People often ask me what they should get first from Your Legal Leg Up. To me, the answer is obvious, and it’s both the first and last thing you’ll pay for in most cases: the 20-20 membership. It’s the best thing we offer both in value and price. It’s so much better than the other options, in fact, that I almost feel guilty when people buy anything else, but there could be reasons something else would be right for you, so I’ll talk briefly about your other options at the end of this article.
Teleconferences
I’m not aware of any other program on the market that offers anything like our teleconferences.
They are is an opportunity to ask questions in real time. You can ask about what things mean, what the bad guys might be driving at or trying to accomplish with something they’re doing, and how you might respond. We’ll help direct you to sources of information or guide your research. Sometimes you might just want to know where you are in your case, what a word means, or how to say or search for something… stuff like that.
Sometimes you’ll just need some encouragement and a reminder to keep up the good work because
working steadily is important but difficult in legal work, where there are deadlines that can be months away, but you forget how much time things take even aside from doing the work itself.
And sometimes you’ll want to hear other people who in the same boat as you are. Debt defense pro se can be a lonely process, but there are a lot of people trying to defend themselves. You can talk to them, and we offer encouragement and coaching as well as more substantive help too. People who use it find it enormously helpful. We can’t offer legal advice – you’d have to pay between $150 – 250 per hour to get that – but consider it a very active form of coaching and help.
Teleconferences currently happen three times per week and members can come to any and all of them. They’re scheduled for an hour each, but often go above that amount of time because I want everyone with a question to get it answered. If need be, we’ll increase the number of teleconferences per week to make it easier to get those questions answered.
Fees and Prices – Why the 20-20 Membership is Best
Most of our memberships involve a registration fee and a monthly payment, but the 20-20 only requires one payment for a full year that will be less than the other memberships for a year. The other memberships offer discounts on our digital products, but with the 20-20 you get all the digital products for free.
In other words, for one price you get all of our digital products and access to all the materials on the website for a year in addition to the teleconferences. The digital products which are designed to make the whole process easier and more effective, and the many articles and videos should help you get a deeper understanding of specific topics as well. You don’t get any “bonuses” because you get everything with the membership.
Materials You’ll Get – You Get ALL Digital Products we Offer
Maybe that’s all you need to know, but if you like to see it all before you make a decision, I’ll say you get all the digital products on our comprehensive product page. This includes numerous reports, including among others, Got Debt, Assignment Contracts, and Three Weaknesses Almost All Debt Collectors Have, the Manuals for Debt Litigation, Debt Negotiation, and Credit Repair, and all the Motions Packets, including the Motion to Vacate Default, Motion to Dismiss, Motion to Compel, and Motion for Summary Judgment. There will be others, too. You will also get our Model Discovery Pack and, if you live in either California or Pennsylvania, products relevant to those areas.
And you’ll get access to all the hundreds of articles on our site. Many are free to the general public, but many others are restricted by level of membership. As a 20-20 member you get them all. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.
Why Such a Good Deal?
I know this is going to sound like sales talk, but the 20-20 is a much better offer than we’ve ever made, and some explanation might help it make sense. There are two reasons, one selfish, and one not so selfish, for making this offer.
The selfish reason is that I’ve noticed that when people get sued they regard the law suit as a major priority and will pay what they have to (if they can) to give themselves a chance to win. That makes a lot of sense to me. But if they sign up for a monthly membership, there often comes a time when the case is less scary, or there comes a time when they need to buy a product but don’t have the money. So they cut corners and skip a product. That lowers their chance of winning, which isn’t good for Your Legal Leg Up’s reputation. It’s very important that you all win if at all possible, so making a deal which will never make you cut corners makes good business sense to me. And it’s why I’m here in the first place.
The other reason is just that I can do it. The products are here (and the work has been done, though they are sometimes revised), and I want you to be able to do your best work and get your best results without always having to sweat gallons. You’ll have plenty to do, but we can make things a lot easier. So I want to do that and am fine with making a little less than I might in to do it.
The Other Memberships
I mentioned the other types of membership a little bit above. Those are the Gold, Platinum and Diamond memberships. The main advantage with them is that if you show up and the debt collector gives up just because you do, you’ll save money because you won’t be paying for things you don’t us. Don’t laugh, that can happen. And it does happen maybe 1 percent of the time. They’re looking for an easy, automatic victory, and just by answering you make them decide to go away. Like I said, that happens about 1% of the time as far as I can tell. To be frank, nobody that’s happened to felt bad about getting the 20-20, but it’s a fact that a monthly membership would have cost less in that situation. Just about any other situation, though, and the 20-20 will save you a bunch of money and a ton of time and worry.
– What to do when the Company Suing You Won’t Answer Discovery
If you’re being sued for debt and following our system, you will serve “discovery” on the other side. That is, you will send them questions to answer called “interrogatories,” requests for documents, and requests that they admit certain things.
We do this because debt buyers usually don’t have the proof they need to establish their case, and even original creditors often don’t. We need to know exactly what they do have so we can prepare to show that it isn’t legitimate evidence. That will be important in resisting any motions they file, in filing our own motions, and preparing for and winning at trial.
You will send discovery, and no matter what you send, you will receive nothing but objections in response. This is called “stone-walling,” and it’s in every debt collector’s playbook. Do NOT just send another set of questions – it doesn’t matter what you ask, they will always object, so that would be useless. They might be stonewalling because they know they don’t have legitimate evidence, but frankly I think it’s mostly just a strategy to convince you to give up – to make you think you don’t have a chance against their lawyers and their money.
Don’t give up. Make them give you your answers.
To do that, you’re going to have to do the things that allow you to file a motion to compel, and then you will, obviously, have to file the motion, too. This whole process is what I call the Motion to Compel Cycle. So what is that?
Look at your rules of civil procedure for the rule on motions to compel. READ THAT RULE!
You will notice, in every jurisdiction I’ve ever seen, that the rule requires you to negotiate “informally” in good faith to resolve the issues raised by the other side’s objections. That is going to require you to call them up on the phone, speak to the lawyer on the other side, and discuss the objections. You will do this in good faith, but they certainly will not. And when you get through with this conversation, you will send them first a confirming letter if they’ve agreed to anything, and secondly what’s called a “good faith letter,” which outlines the items remaining in contention and states your basis for demanding the evidence.
So it goes like this:
Send discovery and wait for response
Call them to discuss objections
Write good faith letter outlining disputes and giving them a certain time to provide the information you demand
Wait for that time to expire
Write and file motion to compel.
It is possible they will respond with an argument. You should reply to that argument, but remember never to make any admissions of owing them or anyone money, of any prior relationship to the creditor, etc. NO ADMISSIONS AT ALL EVER. This is critical because they may slip a question in asking “don’t you owe __ the money?” or “don’t you already have the records? It was your credit card account!”
The only issue you should discuss is whether and why they owe you the discovery. Don’t forget.
This whole process is tedious and annoying because you know they are not in good faith. However, remember this: your efforts are requiring more attorney time spent on your case than many other cases combined would require. You are drawing blood with every minute you make them spend. And it’s the only way you will get what you need.
Remember in your first phone call to ask about EVERY SINGLE OBJECTION. I know there are dozens. Go through each one. It’s your right and responsibility, and it costs them $250/hour to talk with you.
Write a “confirming letter” if they make any concessions at all. Say “you said you would give me __ by [date]” and mention everything they agreed to. If they said they didn’t have anything responsive to a question or request, confirm that in the same way, too. You must create a written record.
You won’t get much, so you have to take the next step, the good faith letter where you say why you’re entitled to the information you request. If you’re using our model discovery, you’ll know what to say here.
They won’t give you anything even after this, in all probability, so your next step is the motion to compel. In that, you will include a statement about the phone calls you attempted, and you’ll attach your good faith letter. The court won’t hear your motion otherwise.
We have materials that could help you with all of the motion to compel cycle, from phone call to hearing.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2023-02-02 17:23:412023-02-02 17:23:41Motion to Compel Cycle
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2023-01-30 21:32:442023-01-30 21:32:44What if they are Suing me and my Business
One important thing to know is whether you’re being sued by a debt buyer, a debt collector, or an original creditor. Knowing this will help you focus your strategy.
First, some definitions.
An “original creditor” is someone who claims you borrowed money from them. It could be a loan or a credit card or anything else creating debt, but the point is that they claim THEY are the ones who originally were involved in the transaction. For example, you’re being sued by American Express, and they say you signed up for and used an American Express credit card and didn’t pay them. “But I never signed up for an American Express credit card!” – That’s good, but it doesn’t matter for the purposes of this definition. Whether or not you owe the money doesn’t matter for this. If you’re being sued by someone who claims you borrowed from them, it’s an original creditor case.
A “debt buyer” is someone who bought the debt from the original creditor. This person may also be a debt collector, but the point here is they’re claiming you owed money to someone else and the debt was assigned to them. As you probably know by now, selling old debt is big business in America and throughout the world. Look for the word “assigned.” If a debt buyer is NOT a debt collector, your rights to countersue will be limited (because the Fair Debt Collection Practices Act won’t apply to them), but they will still have most of the weaknesses in establishing their case that we usually talk about.
A “debt collector” is someone who either is acting on behalf of a debt owner (rare, these days) or a debt buyer whose primary business is the collecting of debts (i.e., they buy debts and sue people without providing any real service to the people they’re suing). These people will have weaknesses in their case AND may give you a chance to countersue.
So Who Is Suing Me?
To determine this on a preliminary basis, look at the name of the case. It will be “X Company vs. You” Normally, this means that X Company is the plaintiff. Their lawyer is NOT suing you for most purposes, and the lawyer is not, by virtue of being the lawyer on the case, a party to the action. Companies can only act through lawyers (in court), and the lawyers are generally only “mouthpieces” for them. So most of the time you can forget about them as you consider your rights.
I did say “on a preliminary basis.” What I mean is that you start with the basic assumption that the person named as plaintiff IS the plaintiff, but it turns out this isn’t always true. Sometimes debt collectors (including lawyers) buy debts and bring the lawsuit in the former owner’s name. I think this violates the FDCPA, but for now you just need to know it CAN happen and does happen sometimes, and you need to know if it’s happening in your case. The only way to find out is by conducting discovery, and our model discovery therefore includes some questions about whether the debt has ever been transferred, and to whom.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2023-01-30 16:06:082023-01-30 16:23:33Who is Suing Me for an old Debt?
What Should I Do if I Know a Debt Law Suit Has Been Filed but not Served?
Sometimes people find out they’re being sued before the plaintiff gets around to serving them. How does this happen? And what do you do if you find that out?
People can learn about a suit before being sued – it is public knowledge, after all, so it could happen
in a lot of different ways. Mostly though, it happens in one of two ways. Sometimes debt collectors bug you for money, and you go out of your way to check court files to see if you’re named in a suit, or you find out from a neighbor who gets curious when they see someone trying to serve you. I guess these ways are actually rare, but they can happen. The other way is more common.
There are lawyers who want to represent people in these cases, and they may send you a letter telling you you’re being sued. It may be news to you that anybody is even after you, much less actually suing you. So you check the court files and find out it’s true.
What do you do?
There have been times people brought these cases to me, back when I was practicing, and wanted to take action. In that situation they had a lawyer and a counterclaim (usually), and where that’s the case, it could make sense to waive – or let go – your right to service and just enter on the case. We were sure we’d win, and we had a counterclaim, so why wait?
If you’re pro se these days, the situation is very different. You can’t be sure you’ll win however much you think the facts are on your side, because you can’t count on the courts to see it your way. No matter how clear you think it is, you just can’t count on winning. And you’re less likely to have a counterclaim because the courts have narrowed the definition of counterclaim and debt collectors have gotten a little more careful.
So for those reasons I think it makes sense to watch the court docket (without identifying yourself to the court) to see if they ever claim to have served you. Or until they actually do serve you.
You have no obligation to make it easier for them to serve you, and if they can’t get you served they will eventually have to drop the case – or get it dropped (for “failure to prosecute”). I think it makes good sense to give them that chance. But watch to make sure they don’t claim you were served. Likewise, if they “serve by publication” (which is putting an ad in a small local paper) you’ll probably need to answer, but it’s rare, and they have to get permission to do it. Still, you should watch for it.
If they don’t serve you, you might get lucky and have them drop the case. Or you will get served and have to defend.
Obviously, if that happens, we can help.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2023-01-28 17:21:162023-01-28 17:33:09Sued not Served
Under the Seventh amendment you have a right to a jury trial for cases involving “damages.”
Damages is a little bit of a term of art in this sense, but it basically means “money” for claims that were traditionally brought in courts of “law” (as opposed to courts of “equity”). As it happens, breach of contract, which is what most credit card cases are, is a legal claim subject to the 7th amendment. On the other hand, claims brought under, for example, the claim of “account stated,” are equitable claims that don’t give you a right to a jury trial by themselves.
That means that if the debt collector is suing for breach of contract or “open” or “closed” account, you have a right to a jury trial under the constitution. If they are suing you EXCLUSIVELY for account stated, on the other hand, you don’t.
When you have a right to a jury trial for one claim, you have a right to jury trial for all claims, so if they bring breach of contract AND account stated, you’ll have a right to jury trial for both. Most debt defendants, therefore, do have a right to trial by jury. Should you demand a trial by jury? I usually think so.
Trials by jury force the judge to take the law of evidence more seriously. In fact they take jury trials more seriously in a lot of ways. That benefits the debt defendant because our case is usually that the debt collector does not have any evidence that complies with the rules of evidence, and we need the court to take that seriously.
I also suggest demanding a jury trial because they are far more difficult for the debt collectors.
Understand what I’m saying, though. It isn’t that debt collectors don’t know how to do jury trials or even that they aren’t good at them – individual talent varies, of course. I’m only saying that debt cases tried to a judge can take twenty minutes. Picking a jury can take hours. And all the rules have to be carefully followed, and there are special rules and procedures, too. So demanding a jury might require 20 times as much attorney time. And time is money. Especially attorney time at $250/hour.
Debt plaintiffs don’t like cases that take a lot of time. It increases their costs, and they know you don’t have much money, so they worry about getting it back. Debt collector lawyers also worry about cases taking a long time because their performance affects their annual pay, and long debt cases hurt them.
In my opinion, those are strong reasons to seek a jury trial, and I might add that there will be times when a jury is also more sympathetic to the defendant than a judge would be. Judges haven’t faced debt trouble in a very long time, in general, by the time they’ve become judges. Most jurors, on the other hand, will have money worries. But I wouldn’t rely on this too much. Some judges are sympathetic, and some take their work seriously whether they’re sympathetic or not. And some juries can be pretty harsh.
But our goals in jury trials don’t depend on the jury that much. We want the judge to exclude evidence that shouldn’t be seen, and they take that more seriously when there’s a jury. Then it’s clear the debt collector didn’t make its case.
So why might you NOT want a jury? The only reason I’ve ever heard from debt defendants is that they’re scared of them. And I hear that a lot, but it’s not a good reason. Almost everybody I know who has ever had a jury trial has said it wasn’t scary. Not when you’re doing it. They are a little scary to think about and get ready for – pretrial jitters are normal, but once the trial starts, you’ll be too busy to be nervous. That’s as true of jury trials as it is of judge-tried cases.
You have a right to a trial by jury, but how and when you ask for it can make a difference. In some jurisdictions you just put it at the end of your Answer. In some jurisdictions you have to enter it as a separate request, separately. Which of these you’ll need to do is probably in your court’s local rules, but you might ask a court clerk about that. If you can’t get an answer from an authority, I’d suggest putting it both on your Answer and making a separate request which you submit at the same time as your Answer.
If you didn’t ask for a jury trial, is it too late?
The law favors jury trials, but individual judges often don’t, since they know as well as I do that jury trials take more time and attention. For that reason, if you haven’t already asked for a jury trial, I suggest you do it ASAP. The number of days could matter, since a court’s discretion to deny a request for jury is probably tied to how long the case has been going on. You should do a little research before filing your jury demand, though, because if you don’t do it right off the bat, you’ll need to file a motion that tells the judge why you should get one. That isn’t complicated, but you’ll want to know what the rules are that apply to it.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2023-01-27 03:06:192023-01-27 03:06:19Your Right to a Jury Trial in Debt Litigation
Arbitration. Should you compel arbitration? Or oppose it? I’ve recently had a comment on Youtube asking me to discuss arbitration, and it has also come up in several recent teleconferences as members contemplated seeking arbitration. Others have wanted to know whether to oppose a motion to compel arbitration.
Let’s start with a definition: Arbitration is the submission of your case to a private entity known as an arbitrator. After some process and a hearing (most likely), the arbitrator will decide what happens in your case and issue what amounts to a judgment.
For debt cases, it’s always a single arbitrator or a company that will provide a single arbitrator that’s appointed, but for other cases it could be other things, like a panel, perhaps. In any event, there will be an arbitrator and some special rules that will NOT be your state’s rules of civil procedure and also might not be your state’s rules of evidence. But there will be rules that control the process.
Arbitration is popular because it makes it faster, easier and cheaper for people to engage in litigation. The discovery process will be limited, and the appeals process almost eliminated. That’s why rich companies and debt collectors always love it. Almost all of these things are completely and profoundly BAD for debt defendants. That’s why I’ve always suggested debt defendants should avoid arbitration.
But there is another side to the question, and there are some who argue in favor of allowing or even forcing arbitration in debt cases. What’s their argument?
I think the argument in favor of arbitration boils down to the fee, which apparently has to be paid up front by the debt collector And that can amount to two or three thousand dollars, or even a little more. The idea here is that debt collectors won’t want to put that much money down on the barrelhead just to chase a bad debt and that court is, for them, much cheaper.
There is some sense in this argument.
Debt collectors never worry about winning a case, but they do know you don’t have much money. That means that they’re sure they’ll win, but worry that they won’t collect, which is the most important thing to them. The more you make them spend, the more worried about that they’ll be. Maybe they’ll drop the case if you demand arbitration.
We often make the argument that by pursuing discovery, filing and defending motions, and preparing for trial you are driving up the costs of litigation and may make the whole thing too expensive for debt collectors to want to do. Again, not because they worry about losing, but just the amount of money they’re having to spend when their business model is designed around easy, cheap judgments. However, conducting discovery and filing and defending motions and the rest do in fact improve your chances of winning, and we think that, when it comes to a debt collector, you should win your case. These things are the way to do it, and the chance the company will drop the case is basically the icing on that cake.
In arbitration, it’s the whole cake. You should remember that.
One big question that may be more theoretical than real is, who ultimately pays the arbitrator?
I say it may be theoretical since I just said the debt collector isn’t sure you’ll have any money at all, but this won’t stop them from seeking as big a judgment as possible. And if they get a judgment, they WILL try to collect it. All. So be advised that the judgment size could matter.
Okay, but who pays the arbitrator?
I think some states may have rules that matter, and I know that California, for example, does have rules regarding employment and consumer-brought claims. In the absence of any state based rule, you
would look to the arbitration provision giving you the right to arbitration – i.e., the contract. That will often say who pays the arbitrator, and it can specify any of a number of things, from company pays all to loser pays all, to dividing it up. The contract isn’t often going to put all the burden on the company because, after all, the company wrote the contract.
If it says company pays all, though, the company can’t shift that payment to you if you lose. If it’s loser pays all, though, it obviously will. But if there isn’t a direction in the contract, that would usually mean you start by splitting the cost, but that the arbitrator can award the cost to the winner, i.e., add it to the judgment.
The rule in your case is going to depend on your own specific circumstances.
The net of all this would suggest that you will have some advantage if the contract makes the company pay, but there’s risk if the loser pays. And of course it matters a lot who pays up front, which is often the debt collector.
So… should you compel arbitration?
In a debt buyer/collector case (i.e., not the original creditor) I’d still lean strongly against. You should win this case under most state laws because of the rules of evidence, and you cannot depend on the arbitrator to enforce those rules rigorously. If it’s an original creditor, it’s a much closer question. You’ll have to consider all the things we’ve discussed here and make a judgment call.
Filing a motion to compel arbitration might trigger some settlement negotiation, but I wouldn’t think you could get the company to give you a very steep discount, but there I’m just guessing based on what I know about lawyers and not experience in these type cases.
I remain very hesitant about suggesting arbitration, but there may be value in considering it if you’re
dealing with an original creditor.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2023-01-27 01:54:242023-01-27 01:54:24What is Arbitration and Should you Seek or Oppose It?
Welcome to the first Light One Candle. As you probably saw, we call our newsletter this because it’s better to light one candle than curse the dark. If you’re facing big debt issues or even being sued, there is a series of steps you can take to get out of trouble. That’s what Your Legal Lg Up is all about – showing you those steps and helping you take them. It isn’t always easy, but debt law is not complicated if you know what you’re doing.
Evergreen
In honor of this being the first newsletter, our first “evergreen” feature is an “oldie but goodie.” It’s why you have such a good chance of winning if you’re sued by a debt buyer. It’s nothing magical and doesn’t rely on weird gimmicks you’ve seen on Youtube or any bizarre rules someone made up to sell you something. It’s just the plain old rules of evidence and the way the debt collectors acquire the debts they’re suing you for.
Link
I hope you can forgive the sound quality of some of the older videos. I don’t replace them because so many people have watched them over the years that they help other people find us, but the quality isn’t the best. On the other hand, the message is clear: you have an excellent chance to win a lawsuit filed against you by a debt collector because of the way they operate. They don’t buy all the information the original creditor has, and they most particularly don’t get an affidavit filed by someone from the original creditor testifying to the accuracy of the record-keeping.
For more on this topic, I recommend the Three Weaknesses Every Debt Collector Has Report. It’s free to all members.
What’s Up
There’s a lot going on this month here at YLLU. We’re going to be recreating many pages to make them easier to read and more up to date, and also to make them connect more easily and obviously. Click here for a link to our Link Tree that’s tied to the litigation time-line. This should tell you what resources we have related to whatever particular issues you’re addressing, and it will eventually make finding everything much easier.
A new trick the debt collectors seem to have come up with now that Covid is going on is the filing of motions for summary judgment very quickly after filing suit. They’re doing this to keep from letting you conduct discovery and also to prevent you from exercising your right to a trial. Click here for information on that – it’s something we will be working on more as time goes by.
Remember that debt litigation is a series of steps. Some are hard and some are easy, but they’re all more manageable if you take them one at a time and never stop working your case until it is dismissed. Remember that there’s always an endpoint. You should keep working on your case even if the debt collector doesn’t seem to be. You have things you need to do.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2021-09-28 22:18:412021-09-28 23:02:48Light One Candle – Oct. 2021
New Trick for Debt Collectors: File Motion for Summary Judgment before you Complete Discovery
Discovery for Debt Collectors
When debt collectors file suit, they usually start with everything they think they’ll need. It generally is only the very most basic information about your case – no more than two or three old statements and a balance claiming you owe a certain amount of money. If you don’t defend, or don’t know how to defend, these things will be enough to get a judgment. They have no proof you ever owned the account or signed up for it, made any payments or failed to make any payments, or much of anything else. They don’t expect to need any of that because most people default (fail to answer) or fail to defend themselves intelligently. If they’re thinking ahead, they might use discovery a a way to find out about your job and resources or to trick you into admitting you owe them money. But most often debt collectors are not interested in conducting discovery.
Discovery for Debt Defendants
Debt defendants start in a completely different place than the collectors do, obviously. If you’re being sued by a debt collector, you need to know what exactly they have and how to attack it. You need to know whether they are defined by the law as “debt collectors,” what they have regarding you and how they got it, and what they’ve done or failed to do in attempting to collect the debt. You need, in other words, to find out ALL about the debt collector’s case, your defense, and whether you have counterclaims.
They don’t want you to do that.
New Trick for Debt Collectors
Debt Collectors have a new tactic.
It isn’t strictly new – they’ve been known to do it before, and it’s common enough in other kinds of litigation, but it’s happening much more often now in the “Covid era.” Or should I say, the “post-covid era?”
The courts are back up and running, in a way, but nobody is excited to have in-person trials. So the debt collectors have found a safer way to get what they way – one that uses all their favorite ways to take advantage: stonewall discovery and file a motion for summary judgment before you can get what you need to defend. Let the courts take the shortcut if they will – and they often do.
I’m talking about motions for summary judgment, but with a twist. The new plan is to file the motion early – before you have a chance to conduct or complete discovery. With a little luck they’ll scare you into giving up, but even if you don’t you have a tough job in courts which all too often are not equipped to listen to complicated legal arguments about complex issues.
What they’re doing is serving the lawsuit, waiting just a bit, and then filing the motion for summary judgment. If you’ve dragged your feet on starting discovery – or even on pushing it towards a motion to compel – you’re presented an extremely difficult challenge: how to get discovery you need to defend yourself is a small amount of time.
And how to bring a motion to compel and respond to a motion for summary judgment at the same time. That’s hard to do under the best of circumstances, but now you won’t even have enough time to do it all unless you can counter the tactic.
How to Defend Yourself from this Trick
Start Quickly! Don’t waste time.
The single most important thing you can do to protect yourself from this trick is, as always, to start serving discovery on the other side immediately. You may be able to avoid this trap altogether if you can jump right onto it. A few days could make the difference.
But what if it’s too late to start discovery “immediately?”
If it’s too late to start immediately, start NOW.
That isn’t a word game. If you haven’t started discovery and they file a motion for summary judgment, you must figure out and start discovery now. You’re going to have to show the court what you need in order to defend the motion for summary judgment and why you need it. And you will also need to show that you’ve taken steps to get it.
Motion to Stay
After you serve discovery on the other side, you will probably need to ask the court to hold (that’s “stay” in legalese) the motion for summary judgment while you conduct the discovery you need. You aren’t asking the court to delay its decision: you’re asking it to put the entire motion on hold until you’ve had a fair amount of time to do what you need. The complication is that, since they’ll be claiming all the facts are uncontested, you have to show how your discovery would help establish factual issues that would prevent the court from reaching a judgment. In legalese, you have to show the court how answers to your discovery might show the existence of “genuine issues of material fact.”
And to do that you must painstakingly link the possible answers to what you’re asking for in discovery to the claims they make.
Find the Rule and Follow It
The rule on summary judgments does contemplate that this could happen, and there is a rule that tells you what to do if you need more time to conduct discovery. In the federal courts, you have to make an affidavit that says certain specific things. In state courts, the rules can vary and may not require an affidavit – but they will require some statement of what you’ve done, what you’re looking for, and why it matters. You have to find the rule for your jurisdiction and follow it carefully.
It’s much easier to describe than to do, believe me, and of course the debt collectors know that. It isn’t easy at all for you to figure out how it works, file your motions, make the arguments you need to make and persuade the court to do something that all too many judges don’t want to do: take your case seriously.
The debt collectors rely on you, or the court, to get careless – and you know that often happens. The debt collectors do it to people representing themselves, and the judges sometimes turn a blind eye to real issues of fairness.Defending yourself from this trick frankly can be overwhelming.
Our New Workbooks Can Help
We have a new product that can help you with this issue if you’re facing it. It’s a workbook that addresses the necessary topics one by one in the order and way you will need to do it. It will show you how to analyze the motion for summary judgment, compare it to your discovery requests, and show how the answers might affect the outcome of the motion for summary judgment. It shows you how to do your motion to compel – and how to do the motion to stay the summary judgment.
Under the best of circumstances, it still won’t be easy, but the workbook should help you get a grip on the issues and process and give you the chance you need.
The workbook comes free with our 20-20 memberships, and that’s the only way you can get it for now because it’s still a work in progress and because I want to emphasize that the membership all but a very few people should be getting is the 20-20.
What if You’re Not in this Situation?
The product we’re discussing is intended for a specific situation, where you have discovery outstanding and they file a motion for summary judgment. But if you’re not in the situation I discuss here, our materials can help you avoid it by streamlining your discovery process. In fact we can help you from the beginning to the end of your case
If you’re being sued for debt you have enough problems. Dealing with slick collector tactics shouldn’t be one – but it is.
We can help. Our 20-20 memberships should help you all the way. If you are already a member other than 20-20, contact me for information on a discount code that will enable you to convert your membership. You should have the 20-20 – it’s our best deal by far for most people.
If you want the short summary of the program, though, it’s just this: with the 20-20 you get everything we offer (excluding physical products) – all the reports, packages and teleconferences we have, for free with the membership for a year. The 20-20+ will include some bonuses and includes everything the 20-20 includes for 18 months. The idea is to get you through your lawsuit without a second charge.
To get the membership, you click on the top menu “about Memberships” and select your membership option.
https://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webp00Ken Giberthttps://yourlegallegup.com/wp-content/uploads/2025/04/logo-208x300.webpKen Gibert2021-04-24 17:05:372021-09-13 23:36:43New Tricks of Debt Collectors
Our 20-20 Membership
Our 20-20 Membership
People often ask me what they should get first from Your Legal Leg Up. To me, the answer is obvious, and it’s both the first and last thing you’ll pay for in most cases: the 20-20 membership. It’s the best thing we offer both in value and price. It’s so much better than the other options, in fact, that I almost feel guilty when people buy anything else, but there could be reasons something else would be right for you, so I’ll talk briefly about your other options at the end of this article.
Teleconferences
I’m not aware of any other program on the market that offers anything like our teleconferences.
They are is an opportunity to ask questions in real time. You can ask about what things mean, what the bad guys might be driving at or trying to accomplish with something they’re doing, and how you might respond. We’ll help direct you to sources of information or guide your research. Sometimes you might just want to know where you are in your case, what a word means, or how to say or search for something… stuff like that.
Sometimes you’ll just need some encouragement and a reminder to keep up the good work because
working steadily is important but difficult in legal work, where there are deadlines that can be months away, but you forget how much time things take even aside from doing the work itself.
And sometimes you’ll want to hear other people who in the same boat as you are. Debt defense pro se can be a lonely process, but there are a lot of people trying to defend themselves. You can talk to them, and we offer encouragement and coaching as well as more substantive help too. People who use it find it enormously helpful. We can’t offer legal advice – you’d have to pay between $150 – 250 per hour to get that – but consider it a very active form of coaching and help.
Teleconferences currently happen three times per week and members can come to any and all of them. They’re scheduled for an hour each, but often go above that amount of time because I want everyone with a question to get it answered. If need be, we’ll increase the number of teleconferences per week to make it easier to get those questions answered.
Fees and Prices – Why the 20-20 Membership is Best
Most of our memberships involve a registration fee and a monthly payment, but the 20-20 only requires one payment for a full year that will be less than the other memberships for a year. The other memberships offer discounts on our digital products, but with the 20-20 you get all the digital products for free.
In other words, for one price you get all of our digital products and access to all the materials on the website for a year in addition to the teleconferences. The digital products which are designed to make the whole process easier and more effective, and the many articles and videos should help you get a deeper understanding of specific topics as well. You don’t get any “bonuses” because you get everything with the membership.
Materials You’ll Get – You Get ALL Digital Products we Offer
Maybe that’s all you need to know, but if you like to see it all before you make a decision, I’ll say you get all the digital products on our comprehensive product page. This includes numerous reports, including among others, Got Debt, Assignment Contracts, and Three Weaknesses Almost All Debt Collectors Have, the Manuals for Debt Litigation, Debt Negotiation, and Credit Repair, and all the Motions Packets, including the Motion to Vacate Default, Motion to Dismiss, Motion to Compel, and Motion for Summary Judgment. There will be others, too. You will also get our Model Discovery Pack and, if you live in either California or Pennsylvania, products relevant to those areas.
And you’ll get access to all the hundreds of articles on our site. Many are free to the general public, but many others are restricted by level of membership. As a 20-20 member you get them all. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.
Why Such a Good Deal?
I know this is going to sound like sales talk, but the 20-20 is a much better offer than we’ve ever made, and some explanation might help it make sense. There are two reasons, one selfish, and one not so selfish, for making this offer.
The selfish reason is that I’ve noticed that when people get sued they regard the law suit as a major priority and will pay what they have to (if they can) to give themselves a chance to win. That makes a lot of sense to me. But if they sign up for a monthly membership, there often comes a time when the case is less scary, or there comes a time when they need to buy a product but don’t have the money. So they cut corners and skip a product. That lowers their chance of winning, which isn’t good for Your Legal Leg Up’s reputation. It’s very important that you all win if at all possible, so making a deal which will never make you cut corners makes good business sense to me. And it’s why I’m here in the first place.
The other reason is just that I can do it. The products are here (and the work has been done, though they are sometimes revised), and I want you to be able to do your best work and get your best results without always having to sweat gallons. You’ll have plenty to do, but we can make things a lot easier. So I want to do that and am fine with making a little less than I might in to do it.
The Other Memberships
I mentioned the other types of membership a little bit above. Those are the Gold, Platinum and Diamond memberships. The main advantage with them is that if you show up and the debt collector gives up just because you do, you’ll save money because you won’t be paying for things you don’t us. Don’t laugh, that can happen. And it does happen maybe 1 percent of the time. They’re looking for an easy, automatic victory, and just by answering you make them decide to go away. Like I said, that happens about 1% of the time as far as I can tell. To be frank, nobody that’s happened to felt bad about getting the 20-20, but it’s a fact that a monthly membership would have cost less in that situation. Just about any other situation, though, and the 20-20 will save you a bunch of money and a ton of time and worry.
It’s the way to go for almost everybody. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.
Motion to Compel Cycle
The “Motion to Compel Cycle”
– What to do when the Company Suing You Won’t Answer Discovery
If you’re being sued for debt and following our system, you will serve “discovery” on the other side. That is, you will send them questions to answer called “interrogatories,” requests for documents, and requests that they admit certain things.
We do this because debt buyers usually don’t have the proof they need to establish their case, and even original creditors often don’t. We need to know exactly what they do have so we can prepare to show that it isn’t legitimate evidence. That will be important in resisting any motions they file, in filing our own motions, and preparing for and winning at trial.
You will send discovery, and no matter what you send, you will receive nothing but objections in response. This is called “stone-walling,” and it’s in every debt collector’s playbook. Do NOT just send another set of questions – it doesn’t matter what you ask, they will always object, so that would be useless. They might be stonewalling because they know they don’t have legitimate evidence, but frankly I think it’s mostly just a strategy to convince you to give up – to make you think you don’t have a chance against their lawyers and their money.
Don’t give up. Make them give you your answers.
To do that, you’re going to have to do the things that allow you to file a motion to compel, and then you will, obviously, have to file the motion, too. This whole process is what I call the Motion to Compel Cycle. So what is that?
Look at your rules of civil procedure for the rule on motions to compel. READ THAT RULE!
You will notice, in every jurisdiction I’ve ever seen, that the rule requires you to negotiate “informally” in good faith to resolve the issues raised by the other side’s objections. That is going to require you to call them up on the phone, speak to the lawyer on the other side, and discuss the objections. You will do this in good faith, but they certainly will not. And when you get through with this conversation, you will send them first a confirming letter if they’ve agreed to anything, and secondly what’s called a “good faith letter,” which outlines the items remaining in contention and states your basis for demanding the evidence.
So it goes like this:
Send discovery and wait for response
Call them to discuss objections
Write good faith letter outlining disputes and giving them a certain time to provide the information you demand
Wait for that time to expire
Write and file motion to compel.
It is possible they will respond with an argument. You should reply to that argument, but remember never to make any admissions of owing them or anyone money, of any prior relationship to the creditor, etc. NO ADMISSIONS AT ALL EVER. This is critical because they may slip a question in asking “don’t you owe __ the money?” or “don’t you already have the records? It was your credit card account!”
The only issue you should discuss is whether and why they owe you the discovery. Don’t forget.
This whole process is tedious and annoying because you know they are not in good faith. However, remember this: your efforts are requiring more attorney time spent on your case than many other cases combined would require. You are drawing blood with every minute you make them spend. And it’s the only way you will get what you need.
Remember in your first phone call to ask about EVERY SINGLE OBJECTION. I know there are dozens. Go through each one. It’s your right and responsibility, and it costs them $250/hour to talk with you.
Write a “confirming letter” if they make any concessions at all. Say “you said you would give me __ by [date]” and mention everything they agreed to. If they said they didn’t have anything responsive to a question or request, confirm that in the same way, too. You must create a written record.
You won’t get much, so you have to take the next step, the good faith letter where you say why you’re entitled to the information you request. If you’re using our model discovery, you’ll know what to say here.
They won’t give you anything even after this, in all probability, so your next step is the motion to compel. In that, you will include a statement about the phone calls you attempted, and you’ll attach your good faith letter. The court won’t hear your motion otherwise.
We have materials that could help you with all of the motion to compel cycle, from phone call to hearing.
What if they are Suing me and my Business
What if they are Suing me and my Business
Who is Suing Me for an old Debt?
Who is Suing Me for that old Debt?
One important thing to know is whether you’re being sued by a debt buyer, a debt collector, or an original creditor. Knowing this will help you focus your strategy.
First, some definitions.
An “original creditor” is someone who claims you borrowed money from them. It could be a loan or a credit card or anything else creating debt, but the point is that they claim THEY are the ones who originally were involved in the transaction. For example, you’re being sued by American Express, and they say you signed up for and used an American Express credit card and didn’t pay them. “But I never signed up for an American Express credit card!” – That’s good, but it doesn’t matter for the purposes of this definition. Whether or not you owe the money doesn’t matter for this. If you’re being sued by someone who claims you borrowed from them, it’s an original creditor case.
A “debt buyer” is someone who bought the debt from the original creditor. This person may also be a debt collector, but the point here is they’re claiming you owed money to someone else and the debt was assigned to them. As you probably know by now, selling old debt is big business in America and throughout the world. Look for the word “assigned.” If a debt buyer is NOT a debt collector, your rights to countersue will be limited (because the Fair Debt Collection Practices Act won’t apply to them), but they will still have most of the weaknesses in establishing their case that we usually talk about.
A “debt collector” is someone who either is acting on behalf of a debt owner (rare, these days) or a debt buyer whose primary business is the collecting of debts (i.e., they buy debts and sue people without providing any real service to the people they’re suing). These people will have weaknesses in their case AND may give you a chance to countersue.
So Who Is Suing Me?
To determine this on a preliminary basis, look at the name of the case. It will be “X Company vs. You” Normally, this means that X Company is the plaintiff. Their lawyer is NOT suing you for most purposes, and the lawyer is not, by virtue of being the lawyer on the case, a party to the action. Companies can only act through lawyers (in court), and the lawyers are generally only “mouthpieces” for them. So most of the time you can forget about them as you consider your rights.
I did say “on a preliminary basis.” What I mean is that you start with the basic assumption that the person named as plaintiff IS the plaintiff, but it turns out this isn’t always true. Sometimes debt collectors (including lawyers) buy debts and bring the lawsuit in the former owner’s name. I think this violates the FDCPA, but for now you just need to know it CAN happen and does happen sometimes, and you need to know if it’s happening in your case. The only way to find out is by conducting discovery, and our model discovery therefore includes some questions about whether the debt has ever been transferred, and to whom.
Sued not Served
Sued not Served
What Should I Do if I Know a Debt Law Suit Has Been Filed but not Served?
Sometimes people find out they’re being sued before the plaintiff gets around to serving them. How does this happen? And what do you do if you find that out?
People can learn about a suit before being sued – it is public knowledge, after all, so it could happen
in a lot of different ways. Mostly though, it happens in one of two ways. Sometimes debt collectors bug you for money, and you go out of your way to check court files to see if you’re named in a suit, or you find out from a neighbor who gets curious when they see someone trying to serve you. I guess these ways are actually rare, but they can happen. The other way is more common.
There are lawyers who want to represent people in these cases, and they may send you a letter telling you you’re being sued. It may be news to you that anybody is even after you, much less actually suing you. So you check the court files and find out it’s true.
What do you do?
There have been times people brought these cases to me, back when I was practicing, and wanted to take action. In that situation they had a lawyer and a counterclaim (usually), and where that’s the case, it could make sense to waive – or let go – your right to service and just enter on the case. We were sure we’d win, and we had a counterclaim, so why wait?
If you’re pro se these days, the situation is very different. You can’t be sure you’ll win however much you think the facts are on your side, because you can’t count on the courts to see it your way. No matter how clear you think it is, you just can’t count on winning. And you’re less likely to have a counterclaim because the courts have narrowed the definition of counterclaim and debt collectors have gotten a little more careful.
So for those reasons I think it makes sense to watch the court docket (without identifying yourself to the court) to see if they ever claim to have served you. Or until they actually do serve you.
You have no obligation to make it easier for them to serve you, and if they can’t get you served they will eventually have to drop the case – or get it dropped (for “failure to prosecute”). I think it makes good sense to give them that chance. But watch to make sure they don’t claim you were served. Likewise, if they “serve by publication” (which is putting an ad in a small local paper) you’ll probably need to answer, but it’s rare, and they have to get permission to do it. Still, you should watch for it.
If they don’t serve you, you might get lucky and have them drop the case. Or you will get served and have to defend.
Obviously, if that happens, we can help.
Your Right to a Jury Trial in Debt Litigation
Your Right to a Jury Trial in Debt Litigation
Under the Seventh amendment you have a right to a jury trial for cases involving “damages.”
Damages is a little bit of a term of art in this sense, but it basically means “money” for claims that were traditionally brought in courts of “law” (as opposed to courts of “equity”). As it happens, breach of contract, which is what most credit card cases are, is a legal claim subject to the 7th amendment. On the other hand, claims brought under, for example, the claim of “account stated,” are equitable claims that don’t give you a right to a jury trial by themselves.
That means that if the debt collector is suing for breach of contract or “open” or “closed” account, you have a right to a jury trial under the constitution. If they are suing you EXCLUSIVELY for account stated, on the other hand, you don’t.
When you have a right to a jury trial for one claim, you have a right to jury trial for all claims, so if they bring breach of contract AND account stated, you’ll have a right to jury trial for both. Most debt defendants, therefore, do have a right to trial by jury. Should you demand a trial by jury? I usually think so.
Trials by jury force the judge to take the law of evidence more seriously. In fact they take jury trials more seriously in a lot of ways. That benefits the debt defendant because our case is usually that the debt collector does not have any evidence that complies with the rules of evidence, and we need the court to take that seriously.
I also suggest demanding a jury trial because they are far more difficult for the debt collectors.
Understand what I’m saying, though. It isn’t that debt collectors don’t know how to do jury trials or even that they aren’t good at them – individual talent varies, of course. I’m only saying that debt cases tried to a judge can take twenty minutes. Picking a jury can take hours. And all the rules have to be carefully followed, and there are special rules and procedures, too. So demanding a jury might require 20 times as much attorney time. And time is money. Especially attorney time at $250/hour.
Debt plaintiffs don’t like cases that take a lot of time. It increases their costs, and they know you don’t have much money, so they worry about getting it back. Debt collector lawyers also worry about cases taking a long time because their performance affects their annual pay, and long debt cases hurt them.
In my opinion, those are strong reasons to seek a jury trial, and I might add that there will be times when a jury is also more sympathetic to the defendant than a judge would be. Judges haven’t faced debt trouble in a very long time, in general, by the time they’ve become judges. Most jurors, on the other hand, will have money worries. But I wouldn’t rely on this too much. Some judges are sympathetic, and some take their work seriously whether they’re sympathetic or not. And some juries can be pretty harsh.
But our goals in jury trials don’t depend on the jury that much. We want the judge to exclude evidence that shouldn’t be seen, and they take that more seriously when there’s a jury. Then it’s clear the debt collector didn’t make its case.
So why might you NOT want a jury? The only reason I’ve ever heard from debt defendants is that they’re scared of them. And I hear that a lot, but it’s not a good reason. Almost everybody I know who has ever had a jury trial has said it wasn’t scary. Not when you’re doing it. They are a little scary to think about and get ready for – pretrial jitters are normal, but once the trial starts, you’ll be too busy to be nervous. That’s as true of jury trials as it is of judge-tried cases.
You have a right to a trial by jury, but how and when you ask for it can make a difference. In some jurisdictions you just put it at the end of your Answer. In some jurisdictions you have to enter it as a separate request, separately. Which of these you’ll need to do is probably in your court’s local rules, but you might ask a court clerk about that. If you can’t get an answer from an authority, I’d suggest putting it both on your Answer and making a separate request which you submit at the same time as your Answer.
If you didn’t ask for a jury trial, is it too late?
The law favors jury trials, but individual judges often don’t, since they know as well as I do that jury trials take more time and attention. For that reason, if you haven’t already asked for a jury trial, I suggest you do it ASAP. The number of days could matter, since a court’s discretion to deny a request for jury is probably tied to how long the case has been going on. You should do a little research before filing your jury demand, though, because if you don’t do it right off the bat, you’ll need to file a motion that tells the judge why you should get one. That isn’t complicated, but you’ll want to know what the rules are that apply to it.
What is Arbitration and Should you Seek or Oppose It?
Compel Arbitration or Oppose it?
Arbitration. Should you compel arbitration? Or oppose it? I’ve recently had a comment on Youtube asking me to discuss arbitration, and it has also come up in several recent teleconferences as members contemplated seeking arbitration. Others have wanted to know whether to oppose a motion to compel arbitration.
Let’s start with a definition: Arbitration is the submission of your case to a private entity known as an arbitrator. After some process and a hearing (most likely), the arbitrator will decide what happens in your case and issue what amounts to a judgment.
For debt cases, it’s always a single arbitrator or a company that will provide a single arbitrator that’s appointed, but for other cases it could be other things, like a panel, perhaps. In any event, there will be an arbitrator and some special rules that will NOT be your state’s rules of civil procedure and also might not be your state’s rules of evidence. But there will be rules that control the process.
Arbitration is popular because it makes it faster, easier and cheaper for people to engage in litigation. The discovery process will be limited, and the appeals process almost eliminated. That’s why rich companies and debt collectors always love it. Almost all of these things are completely and profoundly BAD for debt defendants. That’s why I’ve always suggested debt defendants should avoid arbitration.
But there is another side to the question, and there are some who argue in favor of allowing or even forcing arbitration in debt cases. What’s their argument?
I think the argument in favor of arbitration boils down to the fee, which apparently has to be paid up front by the debt collector And that can amount to two or three thousand dollars, or even a little more. The idea here is that debt collectors won’t want to put that much money down on the barrelhead just to chase a bad debt and that court is, for them, much cheaper.
There is some sense in this argument.
Debt collectors never worry about winning a case, but they do know you don’t have much money. That means that they’re sure they’ll win, but worry that they won’t collect, which is the most important thing to them. The more you make them spend, the more worried about that they’ll be. Maybe they’ll drop the case if you demand arbitration.
We often make the argument that by pursuing discovery, filing and defending motions, and preparing for trial you are driving up the costs of litigation and may make the whole thing too expensive for debt collectors to want to do. Again, not because they worry about losing, but just the amount of money they’re having to spend when their business model is designed around easy, cheap judgments. However, conducting discovery and filing and defending motions and the rest do in fact improve your chances of winning, and we think that, when it comes to a debt collector, you should win your case. These things are the way to do it, and the chance the company will drop the case is basically the icing on that cake.
In arbitration, it’s the whole cake. You should remember that.
One big question that may be more theoretical than real is, who ultimately pays the arbitrator?
I say it may be theoretical since I just said the debt collector isn’t sure you’ll have any money at all, but this won’t stop them from seeking as big a judgment as possible. And if they get a judgment, they WILL try to collect it. All. So be advised that the judgment size could matter.
Okay, but who pays the arbitrator?
I think some states may have rules that matter, and I know that California, for example, does have rules regarding employment and consumer-brought claims. In the absence of any state based rule, you
would look to the arbitration provision giving you the right to arbitration – i.e., the contract. That will often say who pays the arbitrator, and it can specify any of a number of things, from company pays all to loser pays all, to dividing it up. The contract isn’t often going to put all the burden on the company because, after all, the company wrote the contract.
If it says company pays all, though, the company can’t shift that payment to you if you lose. If it’s loser pays all, though, it obviously will. But if there isn’t a direction in the contract, that would usually mean you start by splitting the cost, but that the arbitrator can award the cost to the winner, i.e., add it to the judgment.
The rule in your case is going to depend on your own specific circumstances.
The net of all this would suggest that you will have some advantage if the contract makes the company pay, but there’s risk if the loser pays. And of course it matters a lot who pays up front, which is often the debt collector.
So… should you compel arbitration?
In a debt buyer/collector case (i.e., not the original creditor) I’d still lean strongly against. You should win this case under most state laws because of the rules of evidence, and you cannot depend on the arbitrator to enforce those rules rigorously. If it’s an original creditor, it’s a much closer question. You’ll have to consider all the things we’ve discussed here and make a judgment call.
Filing a motion to compel arbitration might trigger some settlement negotiation, but I wouldn’t think you could get the company to give you a very steep discount, but there I’m just guessing based on what I know about lawyers and not experience in these type cases.
I remain very hesitant about suggesting arbitration, but there may be value in considering it if you’re
dealing with an original creditor.
Small Claims Court Report
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Light One Candle – Oct. 2021
Evergreen
In honor of this being the first newsletter, our first “evergreen” feature is an “oldie but goodie.” It’s why you have such a good chance of winning if you’re sued by a debt buyer. It’s nothing magical and doesn’t rely on weird gimmicks you’ve seen on Youtube or any bizarre rules someone made up to sell you something. It’s just the plain old rules of evidence and the way the debt collectors acquire the debts they’re suing you for.
Link
I hope you can forgive the sound quality of some of the older videos. I don’t replace them because so many people have watched them over the years that they help other people find us, but the quality isn’t the best. On the other hand, the message is clear: you have an excellent chance to win a lawsuit filed against you by a debt collector because of the way they operate. They don’t buy all the information the original creditor has, and they most particularly don’t get an affidavit filed by someone from the original creditor testifying to the accuracy of the record-keeping.
For more on this topic, I recommend the Three Weaknesses Every Debt Collector Has Report. It’s free to all members.
What’s Up
There’s a lot going on this month here at YLLU. We’re going to be recreating many pages to make them easier to read and more up to date, and also to make them connect more easily and obviously. Click here for a link to our Link Tree that’s tied to the litigation time-line. This should tell you what resources we have related to whatever particular issues you’re addressing, and it will eventually make finding everything much easier.
A new trick the debt collectors seem to have come up with now that Covid is going on is the filing of motions for summary judgment very quickly after filing suit. They’re doing this to keep from letting you conduct discovery and also to prevent you from exercising your right to a trial. Click here for information on that – it’s something we will be working on more as time goes by.
Remember that debt litigation is a series of steps. Some are hard and some are easy, but they’re all more manageable if you take them one at a time and never stop working your case until it is dismissed. Remember that there’s always an endpoint. You should keep working on your case even if the debt collector doesn’t seem to be. You have things you need to do.
New Tricks of Debt Collectors
New Trick for Debt Collectors: File Motion for Summary Judgment before you Complete Discovery
Discovery for Debt Collectors
When debt collectors file suit, they usually start with everything they think they’ll need. It generally is only the very most basic information about your case – no more than two or three old statements and a balance claiming you owe a certain amount of money. If you don’t defend, or don’t know how to defend, these things will be enough to get a judgment. They have no proof you ever owned the account or signed up for it, made any payments or failed to make any payments, or much of anything else. They don’t expect to need any of that because most people default (fail to answer) or fail to defend themselves intelligently. If they’re thinking ahead, they might use discovery a a way to find out about your job and resources or to trick you into admitting you owe them money. But most often debt collectors are not interested in conducting discovery.
Discovery for Debt Defendants
Debt defendants start in a completely different place than the collectors do, obviously. If you’re being sued by a debt collector, you need to know what exactly they have and how to attack it. You need to know whether they are defined by the law as “debt collectors,” what they have regarding you and how they got it, and what they’ve done or failed to do in attempting to collect the debt. You need, in other words, to find out ALL about the debt collector’s case, your defense, and whether you have counterclaims.
They don’t want you to do that.
New Trick for Debt Collectors
Debt Collectors have a new tactic.
It isn’t strictly new – they’ve been known to do it before, and it’s common enough in other kinds of litigation, but it’s happening much more often now in the “Covid era.” Or should I say, the “post-covid era?”
The courts are back up and running, in a way, but nobody is excited to have in-person trials. So the debt collectors have found a safer way to get what they way – one that uses all their favorite ways to take advantage: stonewall discovery and file a motion for summary judgment before you can get what you need to defend. Let the courts take the shortcut if they will – and they often do.
I’m talking about motions for summary judgment, but with a twist. The new plan is to file the motion early – before you have a chance to conduct or complete discovery. With a little luck they’ll scare you into giving up, but even if you don’t you have a tough job in courts which all too often are not equipped to listen to complicated legal arguments about complex issues.
What they’re doing is serving the lawsuit, waiting just a bit, and then filing the motion for summary judgment. If you’ve dragged your feet on starting discovery – or even on pushing it towards a motion to compel – you’re presented an extremely difficult challenge: how to get discovery you need to defend yourself is a small amount of time.
And how to bring a motion to compel and respond to a motion for summary judgment at the same time. That’s hard to do under the best of circumstances, but now you won’t even have enough time to do it all unless you can counter the tactic.
How to Defend Yourself from this Trick
Start Quickly! Don’t waste time.
The single most important thing you can do to protect yourself from this trick is, as always, to start serving discovery on the other side immediately. You may be able to avoid this trap altogether if you can jump right onto it. A few days could make the difference.
But what if it’s too late to start discovery “immediately?”
If it’s too late to start immediately, start NOW.
That isn’t a word game. If you haven’t started discovery and they file a motion for summary judgment, you must figure out and start discovery now. You’re going to have to show the court what you need in order to defend the motion for summary judgment and why you need it. And you will also need to show that you’ve taken steps to get it.
Motion to Stay
After you serve discovery on the other side, you will probably need to ask the court to hold (that’s “stay” in legalese) the motion for summary judgment while you conduct the discovery you need. You aren’t asking the court to delay its decision: you’re asking it to put the entire motion on hold until you’ve had a fair amount of time to do what you need. The complication is that, since they’ll be claiming all the facts are uncontested, you have to show how your discovery would help establish factual issues that would prevent the court from reaching a judgment. In legalese, you have to show the court how answers to your discovery might show the existence of “genuine issues of material fact.”
And to do that you must painstakingly link the possible answers to what you’re asking for in discovery to the claims they make.
Find the Rule and Follow It
The rule on summary judgments does contemplate that this could happen, and there is a rule that tells you what to do if you need more time to conduct discovery. In the federal courts, you have to make an affidavit that says certain specific things. In state courts, the rules can vary and may not require an affidavit – but they will require some statement of what you’ve done, what you’re looking for, and why it matters. You have to find the rule for your jurisdiction and follow it carefully.
It’s much easier to describe than to do, believe me, and of course the debt collectors know that. It isn’t easy at all for you to figure out how it works, file your motions, make the arguments you need to make and persuade the court to do something that all too many judges don’t want to do: take your case seriously.
The debt collectors rely on you, or the court, to get careless – and you know that often happens. The debt collectors do it to people representing themselves, and the judges sometimes turn a blind eye to real issues of fairness.Defending yourself from this trick frankly can be overwhelming.
Our New Workbooks Can Help
We have a new product that can help you with this issue if you’re facing it. It’s a workbook that addresses the necessary topics one by one in the order and way you will need to do it. It will show you how to analyze the motion for summary judgment, compare it to your discovery requests, and show how the answers might affect the outcome of the motion for summary judgment. It shows you how to do your motion to compel – and how to do the motion to stay the summary judgment.
Under the best of circumstances, it still won’t be easy, but the workbook should help you get a grip on the issues and process and give you the chance you need.
The workbook comes free with our 20-20 memberships, and that’s the only way you can get it for now because it’s still a work in progress and because I want to emphasize that the membership all but a very few people should be getting is the 20-20.
What if You’re Not in this Situation?
The product we’re discussing is intended for a specific situation, where you have discovery outstanding and they file a motion for summary judgment. But if you’re not in the situation I discuss here, our materials can help you avoid it by streamlining your discovery process. In fact we can help you from the beginning to the end of your case
If you’re being sued for debt you have enough problems. Dealing with slick collector tactics shouldn’t be one – but it is.
We can help. Our 20-20 memberships should help you all the way. If you are already a member other than 20-20, contact me for information on a discount code that will enable you to convert your membership. You should have the 20-20 – it’s our best deal by far for most people.
To Get the 20-20 Membership and Our Workbooks
Click here for general information on the 20-20.
If you want the short summary of the program, though, it’s just this: with the 20-20 you get everything we offer (excluding physical products) – all the reports, packages and teleconferences we have, for free with the membership for a year. The 20-20+ will include some bonuses and includes everything the 20-20 includes for 18 months. The idea is to get you through your lawsuit without a second charge.
To get the membership, you click on the top menu “about Memberships” and select your membership option.