In this article we’re going to talk about filing a response to the lawsuit. We have some videos we’ll show you on Answering and defending yourself. We’re going to talk a little bit about your choices of how you defend yourself, and I want to give you some “caveats” to consider.
Then we’ll get to the Answer so you can see how that’s done. Our point here is to “orient” you to the lawsuit so that you have a basic idea what to do. Our materials are designed to help you through the lawsuit and let you represent yourself the whole way if you choose.
In our next article we’ll move on to the other phases of the program
You’ve Been Served a Law Suit – What Now?
As we’ve discussed in other videos, if you’ve been served with a lawsuit, you have only four basic choices. If you’re here, we’re assuming you’ve decided to fight one way or another, and if your second decision was to hire a lawyer, you should let him or her guide you in making the other decisions. We’re going to assume, for purposes of this series of messages, that you have decided to represent yourself – or that you want to learn more for yourself even though you’re getting a lawyer. That’s always a good idea.
If you are going to do this, you will have to decide whether to attack the court’s jurisdiction over you or not. If there was something fishy about the way you got served, our materials can help you with a motion to quash service, but that is beyond the scope of this informational series. We don’t have a specific product for just this motion because it is highly fact-specific and depends heavily upon state laws of civil procedure – and because it is just a first step in a litigation defense. If you need help attempting to quash a lawsuit, you will also need help in defending it the rest of the way. You will need the Debt Defense System.
Most people actually do not need to concern themselves with motions to quash – most process servers get the job done right, and so your next decision is whether to attack the suit through a motion to dismiss or to file an Answer.
Here’s a brief video on Motions to Dismiss.
Motions to dismiss are filed for a variety of legal reasons, and again they are too fact specific, and depend too much on your own state’s laws, for us to be able to demonstrate here how you would do such a motion in your case if you think there is one. The Debt Defense System materials do help with that, and we would just suggest that you check your rules of civil procedure to see if you need to be filing a motion to dismiss before answering.
What we’re going to do today is show you how to file an Answer and Counterclaim. The Answer is pretty generic and will probably be easily applicable to your situation. The counterclaim may or may not apply – it would depend on whether you are being sued by a debt collector, and if so what, if anything, it has done wrong. So you should definitely not just cut and paste the counterclaim part of this message. The Debt Defense System will help you look at debt collector behaviors that might have violated the Fair Debt Collection Practices Act (FDCPA) and file a counterclaim if you have one.
Here’s a warning
Deciding to represent yourself is not quite a one-way decision. That is, it is possible to find a lawyer,
sometimes, if you start representing yourself, but it can be very difficult. Many lawyers will not touch
a case where the client filed anything. And many will charge you the same, or even more, than they would have if you had never filed anything. That’s because if you file something, the lawyer has to spend time reviewing that to see whether you’ve made any damaging admissions and what, if any, response the other side has made.
So if you’re thinking that you will represent yourself for a while to save money and then turn it over to a lawyer, you should consider that carefully – getting a lawyer to come in at the last moment is hard and not necessarily a good idea anyway. And may be more expensive than hiring one in the first place.
If you think you need a lawyer and can afford one, get one now – that’s my advice.
On the other hand, you can do this – and if you think you need to do any of it, better to plan to go all
the way if necessary. Most cases don’t go to trial, but if yours does, we will have you ready for it. As a pro se defendant you do have certain advantages going for you, and if you are willing to work at it a little bit, you can do this as well as most lawyers would do it.
Even if you have a lawyer or plan to get one, our materials could still be for you. It is a reality of legal life that lawyers charge for their time – and if yours is not charging you for his or her time, they’re either preferring to keep the chat down to a minimum or are spending less time on your case. Either of those could be unsatisfying. An educated client is a good thing.
Answering the Petition
Answering the Petition
Okay – so what is an Answer? It is your formal reply to the lawsuit. If you’re being sued, the debt collector is saying you owe money and, at least in general, why.
Your Answer is basically going to deny that. You’ll see a sample answer below. Notice how brief it is, in the first place. Doing an Answer is easy. Notice that there’s no hifalutin talk, nothing fancy. They say you owe money. You say you don’t. The point of the Petition and Answer is to establish what will be the main points of dispute of the lawsuit.
Notice also that the sentences or paragraphs are numbered. Those numbers correspond to specific paragraphs (called “allegations”) in the debt collector’s suit.
You won’t argue over your name and address or residence in most cases, but you will dispute the debt collector’s ownership of the debt, the amount, and the claim that you owe anything. And anything else that makes sense to object. The hurdle here should be very low. You will likely dispute almost everything.
You don’t swear to your Answer, and you aren’t required to admit anything. You are setting out the factual points you want to make the other side prove.
Rights under the Fair Credit Reporting Act
You’ve heard about having rights to a fair credit report. Here, in plain English, is a list and explanation of your most important rights under the Fair Credit Reporting Act (FCRA).
The Importance of Credit Reports
Our country runs on credit and credit information and the credit reporting behind them. Of course there are the obvious uses of credit to purchase things, but as more and more people are finding out, credit reports are used for much more than that – they often impact employment decisions, housing decisions and rates, business equipment lease rates, and insurance availability and price, among other things. Bad credit has a high price in so many ways.
Credit Reporting Network
As important as all the interests affected by it are, the credit reporting network (the businesses which create and publish your credit information) is a vast and largely faceless bureaucracy. The federal Fair Credit Reporting Act (FCRA) was designed to create some accountability in this network and protect consumers from some of its abuses. The FCRA was designed to safeguard the accuracy, fairness and privacy of information in the files of consumers held by the reporting agencies.
Different Kinds of Credit Reporting Agencies
There are many different kinds of consumer reporting agencies – almost everybody knows about the credit bureaus, of course, and there are also specialty agencies that sell information about check writing histories, medical records and rental history records. The FCRA was directed primarily at these agencies, rather than the creditors or companies with which you normally do business.
Here is a partial list of your major rights under the FCRA.
This isn’t a complete, exact replication of your rights under the Fair Credit Reporting Act. As with most important laws, the exact rights and their limits change as courts interpret the laws. But this will give you an accurate overview – a place to start.
Access to Your Credit Report Limited
A consumer reporting agency may provide information about you only to people with a valid need – considering an application with a creditor, insurer, employer, landlord, or other business. The FCRA specifies those with a valid need for the information. And in most cases you must give your consent before the information is obtained or used.
Rights When Credit Information Used Against You
Anyone who uses a credit report or another type of consumer report to deny an application for credit, insurance, or employment – or to take other adverse actions against you – must tell you, and must give you the name, address and phone number of the agency that provided the information. You are entitled to a free copy of that report.
Right to Find out What Is in Your File.
You can find out all the information about you in the files of a consumer reporting agency. You must be offered a free disclosure if:
All consumers will be entitled to one free disclosure every 12 months upon request from each nationwide credit bureau and from nationwide specialty consumer reporting agencies.
Right to Dispute and Correct Information
If you identify information in your file that is incomplete or inaccurate and report it to the consumer reporting agency, the agency must conduct a “reasonable” investigation, and it must report the information as disputed. If it is unable to verify the information after investigation, the agency must remove or correct the entry.
For practical reasons, this provision may actually provide more important rights against the businesses that report credit events (the debt collector reporting a debt as unpaid, for example) than against the reporting bureaus.
Time Limits for negative information.
In most cases, a consumer reporting agency may not report negative information that is more than seven years old, or bankruptcies that are more than 10 years old.
Straw Man Theory
Four Decisions
Decisions you must make to Start Getting Back to the Good Life
Lawsuits are Scary
The “Bartleby Defense”
Get Back to the Good Life
Responding to the Suit
In this article we’re going to talk about filing a response to the lawsuit. We have some videos we’ll show you on Answering and defending yourself. We’re going to talk a little bit about your choices of how you defend yourself, and I want to give you some “caveats” to consider.
Then we’ll get to the Answer so you can see how that’s done. Our point here is to “orient” you to the lawsuit so that you have a basic idea what to do. Our materials are designed to help you through the lawsuit and let you represent yourself the whole way if you choose.
In our next article we’ll move on to the other phases of the program
You’ve Been Served a Law Suit – What Now?
As we’ve discussed in other videos, if you’ve been served with a lawsuit, you have only four basic choices. If you’re here, we’re assuming you’ve decided to fight one way or another, and if your second decision was to hire a lawyer, you should let him or her guide you in making the other decisions. We’re going to assume, for purposes of this series of messages, that you have decided to represent yourself – or that you want to learn more for yourself even though you’re getting a lawyer. That’s always a good idea.
If you are going to do this, you will have to decide whether to attack the court’s jurisdiction over you or not. If there was something fishy about the way you got served, our materials can help you with a motion to quash service, but that is beyond the scope of this informational series. We don’t have a specific product for just this motion because it is highly fact-specific and depends heavily upon state laws of civil procedure – and because it is just a first step in a litigation defense. If you need help attempting to quash a lawsuit, you will also need help in defending it the rest of the way. You will need the Debt Defense System.
Most people actually do not need to concern themselves with motions to quash – most process servers get the job done right, and so your next decision is whether to attack the suit through a motion to dismiss or to file an Answer.
Here’s a brief video on Motions to Dismiss.
Motions to dismiss are filed for a variety of legal reasons, and again they are too fact specific, and depend too much on your own state’s laws, for us to be able to demonstrate here how you would do such a motion in your case if you think there is one. The Debt Defense System materials do help with that, and we would just suggest that you check your rules of civil procedure to see if you need to be filing a motion to dismiss before answering.
What we’re going to do today is show you how to file an Answer and Counterclaim. The Answer is pretty generic and will probably be easily applicable to your situation. The counterclaim may or may not apply – it would depend on whether you are being sued by a debt collector, and if so what, if anything, it has done wrong. So you should definitely not just cut and paste the counterclaim part of this message. The Debt Defense System will help you look at debt collector behaviors that might have violated the Fair Debt Collection Practices Act (FDCPA) and file a counterclaim if you have one.
Here’s a warning
Deciding to represent yourself is not quite a one-way decision. That is, it is possible to find a lawyer,
sometimes, if you start representing yourself, but it can be very difficult. Many lawyers will not touch
a case where the client filed anything. And many will charge you the same, or even more, than they would have if you had never filed anything. That’s because if you file something, the lawyer has to spend time reviewing that to see whether you’ve made any damaging admissions and what, if any, response the other side has made.
So if you’re thinking that you will represent yourself for a while to save money and then turn it over to a lawyer, you should consider that carefully – getting a lawyer to come in at the last moment is hard and not necessarily a good idea anyway. And may be more expensive than hiring one in the first place.
If you think you need a lawyer and can afford one, get one now – that’s my advice.
On the other hand, you can do this – and if you think you need to do any of it, better to plan to go all
the way if necessary. Most cases don’t go to trial, but if yours does, we will have you ready for it. As a pro se defendant you do have certain advantages going for you, and if you are willing to work at it a little bit, you can do this as well as most lawyers would do it.
Even if you have a lawyer or plan to get one, our materials could still be for you. It is a reality of legal life that lawyers charge for their time – and if yours is not charging you for his or her time, they’re either preferring to keep the chat down to a minimum or are spending less time on your case. Either of those could be unsatisfying. An educated client is a good thing.
Answering the Petition
Answering the Petition
Okay – so what is an Answer? It is your formal reply to the lawsuit. If you’re being sued, the debt collector is saying you owe money and, at least in general, why.
Your Answer is basically going to deny that. You’ll see a sample answer below. Notice how brief it is, in the first place. Doing an Answer is easy. Notice that there’s no hifalutin talk, nothing fancy. They say you owe money. You say you don’t. The point of the Petition and Answer is to establish what will be the main points of dispute of the lawsuit.
Notice also that the sentences or paragraphs are numbered. Those numbers correspond to specific paragraphs (called “allegations”) in the debt collector’s suit.
You won’t argue over your name and address or residence in most cases, but you will dispute the debt collector’s ownership of the debt, the amount, and the claim that you owe anything. And anything else that makes sense to object. The hurdle here should be very low. You will likely dispute almost everything.
You don’t swear to your Answer, and you aren’t required to admit anything. You are setting out the factual points you want to make the other side prove.
Solving Debt Going Forward
Debt Negotiation and Settlement
This article talks about what I guess you might call the second-to-last piece of the bad debt puzzle. In the first couple of articles of this series we talked about getting sued and either getting a lawyer or representing and defending yourself. We got you started on that. Then we moved on to credit repair. In a way, maybe, that was taking things out of order, but everybody being sued for debt will eventually need to fix his or her credit report, and probably for many things other than just the lawsuit.
We discussed the ethics and morality of credit repair because many people we’ve talked to over the years have been burdened by their ethical and moral concerns – guilt, really. The debt collectors encourage guilt because it makes people easy to handle. Tomorrow we’ll move on to something a little more “esoteric” you might say: lifestyle.
But today, as I say, we’re going to discuss debt negotiation.
Pretty much everybody knows what debt negotiation is, at least in theory. It goes like this. Obviously there’s somebody who says you owe a bunch of money, you negotiate, and you end up paying either less than or none of what you supposedly owe. That’s the view from a mile up. Sweet, isn’t it?
It sounds like free money, but it really isn’t. If you think of it as an opportunity for something free, you will not be able to do it – you’ll be left wondering what went wrong as your financial security goes out the window. Instead, debt negotiation and settlement is cross between a hard-nosed, back-room negotiation and a game of “chicken.”
So What Are You Negotiating? What Are You Settling?
You know, it’s interesting that people rarely ask what debt negotiation is all about – what are you “giving up?” What are they getting in return for the large amounts of debt you hope for them to give up? Suppose you owe a credit card company $20,000 and you have been making the minimum payments most of the time – but sometimes you can’t, so they have hit you with a bunch of fees, and you’re watching the debt pile up at an incredible rate. What do they get if they agree to take a single payment of $1,500?
It feels like you’re stuck – there may be no way you can make payments that would significantly reduce that debt. So what do you have to negotiate with? A whole lot of “nothing.”
You have risk and the difficulty of collection. In other words, you have the fact that unless you agree to pay and really try to do it, they will likely get nothing at all – or will get much less than they could.
That doesn’t sound like much, does it? And yet it is much more powerful than you might suppose. Anybody you owe a lot of money to is feeling the pinch. Even a large credit card bank, which doesn’t need your money for its survival by any means, is watching that debt mount and realizing that every time it gets higher, you get less likely to pay it. At the bottom of your options may be the possibility of bankruptcy, but they know that long before that you will simply stop paying and dare them to sue you.
In essence, that it what makes debt negotiation work. You stop paying them and dare them to sue you – and then you offer to pay them again, only much less. Sounds crazy, doesn’t it? But it works if you take it seriously and don’t think of it as some sort of gold mine or a way to “get away” with something. Instead, think of it as a significant part of a serious turn-around in your life. It has several costs – you should have no doubt about that, and it is something you do when there are no better choices available. There’s a chance that withholding payments will result in your being sued, and it almost certainly will result in at least a temporary trashing of your credit report. How you manage these risks and costs will determine, more than anything else, how well you do in negotiation.
There are ways to make it work much better than others, though. There are things you can do to manage your risks of being sued, and when the negotiations actually begin, a few techniques that can help. The main thing about debt negotiation and settlement, however, is that it, like other kinds of negotiation, is much less about negotiation than positioning. People only give you what you want because they believe it is the best outcome for them, too – the question is, how to do you give them that feeling when you’re asking to pay ten cents on the dollar of debt? And how do you make the risks to yourself “acceptable?”
How you answer those questions will determine how good a deal you get from your creditors.
Regulation of Debt Collectors
Debt Collector Licensing and Regulation Requirements
Most states require debt collectors to register with them in order to do business with people within their borders. As of the time of this writing, the states below have this requirement. You should look up the law for your own state and check with your attorney general to see if the collector bugging you is obeying this law. Somewhat incredibly, this law is also frequently ignored by the debt collectors, and this may be, and probably is, grounds to get a lawsuit dismissed and also be a violation of the FDCPA. It may also trigger regulatory enforcement action.
States Requiring Licensing, Registration, Exam, and/or Bond
Alaska, Arizona, Arkansas
Colorado, Connecticut
Delaware
Florida
Georgia
Hawaii,
Idaho, Illliois, Indiana, Iowa
Louisiana,
Maine, Maryland, Massachusetts, Michigan, Minnesota
Nebraska, Nevada, New Jersey, New Mexico, New York in some cities, North Carolina, North Dakota
Oregon
Puerto Rico
South Carolina (business license required)
Tennessee, Texas
Utah Washington, West Virginia, Wisconsin, Wyoming
States Requiring License Tax
Alabama
No Bond or License Required
District Of Columbia
Kansas, Kentucky
Mississippi, Missouri, Montana
New Hampshire
Ohio, Oklahoma Pennsylvania
Rhode Island
South Dakota
Vermont, Virginia
You should check on the requirements for you state and, if they are not met by a debt collector contacting you, take appropriate action.
Why Credit Repair is Right – and You Need to Do it
In this article we discuss something that almost everybody will need going forward: credit repair. This is a relatively new focus for our site because it steps away a little bit from the Fair Debt Collection Practices Act and focuses more on the other side of debt trouble – what it does to you in the long run financially. Of course everybody reading these words knows how much anxiety and trouble being sued can make for you, but the longer term effects may not be quite so much in your face right now.
Still, the price of bad credit information is big, and it adds up over time in ways that matter. A bad credit report may not scare you as much as a lawsuit right now, but it drains your hope and adds costs to everything you do.
So what is in your credit report? Obviously it includes information from your credit-involving transactions. But it also includes “lifestyle” information like judgments or liens, arrest and conviction records, and even job investigations under some circumstances. Actually, very little is safe from the reports.
Let’s be blunt here. There is a lot of wrong or expired information out there on most people’s credit reports, but there is also a lot of true information that might be hurting you. We are not concerned here with whether the information is true – our only goal is to help you remove bad information. Like debt law, the businesses and systems that control the process are set up to handle people in mass – this gives you an opportunity to remove harmful information. We think this is both moral
and ethical.
We do consider the moral and ethical questions as separate questions. Think of the moral question as involving the bigger questions of right and wrong – is it morally right for you to try to get rid of “bad” information from your credit report even when it’s true? In our opinion it is because you did not ask for credit reports to be pervasive and all-intrusive. The reporting system makes many mistakes, includes false negative information and does not include all positive information, and exists to serve the interests of people who are opposed to you in economic transactions. Why should you be forced to play their game? But if you are forced to do so, why shouldn’t you do the best you can within the rules?
Ethically, the rules are designed to let you challenge information – other people will be doing as much as they can, and the companies using the reports will assume you are doing so. If you don’t, you’ll be overcharged.
We think you should use every tool at your disposal to repair your credit report. Our Credit Repair Manual is designed to guide you through the process, showing you what information to attack and how to do it. In some cases there are things you should not do if you want to increase your chances of winning, and we show you those things and discuss them as well.
Negotiation and Settlement of Debt
This article talks about an important piece of the bad debt puzzle: debt negotiation and settlement. Ideally this can occur without litigation – but you must be aware that if you decide not to pay someone what you owe – or they think you owe – you could get sued.
Pretty much everybody knows what debt negotiation is, at least in theory. It goes like this. Obviously there’s somebody who says you owe a bunch of money, you negotiate, and you end up paying either less than or none of what you supposedly owe. That’s the view from a mile up. Sweet, isn’t it?
It sounds like free money, but it really isn’t. If you think of it as an opportunity for something free, you will not be able to do it – you’ll be left wondering what went wrong as your financial security goes out the window. Instead, debt negotiation and settlement is a cross between a hard-nosed, back-room negotiation and a game of “chicken.”
So What Are You Negotiating? What Are You Settling?
You know, it’s interesting that people rarely ask what debt negotiation is all about – what are you “giving up?” What are they getting in return for the large amounts of debt you hope for them to give up? Suppose you owe a credit card company $20,000 and you have been making the minimum payments most of the time – but sometimes you can’t, so they have hit you with a bunch of fees, and you’re watching the debt pile up at an incredible rate. What do they get if they agree to take a single payment of $1,500?
It feels like you’re stuck – there may be no way you can make payments that would significantly reduce that debt. So what do you have to negotiate with? A whole lot of “nothing.”
You have risk and the difficulty of collection. In other words, you have the fact that unless you agree to pay and really try to do it, they will likely get nothing at all – or will get much less than they could.
That doesn’t sound like much, does it? And yet it is much more powerful than you might suppose. Anybody you owe a lot of money to is feeling the pinch. Even a large credit card bank, which doesn’t need your money for its survival by any means, is watching that debt mount and realizing that every time it gets higher, you get less likely to pay it. At the bottom of your options may be the possibility of bankruptcy, but they know that long before that you will simply stop paying and dare them to sue you.
You Often Get their Attention by Stopping Paying them
In essence, that it what makes debt negotiation work. You stop paying them and dare them to sue you – and then you offer to pay them again, only much less. Sounds crazy, doesn’t it? But it works if you take it seriously and don’t think of it as some sort of gold mine or a way to “get away” with something. Instead, think of it as a significant part of a serious turn-around in your life. It has several costs – you should have no doubt about that, and it is something you do when there are no better choices available. There’s a chance that withholding payments will result in your being sued, and it almost certainly will result in at least a temporary trashing of your credit report. How you manage these risks and costs will determine, more than anything else, how well you do in negotiation.
There are ways to make it work much better than others, though. There are things you can do to manage your risks of being sued, and when the negotiations actually begin, a few techniques that can help. The main thing about debt negotiation and settlement, however, is that it, like other kinds of negotiation, is much less about negotiation than positioning. People only give you what you want because they believe it is the best outcome for them, too – the question is, how to do you give them that feeling when you’re asking to pay ten cents on the dollar of debt? And how do you make the risks to yourself “acceptable?”
How you answer those questions will determine how good a deal you get from your creditors.
Discovery in Debt Law – Our Discovery
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Adversarial Systems
Winning in Debt Litigation – Play the Game for Keeps
Most of us spend most of our time in various sorts of cooperation. We help each other, or at least we try to do what is morally right. In litigation, however, the system is not cooperative and not hierachical. Instead, it is adversary. Litigation is an adversarial system – that means you put aside all the questions about why you’re playing and try to win. If sports, the saying is that “the best team or person wins.” The legal system is designed the same way – the idea is that in a generally fair contest the best case will win. That means you fight hard.
And if you win, you deserve the victory. It helps to be fired up a little bit – then you can do the things that will eventually make you unstoppable. If you are having any trouble getting motivated, you should also look at Debt Collection is a Social Justice Issue.