Today’s hint is a friendly reminder to know who your friends are and not to expect help from people who are actually against you or are the “referees” in the match. That is, you might be surprised how many people call up or ask the lawyer on the other side what to do, or how many hope or expect some sort of help or guidance from the judge.
Relying on the kindness of strangers – or of people with interests contrary to yours – will get you in trouble in the law. Instead, you must be able to rely on yourself and someone or some source that you trust. That’s one reason we emphasize finding and knowing the rules so much. You shoul never ask the other side “what” or “when” something is due. That is your responsibility, and it may even be unethical for the other side to give you any help.
The Lawyers
The lawyer on the other side, and the judge and his or her staff, should not tell you anything that is remotely like “legal” advice, and most people take a very broad view of what that might be in the context of an actual suit. The other lawyer should not tell you anything because you are not a client and in fact have interests contrary to the client. And the judge is not supposed to take sides in any way. Do not look to them for any sort of advice, from when something is due to what, in any way, you should say or do.
The only time the lawyer will seriously consider what you should do is in order to argue that you have not done something you needed to do. In other words, in order to beat you. This is the nature of an adversary system.
The Judge and Clerk
Likewise, the only time a judge will consider the question is when you have missed a deadline or done something wrong. Again, it’s just the nature of the beast.
Clerks will only sometimes answer basic questions, they will almost never anything that starts with “what should I do it…” Instead, you can ask questions like “how long do I have to respond to…” or “is it necessary to set a hearing for argument in order for a motion to be considered, and how do you prefer me to do that?” You can ask scheduling type questions, but their job is never to tell you what the law requires or permits, or to guide you towards any particular action, because that sort of information might be considered legal advice or taking sides.
Helpful Sources
On the other hand, there are sources that might be helpful to you. Your Legal Leg Up, of course, has a great variety of information you can use, and there are some other websites that also have some information or people in the same boat as you are. Just remember that no one has the same interest in defending you that you have. The sites that are run by people who are or have been in the same boat are not always reliable in their suggestions because the things that worked for them don’t always work for everybody. For more on this, see Sometimes a Rain Dance is Just a Dance.
Stay on top of things. You can do this.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 21:49:462018-10-06 19:07:08Tip 6 of Uncommon Common Sense
Tip 7: You won’t believe the tricks the other side will play in discovery until you see them
Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.
I’ll give you a preview.
Games Debt Collectors Play
The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.
In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.
In short, they will play games with you.
Take Advantage of What they Do
You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.
Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.
If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.
When they do Their Discovery
And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.
Tomorrow we will send Tip 8.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 21:46:132018-10-06 19:12:28Tip 7 of Uncommon Common Sense
Tip 8: Lots of proof of one thing doesn’t make up for not enough proof of something else.
Today’s tip concerns proof.
Once you get past the risk of defaulting or losing (or winning) on some technicality, there remains the challenge of actually winning your case. If you are the defendant, you might put this as “not losing” your case by motion (for summary judgment) or at trial. To do this, you need to know about proof and evidence.
You’ll Win or Lose Based on Evidence
As you know, debt lawsuits are about proving that, for some reason, you owe the debt collector money. What they have to prove, and how much evidence they need are important questions.
Their case
In debt law, the debt collector must prove ownership of the debt or some other right to collect the debt, the amount owed, the fact that it hasn’t been paid already (as aspect of amount owed), and that it is due. In “contract” language: that there is a contract, that the contract gives the plaintiff the right to collect, that payment is due and owing, and that payment has not been made. Each one of these things must be proved separately.
Burden of Proof
The burden of proof is just what you’d think. It’s the amount of proof that must be put forward. In civil cases, this is not the “beyond a reasonable doubt” standard that you might have heard of in criminal cases, but a much lower burden. This burden is called a “preponderance,” which is just a fancy way of saying a “majority,” or, as jury instructions usually say, “more likely than not.”
We all know these cases are almost never going to come down to a delicate balancing of uncertain evidence. In 999 out of 1,000 cases, the issue will just be whether the debt collector can put on legitimate evidence to prove its case. And it normally will not have any legitimate (truly admissible) evidence of some of the issues. Remember, they have to prove each element of their case.
The Tip
And thus we come to our tip: Lots of proof of one thing doesn’t make up for not enough proof of something else. The debt collector may have a lot of proof that it owns the debt. It may have a lot of proof that you owe somebody the debt. Although to tell the truth it often will not have proof of either of these things. They will likely have a few “statements” that you were supposedly sent (although they won’t have evidence that they actually were sent), an affidavit claiming that you owe a certain amount, and they’ll try to bluff it through from there.
Remember at every stage of the actual proof that the debt collector must prove each part of its case, and a lot of evidence of one part does not in any way lesson the burden of proving every other part. When you are attacking their case, therefore, you attack every part of it. Challenge every piece of evidence and show that the evidence isn’t admissible. Learn the important rules of evidence and prepare your objections before trial. This is not something you can “wing.” To give yourself a chance to win, you must prepare your objections in advance.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 21:43:122018-10-06 19:15:41Tip 8 of Uncommon Common Sense
Suppose you get called by a debt collector about a debt that you might want to pay. That is, you think it’s legitimate, you think the company calling you may be legitimate (subject, always, to proof!), and for other reasons you’re inclined to pay. But you don’t have enough money. “Not a problem!” says the debt collector. “You owe us $2,500, but why don’t you just make a payment of $75 tonight? Then you can pay the rest whenever you can afford it.”
Should you do it?
What you should do
This is a made-up situation, of course, but some variation of it occurs many times every day all over the country. The collector is either nice, and you want to help him out by chipping in “just a little” to help his statistics, or the debt collector is mean, and you think that making a payment will be the fastest way to get her off the line.
Of course you know they’re paid to make you feel the way you do, but that doesn’t really matter. There are times when the way you feel trumps whatever you know – and the debt collectors are paid to know about that, too.
The question is, should you make that little payment?
To Pay or Not to Pay
The question you need to answer first is NOT whether you want to pay. The first question you must ask yourself is whether you can see exactly how you will be able to pay – and not just the payment you’re being asked to make, but all the rest of it. The debt is $2,500. Can you see how you would pay all of that? Can you think of terms that would actually work – as you can see at the moment and without hoping for something surprising and unusual happening?
To be frank, most people being contacted by a debt collector on a bill they thought they should pay can’t see a way to pay it. If that’s you, you should not pay any part of it.
If you can see a way to pay the debt and believe you should, and if the debt collector will agree – in writing – to the terms you think are necessary, THEN you can ask whether you think it’s the right thing for you to do. Often people may conclude it is, for a variety of reasons, and if this is you, then make the deal and whatever payments you agree to. We’re not here to tell you not to pay legitimate debts – only to make sure the debt collectors don’t crucify you.
Why Should You Act as we Suggest?
You should ask the questions in the way we suggest, and act according to the answers you come up with because making a payment is not a legally neutral act. It has major legal consequences.
Making Payment CAN Admit the Debt
We tell people all the time that one of the biggest difficulties debt collectors have is establishing by legitimate evidence that you owe them the debt. Can you see how making a payment seems like admitting you do? The debt collectors will argue that it is an admission, and some courts will buy that argument. Your argument that you only made the payment to make the debt collector feel better or to get them off the phone will cut no legal mustard because that is not a rational thing to do. The courts will hold you to a standard of reasonability, often, that ignores either your compassion or fear or desire for peace and quiet. Paying someone you don’t owe isn’t rational, and there’s a good chance the court will view your payment as admitting you do owe.
Making Payments WILL Restart the Statute of Limitations
One thing most courts agree is that making any payment at all will restart the statute of limitations. That is, if the debt is four years old and the statute of limitations is set to run out next month, your payment of any amount will give them four more years to harass and possibly sue you. And the fact that you paid them will almost guarantee that they’ll use the opportunity since they know you’ll roll over.
I have argued that making a partial payment that does not “cure the breach” (isn’t enough to say you haven’t broken the contract) should not restart the statute of limitations because the breach still dates back to the time you failed to make payment. I think that makes sense, but as far as I know, no court has ever agreed. Every decision I’ve seen on the issue has held that any payment starts the clock running from the very beginning again.
And this is a large part of why debt collectors are so eager to get you to make a payment. It’s also why I emphasize that in asking whether you can afford to pay, I refer to the entire debt. Making a partial payment is a commitment to paying the whole thing whether you mean it that way or not.
Never Make a Partial Payment
All the above factors suggest that, for almost every person being contacted by a debt collector, making a partial payment is a terrible idea. If you are that rare “other person” and can afford to pay the whole thing – and want to – then it’s fine if you do. Most people should steer far clear of the temptation. You can hang up on an angry caller and even make them stop calling. And the nice caller will find her victim somewhere else. Don’t let it be you.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 20:07:402019-11-28 15:46:32Never Make Part Payments
If you are being called or harassed by a debt collector, one of the purposes of that debt collector is to get you to talk. Should you? This is going to depend on whether you have anything to say.
Debt Collectors Target Struggling People
As I have mentioned before, the debt collection business is targeted at distressed people. The debt collectors already know you don’t have much money, and they know you probably have other people trying to get money from you. Their job is not to force you to pay somebody—it’s to force you to pay them. Another way to put that is that they are not competing with you—they’re competing with other debt collectors. You are the football in a game between the debt collectors, the string in a game of tug of war. Does that make sense?
Silence Can Be Golden when Dealing with Collections
The job of the debt collector is to get you to pay them instead of someone else. They can do this either by annoying you so much that you pay them to get them off the phone or by establishing a sympathetic connection to you so you gladly do it for the voice on the other end of the line. Both of these methods involve keeping you on the phone and the connection open, and neither of these methods is directed at your well-being. Also, if they can get you to reveal information about your job or bank, or any kind of assets you have, they can improve their chances of making you pay against your will. So unless you have your own purpose for communicating, you shouldn’t do it.
Sometimes it Makes Sense to Talk to Collectors
What might be a good reason for you to communicate? Well, because you want something tangible from the debt collector to whom you are speaking. You could want them to reduce interest rates, waive penalties, agree not to give information on your debt to the credit reporting agencies, or any number of actual, materially beneficial things. If you’re hoping to get a friendly voice or understanding, a debt collector is the wrong person to talk to: they already understand everything they want to know about your situation. Talk to someone else for that.
Negotiate—And Get It in Writing
Don’t be afraid to negotiate. You can ask for anything from them, and in most cases the debt collector could give you anything you might request. So be bold. If you want to settle for ten cents on the dollar, you can ask. They may laugh—but laughter is just a part of the negotiation and doesn’t mean they won’t do it. And if they agree to do anything, you must get the agreement in writing. In a practical sense, it doesn’t count if you don’t get it in writing. You won’t be able to prove it, and in some cases an oral “modification” would not even be legally recognizable even if you could prove it. It must be in writing.
They’ll want something in return. An immediate payment, an agreement to pay by a certain date, something. You can agree to this if you can do it, but you’re spinning your wheels if you cannot, so it makes sense to limit your promises to things you’re sure you can perform. Don’t over-commit, as this may negate the agreement you reach and will almost certainly increase the number and hostility of the phone calls you are receiving. Remember that the debt collector is keeping records of everything you say (so don’t tell them where you work or bank).
Stop Talking to Collectors When You’ve Said What You Need to Say
And when you run out of reasons to keep talking to the debt collector, make sure that you actually stop talking to them. There is always a price for anything you say – you’re giving them free information that they will use to decide to sue you. Sometimes talking to them is worth that price, but if that changes, you should feel no obligation to keep talking.
What about Partial Payments?
We think partial payments are bad unless you know exactly how you will pay the whole debt and unless you understand what making the payment will do to you. To read more on this issue – and you really should if you’re even thinking about making a partial payment, click here: Never Make Partial Payments.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 20:04:422018-10-06 19:23:19Should I talk to a Debt Collector and What Should I Say
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https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 19:47:452018-10-06 19:27:24Filing a Motion to Amend your Answer
When should you talk to a debt collector? And why shouldn’t you talk with them otherwise?
You Should Only Talk to them If you Have a Good, and Immediate, Reason to Do so
As a recent commenter pointed out, debt collectors are often “not nice.” But whether they are nice or not, their job is to take your money away and give it to their company. That means that, personality aside, their interests are against yours, and you should never mistake politeness with being on the same side. Likewise, you shouldn’t polite discourtesy for power or anything other than what it is. In this video we review the basic rule of communications with debt collectors: it is rarely a good idea.
Hang up when you’ve said what you need to say
Once you have said what you need to say to the debt collector, if anything, you should hang up.
There are too many bad things that can happen for you to stay on without a good reason. You could make admissions that damage your case (if they get around to suing you), you could give them information they could use to take your money if they sue you and win.
Remember that what lawyers usually hate more than anything is a lack of definite information. Every time you open your mouth and speak to a debt collector, you’re giving some lawyer what he or she needs to decide to sue you. And even telling them you don’t have any money may not be helpful because that could tell them it would be easy to beat you in court.
Less is definitely more when it comes to talking with debt collectors.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 19:42:402018-10-06 19:41:21Don’t Talk to Debt Collectors
As we have often pointed out, having a counterclaim can be extremely helpful in getting a claim dismissed so that you no longer risk being sued on the debt and your credit report is no longer being harmed. If the debt collector has used an affidavit in its efforts to collect from you–especially in a lawsuit–this may have given you a great opportunity to counterclaim or sue in a different lawsuit. This video explains what that opportunity is and what to do about it. For more, get the Debt Defense System.
When you received the summons and petition to your lawsuit, was there an “affidavit” attached? That is, was there a statement of some sort, usually sworn and notarized, that said that the records of the original creditors were true and accurate?
Debt collectors often include such documents in their petitions – affidavits from their own records keepers about the records compiled and maintained by the original creditors. This misleads the recipient of the lawsuit into believing that the debt collector has a better case than it does, and it violates the Fair Debt Collection Practices Act (FDCPA) in most jurisdictions. That’s because debt collectors are not, in most jurisdictions, allowed to testify to the accuracy of records they did not have responsibility for – and records created by the original creditor could not be known to be accurate by debt collectors. They try to hide this fact by using all sorts of legalese in the affidavit. This video shows how the practice violates the FDCPA and what to do about it.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 19:26:082018-10-06 19:45:00Was an Affidavit Attached to Petition?
I have talked about counterclaims often throughout this site, and counterclaims are very important if you can make them for the reasons discussed below. Things have gotten a little more complicated in this area recently, however. It used to be that almost everyone who might sue you was a “debt collector” under the Fair Debt Collection Practices Act. Two big things have happened to change that.
First, many of the banks are no longer selling debts but are bringing their own lawsuits as plaintiffs. This makes sense as a way to preserve evidence – although they still often do not have what they need to win.
And second, the Supreme Court has ruled that debt buyers are not necessarily “debt collectors” under the Fair Debt Collection Practices Act. The FDCPA has historically been the easiest source of counterclaims. If you can argue that the company suing you has debt collection as its “principle business” (as opposed to making and servicing loans or selling stuff, for example), you can still sue them under the FDCPA. Likewise, there are sometimes state law claims you can make. If you were defrauded, for example, you might be able to counterclaim for fraud against a debt collector.
With those limitations in mind, our original article and video are below.
The Importance of Counterclaims
If you are being sued by a debt collector, the best defense can be a good offense. It is important to file a counterclaim if you can both because it takes the fun out of the suit for the debt collector and because it allows you to hold the debt collector in the lawsuit long enough to force it to dismiss its claims against you “with prejudice.”
In many jurisdictions, the party bringing a lawsuit retains the option to dismiss it at any time up to trial without consequence or even without the need for permission. This can mean in debt cases that the debt collector files suit, and after you have hired a lawyer and filed an answer, the debt collector is free to drop the suit, possibly for later refiling. In any event, when the suit is dismissed “without prejudice,” you are left without a convenient way to force the debt collector to stop reporting the debt to the credit bureaus, so it continues to harm your credit report.
The solution to these problems is filing a counterclaim – that holds the debt collector in the law suit until you have negotiated a resolution to the issues.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 19:23:112018-10-06 19:47:36The Importance of Counterclaims
Debt collectors often masquerade as the original creditors both to make you think they have more evidence than they have and to make you feel guilty if you fight them. Here’s how to figure out if they’re trying this trick on you and what to do about it if they are.
Debt Collectors Make Their Money by Getting People to Give Up
Debt collectors often claim that they stand “in the shoes” of the original creditor. They do this as part of an attempt—illegal in my opinion—to intimidate the people they are harassing into believing they have more information than they do. You should make them pay.
How the “in the Shoes of the Original Creditor” Argument Comes up
There are various ways the “in the shoes” argument comes up, often beginning with the petition, in which the debt collector (a company you may never have heard of) claims to have extended credit to you, to have sought repayment, and to have been refused payment. You know it never happened that way if you think about it, but they’re hoping you won’t think about it at all.
What typically happens is that some debt collector bought the debt from somebody claiming you owed them money. As part of that purchase, they may have obtained a few electronic copies of statements and a computer record claiming you owe the money. This isn’t nearly enough to prove you owe them the money, and they want you to think that they have all the records because “they” lent you the money. They will often take it another step and actually submit affidavits claiming that you borrowed money from them (they say, “plaintiff” rather than their name, since that would reveal the deception). Or they will send you requests for admissions asking you to admit borrowing money from them—again, they say “plaintiff,” to hide the fact that they’re asking you to admit you borrowed money directly from them.
This is outright deceit, and it ought to offend anyone’s sense of fair play. But when you claim, rightly in my opinion, that this is an unfair debt collection practice under the Fair Debt Collection Practices Act (FDCPA), the debt collector argues vehemently that it has a right to make these claims because when it bought the debt it “stepped into the shoes” of the original creditor.
Nonsense.
The Grain of Truth behind Debt Collector’s Deception
The grain of truth behind the debt collectors’ deception is that a company collecting another’s debt generally has all the same rights to collect the money as the original creditor did. Debts are transferable in most cases, in other words, and the person assigned the debt has the same right to collect as the person transferring the debt.
But debt collectors do not “become” the original creditor (their buying the debt, after all, is what made them a “debt collector”), and claiming to be the original creditor is patently deceptive. Under the Fair Debt Collection Practices Act, a person (including companies) that routinely buys debts for the purposes of collecting on them is considered a “debt collector.” Essentially all of the provisions of the FDCPA apply to debt collectors, and foremost among these are the provisions against “deceptive” or unfair debt collection practices. These provisions apply to debt collectors but in general do not apply to original creditors. Thus the debt collector’s claim to stand in the shoes of the original creditor is, regarding their collection efforts, absolutely untrue.
Make them Pay with the FDCPA
As mentioned above, the debt collectors often send you discovery materials (i.e., requests for admissions, interrogatories, requests for documents) which use the word “plaintiff” instead of the company that you theoretically borrowed money from. What would prevent you from reading the word literally? They ask you to admit borrowing money from them—and you know you never did. Or they ask you for all the documents reflecting your account with them, and you know you never had an account with them. Why not simply deny it? That would be the literal truth, and in the legal process you are held to the literal truth.
As I have argued above, the claim that the debts were originally owed to the debt collector are false and deceptive. They misstate the law and are designed to make you believe that the debt collector is more able to collect the debt than it actually is. If you are looking for a counterclaim—and I have often pointed out that counterclaims can give you important power in a lawsuit by a debt collector—you might consider this an opportunity to make a counterclaim. You might consider this tactic, regardless of where it comes up in the litigation, as an unfair debt collection practice.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2018-06-06 19:07:092018-10-06 19:51:17In the Shoes of the Original Creditor
Tip 6 of Uncommon Common Sense
Tip 6: Know Your Friends
And Know who Isn’t a Friend
Today’s hint is a friendly reminder to know who your friends are and not to expect help from people who are actually against you or are the “referees” in the match. That is, you might be surprised how many people call up or ask the lawyer on the other side what to do, or how many hope or expect some sort of help or guidance from the judge.
Relying on the kindness of strangers – or of people with interests contrary to yours – will get you in trouble in the law. Instead, you must be able to rely on yourself and someone or some source that you trust. That’s one reason we emphasize finding and knowing the rules so much. You shoul never ask the other side “what” or “when” something is due. That is your responsibility, and it may even be unethical for the other side to give you any help.
The Lawyers
The lawyer on the other side, and the judge and his or her staff, should not tell you anything that is remotely like “legal” advice, and most people take a very broad view of what that might be in the context of an actual suit. The other lawyer should not tell you anything because you are not a client and in fact have interests contrary to the client. And the judge is not supposed to take sides in any way. Do not look to them for any sort of advice, from when something is due to what, in any way, you should say or do.
The only time the lawyer will seriously consider what you should do is in order to argue that you have not done something you needed to do. In other words, in order to beat you. This is the nature of an adversary system.
The Judge and Clerk
Likewise, the only time a judge will consider the question is when you have missed a deadline or done something wrong. Again, it’s just the nature of the beast.
Clerks will only sometimes answer basic questions, they will almost never anything that starts with “what should I do it…” Instead, you can ask questions like “how long do I have to respond to…” or “is it necessary to set a hearing for argument in order for a motion to be considered, and how do you prefer me to do that?” You can ask scheduling type questions, but their job is never to tell you what the law requires or permits, or to guide you towards any particular action, because that sort of information might be considered legal advice or taking sides.
Helpful Sources
On the other hand, there are sources that might be helpful to you. Your Legal Leg Up, of course, has a great variety of information you can use, and there are some other websites that also have some information or people in the same boat as you are. Just remember that no one has the same interest in defending you that you have. The sites that are run by people who are or have been in the same boat are not always reliable in their suggestions because the things that worked for them don’t always work for everybody. For more on this, see Sometimes a Rain Dance is Just a Dance.
Stay on top of things. You can do this.
Tip 7 of Uncommon Common Sense
Tip 7: You won’t believe the tricks the other side will play in discovery until you see them
Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.
I’ll give you a preview.
Games Debt Collectors Play
The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.
In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.
In short, they will play games with you.
Take Advantage of What they Do
You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.
Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.
If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.
When they do Their Discovery
And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.
Tomorrow we will send Tip 8.
Tip 8 of Uncommon Common Sense
Tip 8: Lots of proof of one thing doesn’t make up for not enough proof of something else.
Today’s tip concerns proof.
Once you get past the risk of defaulting or losing (or winning) on some technicality, there remains the challenge of actually winning your case. If you are the defendant, you might put this as “not losing” your case by motion (for summary judgment) or at trial. To do this, you need to know about proof and evidence.
You’ll Win or Lose Based on Evidence
As you know, debt lawsuits are about proving that, for some reason, you owe the debt collector money. What they have to prove, and how much evidence they need are important questions.
Their case
In debt law, the debt collector must prove ownership of the debt or some other right to collect the debt, the amount owed, the fact that it hasn’t been paid already (as aspect of amount owed), and that it is due. In “contract” language: that there is a contract, that the contract gives the plaintiff the right to collect, that payment is due and owing, and that payment has not been made. Each one of these things must be proved separately.
Burden of Proof
The burden of proof is just what you’d think. It’s the amount of proof that must be put forward. In civil cases, this is not the “beyond a reasonable doubt” standard that you might have heard of in criminal cases, but a much lower burden. This burden is called a “preponderance,” which is just a fancy way of saying a “majority,” or, as jury instructions usually say, “more likely than not.”
We all know these cases are almost never going to come down to a delicate balancing of uncertain evidence. In 999 out of 1,000 cases, the issue will just be whether the debt collector can put on legitimate evidence to prove its case. And it normally will not have any legitimate (truly admissible) evidence of some of the issues. Remember, they have to prove each element of their case.
The Tip
And thus we come to our tip: Lots of proof of one thing doesn’t make up for not enough proof of something else. The debt collector may have a lot of proof that it owns the debt. It may have a lot of proof that you owe somebody the debt. Although to tell the truth it often will not have proof of either of these things. They will likely have a few “statements” that you were supposedly sent (although they won’t have evidence that they actually were sent), an affidavit claiming that you owe a certain amount, and they’ll try to bluff it through from there.
Remember at every stage of the actual proof that the debt collector must prove each part of its case, and a lot of evidence of one part does not in any way lesson the burden of proving every other part. When you are attacking their case, therefore, you attack every part of it. Challenge every piece of evidence and show that the evidence isn’t admissible. Learn the important rules of evidence and prepare your objections before trial. This is not something you can “wing.” To give yourself a chance to win, you must prepare your objections in advance.
Never Make Part Payments
Never Make a Partial Payment
For a free copy of this article in pdf form, click here: Never Make a Partial Payment
The Set-Up
Suppose you get called by a debt collector about a debt that you might want to pay. That is, you think it’s legitimate, you think the company calling you may be legitimate (subject, always, to proof!), and for other reasons you’re inclined to pay. But you don’t have enough money. “Not a problem!” says the debt collector. “You owe us $2,500, but why don’t you just make a payment of $75 tonight? Then you can pay the rest whenever you can afford it.”
Should you do it?
What you should do
This is a made-up situation, of course, but some variation of it occurs many times every day all over the country. The collector is either nice, and you want to help him out by chipping in “just a little” to help his statistics, or the debt collector is mean, and you think that making a payment will be the fastest way to get her off the line.
Of course you know they’re paid to make you feel the way you do, but that doesn’t really matter. There are times when the way you feel trumps whatever you know – and the debt collectors are paid to know about that, too.
The question is, should you make that little payment?
To Pay or Not to Pay
The question you need to answer first is NOT whether you want to pay. The first question you must ask yourself is whether you can see exactly how you will be able to pay – and not just the payment you’re being asked to make, but all the rest of it. The debt is $2,500. Can you see how you would pay all of that? Can you think of terms that would actually work – as you can see at the moment and without hoping for something surprising and unusual happening?
To be frank, most people being contacted by a debt collector on a bill they thought they should pay can’t see a way to pay it. If that’s you, you should not pay any part of it.
If you can see a way to pay the debt and believe you should, and if the debt collector will agree – in writing – to the terms you think are necessary, THEN you can ask whether you think it’s the right thing for you to do. Often people may conclude it is, for a variety of reasons, and if this is you, then make the deal and whatever payments you agree to. We’re not here to tell you not to pay legitimate debts – only to make sure the debt collectors don’t crucify you.
Why Should You Act as we Suggest?
You should ask the questions in the way we suggest, and act according to the answers you come up with because making a payment is not a legally neutral act. It has major legal consequences.
Making Payment CAN Admit the Debt
We tell people all the time that one of the biggest difficulties debt collectors have is establishing by legitimate evidence that you owe them the debt. Can you see how making a payment seems like admitting you do? The debt collectors will argue that it is an admission, and some courts will buy that argument. Your argument that you only made the payment to make the debt collector feel better or to get them off the phone will cut no legal mustard because that is not a rational thing to do. The courts will hold you to a standard of reasonability, often, that ignores either your compassion or fear or desire for peace and quiet. Paying someone you don’t owe isn’t rational, and there’s a good chance the court will view your payment as admitting you do owe.
Making Payments WILL Restart the Statute of Limitations
One thing most courts agree is that making any payment at all will restart the statute of limitations. That is, if the debt is four years old and the statute of limitations is set to run out next month, your payment of any amount will give them four more years to harass and possibly sue you. And the fact that you paid them will almost guarantee that they’ll use the opportunity since they know you’ll roll over.
I have argued that making a partial payment that does not “cure the breach” (isn’t enough to say you haven’t broken the contract) should not restart the statute of limitations because the breach still dates back to the time you failed to make payment. I think that makes sense, but as far as I know, no court has ever agreed. Every decision I’ve seen on the issue has held that any payment starts the clock running from the very beginning again.
And this is a large part of why debt collectors are so eager to get you to make a payment. It’s also why I emphasize that in asking whether you can afford to pay, I refer to the entire debt. Making a partial payment is a commitment to paying the whole thing whether you mean it that way or not.
Never Make a Partial Payment
All the above factors suggest that, for almost every person being contacted by a debt collector, making a partial payment is a terrible idea. If you are that rare “other person” and can afford to pay the whole thing – and want to – then it’s fine if you do. Most people should steer far clear of the temptation. You can hang up on an angry caller and even make them stop calling. And the nice caller will find her victim somewhere else. Don’t let it be you.
Should I talk to a Debt Collector and What Should I Say
If you are being called or harassed by a debt collector, one of the purposes of that debt collector is to get you to talk. Should you? This is going to depend on whether you have anything to say.
Debt Collectors Target Struggling People
As I have mentioned before, the debt collection business is targeted at distressed people. The debt collectors already know you don’t have much money, and they know you probably have other people trying to get money from you. Their job is not to force you to pay somebody—it’s to force you to pay them. Another way to put that is that they are not competing with you—they’re competing with other debt collectors. You are the football in a game between the debt collectors, the string in a game of tug of war. Does that make sense?
Silence Can Be Golden when Dealing with Collections
The job of the debt collector is to get you to pay them instead of someone else. They can do this either by annoying you so much that you pay them to get them off the phone or by establishing a sympathetic connection to you so you gladly do it for the voice on the other end of the line. Both of these methods involve keeping you on the phone and the connection open, and neither of these methods is directed at your well-being. Also, if they can get you to reveal information about your job or bank, or any kind of assets you have, they can improve their chances of making you pay against your will. So unless you have your own purpose for communicating, you shouldn’t do it.
Sometimes it Makes Sense to Talk to Collectors
What might be a good reason for you to communicate? Well, because you want something tangible from the debt collector to whom you are speaking. You could want them to reduce interest rates, waive penalties, agree not to give information on your debt to the credit reporting agencies, or any number of actual, materially beneficial things. If you’re hoping to get a friendly voice or understanding, a debt collector is the wrong person to talk to: they already understand everything they want to know about your situation. Talk to someone else for that.
Negotiate—And Get It in Writing
Don’t be afraid to negotiate. You can ask for anything from them, and in most cases the debt collector could give you anything you might request. So be bold. If you want to settle for ten cents on the dollar, you can ask. They may laugh—but laughter is just a part of the negotiation and doesn’t mean they won’t do it. And if they agree to do anything, you must get the agreement in writing. In a practical sense, it doesn’t count if you don’t get it in writing. You won’t be able to prove it, and in some cases an oral “modification” would not even be legally recognizable even if you could prove it. It must be in writing.
They’ll want something in return. An immediate payment, an agreement to pay by a certain date, something. You can agree to this if you can do it, but you’re spinning your wheels if you cannot, so it makes sense to limit your promises to things you’re sure you can perform. Don’t over-commit, as this may negate the agreement you reach and will almost certainly increase the number and hostility of the phone calls you are receiving. Remember that the debt collector is keeping records of everything you say (so don’t tell them where you work or bank).
Stop Talking to Collectors When You’ve Said What You Need to Say
And when you run out of reasons to keep talking to the debt collector, make sure that you actually stop talking to them. There is always a price for anything you say – you’re giving them free information that they will use to decide to sue you. Sometimes talking to them is worth that price, but if that changes, you should feel no obligation to keep talking.
What about Partial Payments?
We think partial payments are bad unless you know exactly how you will pay the whole debt and unless you understand what making the payment will do to you. To read more on this issue – and you really should if you’re even thinking about making a partial payment, click here: Never Make Partial Payments.
Filing a Motion to Amend your Answer
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Don’t Talk to Debt Collectors
When should you talk to a debt collector? And why shouldn’t you talk with them otherwise?
You Should Only Talk to them If you Have a Good, and Immediate, Reason to Do so
As a recent commenter pointed out, debt collectors are often “not nice.” But whether they are nice or not, their job is to take your money away and give it to their company. That means that, personality aside, their interests are against yours, and you should never mistake politeness with being on the same side. Likewise, you shouldn’t polite discourtesy for power or anything other than what it is. In this video we review the basic rule of communications with debt collectors: it is rarely a good idea.
Hang up when you’ve said what you need to say
Once you have said what you need to say to the debt collector, if anything, you should hang up.
There are too many bad things that can happen for you to stay on without a good reason. You could make admissions that damage your case (if they get around to suing you), you could give them information they could use to take your money if they sue you and win.
Remember that what lawyers usually hate more than anything is a lack of definite information. Every time you open your mouth and speak to a debt collector, you’re giving some lawyer what he or she needs to decide to sue you. And even telling them you don’t have any money may not be helpful because that could tell them it would be easy to beat you in court.
Less is definitely more when it comes to talking with debt collectors.
Was an Affidavit Attached to Petition?
As we have often pointed out, having a counterclaim can be extremely helpful in getting a claim dismissed so that you no longer risk being sued on the debt and your credit report is no longer being harmed. If the debt collector has used an affidavit in its efforts to collect from you–especially in a lawsuit–this may have given you a great opportunity to counterclaim or sue in a different lawsuit. This video explains what that opportunity is and what to do about it. For more, get the Debt Defense System.
When you received the summons and petition to your lawsuit, was there an “affidavit” attached? That is, was there a statement of some sort, usually sworn and notarized, that said that the records of the original creditors were true and accurate?
Debt collectors often include such documents in their petitions – affidavits from their own records keepers about the records compiled and maintained by the original creditors. This misleads the recipient of the lawsuit into believing that the debt collector has a better case than it does, and it violates the Fair Debt Collection Practices Act (FDCPA) in most jurisdictions. That’s because debt collectors are not, in most jurisdictions, allowed to testify to the accuracy of records they did not have responsibility for – and records created by the original creditor could not be known to be accurate by debt collectors. They try to hide this fact by using all sorts of legalese in the affidavit. This video shows how the practice violates the FDCPA and what to do about it.
The Importance of Counterclaims
I have talked about counterclaims often throughout this site, and counterclaims are very important if you can make them for the reasons discussed below. Things have gotten a little more complicated in this area recently, however. It used to be that almost everyone who might sue you was a “debt collector” under the Fair Debt Collection Practices Act. Two big things have happened to change that.
First, many of the banks are no longer selling debts but are bringing their own lawsuits as plaintiffs. This makes sense as a way to preserve evidence – although they still often do not have what they need to win.
And second, the Supreme Court has ruled that debt buyers are not necessarily “debt collectors” under the Fair Debt Collection Practices Act. The FDCPA has historically been the easiest source of counterclaims. If you can argue that the company suing you has debt collection as its “principle business” (as opposed to making and servicing loans or selling stuff, for example), you can still sue them under the FDCPA. Likewise, there are sometimes state law claims you can make. If you were defrauded, for example, you might be able to counterclaim for fraud against a debt collector.
With those limitations in mind, our original article and video are below.
The Importance of Counterclaims
If you are being sued by a debt collector, the best defense can be a good offense. It is important to file a counterclaim if you can both because it takes the fun out of the suit for the debt collector and because it allows you to hold the debt collector in the lawsuit long enough to force it to dismiss its claims against you “with prejudice.”
In many jurisdictions, the party bringing a lawsuit retains the option to dismiss it at any time up to trial without consequence or even without the need for permission. This can mean in debt cases that the debt collector files suit, and after you have hired a lawyer and filed an answer, the debt collector is free to drop the suit, possibly for later refiling. In any event, when the suit is dismissed “without prejudice,” you are left without a convenient way to force the debt collector to stop reporting the debt to the credit bureaus, so it continues to harm your credit report.
The solution to these problems is filing a counterclaim – that holds the debt collector in the law suit until you have negotiated a resolution to the issues.
In the Shoes of the Original Creditor
Debt collectors often masquerade as the original creditors both to make you think they have more evidence than they have and to make you feel guilty if you fight them. Here’s how to figure out if they’re trying this trick on you and what to do about it if they are.
Debt Collectors Make Their Money by Getting People to Give Up
Debt collectors often claim that they stand “in the shoes” of the original creditor. They do this as part of an attempt—illegal in my opinion—to intimidate the people they are harassing into believing they have more information than they do. You should make them pay.
How the “in the Shoes of the Original Creditor” Argument Comes up
There are various ways the “in the shoes” argument comes up, often beginning with the petition, in which the debt collector (a company you may never have heard of) claims to have extended credit to you, to have sought repayment, and to have been refused payment. You know it never happened that way if you think about it, but they’re hoping you won’t think about it at all.
What typically happens is that some debt collector bought the debt from somebody claiming you owed them money. As part of that purchase, they may have obtained a few electronic copies of statements and a computer record claiming you owe the money. This isn’t nearly enough to prove you owe them the money, and they want you to think that they have all the records because “they” lent you the money. They will often take it another step and actually submit affidavits claiming that you borrowed money from them (they say, “plaintiff” rather than their name, since that would reveal the deception). Or they will send you requests for admissions asking you to admit borrowing money from them—again, they say “plaintiff,” to hide the fact that they’re asking you to admit you borrowed money directly from them.
This is outright deceit, and it ought to offend anyone’s sense of fair play. But when you claim, rightly in my opinion, that this is an unfair debt collection practice under the Fair Debt Collection Practices Act (FDCPA), the debt collector argues vehemently that it has a right to make these claims because when it bought the debt it “stepped into the shoes” of the original creditor.
Nonsense.
The Grain of Truth behind Debt Collector’s Deception
The grain of truth behind the debt collectors’ deception is that a company collecting another’s debt generally has all the same rights to collect the money as the original creditor did. Debts are transferable in most cases, in other words, and the person assigned the debt has the same right to collect as the person transferring the debt.
But debt collectors do not “become” the original creditor (their buying the debt, after all, is what made them a “debt collector”), and claiming to be the original creditor is patently deceptive. Under the Fair Debt Collection Practices Act, a person (including companies) that routinely buys debts for the purposes of collecting on them is considered a “debt collector.” Essentially all of the provisions of the FDCPA apply to debt collectors, and foremost among these are the provisions against “deceptive” or unfair debt collection practices. These provisions apply to debt collectors but in general do not apply to original creditors. Thus the debt collector’s claim to stand in the shoes of the original creditor is, regarding their collection efforts, absolutely untrue.
Make them Pay with the FDCPA
As mentioned above, the debt collectors often send you discovery materials (i.e., requests for admissions, interrogatories, requests for documents) which use the word “plaintiff” instead of the company that you theoretically borrowed money from. What would prevent you from reading the word literally? They ask you to admit borrowing money from them—and you know you never did. Or they ask you for all the documents reflecting your account with them, and you know you never had an account with them. Why not simply deny it? That would be the literal truth, and in the legal process you are held to the literal truth.
As I have argued above, the claim that the debts were originally owed to the debt collector are false and deceptive. They misstate the law and are designed to make you believe that the debt collector is more able to collect the debt than it actually is. If you are looking for a counterclaim—and I have often pointed out that counterclaims can give you important power in a lawsuit by a debt collector—you might consider this an opportunity to make a counterclaim. You might consider this tactic, regardless of where it comes up in the litigation, as an unfair debt collection practice.