summary Judgment Defense Pack could help. But if you want to respond to theirs and file one of your own, you will want our Cross-Motion for Summary Judgment Pack. And if they haven’t file a motion for summary judgment but you want to, that would be our Motion for Summary Judgment Offense Pack. Don’t get more than one of the MSJ packs.
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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 for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.
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You can sign up for free information from us by clicking here and following the instructions.
If you sign up, you will receive a series of videos and articles over the next few days designed to help you get a grip on debt litigation. Then we will occasionally send you information on new materials we have added to the site. This is rarely products and almost always new publicly available articles. You will not receive sales messages regarding other products, nor will we sell your information to any third party.
Accept for Value
Magic Words that Solve every Financial or Debt Problem? Don’t Buy it.
Get a copy of this article in PDF form here: A4V article
PL 73-10
Acceptance for Value
You may have heard of one of the magic-word fads going around lately, the “Accept for Value” response to bills. As you will see, it supposedly invokes certain very specific formulae to accomplish something that would seem to be impossible to anyone using common sense. As with most of the “magic word” fads, this one will get you in big trouble if you try it. Don’t.
A4V Sellers
I have had a chance to look at several accept for value videos and sites. They’re a little cagey, and it isn’t clear whether there is one main source and theory or whether there may be variations with slight differences. Often enough, of course, one person comes up with an idea, and then a lot of people copy it, adding bells and whistles both as sales gimmicks and also to differentiate themselves from the competition. That appears to be the case with the accept for value “movement.”
In any event, I’ll discuss them as if they’re one idea – if you encounter something a little different, look for the fundamental similarities and don’t get too hung up on specific words.
The Basic Idea behind “Acceptance for Value”
The idea behind “accepting for value” defies common sense. It appears to be based on a belief that everything is free – or “already paid for,” which is the same thing. Naturally, there’s a conspiracy keeping people from knowing this or from using their free resources, and the advocates of acceptance for value are the only ones who know the trick of how to do it. They say. It involves some special forms and formulas we’ll be discussing.
A Few Words of Commons Sense to Get us Started
Before getting deeply into the mechanics and theory of the “accept for value” idea, consider: if you were creating a law that you wanted to apply to everyone, would you write it in secret code that only a few people could understand?
Of course not. Now, not all laws are crystal clear (in fact, really none of them are), but they are designed to be known or knowable to everyone – because otherwise how could you expect people to obey them? And laws are meant to be obeyed, mostly. Whenever someone tells you there are “secret laws” or secret forms or language to use to obtain some publically available thing, you should instantly be deeply skeptical. It’s almost always a scam.
If everybody had an account, and the money was already there for everyone to get whatever they wanted, wouldn’t it make sense that politicians would LOVE to tell you about it? Some bad-guy bankers might not want it, since they couldn’t screw you out of money, but most politicians would love to tell you about it.
And if everything is free, why would the bad-guy bankers even want your money? If everything is free, what’s the point of being rich? This theory will only appeal to those who are so desperate they are willing to believe just about anything.
How to Accept for Value
Okay, let’s move on to the way acceptance for value is supposed to be done. To accept something for value, you apparently have to follow a specific formula:
It’s not clear whether anyone has ever gone to jail for trying the scheme, but it seems pretty risky to make any reference to government entities. Any suggestion that they will be the ones paying would be flirting with trouble for sure.
It would appear that the form used is intended to call to mind the form of a check, with your social security number being the account number. I believe one Youtuber said that was the idea, and that’s consistent with the main theory behind this idea, which is that when anyone is born, the government (or federal reserve, or whatever) creates a bank account in your name.
In some videos, they say to send the bill with the stuff written on it to some government agency, in some they don’t mention this, but regardless, when you do what you’re supposed to do, the debt is discharged. It’s paid by the government!
One Youtuber compared it to playing a game of Monopoly where each player starts off with a certain amount of money as part of the game. It’s automatically created and given to you when you join the game. Your using the magic formula is the way you access your game money.
Real Life is Not a Game of Monopoly
The problem is, this is not a game, and the real world does not work that way. You don’t start off with money, and things are not free.
When I make things for people to use, it takes effort, and I want to get paid for that effort. When you go to work, you want to get paid. Can you imagine the outrage you would feel if, at the end of the week, your boss simply handed you a slip saying that your work had been accepted for value?
A company doing that would soon be out of business.
If you start returning bills with “accepted for value” written on them instead of including payment, you may find yourself out of business as well. This is such basic common sense, and so plainly obvious, that it takes a lot of theory to gloss it over. And the accept for value idea has a lot of theory.
The problem is, the theory doesn’t work.
The “A4V” Theory
It all goes back, they say, to House Joint Resolution 192, June 5, 1933, Public Law 73-10, the law that “stole the people’s gold” – but made up for it by making everything free. As one person put it, “Your house is already paid for; your car is already paid for. You just don’t know it.”
The Gold Standard
Joint Resolution 192 goes back to the early 1920s and the aftermath of World War I. One thing about war is it is very expensive and tremendously destructive, right? Prior to World War I, most governments in the world were on a gold standard, meaning that if one country bought more stuff from another country, they settled the difference by paying gold.
During World War I, the governments ran out of gold, though, and started paying with their currencies. These, too, were theoretically backed by gold, and in 1920, if you wanted, you could go to the bank and exchange a dollar bill for a specific fraction of an ounce of gold. At the end of World War I, however, the governments owed large debts to businesses and other governments. They didn’t really want to pay them, of course, because who wants to pay a debt?
What governments can do about that is print more money.
Inflation
If I owe you a dollar but have a good printing press, I can just print up a new dollar to give you. Costs me practically nothing, right?
Well, Germany did that in 1920 in order to pay some of the reparations it owed for World War I, and the value of a German mark went from maybe 2 per dollar to over a billion per dollar and that was just before they stopped counting. It was cheaper to burn paper money than it was to buy logs for heat.
That was pretty extreme, but all the governments of the world, just about, had some lesser variation of the problem, and they were all printing up money as fast as they could go.
The Gold Clauses
Creditors don’t like lending money that is worth a lot and getting back money (in debt repayment) that is worth much less, so they began putting what were called “gold clauses” in their contracts. These attached the amount of money being lent to a more objective standard, the price of gold (for example). So they might say, “in exchange for $25,000, which is currently the equivalent of 50 ounces of gold, borrower agrees to make 100 payments of the equivalent of ½ ounce of gold” (along with other terms, of course). That way, the lender would get back the same value it had lent.
In a way it was fair, right? To make you pay back the same value as you had borrowed? But the problem was that so many people, and governments, couldn’t do that. So they passed a series of laws forbidding that (called the “gold clause abrogation laws”). Some of the laws prohibited equating debts to amounts of gold and required that they be named only in the local legal tender; other laws made sure that payment could always be made in that legal tender and that nothing else could be required.
You might say it was a huge rip off because it allowed debtors to pay big debts with little value and prevented creditors from protecting themselves.
House Joint Resolution 192 was a gold clause.
Legal Tender
Put another way, it was a “legal tender” law which made all debts payable with bank notes rather than gold, and required that they be denominated in dollars rather than expressed as something else. It also underlined the relatively new legal reality that “federal reserve notes” were legal tender (but that’s a story for a different day).
It was indeed a (good) break for people who owed money, and a very bad break for creditors
who knew about inflation and had taken steps to protect themselves from it.
But it didn’t make anything free for anybody.
The “Accept for Value” Fraud
The story behind the A4V idea is an interesting story about the way government manipulates money and favors one class over another. It’s also an interesting story of the ways the Constitution can develop in ways exactly opposite of the founders intended. But what it isn’t is a story of the government giving away stuff for free to YOU. That’s the fraud the acceptance for value people have added so they can sell it to you. Don’t fall for it, and be assured that no judge ever will.
Using the accepted for value argument will bring you only disaster and loss.
Why Defend Yourself from Debt Collectors
Why you Should Defend against Debt Collectors, and Why you Can Do it Yourself
Get a copy of this article in PDF format by clicking here: why defend yourself
When you are sued by a debt collector, you are presented with two questions that often merge into one because of money.
A lot of people answer the second question first. They decide they need to have a lawyer in order to get anything done, and then they decide they cannot afford a lawyer, so they fail to defend themselves at all. This is a mistake.
First: Should you defend yourself?
Our answer to this question is absolutely “Yes.”
There is a tendency for people to think that lawsuits (filed against them) are only filed because the lawsuit is “good,” and that the plaintiff will or should win. That isn’t really true of any kind of lawsuit. In most kinds of law, however, the plaintiff’s lawyer will have done some research into the law and facts and will have some confidence that it’s a winner. After all, in most kinds of lawsuit, one expects a defense – the lawyer anticipates spending a considerable amount of time and money on the case before collecting anything significant.
And most plaintiffs are at least somewhat reluctant to start a lawsuit because of time and expense; often they are extremely reluctant, and with good reason.
Debt Law is Different
These things are simply not true of debt cases. In debt cases, a debt purchaser buys hundreds of thousands or millions of dollars of supposed debt and files suit without ever doing ANY research into the validity of the debt at all. When they file suit, very few debt collectors have any idea at all of whether they have a right to the money, and they have little, if any, evidence of the debt. They think they might be able to get some if they have to, but they file suit expecting not to need any evidence at all. And they’re usually right.
They Expect you to Give Up
They design their cases to cause people to give up without fighting. Since most people, in fact, do give up one way or another, the whole debt collection business is based on not spending money or time on a case. As soon as you do anything at all to defend, you cause the company to diverge from its business model. Of course, they know some people won’t just give up – they know people hate them, after all. So even though you have stepped out of their business model by resisting, you haven’t really challenged them yet. To challenge them, you must make them spend time and money on your case alone. We’ll discuss that below.
What if you Don’t Want to Fight?
Actually, NO ONE really wants to fight. It takes time and involves various uncomfortable feelings, from insecurity to anger, to frustration. You will at some point need to weigh these lifestyle questions, but the appropriate place to start is with the legal questions. And our answer to those is that it makes sense, always, to fight the debt collector.
Regarding the more practical questions, it is also usually true that fighting the debt collector will pay off very well. For example, if they’re suing you for $5,000, it’s a fair bet that they have already damaged your credit, and they are obviously trying to get at least $5,000 from you. If you defend yourself, you can save the $5,000 and repair your credit: what hourly rate would that be if it took you 50 hours of your time? $100/hour.
And the amount at stake is often much more than $5,000, and the time required to defend often much less than 50 hours, but you will have to make your own estimates of these things.
What if you Really Think you Owe the Money?
We get this question a lot because for most people, debt lawsuits are not “lightning from a clear blue sky,” as the saying goes. They know they haven’t been paying some bill, and people have often been bugging them about it. So should you still fight?
Yes, absolutely.
And this is because although you think you owe money, you might not owe the person suing you the money, and you might not owe what they’re suing you for. On top of that, and behind our legal system, is that you only “owe” what they can prove you owe – and most debt collectors cannot prove you owe anything. So even if you think you owe, you should fight to make sure you’re dealing with the right person for the right amount – and that they can prove it.
What if you Want to Settle?
If you hope to settle, you still need to start out by fighting – people only settle lawsuits when they think doing so is the best outcome for them. In other words, they’ll settle if you persuade them that they’ll make more money by settling than by not settling. You do that by fighting – nothing makes them think the case is going to take money to win than by making them spend money. That’s just common sense, right?
Do You Need a Lawyer to Defend You?
The answer to the question of whether to fight or not is almost always “yes.” And if you doubt that, consider how many times corporations simply roll over when people sue them – it almost never, ever happens. You know that, right? But even if you decide you should fight, you have to decide HOW to fight. Do you need a lawyer? or can you do this by yourself?
Remember what we said about “most” lawsuits – the lawyers do back up work and have a pretty good idea they deserve to win. Additionally, they typically expect to, and do, spend quite a bit of time and money to make sure they do win. For these reasons, and others, you might not want to handle a typical lawsuit pro se.
Debt law is not like that at all.
Debt Law is Different
We discuss this question in great detail in a lot of places, and therefore we will only touch on it lightly here, but debt law is not like other forms of litigation. It will almost always come down to a dispute about whether certain records should be allowed as evidence. And of course you need not to admit or do things that will hurt you. You almost certainly will not need witnesses, and they probably won’t have any, either. Thus debt law is relatively simple, and people can defend themselves without a lawyer.
We can help you do that in a lot of ways.
You will find a lot of help on many topics related to debt law on this site by using our search button at the top of the page or in the footer. And you can sign up for free information by going to this link and signing up. Sign up for Free Information.
Motions in Limine – to Exclude Evidence
What Pro Se Debt Defendants Need to Know about Motions in Limine
You can get a copy of this article in PDF form by clicking here: motions in limine article
In this article we discuss a sort of motion that we think pro se parties underuse – motions in limine to exclude evidence at trial. They give you a chance to explain how the rule against hearsay prevents documents created out of court from being used as evidence unless there’s an exception. And they give you a chance to show how the plaintiff’s evidence does not meet the exception it’s planning to invoke, the business records exception. On a motion in limine, you can make your arguments before the trial begins, when things are likely to be overlooked in the heat and action of the trial.
What are Motions in Limine?
Motions in Limine are motions filed before trial. “Limine” is Latin for “threshold,” so these motions are usually brought right before trial, when it’s pretty clear what the other side plans to do.
They are usually directed at evidence, but they could also be directed at legal theories or arguments.
Why Use Them?
Like other parts of litigation, they are directed at the legal merits of the case but could have their most powerful impact on negotiations. Thus you bring your motion and attempt to win it for legal reasons, but if you do manage to win it, you will be able to keep the debt collector from putting on the most important parts of its evidence. And if that happens, it may give up without your needing to go to the trial at all.
Thus motions in limine can be very significant turning points. Or they can simplify matters for you at trial if that happens.
There’s another reason for pro se parties to use motions in limine. As a pro se party in a system run by lawyers and judges, it can be hard to get listened to. Judges may or may not mean to pay more attention to lawyers, but they themselves WERE lawyers, their friends are lawyers, and lawyers are the ones they see day in and day out.
They naturally pay more attention to them for just those reasons.
And then there’s the fact that lawyers understand the system and are trained in it. They can do dumb things, of course, but usually they don’t. Judges know that, and they know that pro se parties lack this training, so they naturally take what you say with a grain of salt.
And then there’s the fact that trials move very quickly, and the judge will be watching the clock very carefully. Will everything you say get heard? Not at trial.
You have a much better chance to get heard at a hearing on a motion to exclude. That will give you a chance to make an impression on the judge, explain some of the legal concepts behind the case, and make your arguments regarding evidence at a time when the court is freer to give what you say some thought. And it helps the judge get to know you a little bit and to be reminded of certain rules of evidence.
All of these things are absolutely vital to your chances of success.
What Motions in Limine are NOT
Motions in limine are not motions for summary judgment. That is, you could argue in a motion in limine that the other side should not be able to introduce certain evidence or make certain arguments, but a motion in limine is not the place to ask for a ruling on the entire case in your favor. For that you need a motion for summary judgment, and this comes much earlier in the process.
What Happens after a Motion in Limine?
What you’re hoping for is a ruling on the spot that the debt collector will not be able to use certain evidence or arguments, and that does happen sometimes. More often, perhaps, the court will withhold its ruling until the debt collector tries to use the evidence. The theory behind this is that the court wants to judge from the context of the case whether the evidence is necessary and fair.
In reality, courts should not wait on most of the issues you’re likely to move on. That’s because your arguments will likely be addressed to the legal admissibility and sufficiency of the evidence, and no amount of case context can substitute for presenting the necessary bases for the business records exception, for example. But courts can be reluctant to rule on a motion that destroys one party’s chances of winning before trial.
Timing
While you could bring a motion in limine fairly early in a case, the court will likely not rule on it before the eve of trial. And either the court will order, or your local rules may provide, a date before which motions in limine must be brought.
In other words, there’s going to be a deadline for filing your motion. You need to know that deadline and abide by it. Most typically what happens is the court wants lists of witnesses and exhibits a week or two before trial, followed by a (final) pretrial conference. You would write your motions in limine in time to be heard at that final pretrial conference.
Work on Motion in Limine
In a debt case everything about their case is predictable, even if you don’t know for sure what they’ve got.
Where the person suing you is a debt collector, you know that the debt collector’s case depends on getting some bills that it did not create into evidence. You should know (from discovery) exactly what those bills are and where they came from long before trial. And you also need to know how they plan to get them into evidence. You find these things out through the discovery process.
Rulings on Motions in Limine are not Permanent
Rulings on motions in limine are subject to change. The court could grant your motion before trial and then change its mind, or vice-versa. That means you will still need to object at trial – or be prepared to argue even if you won – in order to protect your rights. And if you lost, you should take another shot at it. Don’t be intimidated – the court will tell you if it is willing to hear your arguments or not.
What makes motions in limine useful is that they give you a chance to make your arguments in the cool light of reason rather than the heat of trial. That might be your best chance to get heard for the pro se.
For Help
You can find help on this site by just looking around, or by doing a site search using the search bar in the header or footer of every page, and of course we have many products that will simplify whatever you’re trying to do in debt defense. You can find those in the products and membership pages. Sign up here for free information.
Sued for Debt
So You’re Being Sued for Debt
You have learned, one way or another, that you are being sued for a debt. If so, you are in a club containing many millions of people, but you probably feel all alone. What do you do? And how do you do it? Where do you turn, and who can help?
Since you’re here, you know that WE can help. We help people beat the debt collectors and protect what’s theirs.
Fight
We don’t make any bones about it – we think that if you’re sued by a debt collector you have a great chance of winning. And if you lose, it hardly ever costs you anything more than not fighting would have done. If you want to settle, you always start by fighting because debt collectors never settle to make YOUR life easier, they only settle make themselves more profit, and if you fight you instantly drive the value of the suit down in their eyes. Thus you have everything to gain and little to lose in most situations. You should fight.
Lawyer or Not?
We’ve addressed this question many times in various posts, and we do in our First Response Kit, too. But for this article we’re just going to talk about the cost of a lawyer. For most of our members, the cost of a lawyer is the most important thing, and they are expensive.
The average lawyer in a city tries to make $200 per hour these days. They’re running a business, have a staff, and need to make a profit. In debt defense, they also know that not everyone is able to pay. Thus, those who do pay, have to pay more.
With $200 per hour as a target, the lawyer either has to charge you that as an hourly rate or create a flat fee that will, she hopes, bring that average return. Through it all, most people discussing legal fees with us say that lawyers are trying to get them to pay at least $2,500 for their cases. For most people, this is simply too much, and the lawyer will want much of that up-front. So lawyers are simply out of reach for most people in debt trouble.
But here’s the thing: debt law, unlike most kinds of law, is well-suited to pro se (self-representation) defense. And with a little help from us, you’ll know more than most lawyers you talk to will know about this kind of law anyway.
Debt Law is Good for Pro Se Defense
There are a few reasons debt law is good for pro se defense. First, debt law is mostly about rules of evidence. They’re going to want to get some records into evidence, and you’re going to want to stop them from doing that. If you can keep those records out and avoid a few basic mistakes, you should win. This is not the kind of law that involves extensive testimony or cross-examination – you won’t need to be brilliant. You will need to do basic things that you can learn – we can teach you.
The other main reason debt law is good for self-representation is economic. They want to make $200 per hour, but you don’t have to get that much. And the debt collector/lawyer is trying to get that from half of what he can collect from you (the debt buyer gets the other half), while you’re saving 100 percent of what you can save. Thus you can spend more time on the case. It’s your life, and it matters more to you than anyone else. Every time you do something to defend yourself the lawyer on the other side will be worried about whether she’ll get paid for working on your case – this is a big, big advantage.
What to Do?
Your defense will start with an answer or a motion. Our First Response Kit will guide you through that. We also suggest that you get right onto the process of discovery, and the First Response Kit will do as much to help make that easy for you as possible. It includes samples of all the documents you’ll probably need. You’ll have to do SOME work for sure, but it doesn’t get any easier for you than this.
Our First Response Kit
A great place to start your defense is our First Response Kit. It helps you consider your chances of winning (vs. not fighting at all) and whether to fight, whether to get a lawyer, and if you’re going to represent yourself, how to do that. We get you started with a sample Answer and sample discovery that you can modify to fit your situation. This is as easy a way to get started with your defense as is possible. Read about it here.
Can Debt Collectors Garnish Wages or Bank Accounts?
Can Debt Collectors Garnish Your Bank Accounts or Wages? What Should You Do about it?
For a free copy of this article in pdf form, click here: Can wages be garnished
Can your bank accounts be garnished by a debt collector? What about wages? Here are some things you need to know about garnishment.
If you have assets, and this includes either a job or money in the bank, you must be concerned about the possibility of being garnished if a debt collector (or anybody else) has a judgment against you. In other words, the short answer to our question about whether your wages can be garnished is YES. Wages can be garnished once a debt collector has a judgment against you.
Bank accounts can also be garnished when there’s a judgment against you.
The Surprise that Isn’t a Surprise
Lawsuits are divided into two main parts. The first part, which is what everyone thinks about in connection with “being sued,” is a determination of liability and damages. In plain English, the lawsuit is to decide whether you owe anything and how much. In debt cases, that’s usually determined by either a default (failing to show up to court in the first place) or “give-up settlements” (where you show up to agree to anything the debt collector wants, which often includes a “consent judgment”). That judgment just says you owe x-amount of dollars, or nothing, as the case may be.
In most cases, judgments are not “self-enforcing.” That means that after the debt collector gets a judgment that you owe some money, it must still either persuade you to give it to them or find it and take it away from you. This is called “enforcing a judgment,” or in plain language: “collection.” To do that, the debt collector tries to find your assets and then goes to the court’s garnishment office and starts garnishment proceedings.
The garnishment office does NOT tell you they’re at work, and neither does the debt collector. They want you to forget about the case and get comfortable. If you move or hide your assets, their job gets much, much tougher. And if they warn you they are at work, you’re more likely to move or hide the assets, right?
Incredibly, people are quite often shocked when the debt collector starts seizing assets, freezing bank accounts, or garnishing assets.
They are at Work
Let this be your warning. If they have a judgment against you, THEY ARE AT WORK. They still want your money, and they’ve taken a big and somewhat expensive first step by suing you. Why would they stop? You may forget about it, but they won’t.
The Way it Happens
You are always the last to know when collection activity happens. This way your funds are frozen before you can take any action such as withdrawing all your funds.
Banks
The debt collector serves a notice of garnishment on the bank, and as of the time the bank receives it, your account will be frozen. Their notifying the bank first is perfectly legal.
You typically receive the notice (including your rights) a day or two, or three, or four… after your funds have been frozen. In most states, the garnishment does not only freeze funds already in your account at the time of service on the financial institution, but can get money you put in afterwards for a period of time.
During the time the garnishment is in effect, the financial institution cannot honor checks or other orders for the payment of money drawn against your accountif it would leave a balance under the amount stated on the garnishment. For most people, this means any outstanding checks will more than likely bounce or be returned for NSF.
When the amount being garnished is paid, the freeze on your account must be terminated, but since many people do not have nearly enough money in their accounts to offset any significant judgment, this is not of practical significance. If they catch you by surprise, you probably have big trouble. Not only is your money gone, but checks (and automatic drafts, for example) are bouncing right and left – and there are other laws that punish you for that.
Jobs
Wages can also be garnished, and, again, your first notice that you are being garnished is likely to be when you receive a check that is less than you thought it would be.
Federal law limits the maximum amount that can be garnished by one or more garnishment orders to 25 percent of your disposable earnings for that week, or the amount by which your disposable earnings for that week exceed thirty times the Federal minimum hourly wage, whichever is less.
In practical terms, that means (as of this writing) that if you make $154.50 or more per week your wages will be reduced by about 25%. Since most people being sued for debt are already close to the line, a 25% reduction in their paychecks can be simply devastating. And remember, you won’t find out about it until the money is gone.
Don’t Let them Get a Judgment
All of the above means that you should work HARD to avoid letting the debt collector get a judgment. If they do manage to get one, you should EXPECT NOT ONE SHRED OF MERCY. They will take every penny they can with no concern at all for the consequences to you or your family.
Sometimes people think that things are so hopeless that it isn’t worth it to try to keep them from getting a judgment. You have nothing now for them to garnish, and you don’t expect ever to have enough for them to garnish. That’s called being “judgment proof.”
Don’t go there. Things could get better for you in any number of ways, from your job suddenly turning better, to people you don’t know dying or giving you money, or you getting some sort of great idea, or… just anything. The world is full of possibilities, and good things could happen. They’re much more likely to happen if you keep looking for them, too.
It isn’t all that hard to keep them from getting a judgment most of the time if you know what you’re doing, and of course that’s why we’re here.
Don’t Ignore the Possibility of Losing Even if you Defend
Of course, if you’re being sued there’s always a chance you could lose. ALWAYS A CHANCE.
That means that you need to keep personal information about jobs and assets out of the hands of the debt collectors whenever possible.
If you have ever written a check to the company who is the alleged original creditor, you must assume that the debt collector has your banking information. You might want to change banks.
Remember that garnishments are served on people (including corporations and banks), not accounts, so it doesn’t do any good to cancel your account and get a new one in the same bank. But changing banks will go a long way to keep you from finding out, one day, that your bank account has been emptied and your checks are now bouncing.
For a lot of people it’s harder to change jobs. I’m just saying that if you do, it will be harder for the debt collector to garnish your wages. If they have any reason to know where your present job is, you should expect them to come for it.
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
If history is any indication, many of the people reading this article are here because there’s a default judgment against them, and the debt collectors are now after their money. If that’s you, there’s still hope (even aside from the fact that your Social Security payments should be safe). You should consider attempting to undo the judgment – that’s called “vacating” it – and you do that by filing a “Motion to Vacate.” Click here to begin your research on that question. And we have a product that will help you file a motion to vacate.
Most of the rest of the people reading this will be because they are in the “collection cycle” somewhere and are either being threatened with suit or are being sued. If that’s you, you will want to take a look at what the risks of ignoring the suit are versus the costs and advantages of fighting it. I normally suggest fighting it because the risks if you lose are minimal (you won’t make things worse), while the benefits of winning are more substantial than you think, even if you aren’t worried about garnishment.
In any event, if you’re considering defending, I’d suggest you give some thought to our memberships.
Memberships
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Debt Verification – How to Protect Yourself
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