The Local Rules are rules enacted by the specific court your case is in, and they often control the timing and form and number limits of discovery as well as containing extremely important information about how a trial will proceed and what you have to do to place evidence in front of the court. In other words, finding the local rules is absolutely crucial to defending yourself.
Rules of Civil Procedure
Let’s start with rules that every legal jurisdiction has: Rules of Civil Procedure. You can easily find these by Googling the name of your state and the phrase “rules of civil procedure.” Or you can go to Rules of Civil Procedure and find your jurisdiction.
Organization of Rules of Civil Procedure
In most jurisdictions, the rules of civil procedure are part of a larger body of court rules enacted by the legislature (in the states) or the Supreme Court (in the case of the federal rules). These are the rules that control every aspect of the legal process, from the qualifications and ethical rules of lawyers and judges, through the appeals and other “collateral” challenges. They cover everything, and they are, as much as possible, in an order related to how they would come up in an ordinary case. That means that for the most part, the rules controlling the beginning of a case – filing it and getting it served – are at the beginning of the rules, and stuff that comes later, like discovery, comes a few rules later. That will help you figure out where things are.
Federal Rules
In the federal jurisdictions, courts are governed by the Federal Rules of Civil Procedure. Most of the jurisdictions also have what are actually called “local rules.” These rules are, in many courts, numbered exactly like the Federal Rules of Civil Procedure. Which is to say that the Local Rules controlling discovery have the same number as the Rules of Civil Procedure that they are modifying. An example might make it easier to understand.
Federal Rule 26 is the general rule that controls discovery in federal cases – there are several other rules that apply to specific parts of the discovery process. Rule 26 provides a general framework for the discovery process, but it does not limit how many questions you are allowed to ask in interrogatories or what the form of those questions must be. That’s what the Local Rules do, fill out the general rules and apply various limits that will apply within certain “local” jurisdictions, so there is a “Local Rule 26.” The local rules might provide, for example, that a party can only ask 25 or 50 interrogatories, or that those interrogatories must take a certain form.
Other Jurisdictions
Other jurisdictions do NOT follow the federal rules. They have their OWN rules, starting, of course, with the state rules of civil procedure. They may have local rules that would govern your specific court or type of court, including, most likely, the discovery process. And some jurisdictions have “approved” interrogatories or requests for production. These are in a form that the courts have specifically ruled is acceptable, although that wouldn’t stop you from objecting on other grounds (e.g., that they are not relevant to your case).
It is beyond the scope of this article, or my materials generally, to provide the location of every jurisdiction’s rules. They all have different ones, if they have them at all (and not all courts do). Nevertheless, knowing those rules for your jurisdiction is crucial. You must find the rules that control the game you are playing.
Finding the Local Rules
In the federal courts – which will only apply where you have brought a claim under a federal consumer protection law – finding the local rules is simple. You can either look it up in the federal website for your jurisdiction under “local rules” or ask a court clerk to point you in the right direction.
It’s tougher in the state courts. In the state courts, you start with finding the correct rules of civil procedure. As I have often pointed out, debt cases are often brought in courts of lower jurisdiction – called “Associate Circuit Courts” in Missouri, for example. These courts often operate on slightly different rules than the Circuit Courts which must follow the state rules of civil procedure. Sometimes the rules for your court will be embodied in a special rule within the rules of civil procedure, and sometimes the rules will occupy their own area of the rules of civil procedure.
First, figure out what jurisdiction you are actually in. Is it the courts of general jurisdiction? Or is it some sort of more limited court? At the top of the petition will be a header that looks like this:
In the Associate Circuit Court
of St. Louis County
State of Missouri
That tells you what your jurisdiction is. Google that court. So in this case, Google “Associate Circuit Court,” “St. Louis County,” and “Rules of Civil Procedure.” This will bring up references to the specific rules that control your jurisdiction. Or go to your court’s website and look up “Rules of Civil Procedure” or “rules of court” or “local rules” or something like that and see if you can find the rules that will control your case.
Original Creditor or Debt Collector?
The question of the month has to do with a petition brought in the name of the original creditor – is that who is suing you?
Member question is, if the summons and complaint list the original creditor but at the bottom of the summons and complaint it has “this communication is from a debt collector” am I dealing with the original creditor through their attorneys or is this a debt that they have transferred/sold?
My answer to this question used to be, always, that if the case was brought in the name of the original creditor, that’s who you should think actually was suing you, but my answer has changed somewhat. Now I would say that if you have any doubt about who is suing you, you should pursue the question in discovery. Specifically, that means asking interrogatories regarding whether the debt has ever been sold, and if so, to whom.
It Can Be Hard to Know Who Is Suing You
My new-found skepticism on this issue comes from talking with an ex debt collector who reports to me that debt collectors do (often, he says) sue in the name of the original creditor.
As I pointed out in In the Shoes of the Original Debt Collector, it is deceptive for the debt collector to pose as an original creditor. While certain of the rights of the debt collector are the same as, and are derived from, the rights of the original creditor, the law very definitely and explicitly regards debt collectors are different from original creditors. And original creditors are treated more favorably in the law than debt collectors. So it is a violation of the Fair Debt Collection Practices Act (FDCPA) for debt collectors to bring suit pretending to be the original creditors. That is so obvious, and bringing suit in the name of the original creditor would be such a blatant violation of the law, that I have always doubted that any debt collectors would dare to do it.
I, of all people, should know better! However, it is still true that the mere fact that the petition says “this is a communication from a debt collector…” does not mean you are being sued by a debt collector and not the original creditor when the original creditor’s name is on the suit. Lawyers are often cautious, and do a lot of things by routine and with forms, and so they could have put the warning on there unnecessarily.
However, if you have any suspicion that your debt has changed hands, but you’re being sued in the name of the original creditor, you should explore the question in discovery. And if you find out you are, in fact, being sued by a debt collector, I suggest you very strongly consider bringing a counterclaim under the FDCPA for deceptive and unfair debt collection practices. It should be a winner.
Local Rules and Discovery Limits
The Local Rules are rules enacted by the specific court your case is in, and they often control the timing and form and number limits of discovery as well as containing extremely important information about how a trial will proceed and what you have to do to place evidence in front of the court. In other words, finding the local rules is absolutely crucial to defending yourself.
Rules of Civil Procedure
Let’s start with rules that every legal jurisdiction has: Rules of Civil Procedure. You can easily find these by Googling the name of your state and the phrase “rules of civil procedure.” Or you can go to Rules of Civil Procedure and find your jurisdiction.
Organization of Rules of Civil Procedure
In most jurisdictions, the rules of civil procedure are part of a larger body of court rules enacted by the legislature (in the states) or the Supreme Court (in the case of the federal rules). These are the rules that control every aspect of the legal process, from the qualifications and ethical rules of lawyers and judges, through the appeals and other “collateral” challenges. They cover everything, and they are, as much as possible, in an order related to how they would come up in an ordinary case. That means that for the most part, the rules controlling the beginning of a case – filing it and getting it served – are at the beginning of the rules, and stuff that comes later, like discovery, comes a few rules later. That will help you figure out where things are.
Federal Rules
In the federal jurisdictions, courts are governed by the Federal Rules of Civil Procedure. Most of the jurisdictions also have what are actually called “local rules.” These rules are, in many courts, numbered exactly like the Federal Rules of Civil Procedure. Which is to say that the Local Rules controlling discovery have the same number as the Rules of Civil Procedure that they are modifying. An example might make it easier to understand.
Federal Rule 26 is the general rule that controls discovery in federal cases – there are several other rules that apply to specific parts of the discovery process. Rule 26 provides a general framework for the discovery process, but it does not limit how many questions you are allowed to ask in interrogatories or what the form of those questions must be. That’s what the Local Rules do, fill out the general rules and apply various limits that will apply within certain “local” jurisdictions, so there is a “Local Rule 26.” The local rules might provide, for example, that a party can only ask 25 or 50 interrogatories, or that those interrogatories must take a certain form.
Other Jurisdictions
Other jurisdictions do NOT follow the federal rules. They have their OWN rules, starting, of course, with the state rules of civil procedure. They may have local rules that would govern your specific court or type of court, including, most likely, the discovery process. And some jurisdictions have “approved” interrogatories or requests for production. These are in a form that the courts have specifically ruled is acceptable, although that wouldn’t stop you from objecting on other grounds (e.g., that they are not relevant to your case).
It is beyond the scope of this article, or my materials generally, to provide the location of every jurisdiction’s rules. They all have different ones, if they have them at all (and not all courts do). Nevertheless, knowing those rules for your jurisdiction is crucial. You must find the rules that control the game you are playing.
Finding the Local Rules
In the federal courts – which will only apply where you have brought a claim under a federal consumer protection law – finding the local rules is simple. You can either look it up in the federal website for your jurisdiction under “local rules” or ask a court clerk to point you in the right direction.
It’s tougher in the state courts. In the state courts, you start with finding the correct rules of civil procedure. As I have often pointed out, debt cases are often brought in courts of lower jurisdiction – called “Associate Circuit Courts” in Missouri, for example. These courts often operate on slightly different rules than the Circuit Courts which must follow the state rules of civil procedure. Sometimes the rules for your court will be embodied in a special rule within the rules of civil procedure, and sometimes the rules will occupy their own area of the rules of civil procedure.
First, figure out what jurisdiction you are actually in. Is it the courts of general jurisdiction? Or is it some sort of more limited court? At the top of the petition will be a header that looks like this:
In the Associate Circuit Court
of St. Louis County
State of Missouri
That tells you what your jurisdiction is. Google that court. So in this case, Google “Associate Circuit Court,” “St. Louis County,” and “Rules of Civil Procedure.” This will bring up references to the specific rules that control your jurisdiction. Or go to your court’s website and look up “Rules of Civil Procedure” or “rules of court” or “local rules” or something like that and see if you can find the rules that will control your case.
Getting the State to do the Dirty Work
There is a disturbing trend in debt collection these days: getting the state to do the dirty work of intimidation and collection.
In some jurisdictions, notably Illinois, debt collectors are actually managing to get people who supposedly owe them money thrown into jail. This is obviously a dirty trick and happens primarily because the debt collectors are managing to set cases for trial where attendance in mandatory; whereas in most civil cases failure to show up for trial results in a default judgment, in these cases the judge issues a warrant for arrest.
The subject of this Scam Alert, however, is a little different. A scam involves trickery and deception, and that is what is happening in Missouri and elsewhere. In some places, Payday loan companies and other vulture companies are issuing short-term loans. What they do is require a post-dated check for the repayment.
Of course if you have a job – and keep it – and the post-dated check is made with that in mind, then when the money rolls in, you just pay off the debt.
Of course you do it at heart-breaking interest rates, but at least theoretically that is what you bargained for, and there’s no real confusion about what the deal is costing.
The problem comes in if something keeps you from getting that money you expected. In most loans, if you fail to make a payment you can be sued, and generally it is not a fun thing to be sued. If you have written a post-dated check, however, if you fail to make the payment (and cover the check), you are immediately subject to a civil penalty doubling the value of the check (in Missouri), and you may also be prosecuted to passing “bad checks.” Many lawmen are willingly allowing themselves to become the hitmen for these loan companies.
This is a “scam” because no one tells the people borrowing the money that failure to pay could result in an instant doubling of the loan or criminal prosecution, so payday loans, which charge such a high rate to account for the fact that people so often cannot make the payments, gets an extra level of security against default. And foists the risk of criminal enforcement onto people who don’t know what is happening.
It is also a perversion of the law.
Bad check laws were created to protect people who trusted the people writing them checks – writing a check is, legally, a sort of guarantee that the check-writer has the money to pay for the check in the bank at the moment the check is written.
Writing a check without the money in the bank is a type of fraud. But when a payday loan company accepts a post-dated check in exchange for a loan, they know the money is not there. There is no fraud when the check is written – and fraud requires that the intent to rip off the victim be present at the time the action which does rip them off (writing the check) is done. What’s happening here is that people who made a mistake about having money at a certain point in the future are being thrown into jail for that mistake. And the people on the other side of the transaction – the payday lenders – are perfectly aware that their customers have trouble with money – that’s who they target.
It is morally totally wrong for this to happen. But it is happening. So the lesson is, never pay for a loan – any loan under any circumstances – with a post-dated check. If the money isn’t in the bank, do not use a check.
How Debt Troubles Start
Life History of a Debt
This continues the series of videos for people being harassed or sued for debt, and in this video we’ll look at the way debts evolve – from bills you can pay without problem, to bills you do have problems paying (or don’t want to pay), through the “charge-off” and sale of the debt to the debt collector.
Tomorrow we’ll lok at the “moral” duty to pay debts, and then we’ll move on to possible solutions to debt troubles.
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Dispute and Debt Verification under FDCPA
Within five days of first contact, a debt collector is supposed to identify itself and advise you of your right under the FDCPA to seek verification. This right will also have what we call the “mini-Miranda,” which is notification to you that the communication is seeking payment of a debt (alleged debt) and that any information you provide will be used for the purpose of collecting that debt. You should dispute the debt and demand verification.
Disputing – A Step toward Protecting What’s Yours
Mini-Miranda
You must take the mini-Miranda seriously. Debt collectors often record, and always at least make notes of, anything you say. They are building a file on you from the first time they contact you. You should remember that anything you say that reveals financial information will be remembered by the debt collector, and that anything you say that sounds bad for you, like cussing or name-calling, may come up again at a bad time for you. This is why I say that silence is golden with debt collectors.
Verification
The other right you are told about, of course, is your right to seek “verification” or “validation.” If you request it within thirty days of receiving notice of your right, the debt collector must validate the debt and notify you before taking any further action on the debt. For some reason, debt collectors often will not do this if you seek verification, but instead will either ignore the request or sell the debt and move on to greener pastures.
What Is Verification?
Verification is not a clearly defined term. It was certainly not required as a means of slowing the debt collection process substantially. It appears to be almost a pure formality, but it does at least, according to most courts, require the debt collector to contact the original creditor and make sure, in some vague sense, that the debt is supposed to involve you. If that sounds vague or minimal to you, I’m sure you’re right. But it is an actual obligation that the debt collector take some time and do something besides harass you, and it does require them to stop harassing you, and it may give you a claim against them if they continue bugging you before verifying the debt. These are all good things.
And it often makes them go away entirely.
Talking with Debt Collectors
If you have debt troubles at all, you’re probably going to be getting calls from debt collectors. Should you answer them and speak to the debt collectors? If so, what should you say? Usually you should not say anything at all, but if you have something you need to say, say it and then hang up.
Most of the Time, Silence Is Golden
Most of the time you should not be talking to debt collectors unless you have a specific, well-defined reason to do so. Otherwise, you can end up making their life a lot easier – and yours a lot harder.
There is almost no reason to talk to a debt collector. If you HAVE all the money they want, and you want to pay it, then it would make sense to negotiate. If you think you have enough to make a deal, you might also negotiate, but you should remember not to admit anything. YOU CAN ALWAYS NEGOTIATE A SETTLEMENT WITHOUT ADMITTING THAT YOU OWE THE MONEY. People ask me that all the time – and yet everybody knows that companies settle lawsuits all the time without admitting they did anything wrong. You can do it because the assertion of a claim, or the threat (or existence) of a lawsuit is a threat. You settle to make that threat go away.
If you don’t have enough money to make a deal for at least 70% of the debt, it’s usually a bad idea to attempt to negotiate beyond a very preliminary stage. The person you’re talking to doesn’t have authority to make such a deal. So you can say you might pay 10% of the debt, but it would make no sense in attempting to negotiate beyond that. You will need to talk to someone higher in authority. You could ask to speak to that person.
Beyond that, anything you say will likely just be wasting your energy and time and may lead to other trouble. Remember that your dispute, in order to force verification, needs to be in writing, so you can tell the debt collector you dispute the debt but don’t forget the dispute letter.
Debt and Moral Duty
Should you Pay a Debt Collector?
Should You Ever Give a Debt Collector Money? And What If You Have?
Should you ever give a debt collector money? You could be asking for big trouble if you do.
Giving the debt collectors money can have many bad legal results. It can revive a debt, starting the statute of limitations all over again. And the debt collectors will argue that you admitted the debt if you make a payment. So should you ever make a payment? Rarely. And you should make a part-payment even far less often than that.
Instead, you could make a payment if you have a written agreement AND HAVE IN YOUR POSSESSION at that very moment all the money you agree to pay. If it’s an old debt, agreeing to terms to pay over time is a recipe for disaster.
Defend Yourself – No one Else Will
If you’re being sued, you’re going to have to defend yourself – there’s no magical solution, and you will lose if you ignore the suit. Please don’t think that just because you’ve never heard of this debt or don’t think you owe it for any reason, you will win. Once you’ve been served with a lawsuit, you will lose if you don’t take steps to win it. Nothing is automatic.
And the lawyer on the other side just wants to win as quickly as possible. He or she has very little interest in “doing the right thing.” It’s up to you to protect yourself.
If you are being sued for debt, you must defend yourself. What that means, very simply, is actually proving you don’t owe the money to anyone – or, more likely, that the plaintiff cannot prove you owe it to it. There are simple ways to do this (not necessarily easy), and our job is to help you use those methods.
Anything that promises or appears to be an easy or automatic way to win is probably a mistake or a scam.
No Free Lunches
There are other products out there for people being sued for debt, and some of them will encourage you to invoke magic words like “fractional reserve banking” or other concepts which, though legitimate in their place, will not drive the debt collectors out of your life.
Remember that there are no free lunches for regular people in this world. The judges are not concerned about the U.S. Money supply or system, and they are not concerned about any abstract rights of yours at all. You’ll be lucky if you have a judge who understands what hearsay is and doesn’t want to allow the debt collector to use it. Trust me on this. If this case reaches litigation, you must be prepared to understand the way debt law actually works, tell the judge how it works, and hold the judge to his or her job of making sure the trial is fair.
Luckily you can do all that. If you spend your time invoking the ghost of Andrew Jackson or fighting the monster of Jeckyl Island, claiming that the government sold you somewhere as part of the Social Security program, or other, similar ideas, you will lose the case. Debt collectors have a tough time proving what they must prove to be able to win. Don’t let your desire for a shortcut to victory make you lose.
Do not get fancy when defending
As I have pointed out elsewhere, there are other products out there that will tempt you in various ways. One way is to find a shortcut. Another, equally dangerous thing, is to try to hide behind legalese. You may think you’ve found an excellent phrase, like “I know nothing about what you’re saying and therefore deny…”, but you could be burying yourself under an admission. (In this case, that you “know nothing about…” – the denial is a conclusion with no real impact, but admitting you know nothing? – that’s a fact you’ve just admitted.)
Don’t Try to Hide behind Legalese against Debt Collectors
I have recently had a customer tell me she bought a package that told her to answer requests for admissions with “after reasonable inquiry, defendant cannot either admit or deny… [each request].”
It sounds so much more reasonable, doesn’t it, to say “defendant has no knowledge to admit or deny…” or “after reasonable inquiry defendant cannot either admit or deny…” requests for admissions or allegations in petitions. The problem is, if you cannot admit or deny, and the debt collector alleges, there is nothing in opposition to the debt collector’s allegations. The debt collector just says, “defendant admits that, after reasonable investigation, she cannot deny…”
The standard for judgment on the pleadings is no genuine issue of material fact.
Just deny what you can. And you can deny anything you don’t have to admit in almost every jurisdiction. Don’t get fancy. Hiding behind fancy sounding legalese is, in the final analysis, just hiding. The judge knows it, and the lawyers know it. You know it too – or you wouldn’t try it.
You have very strong arguments to make in terms of law and justice. The debt collector has an extremely tough burden to carry. Your every effort should be to make that burden crystal clear – and to prove that the debt collector cannot do it. Legalese of any sort will simply distract from this sharp, clear mission. A clear, rigorous reading of the facts and law is your friend. Vagueness is your enemy. Products which encourage you to hide behind legalese invite you to disaster.