If you are being sued by a debt collector, the first step in defending yourself is knowing who is suing you and what you are being sued for. You’ll want to know what facts the plaintiff thinks it can and needs to prove, and you’ll want to look for initial weaknesses in the case. In all of these things, you will need to understand how to read the petition and understand what it is doing.
Below, you will find a sample petition. The petition (also called “complaint” in some jurisdictions – the terms refer to the same thing) is in black, and my comments about what the petition is doing is in red ink. You will see that every part of the petition has its purpose and function.
For purposes of this article, I will refer only to a few parts of the case, as these areas are often discussed in the teleconference calls and people have shown that they do not understand them. But if you look at the annotated sample petition, you will see much more. Knowing what things are called is an important part of the process of understanding what they are and do and an important first step in defending your rights.
Caption
The caption of the case is the part where it says “Debt Collector vs You” and also the name of the court and jurisdiction. Although it has come up, very rarely, that the named plaintiff may not, actually, be the plaintiff (see our article and video on assignment in the glossary), normally the person named as plaintiff is the plaintiff.
In plain English, that means that if First National Bank is named as plaintiff, that’s the person suing you and not a debt buyer. If you have any reason to doubt that, you will want to use the discovery process to pry the truth loose.
And you are the defendant along with anyone else named as defendant in the caption.
The jurisdiction is also important, as this will either tell you that the court has dollar limits to its jurisdiction or not. At a minimum, you can use this part of the caption to find out whether the court does, indeed, have such limits. In general, if it does, the lower the limits, the less likely the court is to follow the rules of evidence rigorously. We usually want the highest court possible because it is critical to debt defense that the rules should be followed.
Title Heading of Suit
The title headings in a lawsuit are not formally treated as part of the lawsuit but are, instead, guidance. But what you need to know is that if you have different “counts” of the lawsuit there will be either more than one set of facts involved or, much more likely, more than one legal theory involved. If Count One is breach of contract, and Count Two is for Account Stated, you know you are being sued under two laws. In order to win your case, you will have to win on every count.
If you have no heading, or no heading that refers to counts, you are being sued based on one law (almost certainly), although it isn’t always perfectly clear from the petition what that is.
Wherefore Clause
This is the part of the suit that says, “wherefore, plaintiff requests…” In other words, it’s the part of the lawsuit that says what the plaintiff wants. If you want to know how much they’re suing you for, this is the place to look.
The wherefore clause is usually the last paragraph of a count. If your suit has more than one count, it will have more than one wherefore clause, one at the end of each count. If it does not have more than one count, it will probably be the last paragraph of the petition.
You need to know what the debt collector is suing you for. This is where you find that.
Sample Petition for Money Owed
IN THE ASSOCIATE CIRCUIT COURT “Associate” means limited jurisdiction
OF THE COUNTY OF XXXXX County or city jurisdiction
STATE OF XXXX
DEBT COLLECTOR COMPANY, LLC, This is the “Caption,” This name is the
ASSIGNEE OF CC COMPANY (Mastercard), plaintiff [the lawyer signing is not
Plaintiff, plaintiff, nor is Mastercard]
vs.
JOHN Q. PUBLIC,
Defendant.
COUNT ONE – SUIT ON MONEY OWED [Title. “Count One” indicates this claim has more than one legal basis. Lots of suits are brought on only one basis and don’t have “Count __” in them]
Comes Now Plaintiff and for its cause of action against the Defendant states as follows: [Intro, sometimes much longer]
Plaintiff is a limited liability company duly organized and existing under law and is the lawful assignee of this debt. [Paragraph allegations – you have to respond to each paragraph – this one identifies the plaintiff and alleges it was assigned the debt.]
That defendant is a resident of xx county, state of x. [paragraph establishing court’s jurisdiction over defendant, so important – don’t admit if wrong]
That defendant is in default under the terms of the documentation attached hereto, incorporated herein and marked Plaintiff’s Exhibits A and B in the amount of $1,332.14. [This is ‘breach of contract” language, often more involved than this, including claims of issuing cards or credit, etc.]
That plaintiff has performed all conditions on its part required to be performed. [Establishing right to remedy – plaintiff did not breach contract]
That demand for payment has been made and payment refused. [Formality, sometimes but not usually required, usually included though]
Wherefore, plaintiff prays judgment against defendant in the principal amount of $1,332.14 together with interest of 39% per annum from December 7, 2005, and for costs and attorneys fees herein. [the “Wherefore clause.” Says what the plaintiff wants. Usually if it does not say “attorney’s fees,” they won’t be able to get them if they win]
COUNT TWO – ACCOUNT STATED [second claim, this one under law of account stated]
Plaintiff realleges and incorporates paragraphs 1-5 of this petition as if fully stated herein. [“reincorporation clause” – standard. You will simply reallege your previous responses in the same way]
Plaintiff had a regular billing arrangement with Defendant whereby each month Plaintiff would send Defendant an accounting of money due and owing either as a result of new charges made by Defendant or for charges based upon an existing balance. [necessary to show that bills, or “accounting,” were a regular thing, expected by defendant]
Plaintiff sent Defendant a bill showing a charge of $1,332.14 due immediately on X date.[the “new contract,” because it was actually or “impliedly accepted”]
Defendant did not dispute this bill showing a balance of $1,332.14 and accordingly accepted it. [Your supposed agreement]
Defendant did not pay the amount due and is thereby in violation of the law. [The “breach” of the contract created by accepting the accounting – note that new agreement does not have any terms other than the money allegedly owed]
Wherefore, plaintiff prays judgment against defendant in the amount of $1,332.14 together with costs of this action and such other relief as this court deems appropriate under the law. [The “wherefore clause” for the account stated – note that it should not include attorney’s fees or (probably) interest]
Collection Law Firm [law firm’s signature, usually illegible. Both the named lawyer and the firm are representing plaintiff (but are NOT plaintiff) and would be on the hook for possible violations of FDCPA]
______________________
Collection lawyer,
Law Firm
Address
[There is usually some sort of affidavit to the effect that the defendant is not in active military service – if you are not, this is purely a formality. If you are in active military service, special rules apply to your case]
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 Gibert2019-05-03 20:45:262019-11-22 21:45:07Understanding the Petition in a Debt Lawsuit
There’s a myth in America that people can move up in life more here than anywhere else. It is also widely believed that because of this social mobility there isn’t a conflict between the classes.
In recent times, those myths are coming a little bit under fire. Partly we can thank the Democratic Socialists for this – AOC has done a lot to highlight the vast differences in income between the poor and the rich, and she, and other politicians, are beginning to suggest various things that might be done to address those differences. This, of course, has alarmed the right wing and the wealthy, and they are talking a lot about class warfare, too, but the only thing they’re worried about, of course, is the possibility that they will be targeted for special taxation.
We take a different view and sometimes discuss what we believe are the true causes of the wealth inequality in America and what should be done about it. Our point in the video below, however, is just that there has been a class war going on for a long time – and it’s being waged by the rich against the poor.
And the poor are losing big time.
Two of the “trenches” of the current class war are in debt litigation and foreclosure law. Over the past few years, foreclosure has been a little less frequent, but we believe it will soon accelerate. Debt litigation has not slowed down as far as we can tell. The supposed boom in employment has not led to higher wages in real terms or in greater opportunities for the working classes – they’re falling further behind.
Class Warfare in America
The Banks have you in their sights – Fight Back!
__________________________
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Pennsylvania has some very favorable, specific rules on what a debt collector must plead in order to bring a claim on a debt, and a procedure called “preliminary objections” that brings up these issues.
Despite the law imposing these requirements, the debt collectors ignore them, and chances are good that if you’re being sued in PA, they ignored them for you. That means that you can probably get the case kicked out by filing the appropriate Preliminary Objections. For more on this issue, see our materials related to the Pennsylvania Silver Bullet Pack below.
In addition to the pleading requirements, PA also has some very favorable law on the Account Stated claim that debt collectors like to use so often. An account stated claim, in general, requires that the plaintiff plead and prove that a normal billing relationship existed between the parties, that the plaintiff sent a bill (“accounting”) to which the defendant essentially agreed but did not pay. In most states, this “essential agreement” can be implied from almost nothing. In Pennsylvania, on the other hand, some real evidence of agreement needs to be produced. Of course, the debt collectors almost never have such evidence.
Pennsylvania Silver Bullet Pack – a great product that will stop most debt collectors – and a lot of other bad guys too – in Pennsylvania.
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 Gibert2019-04-26 19:01:392019-04-26 19:01:39Pennsylvania Debt Law
This will be a long-term project, as we begin to write more articles that will address issues that arise in specific states. We will eventually have member-only material catalogued here for greater convenience.
California Bill of Particulars Pack – Californians have a tool, halfway between pleadings and discovery, that can force debt collectors to provide all the information you need to defend yourself from most of their claims. The bill of particulars will often make them drop all or part of their case – or to give you what you need to hammer them in court.
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 Gibert2019-04-26 18:55:292019-04-26 18:55:29California Debt Law
This will eventually be an article on small claims courts in Oklahoma.
Small claims courts are a frequent bane to debt defendants because they apply loose rules (of evidence and civil procedure) designed for pro se, unsophisticated parties disputing small amounts of money. Debt collectors, however, have discovered that these lax rules can make it easier for them to get even more default judgments and to win cases on obviously insufficient evidence. Oklahoma put a stop to that by enacting rules that forbid debt collectors from bringing their claims in small claims courts.
Of course this hasn’t stopped them.
Here is the rule: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438809
Here’s an article. There will be more: https://www.okbar.org/freelegalinfo/smallclaims/
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 Gibert2019-04-26 18:49:402019-04-26 18:49:40Oklahoma Law on Debt Collection
At its best, debt collection is a hard business. They’re trying to force people who are already making tough choices to make different choices. To make a person give up food or insurance to pay a bill for something that’s already come and gone is hard to do. And even when the choice isn’t quite that stark, there’s always the challenge of making someone give up what they want NOW for what they used to want THEN.
On the other hand, most people do want to pay their bills, and they feel guilty and embarrassed when they don’t. The debt collectors know and use those facts regularly. You might consider efforts to trigger those feelings “dirty tricks,” but we won’t discuss them other than in certain extreme ways the debt collectors play their cards.
Debtors
People who owe money also usually feel, and are, vulnerable to various bad things, and many of the dirtiest tricks use this fact against them. From a slightly different angle, one of the things that get people into debt trouble in the first place is hope or optimism – they overestimate what they can or will do or they look for an easy way out. This can make them easy suckers for scams, from get-rich-quick scams to get-out-of-debt scams. But what concerns us most for purposes of this article is that it causes them to overestimate what they can pay or for how long they can do it. Thus there’s a tendency for people to make agreements they can’t keep.
In this article, we’ll discuss a few of the tricks the debt collectors play to use the weaknesses of people in debt against them so that you can recognize and prepare for them. We also have a report that you can get for free that has many more of the worst of the tricks.
I have found that a lot of people come to us after doing some things that hurt their rights. Part of our mission is to protect some of those rights before they get lost or damaged. We want to catch people earlier in the debt cycle, in other words. If you give the wrong person money, it’s almost impossible to get it back.
A Few Preliminary Words
There are a few things I will say before getting into the scams and tricks. First, the Fair Debt Collection Practices Act (FDCPA) makes almost all of the tricks we discuss here illegal. But some of them are not, as we will discuss.
The FDCPA generally requires fair-dealing and honesty of the debt collectors, and it makes deception and “misleading” behaviors illegal. It also gives them certain affirmative requirements. But it applies only to “debt collectors” as that term is defined, and there is currently a lot of uncertainty about exactly what the term means and just who is a debt collector even among legitimate operators, and there are a lot of crooks out there, too.
What there is really no doubt about at all is that debt collectors, whether they are within the definition of the FDCPA or not, will do almost anything to get your money. You know that. We can only list and describe a relatively few of their tricks, but you need to develop the habit of extreme caution and skepticism towards anybody who’s trying to get you to give them some money. You need PROOF of every aspect of what they’re saying, because, as we all know, paying the wrong person a bill we really owe doesn’t do any good at all – it just means we’re going to double-pay.
No legitimate debt collector will require you to act immediately the first time you hear from them. Don’t let them hurry you into lowering your standards of proof – that’s the key to all of their other tricks.
A Few of Their Tricks
The tricks here are only a few of what they have come up with, and they will constantly be coming up with more. These are merely examples. The tricks don’t all have formal names, but I have given them names to make them easier to remember.
Asking for Post-dated Checks
Sometimes a debt collector will urge you to send a post-dated check. That is, a check with a date on it that’s different than the actual date. You think the money will be there in a week, so you write the check for next week.
Debt collectors love to get you to do this. Why?
There are some legitimate reasons, and this isn’t always a scam or dirty trick. It is a fact that people get busy, have second thoughts, or simply change their minds – especially when it comes to paying money for something that doesn’t bring them pleasure. A debt collector has a legitimate interest, assuming the debt is valid and the collector is honest (which you should almost never do), in getting your money before any of that happens. He or she has talked you into doing something, and he doesn’t want it to come undone as soon as you hang up. A post-dated check is a good way to make your intention stick.
The problem is that you cannot trust the debt collector, yourself, or the world around you with this.
You can’t trust the debt collector because most debt collectors will say anything that comes to mind to get you to do what they want. They are under intense pressure to perform, and to perform quickly. Therefore, chances are good that the debt collector will not remember – and not even try to remember – that your check is post-dated check. That will be forgotten before you hang up.
So even if by chance your check goes to the debt collector who called you, she will put the check in the pile to go to the bank immediately. And it isn’t likely the person who called you will see the check – it will automatically go out for payment when it arrives in the office.
And you can’t even trust yourself on this. If you were just trying to get the debt collector to go away, or if you made a slight miscalculation, or if something unforeseen happens – as so often happens – you will be in trouble.
Attempt to Collect from Relatives of the Dead
With few exceptions, a parent or spouse’s debts do NOT transfer to anyone else. A deceased’s debts are claims against the decedent’s estate. That means, if there’s a will, that any claimants will have to make a claim against the estate in probate. If for some reason that doesn’t happen, then in some situations the “residuary” beneficiary of the will might be liable.
If the will says, “I leave $100 to Mary and the rest to John,” John is the residuary beneficiary, and John might under some circumstances be liable for a debt. But of course it almost never happens because the creditor would have to prove a variety of things that aren’t easy to prove. Most debt collectors want nothing to do with that. They’d rather try to get you to pay.
All you need to know is that if a debt collector is asking you to pay someone else’s bills it’s probably a scam.
Debt collectors know most people do not know the law and have never thought they might owe someone else’s bills. People who are grieving are less likely to question or oppose someone who asserts that they owe something. In other words, this scam requires catching you at a vulnerable time and taking advantage of it.
The FBI’s After You
In this scam, someone calls you up “from Washington” (or wherever) to let you know you’ve been implicated in some vague crime or misdeed. They’ve tried this one on me a couple of times, as a matter of fact, only the person was supposedly calling from the Social Security Administration to tell me my account had been “frozen” because someone was using the number to launder money.
The agent spoke fast and had a number to call for verification, but things were close to a boiling point. I was supposed to act quickly or expect the FBI to show up within the next day, or possibly hours. Of course the first thing I had to do was verify a few numbers for them…
This is obviously a criminal scam, with only the barest pretense at being debt collection when there is one – sometimes the threat is that agents are on the way to pick you up for non-payment of some debt, or whatever. The critical features are the urgency, the authority, and the threat.
The people doing this one are clearly not legitimate debt collectors, they’re criminals, but it may show up as a debt collection, and chances are good you’ve been targeted because of some perceived vulnerability. Tell these guys to take a hike.
There’s more in the report
You will find many more examples of debt collector dirty tricks in our free Bestiary of Debt Collector Dirty Tricks. You can find that by clicking here: https://yourlegallegup.com/blog/debt-collector-dirty-tricks/.
Many debt defendants love the idea of affirmative defenses – they just sound stronger, don’t they? But in the law, they are specific things, and they are not better than general defenses. They’re just different. If you have an affirmative defense, that’s fine, and you probably wouldn’t want to ignore it. But general defenses are really the “bread and butter” of defense.
So what are these two types of defense?
General Defense or Denial
A general defense is one of two things. It CAN mean a general denial of every allegation in the petition. You’re saying, “prove it” to everything. Since the debt collector has the burden of proof, I would suggest you consider this if it is available to you. It’s easy, fast, and comprehensive. But of course your next move is on to discovery and the rest of defense.
Generically, a “general defense” is one where you deny an allegation. So, above, you could file a “general defense” which denies all paragraphs (if your jurisdiction allows this). Or normally you would simply deny all or most of the paragraphs of the plaintiff’s petition. Every denial is a “general defense” that leaves the burden of proof on the plaintiff.
Affirmative Defenses
Affirmative defenses are something else. They amount to a statement that, “even if what the plaintiff is true, I don’t owe because …”
One example of this might be a settlement – suppose you entered an agreement to pay and did pay the other side, but they sue you anyway. If so, your general denial will be to deny the allegations of the petition, but then you’ll add an affirmative defense: On x day, the parties entered into settlement discussions and formed an agreement. Defendant fully performed this agreement on y day, paying z dollars for a “complete settlement of all claims.” See, attached (a copy of the agreement).
Thus, the facts that you have alleged amount to a complete defense to the action (known as “accord and satisfaction). And note that the facts are pleaded with “particularity” (in detail), and the defendant has the burden of proof of these things.
Other examples of affirmative defenses include collateral estoppel, res judicata, unclean hands, statute of limitations, and laches. There could be others. In each case the defendant would bear the burden of pleading the facts constituting the defense and proving them at trial. Since a general denial leaves the burden of proof on the plaintiff, they’re usually more important.
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 Gibert2019-03-23 20:20:532019-03-23 20:20:53A Question of Burden – General versus Affirmative Defenses
Debt collection is a very big business in the U.S., with debt collectors feeding like vultures on the hardships of people having debt problems. They don’t care about you, they don’t care whether you owe or whether the amount they want is unfair – they only care about getting as much of your money as possible.
They need to be stopped.
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Courts as Cogs in the Debt Collection Machine
The debt collectors have been using the courts as part of their collection machine for many years. And they use the threat of lawsuits even more. This lets them scare millions of people into paying whatever they can, sacrificing whatever they must to do so. And it lets them use the machinery of the law whenever they get a judgment to start garnishing wages or seizing assets.
Unfortunately, the courts have allowed the debt collectors to get away with things they wouldn’t allow other litigants – things like filing claims without any real idea of whether the claims have merit, presenting obviously fraudulent and deceptive affidavits, and using clearly inadmissible evidence, to name a few things. But these are things that happen more often when people are not paying attention. They happen in debt law because nearly everybody getting sued by a debt collector gives up.
This needs to change.
How to Stop Them
I am not suggesting that you hide, drop out, or do anything radical. There are reasonable things you can do to protect yourself and what you have without turning your life upside down or inside out. The law doesn’t have to be your enemy in this… you can make it your friend, and we can help.
As I have often pointed out, debt collection is “assembly-line” or “factory” work. That is, debt collectors buy millions of accounts and feed them into a collection machine. The machine then writes letters, calls, and often sues you. Are there any humans involved in this process? Perhaps a few. The letters and signatures are probably all automated, and the phone dialers often are as well. I wouldn’t be surprised if the “person” calling you wasn’t actually a computer – if they aren’t doing that now, they could, and they soon will be.
And then there’s the lawsuit. Do you know they have software programs that draft entire lawsuits? The lawyers who go to court swear that they have seen the files, but I have my doubts about that. If you have ever asked a debt lawyer about one of his cases, you’d know what I mean – they have no clue. But of course that doesn’t stop them from claiming they have everything they need to win.
Factory Approach
The debt collector’s approach is simple and fiendishly effective. They file a million lawsuits and collect 700,000 default judgments. They can’t find and serve some of the people they sue, and they let them go. Two hundred thousand people go to court to give up one way or the other, and you can see long lines of people waiting to ask the lawyer where to sign whatever the lawyer wants.
In perhaps 50,000 cases of a million, there is some defense. Most of the lawyers doing it simply look for a slightly better settlement number than the debt collector asked for in the petition. SOME of the lawyers know what’s going on and don’t settle at all. A few people defend themselves. Of these, many don’t really have an idea of what they’re doing and end up losing.
The Few, the Proud
A very few people represent themselves and do know what they’re doing. They learn a few rules and a few of the things they need to do… and start doing them. Almost all of these people win.
To put it in a nutshell, our goal at Your Legal Leg Up has been to put our members into this group.
Because the debt collectors are built for the factory work, most of the people who put up serious resistance, and who know what they’re doing, “fall through the cracks.” Quite often, the debt collectors simply drop the cases. In others, they pursue them a little bit. But the underlying economic reality is that it makes little sense for them to do that. They can buy a lot more cases and make a lot more money by getting the people who give up than by fighting any number of cases.
Fighting cases costs debt collectors money. If you fight long enough, they’ll be losing money on your case. We try to make that happen.
Legitimate Defense
But we don’t try to make it happen with foolish claims or time-wasting strategies. That might not be such a good idea.
We understand that debt buyers, and companies suing on debt generally, have certain legal problems. They have a hard time getting or presenting some of the critical evidence. If you want to defend yourself, you need to know what they have and what they don’t have. And you need to know it before trial. The way you find out is through a process called “discovery.”
Debt collectors don’t want you to know what they have or don’t have. In addition, I think they just can’t help themselves – they’re going to object to everything you ask in discovery because that’s just what they do. We call it “stone-walling,” and it’s a favorite strategy that basically every debt collector uses every time. It makes preparing your case harder, but it gives you a legitimate reason to make them spend money, so it’s a two-edged sword.
If you can handle it. We help you handle it. Our materials tell you what you need to do, and they help you do it, too. Our teleconferences boost your confidence and energy, and they clear up doubts.
That’s why so many of our members win their cases. We help you know what you need to know and prove what you need to prove.
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Turning the Tide
I believe the debt collection process is bad for our country, and that it grinds the working and middle class into poverty. Thus I have argued it is a “social justice issue.”
And since we’re talking about social justice, this seems to be a good time to introduce myself. I’m Ken Gibert, and I was a lawyer for about fifteen years, starting as a “clerk” (assistant to judges) in the U.S. Court of Appeals for a year, and then several years as a civil rights lawyer, first as the associate of a prominent local attorney, then on my own. I practiced consumer law for several years, first putting a number of fraudulent businesses OUT of business, and then defending people being sued by debt lawyers. Then I left the practice and started Your Legal Leg Up.
I’ve marched for … well, if I haven’t marched for it there probably hasn’t been a march for it. I’ve been called lots of names, had rocks thrown at me and had my mind blown away (in a good way!) by some of the people I was marching with. I’ve hobnobbed with some real movers and shakers, run my own business, and made some mistakes, too.
Your Legal Leg Up has been in the business of helping people beat debt collectors since 2007. Twelve years as I speak. Obviously, we’ve been around for a long time. I’m proud of that and of all the people we’ve helped, but I’m a little impatient, too – it’s time to make some bigger changes.
And you probably know that I have created perhaps hundreds of videos and written thousands of pages on debt law in America. It’s safe to say I’m one of THE authorities on the subject.
Your Legal Leg Up has been in the business of helping people beat debt collectors since 2007. Twelve years as I speak. Obviously, we’ve been around for a long time. I’m proud of that and of all the people we’ve helped, but I’m a little impatient, too – it’s time to make some bigger changes.
The theme running through my whole life has been that people deserve opportunities. Given a chance, people can do some amazing things, from inventing things, to taking care of people, from building empires to raising children. People need a chance to do what they’re called to do. Thus I have fought against discrimination that prevented that, and I’ve fought against the people and businesses that seek to profit by taking unfair advantage of other people.
And right now, there may not be anything that seeks to profit more by taking advantage of people than the debt collectors. They need to be stopped.
Why I’m Telling You This
The reason I’m going into my own history and the issue of social injustice is that I want to expand our services so that we aren’t just helping people slip through the cracks of the debt factory.
I want to change it.
First, I want a LOT more people to get through the cracks, and that means dramatically increasing the reach of our services and the number of our members.
Then I want so many people to fight for themselves that they overrun the debt collection machine and the courts that serve them force them to change.
Consider the following.
The Courts
On an average day in St. Louis County, a pretty average county in mid-America, there are between two and four courts that spend the first two hours of their day processing debt claims. In each of these courts, you’ll have approximately twenty to thirty lawyers – five or six for the debt collectors, five or ten for debt defendants, and others who are there for miscellaneous reasons. You’ll have 50-100 people milling around, and a court staff consisting of a deputy (security), judge, court clerk, and sometimes a secretary or two.
Over the next two hours, each of those courts will process between 100 and 500 debt cases. It’s a rare day with under a hundred judgments; it’s common to have far more than that. And they do this every single business day of the year. It’s a profit center for the court, which charges about $50 per case (note the volume discount! It would cost you more to file suit). So at the end of the day, the court has collected, say, $15,000, and the debt collectors have garnered 250 or more judgments.
Now I ask you a question, and the answer is going to be obvious: Do you think they could do that if people stood up for themselves?
A low-priority criminal case could easily take half a day. A high-profile case – civil or criminal – could take a week. Imagine what would happen to the courts if 200 debt cases took just half a day to process. It would take almost an entire year for the court to handle what it does now in two hours of one morning.
I’m not making these numbers up – this is what I saw day in and day out where I practiced.
It would take one day. Just one day, for the court to get nearly a year behind schedule, and if you think the judges are going to stand for that… well, none of the judges I’ve ever met seem likely to appreciate anything like that.
The Lawyers
And what about the debt lawyers? They handle at least 50 cases each in an hour every morning. They get judgments of, say, approximately $250,000 in that hour five times per week. Imagine if they could only handle one case per morning and it took them four hours to do. That would reduce their judgments from $250,000 per hour to perhaps $1,000/hour. If they won.
And they wouldn’t win a lot of them because they don’t have what they need to win.
How long do you think they’d last at that rate? And it’s actually worse than that because if you were defending, the lawyers would have to spend hours with you – arguing about their ridiculous objections (which would probably stop pretty quickly), talking about the merits of the case, figuring out scheduling orders… the law can take time. When you fight.
The Debt Collection Companies
And then there’s the debt collection companies, which are designed to obtain minimal information from the creditor banks (and pay very little for it), not to pay for witnesses, not to spend money on anything other than a fraction of an hour of a lawyer’s time plus the costs of an automated collection system. Suddenly they’d need witnesses from the banks, documents, back-up staff, and all the rest of the things ordinary lawyers need and use for ordinary lawsuits. Their costs would absolutely skyrocket. Not ten times as much, a thousand times as much is what it would cost.
The whole debt collection system would come crashing to an end.
And the credit system that feeds the collection industry? That would have to change too.
You Don’t Have to Care about all that
I’m not saying you should join hands with me to end the debt collection industry that plagues the country and harasses innumerable people. I’m not suggesting anybody should march in the streets. I’m just explaining why you should join with us as a way to solve YOUR problem with the debt collectors. Because if you are being sued or harassed, you have a problem with them, and they want your money.
Our system will help you slip through the cracks of their factory… and if we get enough people fighting, you won’t have to slip through the cracks of the factory because it won’t be there anymore. The more people we get, the better off ALL of them will be.
That is my Mission
You don’t have to worry or care about the bigger picture. You’ve got plenty to do for yourself, and doing that instead of giving up will help you – and everybody. But I care about the bigger picture, and I want more people to join with us. That’s why I’m going to make the offer I’m preparing to make, and why I’m creating a special new kind of membership for the “fast-trackers” who are reading this.
Membership at Your Legal Leg Up
We have three levels of debt litigation memberships at Your Legal Leg Up right now: Gold, Platinum, and Diamond, and you can find out all about them here if you want. Let me tell you why we went to membership rather than just offering manuals or other one-time products that would help you know what you need to know.
To put it briefly, there’s a big difference between “knowing” and “doing.” Giving you lots and lots of information (as we do) won’t necessarily make you win your case. In order to win, you have to do things. You have to do the right things, consistently, and it’s a moving target because the company is also trying to win or make you give up. They stonewall you on discovery, making foolish, repetitive and numerous objections to everything you ask for. They file motions to dismiss your counterclaim, to get the judge to keep you from asking things, or to win the case outright. Sometimes they refuse to talk to you at all…
They have a lot of tricks, and beating them means staying on the job and pushing things the way you want them to go. It can be exhausting, confusing, and discouraging.
None of that is news to you if you’ve been in a case with them before. But what’s news is that we can help.
Our memberships exist to keep you from getting exhausted, confused or discouraged. To do this, we give our members a Litigation Manual to help orient them to the case and people involved, and this is not just a little pamphlet. It’s a book of about 250 pages plus links to materials on the website (you can read more about it here if you like). We also have our document bank that reduces the difficulty and confusion in creating or responding to routine things. And again, this is no little thing, consisting of hundreds of pages of materials prepared by lawyers in cases like yours (click here to find out more on our document bank). And we have teleconferences, where you can ask questions and get answers in real time, and a large collection of member-only articles and videos.
As a FastTrack member, you will get all of the benefits of Gold Members except one thing. Instead of two teleconferences per week, you’ll get two per month.
They normally pay $100 for an initiation fee, but you’ll only pay $50.
They normally pay $25 per month for membership dues, but you’ll only pay $15.
Is This a Good Deal?
Is this a good deal for you? I’m pretty sure it is, and I know for sure you won’t find another way to defend yourself that costs anything close to this. To decide whether it works for you, though, you need to look at two things: the lawsuit against you; and the price of a lawyer. There isn’t another program like ours at all, as far as I know.
The Lawsuit against you
One option for anybody being sued is just to give up. If you are “judgment proof,” meaning you have no money that a collector could get, this might make sense. More generally, you would want to look at the amount of money you’re being sued for and compare it to what our membership will cost. If you remain with us for a year, that’s going to be $205. If you stay with us for two years, it’s going to be $385.00.
And then you have to figure the value of your time, which is a little harder to do because you never know how long the debt collector will stay in it. If you have one lawsuit, I would guess you will between 10 and 50 hours. At $10/hour (remember it’s tax free), that’s $100 – $500 worth of your time.
If they’re suing you for under $500, you might not want to defend. Anything over that and you should strongly consider defending. Of course most debt cases are for much more than that these days, but some are not. You can figure out what you need to for yourself.
But what about hiring a lawyer instead?
What about a Lawyer?
If you’ve ever tried to get a lawyer, you will know that they charge a lot. How much? That varies quite a bit. Members have told me that $2,500 to start isn’t unusual. Some charge a flat fee, others hourly – and some seem to base the amount on the amount you’re being sued for. What you can bet is that any lawyer, anywhere, is going to try to make sure he gets paid at least $100 per hour, and often it will be much more than that. You’ll have to look around, but in most cases what the lawyers want is too close to the amount you’re being sued for to be worth it. Consider that just a motion to compel discovery could easily take 20 or 30 hours of attorney time to bring (for a lawyer who doesn’t handle a lot of these cases – much less for one who does). You’ll be paying at least $100 per hour for that time.
But there’s another problem that’s just as big.
It’s hard to find a good lawyer for debt cases
It isn’t that debt law is particularly difficult, and debt collectors aren’t particularly difficult opponents, but there are things you need to know that are just not obvious. The main example of this is that most lawsuits that most lawyers bring have been checked by the lawyer bringing suit, so although the case might be stronger or weaker, it’s usually at least got some validity. Almost all the cases most defendants see are pretty good cases. Thus it makes sense to talk from the very beginning about settling the case – and it makes sense to talk about settling for half or more than half of what the plaintiff is asking. Debt law is just the opposite. Almost none of the cases have any justification at all, and it rarely makes sense to talk about settling, especially not before doing some of the back-up work (discovery).
But lawyers don’t like to turn down work, and this means that there is all too good a chance that you will hire a lawyer who doesn’t know debt law at all.
You’d be much better off representing yourself than to have most lawyers who don’t know debt law.
Think it out for yourself – we know you can, since you’re reading this letter. Our conclusion is that using Your Legal Leg Up is the best deal out there. ByFar. In fact, we can’t guarantee results because there are too many unknowns, but we can guarantee that you will agree with us that our membership is a great deal.
It has to be. Because you can drop it at any time you want. And you can get your money back for up to two months if we aren’t everything you need.
In Conclusion
In conclusion, if you’re being sued by a debt collector, you have an excellent chance of winning or of settling the case for a small fraction of what the debt collector is seeking.
With our help, you will probably win by “falling between the cracks” of their debt machine and making it unprofitable to sue you. If they pursue it, you will probably win. The more people who defend themselves, the easier it will be for you.
It does take some effort. You will learn a lot about the law and the courts. Most people find they enjoy it much more than they expected.
And it will change you. Standing up and defending yourself when everybody thinks you can’t is POWERFUL. It changes the way you see the world and yourself. It feels great. And of course it will keep the debt collector from taking things you’ve worked hard to get for yourself and your family.
Join us as a FastTrack Member. Win your case and change your world.
To join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – click here – and choose FastTrack Membership.
When you do, you will receive:
Access to member-only areas of the site, including our document bank and articles and videos;
The Debt Defense Litigation Manual;
Our special report, Three Weaknesses Most Debt Collectors Have; and
Two teleconferences per month.
Do not worry if some of these things do not appear immediately! We will send you most of the materials by email and will make certain you are able to get into the site in a short time.
I’m looking forward to meeting you!
Ken
Remember: to join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – or click here – and choose FastTrack Membership.
Your Legal Leg Up has always taken a pragmatic approach to debt defense: they sue on a huge scale and take a factory approach – and our job is to help you slip through the cracks of their system. To do this, you have to understand the law a little bit and do some right things, but your defense doesn’t really hurt the profits of the debt collectors. You get out of trouble, and they continue their business in the same way as ever.
What if a lot more people defended themselves?
We think that if a lot more people defended themselves, they would ALL win. And they would change the way the debt industry, including the courts, handles people who allegedly owe money. Right now the debt industry files approximately a million lawsuits per year, producing shockingly inadequate evidence… and winning approximately 80% of the those suits (almost all of them that where the defendants get served). And to do this, my guess is they spend an average of about 20 minutes (no exaggeration!) per case.
What if every case took five hours?
What if every case took twenty-five hours?
It would shut them down and turn things around completely – instead of them controlling everything, they’d be on the run.
Debt defendants should be scaring debtors
Our goal is to help 10,000 people defend their lawsuits. Will this change everything for the industry? We don’t know. But will it change everything for you to win your lawsuit? We’re pretty sure it will – and we think we can help make your chances of winning a LOT better. Please sign up here for information that can help you win your case.
Sign up for Information if You’re Being Sued!
If you’re being sued by a debt collector, you need information about your options, and we can help. Please sign up here for a series of emails regarding the actions you can take, what your chances are, and whether and how we might help you.
https://yourlegallegup.com/wp-content/uploads/2019/01/testimonials2a.jpg5501208Ken Giberthttp://yourlegallegup.wpengine.com/wp-content/uploads/2018/03/YLLU_Main_Logo.pngKen Gibert2019-03-01 18:51:122019-03-02 21:13:25Our Drive for 10,000 Members
Understanding the Petition in a Debt Lawsuit
Understanding the Petition in a Debt Lawsuit
For a copy of this article in PDF form, click here: Understanding the Petition
If you are being sued by a debt collector, the first step in defending yourself is knowing who is suing you and what you are being sued for. You’ll want to know what facts the plaintiff thinks it can and needs to prove, and you’ll want to look for initial weaknesses in the case. In all of these things, you will need to understand how to read the petition and understand what it is doing.
Below, you will find a sample petition. The petition (also called “complaint” in some jurisdictions – the terms refer to the same thing) is in black, and my comments about what the petition is doing is in red ink. You will see that every part of the petition has its purpose and function.
For purposes of this article, I will refer only to a few parts of the case, as these areas are often discussed in the teleconference calls and people have shown that they do not understand them. But if you look at the annotated sample petition, you will see much more. Knowing what things are called is an important part of the process of understanding what they are and do and an important first step in defending your rights.
Caption
The caption of the case is the part where it says “Debt Collector vs You” and also the name of the court and jurisdiction. Although it has come up, very rarely, that the named plaintiff may not, actually, be the plaintiff (see our article and video on assignment in the glossary), normally the person named as plaintiff is the plaintiff.
In plain English, that means that if First National Bank is named as plaintiff, that’s the person suing you and not a debt buyer. If you have any reason to doubt that, you will want to use the discovery process to pry the truth loose.
And you are the defendant along with anyone else named as defendant in the caption.
The jurisdiction is also important, as this will either tell you that the court has dollar limits to its jurisdiction or not. At a minimum, you can use this part of the caption to find out whether the court does, indeed, have such limits. In general, if it does, the lower the limits, the less likely the court is to follow the rules of evidence rigorously. We usually want the highest court possible because it is critical to debt defense that the rules should be followed.
Title Heading of Suit
The title headings in a lawsuit are not formally treated as part of the lawsuit but are, instead, guidance. But what you need to know is that if you have different “counts” of the lawsuit there will be either more than one set of facts involved or, much more likely, more than one legal theory involved. If Count One is breach of contract, and Count Two is for Account Stated, you know you are being sued under two laws. In order to win your case, you will have to win on every count.
If you have no heading, or no heading that refers to counts, you are being sued based on one law (almost certainly), although it isn’t always perfectly clear from the petition what that is.
Wherefore Clause
This is the part of the suit that says, “wherefore, plaintiff requests…” In other words, it’s the part of the lawsuit that says what the plaintiff wants. If you want to know how much they’re suing you for, this is the place to look.
The wherefore clause is usually the last paragraph of a count. If your suit has more than one count, it will have more than one wherefore clause, one at the end of each count. If it does not have more than one count, it will probably be the last paragraph of the petition.
You need to know what the debt collector is suing you for. This is where you find that.
Sample Petition for Money Owed
IN THE ASSOCIATE CIRCUIT COURT “Associate” means limited jurisdiction
OF THE COUNTY OF XXXXX County or city jurisdiction
STATE OF XXXX
DEBT COLLECTOR COMPANY, LLC, This is the “Caption,” This name is the
ASSIGNEE OF CC COMPANY (Mastercard), plaintiff [the lawyer signing is not
Plaintiff, plaintiff, nor is Mastercard]
vs.
JOHN Q. PUBLIC,
Defendant.
COUNT ONE – SUIT ON MONEY OWED [Title. “Count One” indicates this claim has more than one legal basis. Lots of suits are brought on only one basis and don’t have “Count __” in them]
Comes Now Plaintiff and for its cause of action against the Defendant states as follows: [Intro, sometimes much longer]
Wherefore, plaintiff prays judgment against defendant in the principal amount of $1,332.14 together with interest of 39% per annum from December 7, 2005, and for costs and attorneys fees herein. [the “Wherefore clause.” Says what the plaintiff wants. Usually if it does not say “attorney’s fees,” they won’t be able to get them if they win]
COUNT TWO – ACCOUNT STATED [second claim, this one under law of account stated]
Wherefore, plaintiff prays judgment against defendant in the amount of $1,332.14 together with costs of this action and such other relief as this court deems appropriate under the law. [The “wherefore clause” for the account stated – note that it should not include attorney’s fees or (probably) interest]
Collection Law Firm [law firm’s signature, usually illegible. Both the named lawyer and the firm are representing plaintiff (but are NOT plaintiff) and would be on the hook for possible violations of FDCPA]
______________________
Collection lawyer,
Law Firm
Address
[There is usually some sort of affidavit to the effect that the defendant is not in active military service – if you are not, this is purely a formality. If you are in active military service, special rules apply to your case]
Class Warfare in America
There’s a myth in America that people can move up in life more here than anywhere else. It is also widely believed that because of this social mobility there isn’t a conflict between the classes.
In recent times, those myths are coming a little bit under fire. Partly we can thank the Democratic Socialists for this – AOC has done a lot to highlight the vast differences in income between the poor and the rich, and she, and other politicians, are beginning to suggest various things that might be done to address those differences. This, of course, has alarmed the right wing and the wealthy, and they are talking a lot about class warfare, too, but the only thing they’re worried about, of course, is the possibility that they will be targeted for special taxation.
We take a different view and sometimes discuss what we believe are the true causes of the wealth inequality in America and what should be done about it. Our point in the video below, however, is just that there has been a class war going on for a long time – and it’s being waged by the rich against the poor.
And the poor are losing big time.
Two of the “trenches” of the current class war are in debt litigation and foreclosure law. Over the past few years, foreclosure has been a little less frequent, but we believe it will soon accelerate. Debt litigation has not slowed down as far as we can tell. The supposed boom in employment has not led to higher wages in real terms or in greater opportunities for the working classes – they’re falling further behind.
Class Warfare in America
The Banks have you in their sights – Fight Back!
__________________________
Pennsylvania Debt Law
Special Defenses Available in Pennsylvania
Pennsylvania has some very favorable, specific rules on what a debt collector must plead in order to bring a claim on a debt, and a procedure called “preliminary objections” that brings up these issues.
Despite the law imposing these requirements, the debt collectors ignore them, and chances are good that if you’re being sued in PA, they ignored them for you. That means that you can probably get the case kicked out by filing the appropriate Preliminary Objections. For more on this issue, see our materials related to the Pennsylvania Silver Bullet Pack below.
In addition to the pleading requirements, PA also has some very favorable law on the Account Stated claim that debt collectors like to use so often. An account stated claim, in general, requires that the plaintiff plead and prove that a normal billing relationship existed between the parties, that the plaintiff sent a bill (“accounting”) to which the defendant essentially agreed but did not pay. In most states, this “essential agreement” can be implied from almost nothing. In Pennsylvania, on the other hand, some real evidence of agreement needs to be produced. Of course, the debt collectors almost never have such evidence.
Pennsylvania Silver Bullet Pack – a great product that will stop most debt collectors – and a lot of other bad guys too – in Pennsylvania.
California Debt Law
California State-Specific Materials
This will be a long-term project, as we begin to write more articles that will address issues that arise in specific states. We will eventually have member-only material catalogued here for greater convenience.
California-specific Articles and Videos
Bill of Particulars in California, Part 1
A powerful weapon in fighting debt collectors in California – the bill of particulars
Demanding a Bill of Particulars in California, Part 2
If you are in California, you have a powerful tool against the debt collectors – a request for a bill of particulars
California-specific Products
California Bill of Particulars Pack – Californians have a tool, halfway between pleadings and discovery, that can force debt collectors to provide all the information you need to defend yourself from most of their claims. The bill of particulars will often make them drop all or part of their case – or to give you what you need to hammer them in court.
Oklahoma Law on Debt Collection
Oklahoma Debt Law
This will eventually be an article on small claims courts in Oklahoma.
Small claims courts are a frequent bane to debt defendants because they apply loose rules (of evidence and civil procedure) designed for pro se, unsophisticated parties disputing small amounts of money. Debt collectors, however, have discovered that these lax rules can make it easier for them to get even more default judgments and to win cases on obviously insufficient evidence. Oklahoma put a stop to that by enacting rules that forbid debt collectors from bringing their claims in small claims courts.
Of course this hasn’t stopped them.
Here is the rule: http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=438809
Here’s an article. There will be more: https://www.okbar.org/freelegalinfo/smallclaims/
Debt Collector Dirty Tricks
The Debt Collection Business
For a free copy of this article in pdf form, click here: Debt Collector Dirty Tricks
Debt Collectors
At its best, debt collection is a hard business. They’re trying to force people who are already making tough choices to make different choices. To make a person give up food or insurance to pay a bill for something that’s already come and gone is hard to do. And even when the choice isn’t quite that stark, there’s always the challenge of making someone give up what they want NOW for what they used to want THEN.
On the other hand, most people do want to pay their bills, and they feel guilty and embarrassed when they don’t. The debt collectors know and use those facts regularly. You might consider efforts to trigger those feelings “dirty tricks,” but we won’t discuss them other than in certain extreme ways the debt collectors play their cards.
Debtors
People who owe money also usually feel, and are, vulnerable to various bad things, and many of the dirtiest tricks use this fact against them. From a slightly different angle, one of the things that get people into debt trouble in the first place is hope or optimism – they overestimate what they can or will do or they look for an easy way out. This can make them easy suckers for scams, from get-rich-quick scams to get-out-of-debt scams. But what concerns us most for purposes of this article is that it causes them to overestimate what they can pay or for how long they can do it. Thus there’s a tendency for people to make agreements they can’t keep.
In this article, we’ll discuss a few of the tricks the debt collectors play to use the weaknesses of people in debt against them so that you can recognize and prepare for them. We also have a report that you can get for free that has many more of the worst of the tricks.
I have found that a lot of people come to us after doing some things that hurt their rights. Part of our mission is to protect some of those rights before they get lost or damaged. We want to catch people earlier in the debt cycle, in other words. If you give the wrong person money, it’s almost impossible to get it back.
A Few Preliminary Words
There are a few things I will say before getting into the scams and tricks. First, the Fair Debt Collection Practices Act (FDCPA) makes almost all of the tricks we discuss here illegal. But some of them are not, as we will discuss.
The FDCPA generally requires fair-dealing and honesty of the debt collectors, and it makes deception and “misleading” behaviors illegal. It also gives them certain affirmative requirements. But it applies only to “debt collectors” as that term is defined, and there is currently a lot of uncertainty about exactly what the term means and just who is a debt collector even among legitimate operators, and there are a lot of crooks out there, too.
What there is really no doubt about at all is that debt collectors, whether they are within the definition of the FDCPA or not, will do almost anything to get your money. You know that. We can only list and describe a relatively few of their tricks, but you need to develop the habit of extreme caution and skepticism towards anybody who’s trying to get you to give them some money. You need PROOF of every aspect of what they’re saying, because, as we all know, paying the wrong person a bill we really owe doesn’t do any good at all – it just means we’re going to double-pay.
No legitimate debt collector will require you to act immediately the first time you hear from them. Don’t let them hurry you into lowering your standards of proof – that’s the key to all of their other tricks.
A Few of Their Tricks
The tricks here are only a few of what they have come up with, and they will constantly be coming up with more. These are merely examples. The tricks don’t all have formal names, but I have given them names to make them easier to remember.
Asking for Post-dated Checks
Sometimes a debt collector will urge you to send a post-dated check. That is, a check with a date on it that’s different than the actual date. You think the money will be there in a week, so you write the check for next week.
Debt collectors love to get you to do this. Why?
There are some legitimate reasons, and this isn’t always a scam or dirty trick. It is a fact that people get busy, have second thoughts, or simply change their minds – especially when it comes to paying money for something that doesn’t bring them pleasure. A debt collector has a legitimate interest, assuming the debt is valid and the collector is honest (which you should almost never do), in getting your money before any of that happens. He or she has talked you into doing something, and he doesn’t want it to come undone as soon as you hang up. A post-dated check is a good way to make your intention stick.
The problem is that you cannot trust the debt collector, yourself, or the world around you with this.
You can’t trust the debt collector because most debt collectors will say anything that comes to mind to get you to do what they want. They are under intense pressure to perform, and to perform quickly. Therefore, chances are good that the debt collector will not remember – and not even try to remember – that your check is post-dated check. That will be forgotten before you hang up.
So even if by chance your check goes to the debt collector who called you, she will put the check in the pile to go to the bank immediately. And it isn’t likely the person who called you will see the check – it will automatically go out for payment when it arrives in the office.
And you can’t even trust yourself on this. If you were just trying to get the debt collector to go away, or if you made a slight miscalculation, or if something unforeseen happens – as so often happens – you will be in trouble.
Attempt to Collect from Relatives of the Dead
With few exceptions, a parent or spouse’s debts do NOT transfer to anyone else. A deceased’s debts are claims against the decedent’s estate. That means, if there’s a will, that any claimants will have to make a claim against the estate in probate. If for some reason that doesn’t happen, then in some situations the “residuary” beneficiary of the will might be liable.
If the will says, “I leave $100 to Mary and the rest to John,” John is the residuary beneficiary, and John might under some circumstances be liable for a debt. But of course it almost never happens because the creditor would have to prove a variety of things that aren’t easy to prove. Most debt collectors want nothing to do with that. They’d rather try to get you to pay.
All you need to know is that if a debt collector is asking you to pay someone else’s bills it’s probably a scam.
Debt collectors know most people do not know the law and have never thought they might owe someone else’s bills. People who are grieving are less likely to question or oppose someone who asserts that they owe something. In other words, this scam requires catching you at a vulnerable time and taking advantage of it.
The FBI’s After You
In this scam, someone calls you up “from Washington” (or wherever) to let you know you’ve been implicated in some vague crime or misdeed. They’ve tried this one on me a couple of times, as a matter of fact, only the person was supposedly calling from the Social Security Administration to tell me my account had been “frozen” because someone was using the number to launder money.
The agent spoke fast and had a number to call for verification, but things were close to a boiling point. I was supposed to act quickly or expect the FBI to show up within the next day, or possibly hours. Of course the first thing I had to do was verify a few numbers for them…
This is obviously a criminal scam, with only the barest pretense at being debt collection when there is one – sometimes the threat is that agents are on the way to pick you up for non-payment of some debt, or whatever. The critical features are the urgency, the authority, and the threat.
The people doing this one are clearly not legitimate debt collectors, they’re criminals, but it may show up as a debt collection, and chances are good you’ve been targeted because of some perceived vulnerability. Tell these guys to take a hike.
There’s more in the report
You will find many more examples of debt collector dirty tricks in our free Bestiary of Debt Collector Dirty Tricks. You can find that by clicking here: https://yourlegallegup.com/blog/debt-collector-dirty-tricks/.
Protected: Debt Collector Dirty Tricks
A Question of Burden – General versus Affirmative Defenses
“General” versus “Affirmative” Defenses
Many debt defendants love the idea of affirmative defenses – they just sound stronger, don’t they? But in the law, they are specific things, and they are not better than general defenses. They’re just different. If you have an affirmative defense, that’s fine, and you probably wouldn’t want to ignore it. But general defenses are really the “bread and butter” of defense.
So what are these two types of defense?
General Defense or Denial
A general defense is one of two things. It CAN mean a general denial of every allegation in the petition. You’re saying, “prove it” to everything. Since the debt collector has the burden of proof, I would suggest you consider this if it is available to you. It’s easy, fast, and comprehensive. But of course your next move is on to discovery and the rest of defense.
Generically, a “general defense” is one where you deny an allegation. So, above, you could file a “general defense” which denies all paragraphs (if your jurisdiction allows this). Or normally you would simply deny all or most of the paragraphs of the plaintiff’s petition. Every denial is a “general defense” that leaves the burden of proof on the plaintiff.
Affirmative Defenses
Affirmative defenses are something else. They amount to a statement that, “even if what the plaintiff is true, I don’t owe because …”
One example of this might be a settlement – suppose you entered an agreement to pay and did pay the other side, but they sue you anyway. If so, your general denial will be to deny the allegations of the petition, but then you’ll add an affirmative defense: On x day, the parties entered into settlement discussions and formed an agreement. Defendant fully performed this agreement on y day, paying z dollars for a “complete settlement of all claims.” See, attached (a copy of the agreement).
Thus, the facts that you have alleged amount to a complete defense to the action (known as “accord and satisfaction). And note that the facts are pleaded with “particularity” (in detail), and the defendant has the burden of proof of these things.
Other examples of affirmative defenses include collateral estoppel, res judicata, unclean hands, statute of limitations, and laches. There could be others. In each case the defendant would bear the burden of pleading the facts constituting the defense and proving them at trial. Since a general denial leaves the burden of proof on the plaintiff, they’re usually more important.
Fast Track to Victory over Debt Collectors
Fast Track to Beating the Debt Collectors
Debt collection is a very big business in the U.S., with debt collectors feeding like vultures on the hardships of people having debt problems. They don’t care about you, they don’t care whether you owe or whether the amount they want is unfair – they only care about getting as much of your money as possible.
They need to be stopped.
to join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – or click here – and choose FastTrack Membership.
Courts as Cogs in the Debt Collection Machine
The debt collectors have been using the courts as part of their collection machine for many years. And they use the threat of lawsuits even more. This lets them scare millions of people into paying whatever they can, sacrificing whatever they must to do so. And it lets them use the machinery of the law whenever they get a judgment to start garnishing wages or seizing assets.
Unfortunately, the courts have allowed the debt collectors to get away with things they wouldn’t allow other litigants – things like filing claims without any real idea of whether the claims have merit, presenting obviously fraudulent and deceptive affidavits, and using clearly inadmissible evidence, to name a few things. But these are things that happen more often when people are not paying attention. They happen in debt law because nearly everybody getting sued by a debt collector gives up.
This needs to change.
How to Stop Them
I am not suggesting that you hide, drop out, or do anything radical. There are reasonable things you can do to protect yourself and what you have without turning your life upside down or inside out. The law doesn’t have to be your enemy in this… you can make it your friend, and we can help.
As I have often pointed out, debt collection is “assembly-line” or “factory” work. That is, debt collectors buy millions of accounts and feed them into a collection machine. The machine then writes letters, calls, and often sues you. Are there any humans involved in this process? Perhaps a few. The letters and signatures are probably all automated, and the phone dialers often are as well. I wouldn’t be surprised if the “person” calling you wasn’t actually a computer – if they aren’t doing that now, they could, and they soon will be.
And then there’s the lawsuit. Do you know they have software programs that draft entire lawsuits? The lawyers who go to court swear that they have seen the files, but I have my doubts about that. If you have ever asked a debt lawyer about one of his cases, you’d know what I mean – they have no clue. But of course that doesn’t stop them from claiming they have everything they need to win.
Factory Approach
The debt collector’s approach is simple and fiendishly effective. They file a million lawsuits and collect 700,000 default judgments. They can’t find and serve some of the people they sue, and they let them go. Two hundred thousand people go to court to give up one way or the other, and you can see long lines of people waiting to ask the lawyer where to sign whatever the lawyer wants.
In perhaps 50,000 cases of a million, there is some defense. Most of the lawyers doing it simply look for a slightly better settlement number than the debt collector asked for in the petition. SOME of the lawyers know what’s going on and don’t settle at all. A few people defend themselves. Of these, many don’t really have an idea of what they’re doing and end up losing.
The Few, the Proud
A very few people represent themselves and do know what they’re doing. They learn a few rules and a few of the things they need to do… and start doing them. Almost all of these people win.
To put it in a nutshell, our goal at Your Legal Leg Up has been to put our members into this group.
Because the debt collectors are built for the factory work, most of the people who put up serious resistance, and who know what they’re doing, “fall through the cracks.” Quite often, the debt collectors simply drop the cases. In others, they pursue them a little bit. But the underlying economic reality is that it makes little sense for them to do that. They can buy a lot more cases and make a lot more money by getting the people who give up than by fighting any number of cases.
Fighting cases costs debt collectors money. If you fight long enough, they’ll be losing money on your case. We try to make that happen.
Legitimate Defense
But we don’t try to make it happen with foolish claims or time-wasting strategies. That might not be such a good idea.
We understand that debt buyers, and companies suing on debt generally, have certain legal problems. They have a hard time getting or presenting some of the critical evidence. If you want to defend yourself, you need to know what they have and what they don’t have. And you need to know it before trial. The way you find out is through a process called “discovery.”
Debt collectors don’t want you to know what they have or don’t have. In addition, I think they just can’t help themselves – they’re going to object to everything you ask in discovery because that’s just what they do. We call it “stone-walling,” and it’s a favorite strategy that basically every debt collector uses every time. It makes preparing your case harder, but it gives you a legitimate reason to make them spend money, so it’s a two-edged sword.
If you can handle it. We help you handle it. Our materials tell you what you need to do, and they help you do it, too. Our teleconferences boost your confidence and energy, and they clear up doubts.
That’s why so many of our members win their cases. We help you know what you need to know and prove what you need to prove.
testimonials for Your Legal Leg Up
Turning the Tide
I believe the debt collection process is bad for our country, and that it grinds the working and middle class into poverty. Thus I have argued it is a “social justice issue.”
And since we’re talking about social justice, this seems to be a good time to introduce myself. I’m Ken Gibert, and I was a lawyer for about fifteen years, starting as a “clerk” (assistant to judges) in the U.S. Court of Appeals for a year, and then several years as a civil rights lawyer, first as the associate of a prominent local attorney, then on my own. I practiced consumer law for several years, first putting a number of fraudulent businesses OUT of business, and then defending people being sued by debt lawyers. Then I left the practice and started Your Legal Leg Up.
I’ve marched for … well, if I haven’t marched for it there probably hasn’t been a march for it. I’ve been called lots of names, had rocks thrown at me and had my mind blown away (in a good way!) by some of the people I was marching with. I’ve hobnobbed with some real movers and shakers, run my own business, and made some mistakes, too.
Your Legal Leg Up has been in the business of helping people beat debt collectors since 2007. Twelve years as I speak. Obviously, we’ve been around for a long time. I’m proud of that and of all the people we’ve helped, but I’m a little impatient, too – it’s time to make some bigger changes.
And you probably know that I have created perhaps hundreds of videos and written thousands of pages on debt law in America. It’s safe to say I’m one of THE authorities on the subject.
Your Legal Leg Up has been in the business of helping people beat debt collectors since 2007. Twelve years as I speak. Obviously, we’ve been around for a long time. I’m proud of that and of all the people we’ve helped, but I’m a little impatient, too – it’s time to make some bigger changes.
The theme running through my whole life has been that people deserve opportunities. Given a chance, people can do some amazing things, from inventing things, to taking care of people, from building empires to raising children. People need a chance to do what they’re called to do. Thus I have fought against discrimination that prevented that, and I’ve fought against the people and businesses that seek to profit by taking unfair advantage of other people.
And right now, there may not be anything that seeks to profit more by taking advantage of people than the debt collectors. They need to be stopped.
Why I’m Telling You This
The reason I’m going into my own history and the issue of social injustice is that I want to expand our services so that we aren’t just helping people slip through the cracks of the debt factory.
I want to change it.
First, I want a LOT more people to get through the cracks, and that means dramatically increasing the reach of our services and the number of our members.
Then I want so many people to fight for themselves that they overrun the debt collection machine and the courts that serve them force them to change.
Consider the following.
The Courts
On an average day in St. Louis County, a pretty average county in mid-America, there are between two and four courts that spend the first two hours of their day processing debt claims. In each of these courts, you’ll have approximately twenty to thirty lawyers – five or six for the debt collectors, five or ten for debt defendants, and others who are there for miscellaneous reasons. You’ll have 50-100 people milling around, and a court staff consisting of a deputy (security), judge, court clerk, and sometimes a secretary or two.
Over the next two hours, each of those courts will process between 100 and 500 debt cases. It’s a rare day with under a hundred judgments; it’s common to have far more than that. And they do this every single business day of the year. It’s a profit center for the court, which charges about $50 per case (note the volume discount! It would cost you more to file suit). So at the end of the day, the court has collected, say, $15,000, and the debt collectors have garnered 250 or more judgments.
Now I ask you a question, and the answer is going to be obvious: Do you think they could do that if people stood up for themselves?
A low-priority criminal case could easily take half a day. A high-profile case – civil or criminal – could take a week. Imagine what would happen to the courts if 200 debt cases took just half a day to process. It would take almost an entire year for the court to handle what it does now in two hours of one morning.
I’m not making these numbers up – this is what I saw day in and day out where I practiced.
It would take one day. Just one day, for the court to get nearly a year behind schedule, and if you think the judges are going to stand for that… well, none of the judges I’ve ever met seem likely to appreciate anything like that.
The Lawyers
And what about the debt lawyers? They handle at least 50 cases each in an hour every morning. They get judgments of, say, approximately $250,000 in that hour five times per week. Imagine if they could only handle one case per morning and it took them four hours to do. That would reduce their judgments from $250,000 per hour to perhaps $1,000/hour. If they won.
And they wouldn’t win a lot of them because they don’t have what they need to win.
How long do you think they’d last at that rate? And it’s actually worse than that because if you were defending, the lawyers would have to spend hours with you – arguing about their ridiculous objections (which would probably stop pretty quickly), talking about the merits of the case, figuring out scheduling orders… the law can take time. When you fight.
The Debt Collection Companies
And then there’s the debt collection companies, which are designed to obtain minimal information from the creditor banks (and pay very little for it), not to pay for witnesses, not to spend money on anything other than a fraction of an hour of a lawyer’s time plus the costs of an automated collection system. Suddenly they’d need witnesses from the banks, documents, back-up staff, and all the rest of the things ordinary lawyers need and use for ordinary lawsuits. Their costs would absolutely skyrocket. Not ten times as much, a thousand times as much is what it would cost.
The whole debt collection system would come crashing to an end.
And the credit system that feeds the collection industry? That would have to change too.
You Don’t Have to Care about all that
I’m not saying you should join hands with me to end the debt collection industry that plagues the country and harasses innumerable people. I’m not suggesting anybody should march in the streets. I’m just explaining why you should join with us as a way to solve YOUR problem with the debt collectors. Because if you are being sued or harassed, you have a problem with them, and they want your money.
Our system will help you slip through the cracks of their factory… and if we get enough people fighting, you won’t have to slip through the cracks of the factory because it won’t be there anymore. The more people we get, the better off ALL of them will be.
That is my Mission
You don’t have to worry or care about the bigger picture. You’ve got plenty to do for yourself, and doing that instead of giving up will help you – and everybody. But I care about the bigger picture, and I want more people to join with us. That’s why I’m going to make the offer I’m preparing to make, and why I’m creating a special new kind of membership for the “fast-trackers” who are reading this.
Membership at Your Legal Leg Up
We have three levels of debt litigation memberships at Your Legal Leg Up right now: Gold, Platinum, and Diamond, and you can find out all about them here if you want. Let me tell you why we went to membership rather than just offering manuals or other one-time products that would help you know what you need to know.
To put it briefly, there’s a big difference between “knowing” and “doing.” Giving you lots and lots of information (as we do) won’t necessarily make you win your case. In order to win, you have to do things. You have to do the right things, consistently, and it’s a moving target because the company is also trying to win or make you give up. They stonewall you on discovery, making foolish, repetitive and numerous objections to everything you ask for. They file motions to dismiss your counterclaim, to get the judge to keep you from asking things, or to win the case outright. Sometimes they refuse to talk to you at all…
They have a lot of tricks, and beating them means staying on the job and pushing things the way you want them to go. It can be exhausting, confusing, and discouraging.
None of that is news to you if you’ve been in a case with them before. But what’s news is that we can help.
Our memberships exist to keep you from getting exhausted, confused or discouraged. To do this, we give our members a Litigation Manual to help orient them to the case and people involved, and this is not just a little pamphlet. It’s a book of about 250 pages plus links to materials on the website (you can read more about it here if you like). We also have our document bank that reduces the difficulty and confusion in creating or responding to routine things. And again, this is no little thing, consisting of hundreds of pages of materials prepared by lawyers in cases like yours (click here to find out more on our document bank). And we have teleconferences, where you can ask questions and get answers in real time, and a large collection of member-only articles and videos.
As a FastTrack member, you will get all of the benefits of Gold Members except one thing. Instead of two teleconferences per week, you’ll get two per month.
They normally pay $100 for an initiation fee, but you’ll only pay $50.
They normally pay $25 per month for membership dues, but you’ll only pay $15.
Is This a Good Deal?
Is this a good deal for you? I’m pretty sure it is, and I know for sure you won’t find another way to defend yourself that costs anything close to this. To decide whether it works for you, though, you need to look at two things: the lawsuit against you; and the price of a lawyer. There isn’t another program like ours at all, as far as I know.
The Lawsuit against you
One option for anybody being sued is just to give up. If you are “judgment proof,” meaning you have no money that a collector could get, this might make sense. More generally, you would want to look at the amount of money you’re being sued for and compare it to what our membership will cost. If you remain with us for a year, that’s going to be $205. If you stay with us for two years, it’s going to be $385.00.
And then you have to figure the value of your time, which is a little harder to do because you never know how long the debt collector will stay in it. If you have one lawsuit, I would guess you will between 10 and 50 hours. At $10/hour (remember it’s tax free), that’s $100 – $500 worth of your time.
If they’re suing you for under $500, you might not want to defend. Anything over that and you should strongly consider defending. Of course most debt cases are for much more than that these days, but some are not. You can figure out what you need to for yourself.
But what about hiring a lawyer instead?
What about a Lawyer?
If you’ve ever tried to get a lawyer, you will know that they charge a lot. How much? That varies quite a bit. Members have told me that $2,500 to start isn’t unusual. Some charge a flat fee, others hourly – and some seem to base the amount on the amount you’re being sued for. What you can bet is that any lawyer, anywhere, is going to try to make sure he gets paid at least $100 per hour, and often it will be much more than that. You’ll have to look around, but in most cases what the lawyers want is too close to the amount you’re being sued for to be worth it. Consider that just a motion to compel discovery could easily take 20 or 30 hours of attorney time to bring (for a lawyer who doesn’t handle a lot of these cases – much less for one who does). You’ll be paying at least $100 per hour for that time.
But there’s another problem that’s just as big.
It’s hard to find a good lawyer for debt cases
It isn’t that debt law is particularly difficult, and debt collectors aren’t particularly difficult opponents, but there are things you need to know that are just not obvious. The main example of this is that most lawsuits that most lawyers bring have been checked by the lawyer bringing suit, so although the case might be stronger or weaker, it’s usually at least got some validity. Almost all the cases most defendants see are pretty good cases. Thus it makes sense to talk from the very beginning about settling the case – and it makes sense to talk about settling for half or more than half of what the plaintiff is asking. Debt law is just the opposite. Almost none of the cases have any justification at all, and it rarely makes sense to talk about settling, especially not before doing some of the back-up work (discovery).
But lawyers don’t like to turn down work, and this means that there is all too good a chance that you will hire a lawyer who doesn’t know debt law at all.
You’d be much better off representing yourself than to have most lawyers who don’t know debt law.
Think it out for yourself – we know you can, since you’re reading this letter. Our conclusion is that using Your Legal Leg Up is the best deal out there. By Far. In fact, we can’t guarantee results because there are too many unknowns, but we can guarantee that you will agree with us that our membership is a great deal.
It has to be. Because you can drop it at any time you want. And you can get your money back for up to two months if we aren’t everything you need.
In Conclusion
In conclusion, if you’re being sued by a debt collector, you have an excellent chance of winning or of settling the case for a small fraction of what the debt collector is seeking.
With our help, you will probably win by “falling between the cracks” of their debt machine and making it unprofitable to sue you. If they pursue it, you will probably win. The more people who defend themselves, the easier it will be for you.
It does take some effort. You will learn a lot about the law and the courts. Most people find they enjoy it much more than they expected.
And it will change you. Standing up and defending yourself when everybody thinks you can’t is POWERFUL. It changes the way you see the world and yourself. It feels great. And of course it will keep the debt collector from taking things you’ve worked hard to get for yourself and your family.
Join us as a FastTrack Member. Win your case and change your world.
To join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – click here – and choose FastTrack Membership.
When you do, you will receive:
Do not worry if some of these things do not appear immediately! We will send you most of the materials by email and will make certain you are able to get into the site in a short time.
I’m looking forward to meeting you!
Ken
Remember: to join us as a FastTrack Member, hover the cursor over About Memberships on the main menu and then click on Register – or click here – and choose FastTrack Membership.
If you aren’t ready to join us, click here instead for more information about debt law and your chances of defending yourself pro se.
Our Drive for 10,000 Members
Your Legal Leg Up has always taken a pragmatic approach to debt defense: they sue on a huge scale and take a factory approach – and our job is to help you slip through the cracks of their system. To do this, you have to understand the law a little bit and do some right things, but your defense doesn’t really hurt the profits of the debt collectors. You get out of trouble, and they continue their business in the same way as ever.
What if a lot more people defended themselves?
We think that if a lot more people defended themselves, they would ALL win. And they would change the way the debt industry, including the courts, handles people who allegedly owe money. Right now the debt industry files approximately a million lawsuits per year, producing shockingly inadequate evidence… and winning approximately 80% of the those suits (almost all of them that where the defendants get served). And to do this, my guess is they spend an average of about 20 minutes (no exaggeration!) per case.
What if every case took five hours?
What if every case took twenty-five hours?
It would shut them down and turn things around completely – instead of them controlling everything, they’d be on the run.
Debt defendants should be scaring debtors
Our goal is to help 10,000 people defend their lawsuits. Will this change everything for the industry? We don’t know. But will it change everything for you to win your lawsuit? We’re pretty sure it will – and we think we can help make your chances of winning a LOT better. Please sign up here for information that can help you win your case.
Sign up for Information if You’re Being Sued!
If you’re being sued by a debt collector, you need information about your options, and we can help. Please sign up here for a series of emails regarding the actions you can take, what your chances are, and whether and how we might help you.