Sometimes a Rain Dance is Just a Dance – – and it Rains (Pt. 2)
This is part two of this video and article. In the first part we talked about how some people do a bunch of things which may or may not be effective, and win their cases. Sometimes this is from sheer amount of effort, which causes the debt collector to think the whole thing will be more trouble than it’s worth. Sometimes it’s from doing something right (among all the things that are done). Sometimes it’s just from doing ANYTHING at all.
The point is, just because someone wins a case doesn’t necessarily mean that any one thing he or she did “worked.” Sometimes you just get lucky.
There is some (essentially random) luck, but most luck comes from doing the right things. Knowing how to do these things the right way gives you your best chance to win. Our materials help you figure out how to do the right things.
How Debt Lawsuits begin
A debt lawsuit starts with a “petition” (although it is sometimes called a “complaint,” and there may be other names for it, too). This is the statement that you supposedly owe the debt collector money, some legal reasons why the court should order you to pay, and a “request for relief” (also known as the “wherefore clause”). The debt collector can file this petition with the court without any permission from the court. When they file it, the also get a summons.
Some courts let the debt collectors write up and send the summons, too, although technically it comes from the court. The debt lawyer, as an “officer of the court,” writes it up, a clerk stamps it (or they may come pre-stamped), and the power of the court – over the case and over you – has been invoked. The summons tells you when to be at court and what to expect (“default judgment for the amount sued upon”) if you fail to show up. In all courts of which I am aware, proper service of the summons, which can happen in several ways, is necessary for the court to have jurisdiction over you. It is a constitutional requirement, but just what the constitution requires isn’t always clear, whereas the rules usually are.
What the debt collectors know is that somewhere between 80 and 95% of people who are served will not show up in court. If you do show up, and the other side does not, you should immediately ask that the case be dismissed, and many courts (perhaps most) will grant that motion. That would be lucky – but only if you were there and knew enough to request the court to dismiss the case, as absent the request the courts will often simply continue (postpone) the case until the next court date.
Assuming the other side actually appears for court as scheduled, your next step is (a) either to move to dismiss the case or (b) answer the petition. Check your rules to see what the rules of pleading are, and if the plaintiff’s case does not comply with those rules – and they almost never do in Pennsylvania, for example – you might file a motion to dismiss or its equivalent (Preliminary Objections in PA). Often enough they don’t comply in whatever jurisdiction you may be in, and a motion to dismiss can be a quick way out of the lawsuit. Or you may file an Answer. Whichever action you take, the debt collector might choose to walk away from the suit at this point. As I have often pointed out, there are a lot easier people to chase than those who file bothersome Motions to Dismiss or Answers.
Often the debt collector will not walk away at this point, thought, so the next thing you must do is both serve discovery on it and answer discovery if they serve it on you. It is important for anybody to serve discovery on the other side first, but especially for pro se debt defendants. You would never believe the games the debt lawyers play if you don’t see it, and you want to see those games in action before you start responding to their discovery.
Sometimes the mere service of discovery drives the debt collectors away, but most often, of course, it does not. You will receive vague and unresponsive “answers” like “pursuant to national banking regulation, credit card applications need not be retained beyond a period of two years” (What does that say, anyway?) or “Plaintiff is conducting a search for records and will make them available to defendant as they come into Plaintiff’s possession.” It is the task of the pro se defendant to push past these objections and vague statements to discover what, if anything the debt collector has, and to force it to admit it has nothing more. This, of course, is the reason for a motion to compel. If you do that appropriately, the chance of the debt collector dropping the case is actually pretty good.
Not Bad Faith or Frivolous
Performing legal actions with no reason other than to increase the cost and effort the other side must undertake in order to win its case is “bad faith” in litigation. An action with no reasonable basis in law or fact is “frivolous.” Both of these sorts of forbidden actions and motives can create significant problems for a person caught doing them. None of the actions listed above, however, come anywhere close to these forbidden zones: they all accomplish purposes for which the discovery and pleading rules were designed. The motions seek to weed out unwinnable claims, and the discovery probes the other side to find out what, if anything, they have in support of their claims. Following this broad pattern, you are not only increasing the chances that they will walk away at any point leading up to trial, but you also increasing your chances of winning if the matter does go to trial.
Lawyers are constantly performing a balancing act, always deciding whether it is potentially more profitable to act in one way rather than another. This is not because lawyers are greedy – although many of them are, of course – but is in fact part of their ethical responsibility to act in ways which promote their clients’ interests. These interests are virtually always financial, and thus as you continue to defend yourself with skill, you raise the issue more and more insistently that the lawyer would be better off pursuing other claims.
When your skill has actually pushed the lawyer to take the step of cutting you loose, you are “lucky,” and the debt collector drops its suit. If you have a pending counterclaim at this point, you can force the debt collector to dismiss your case “with prejudice,” which it means no one could ever sue you again for the same debt.