Tag Archive for: debt defense

Making excuses loses cases

June 3, 2018

No Free Lunches, Ever

For a free copy of this article in pdf form, click here: Making Excuses

There is, in the world, what some people call the “iron law of cause and effect.” What this means is that, for every action, something always happens as a result. No matter why it happened, if it does happen, there are consequences. In plain English, you say it this way: There are no free lunches, ever.

In reality, all of life is like this, even when we don’t think about it.

We pretend the iron law of cause and effect does not apply to us all the time. If we’re late, we apologize, and that’s usually enough to get past the other person’s anger or hurt feelings. If we apologize sincerely enough or give enough good reasons for something we did, it seems like we get away with it. But it isn’t called the “iron law” for nothing. Even if the other person excuses us, he or she thinks we are less dependable. And even if the other person doesn’t think that, we think of it ourselves. We know it. No free lunches.

Sincerity vs. Integrity

Sincerity means not intending to do harm – trying to do the right thing. Integrity means not doing harm, and doing the right thing. Naturally, it is much, much harder to have integrity than to be sincere.

Defending yourself pro se requires integrity.

Substantive Law of Debt

If a debt collector can prove (or if you don’t make them prove) that you borrowed money and didn’t pay it back, it will be entitled to a judgment against you. It’s as simple as that, no ifs, ands or buts. There are events that can destroy the debt – showing payment, that it was based on fraud, or settlement to name a few. But if the debt isn’t destroyed, no amount of sincerity (desire to pay or legitimate inability to pay) will get you off the hook. You will still owe the money, and the judge will still give the debt collector its judgment if it proves its case.

It’s surprising how often people get mad at debt collectors for trying to collect debts they (the people involved) owe but can’t afford to pay. They often feel like the debt collector has done them wrong to think they should pay. But remember this: just because the debt collector has a ton of money and you’re poor, that doesn’t mean they won’t get a judgment against you. Don’t think that way. And a judgment gives them the power to take from you. They will use that power.

Instead, fight and make them prove their case if they can. Require them to prove the debt and their right to it. Luckily, they aren’t so good at that, and if you fight, you have an excellent chance to win – that’s why we’re here, after all.

Excuses in Litigation

We’ve been talking about the substantive law of debt, which is almost absolute. It’s a little murkier in litigation, where excuses CAN make a difference – sometimes. If you make a mistake in doing something, or if you fail to do something you should have done, this can sometimes be excused. If you do make a mistake, you should certainly try to get it excused. The sincerity of your excuse will matter then, so make it good and say it with feeling. And you might get away with it.

But even if you do “get away with it,” every mistake has consequences. As a pro se defendant, you work mighty hard to get the judge to take you and your words seriously. You want the judge to apply the law fairly and consistently – that’s really all you need in most debt cases to win. Any time you ask the judge for something special or make some kind of excuse, you will hurt your chances of that. And all too often, the court will not give you the break it probably should.

Always work your hardest and do your very best to understand the law and rules of your court. As much as possible, you NEVER want to ask the judge for anything she isn’t supposed to do. If possible, you never want to ask the judge to excuse some failure or to cut you any sort of unusual break.

And to get your best, you must give your best. Never make excuses for yourself, and never accept them from yourself. It’s impossible to be perfect, but try not to make any mistakes you don’t have to make. And that is not a “platitude” or boring old saying – it’s encouragement to you to work very hard. The only way to avoid making mistakes is by figuring out things ahead of time and always going the extra mile. You can get away with less in some parts of your life, but you often cannot in litigation.

We have a rule at Your Legal Leg Up. When you’re faced with a question (which happens almost constantly), you must ask yourself whether it’s possible to get a clear, certain answer. If that isn’t clear, then find out – with certainty – whether it is possible to get a clear, certain answer. If it is, FIND that answer. Nothing less will do when certainty is possible. If it is NOT possible, then find out with certainty all the things that matter in determining the issue. You understand? Wherever it is possible to know a thing, you must know it. Never ever guess when you could know.

That’s the difference between sincerity and integrity in debt defense.

Research is Key

Maybe it sounds easy to find certainty when it’s there. If it sounds easy to you, you probably haven’t been working on your case very long, or you’ve been taking shortcuts without even realizing it. You would be amazed, maybe, at how often people do take shortcuts. It is a rare teleconference where someone doesn’t admit to not knowing something they need to know but don’t. And they always have a good reason for it, too. It’s hard – but remember the iron rule of cause and effect. You know something or you don’t; you know you’re doing what you should, or you’re guessing and hoping either that you are or that it won’t matter. And it always matters.

Do your research and find out for sure the things you need to know. Then do the work and make sure you’re doing the thing you must do.

Your Legal Leg Up

Your Legal Leg Up is a website and business dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. As you can see below, we have a number of products as well as memberships that should help you wherever you are in the process. In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many are available to everyone.

Finding Resources

Our website is both a business and a public resource, and you can use it to find information on a wide variety of debt law-related topics. While many of our resources are restricted to members, of course, many more are free to the public. Please feel free to use it. Every page has a site search button in both the header and footer. It’s a little magnifying glass icon that looks like this:

Click on the magnifying glass icon, and a small window opens. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Defending Yourself against a Debt Collector

May 25, 2018

Garnishment and other collection methods

Garnishment of Assets – Can they Take your Wages or Bank Account?

May 3, 2018

Can your wages be garnished by a debt collector? What about bank accounts? Here are some things you need to know about garnishment.

If you have assets, and this includes either a job or money in the bank, you must be concerned about the possibility of being garnished if a debt collector (or anybody else) has a judgment against you.

Bank Accounts

Bank accounts can be garnished and, when they are, it is almost always a surprise to the debtor. What typically happens is collectors obtain money judgments (usually by default) and then use the judgment to freeze the funds in your bank account. State law and banking rules govern how the bank must handle the garnishment process. Collectors always notify the bank first and then notify the debtor. This way your funds are frozen before you can take any action such as withdrawing all your funds.

Their notifying the bank first is perfectly legal. You typically receive the notice (including your rights) a day or two after your funds have been frozen. In most states, the garnishment can not only freeze funds already in your account at the time of service on the financial institution, but can also reach funds that get put in the bank afterward, for a time.

During the time the garnishment is in effect, the financial institution will not honor checks or other orders for the payment of money drawn against your account. This means any outstanding checks will more than likely bounce or be returned for NSF. The exception to this rule is if your account has more on deposit than the amount of the garnishment. In this case, the bank can honor checks up to the amount that will reduce your funds below the amount of the garnishment. When the amount being garnished is paid, the freeze on your account must be terminated.

Wages

Wages can also be garnished, and, again, your first notice that you are being garnished is likely to be when you receive a check that is less than you thought it would be. Federal law limits the maximum amount that can be garnished by one or more garnishment orders to 25 percent of your disposable earnings for that week, or the amount by which disposable earnings for that week exceed thirty times the Federal minimum hourly wage, whichever is less. In simple terms, “disposable income” is whatever money you have left after paying all required taxes and national insurances!

Disposable income is after-tax income that is officially calculated as the difference between personal income and personal tax and nontax payments. In general terms, personal tax and nontax payments are about 15% of personal income, which makes disposable personal income about 85% of personal income.

IMPORTANT: In order for wages to be garnished, disposable earnings per week must exceed thirty times the federal minimum hourly wage or $154.50. Put another way, if you make $154.50 or less per week your wages cannot be garnished – for now and as long as you don’t make any more than that. Also – Social Security and some other types of disability or retirement income are protected from collection.

There are also important state rules regarding garnishment, and if you are garnished, or if you bank account is seized (especially), your first move should be to look at the state laws on garnishment and see if an exemption applies to you. They often will.

But You Should Not Let them Get a Judgment

All of the above being said, you will almost always be much better off it you can avoid letting them get a judgment against you. Things could get better for you in any number of ways. Just because things seem bleak now doesn’t mean that the sun won’t eventually shine. And it isn’t all that hard to keep them from getting a judgment if you know what you’re doing.

If you want help fighting the debt collectors, you should consider our new FastTrack Membership. Go here for more information on debt collection and defense, and how we can help you. We can also help you overcome a default judgment.

Self-Representation in Debt Litigation – Pro Se is Easier than you Think

May 2, 2018

Although hiring a lawyer might be the “gold standard” of defense, lawyers are always expensive. If you’re being sued by a debt collector and can’t afford a lawyer, all is not lost. You CAN represent yourself. This is not complicated law, debt collectors are not innovative or particularly energetic, and the debt collection system is a “factory” approach not designed to work against people who defend themselves intelligently. You can do it.

Okay – maybe debt defense isn’t always very fun. In fact, most of the time it isn’t exactly fun, but it is easier than you expect, and winning is great. Going from the threat of having to pay (somehow) from $1,000 to $50,000 to some debt collector, to having them drop the case – or to settling with you for pennies on the dollar… that’s fun, and it changes the way you look at debt and debt law forever.

Pro se legal representation means representing yourself rather than hiring a lawyer to do it for you. You have the right to do that in essentially any court proceeding, whether as defendant or plaintiff, and whether the matter is civil (for money) or criminal. Pro se is a Latin phrase meaning “for oneself,” and you will sometimes see it called propria persona (abbreviated to “pro per”). In England and Wales, the comparable status is called “litigant in person.”

Some Think It’s Scary

Although many people fear the thought of representing themselves in court, pro se representation is not rare. According to National Center on State Courts in 1991-92 71% of domestic relations (family law) cases had at least one unrepresented party, and in 18% of the cases both parties were pro se. It is a growing trend in debt collection law as well as family law and other matters.

The right of self-representation has long been established in the United States. It predates even the ratification of the Constitution, as Section 35 of the Judiciary Act of 1789—enacted by the first Congress and signed by President Washington, states that, “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.” Most states have a similar constitution provision.

Will the Courts Protect You from Mistakes?

The California rules of Civil Procedure explicitly express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. The Judicial Council justifies this rule with the argument that “Judges are charged with ascertaining the truth, not just playing referee.” And the Council suggests “the court should take whatever measures may be reasonable and necessary to insure a fair trial.”

Although most states and the federal courts share this bias in favor of hearing courts on “their merits,” (based on what is actually fair), pro se litigants cannot rely on any special treatment. Some courts explicitly will not extend favorable treatment to non-professional litigants.

Pro Se Litigants Often Do Very Well

They may not need any extra help. According to Erica J. Hashimoto, an assistant professor at the Georgia School of Law, criminal defendants are “not necessarily ill-served” by the decision to represent themselves. In state court, pro se defendants charged with felonies probably fared much better than represented defendants. Of the 234 pro se defendants studied by Ms. Hashimoto, “just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge.” And just 26 percent of the pro se defendants ended up with felony convictions, whereas 63 percent of represented defendants in Ms. Hashimoto’s study did. In federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants.

Of course there could well be other important variables that the Hashimoto study did not include, but it seems clear that there is nothing like an “automatic penalty” for daring to represent yourself. And as I have pointed out many times elsewhere, there are certain types of cases and situations where pro se representation may actually be an advantage. In debt collection cases, for example, the economic factors often outweigh legal issues, and a vigorous pro se defendant can gain a significant advantage by being able to take energetic steps in his or her favor that a lawyer—always on the clock—would pragmatically be unable to take.

Courts are not always favorable to self-represented people for various reasons, but even with that bias, pro se plaintiffs have recorded some significant victories in civil courts. For example, Robert Kearns, inventor of the intermittent windshield wiper who won more than $10 million from Ford for patent infringement; Reginald and Roxanna Bailey, a married couple, together won $140,000 from Allstate Insurance in a federal jury trial in Missouri, and George Cofield, a janitor, won $30,000 from the City of Atlanta in 1980. Among others. Pro se defendants encounter fewer prejudices and have many more victories. These victories often occur in less easily reportable fashion, being simply the unheralded dismissal of a debt collection action.

Pro Se Representation in Debt Collection Cases

As pointed out above, defendants in debt collection cases have some significant economic advantages in conducting their cases. They also have fewer of the disadvantages that many other types of cases have. This may simply be because debt collection cases tend to be document-intensive rather than witness-intensive. In the somewhat unusual case which actually goes to trial, the court is confronted with basic evidentiary questions: can the debt collector produce enough evidence? And is it “admissible” in court for the court’s consideration? Little finesse is required.

This basic legal simplicity, the fact that debt defendants were obviously brought before the court against their wishes, and the general economic difference between typical debt defendants and plaintiffs often seem to create a favorable impression on the judges.

Get Help

If you would like us to take a look at your case and give you a sort of roadmap to what you need to do and how, take a look at our Personalized Evaluation product. If you’re being sued and already know you want to defend yourself without spending a lot of money on lawyers, then get out Debt Defense System.

Protect Your Rights

If you are being contacted by debt collectors, you need to be alert to protect your rights. These calls are often a prelude to their suing you. You might consider membership with our site, which gets you our ecourses for free, plus gives you many other benefits.Check out some of our e-courses. Or consider our prepaid legal plan to protect you from future possible litigation. With that, if you get sued, you’ll get a lawyer to defend you for free.

Getting Past Default Judgments and Defending Yourself from Debt

May 2, 2018

What is a default judgment and what should you do if a debt collector gets one against you? This video begins to answer those questions.

When a debt collector brings a suit, and a process server hands it to you or a “responsible” member of your household, you have been served and must take actions to defend yourself in court. If you don’t respond appropriately (by answer or motion to dismiss, for example – NOT by sending a request for verification!!), the debt collector will probably get a default judgment.

Most debt cases – perhaps as many as 80% – end in default judgments. Many people who ignore the suit then think the debt case had just, somehow, “gone away” are surprised to learn that the debt collector got a judgment and is now looking to garnish wages. And the way you find that out is not at all pleasant, because it generally happens after the debt collector has found where you work or bank and seized assets or started garnishing your wages. This massively disrupts most debtors’ budgets and puts them way behind.

It does happen, all too often, that defendants are NOT served, but the process server says they were. Then, the way these people find out they’ve been sued is that they get a notice of garnishment (somebody taking their bank account or part of their wages).

They Got a Default Judgment, Now What?

Regardless of how it came about, the first step in stopping the garnishment and fighting the debt lawsuit is to get the judgment against you vacated. And in order to do this, you must file a “Motion to Vacate.”

This video talks about that process and how you would go about vacating the judgment against you, stopping the garnishment (or not, if you’ve learned of the judgment in some other way).

This is a companion to the video, “Procedure for Moving to Vacate Default Judgments.” This video explains why you should try to vacate (remove) a default judgment against you and generally how to go about doing it. The second video goes into a little more detail on that and tells you specifically what documents you will need to file and what they should contain. If you have defaulted on a debt suit and want to try to reopen it (to prevent collection), check out our product: Motion to Vacate Pack.

For much more help, you should consider joining. You can find out about that by clicking here or on “About Membership” in the menu above. If you know what you want, just click here.

Defending Yourself when Sued for Debt

May 1, 2018

What do you do if you’re sued for debt?

Hiring a lawyer sometimes costs more than just giving up, but how can you know the person suing you has a right to do it? And if they don’t, you might have to pay twice.

This video discusses your options and shows you how you can defend yourself and avoid paying unless you absolutely have to. It isn’t “wrong” to protect yourself. In fact, it’s not good if you don’t. The system usually works if you stand up for yourself, but you will lose for sure if you do not. And one thing is for sure: if you don’t protect yourself, no one else will.

The debt collectors want your money, and there isn’t much they won’t do to get it. Don’t let them.

Defending Yourself and Protecting What’s Yours

Why You Will (Probably) Win if you Defend Yourself

A lot of people worry about defending themselves from the debt collector. They’re afraid they’ll have to talk in court and won’t say the right thing, they’re worried they’ll be embarrassed, or they’re worried that the debt collector will have what it needs, and they’ll end up paying more. Actually, none of these things are likely.

Talking in Court

Well, you very well may need to talk in court, at least some, but not as much as you think, and it isn’t as hard as you may imagine either. How can I say that? Because debt law, unlike most other types of law, does not typically involve many, or even any, witnesses. You won’t be called on to make fabulous arguments, either, or go through complicated and amazing thought processes. Most debt cases boil down to just a few issues with only a few arguments. You can make those arguments – helping you do that is why we’re here. Then once that’s done, most of the rest is actually pretty easy and obvious. For a much more detailed discussion of these things, click on the Fast Track link below. That does show you how you can join us, but before that it will tell you much about the process of debt collection (and of course clicking on the article certainly does not obligate you in any way – we’ll never know you did).

You Won’t be Embarrassed

Debt defense is not embarrassing. Again, because the issues are so limited, there won’t be embarrassing questions about your spending habits or whether you owe anybody else money, or anything like that. The questions will be limited almost completely to whether they own the debt and whether the evidence they’re trying to use is “admissible” (allowed in the case). There aren’t many arguments to be made, and we show people how to make them.

Collectors Rarely Have What they Need

Debt collectors rarely DO have the evidence they need in a form that is legitimate, and you can usually keep them from getting it “into evidence.” That means you should win the case. If you don’t, though, the fact that you defended yourself will almost certainly not affect what you owe. That’s because the debt collectors normally ask for attorney’s fees – if they’re going to – in the petition. They have a specific amount in mind, and they plan to try to get that whether or not you defend yourself. So you have nothing to lose by trying to defend yourself in that situation. If you lose, you’ll just pay what you would have if you hadn’t defended, but if you win – as you should – you won’t pay anything at all.

Some Good News

Our mission is to protect people from the debt collection process. If you are being sued by debt collectors, or if you are being harassed for money, you need to take action to defend what’s yours. For much more information on defending yourself, go to Fast Track to Debt Defense.

Is Defending Yourself From the Debt Collectors Hard?

May 1, 2018

How hard is it to defend yourself from the debt collectors? The difficulty is mostly psychological. It can be scary at first, but if you do the things that need to be done one at a time, it isn’t that hard. And you have a great chance to win.

It isn’t that difficult to defend yourself from the debt collectors. It just requires that you do some things that take you out of your comfort zone – more a question of attitude than anything else. The work is really just a series of steps. Each one involves a manageable amount of learning and doing, and the more you do the better you get at doing it.

It will take some work, of course, and sometimes it may be frustrating, but you can do it, and the rewards can really be great. You will be able to do something it would cost you hundreds or thousands of dollars to get someone else to do for you, and you’ll know they’ll never be able to push you around again.

Helping Pro Se Debt Defendants – Letter to new visitors

May 1, 2018

If you’re a pro se debt defendant or thinking about doing that, welcome to our site.

If you are already representing yourself in a debt lawsuit – or if you think you might want to – you will find the help you need here. In addition, you will find hope and encouragement to take the steps you need to take to protect your rights.

It may seem like the deck is stacked against you, but you have an excellent chance to win and get out of this in good shape. That’s because of the way the system is designed – the debt collectors run a factory, and that leaves you plenty of opportunities to protect yourself. We tell you why, below.

Encouragement

As you look at this site, you will probably notice that we spend a lot of time trying to persuade people they can defend themselves from debt collection law suits. The main challenge in self-representation is often just being able to make yourself take the next step. It can seem hopeless or hopelessly complicated, so taking any action can require a leap of faith. We want to help you with that, because most people who represent themselves with our help actually do win.

Tools

Of course it takes more than encouragement. You have to do some right things, but debt law is not all that difficult to understand. With some basic help you will have an advantage in defending your rights.

With a little courage, and help from this site, you will be able to defend yourself competently. Enough to make them take notice. Enough to cost them money. And, often, more than enough to win or make them go away and leave you alone.

You’ll learn something pretty great about yourself on the way. You have power, and you can defend yourself from people who are trying to take things away from you.

Good can come of bad

About the Debt Industry

These are the plain facts as far as we know them.

No one really knows exactly how many debt lawsuits are filed each year. The numbers are not kept in any central location. Our guess is that the number is at least a million per year.

No one really knows exactly how many of these suits are won by default, or even how many actually get served on the defendants. And of those that do get served and defended, no one actually knows how many are won by defendants. The number that lawyers who defend many of these cases usually use is that between 80 and 90 percent of the cases that get served are won by the debt collectors by default. We would estimate from our own experience and observation that around 90-95 percent of the cases are disposed of without a defense –i.e., that defendants either default or settle on the day of court by agreeing to pay everything claimed in the lawsuit.

If that seems like a big number, it is. In most kinds of law the default and give-up rate is much, much smaller. But this will work out to your advantage if you will actually fight.

Of the lawsuits that are defended, no one really knows how many are won by the defendants or the debt collectors, or what the terms of any settlements actually are (nationally). From our experience and research, we would estimate that at least 80 percent of cases that are defended with any significant effort and knowledge are “won” by defendants. We consider a settlement for a small fraction of the amount sought a victory for the defendant.

Of the lawsuits defended pro se by users of YourLegalLegUp, most result in dismissal without payment, and almost all the rest result in settlement for what you might call a “token amount.” It would appear that members of Your Legal Leg Up do much better than those represented by lawyers who do not specialize in debt defense.

A Caution: Not every customer has told me the outcome of his or her case.

You are not alone

Why It Works This Way

The reason it works this way is not magic. It’s simply that debt collectors generally do not have the materials they need to win their lawsuit when they file suit against you.

Because they win most of their cases without a fight, it isn’t worth the expense of getting lawsuit materials before they need them, and the people who sold them the debt do not want to be troubled by it any more. The original creditors actually resist giving the debt collectors the documents they would need to beat you and sometimes destroy the records or make the debt collector promise not to seek them. In other words, the debt industry works by getting people to give up. If you fight – and keep fighting for a while – they may well lose interest or simply lack what it takes to beat you in court.

Lawyers who specialize in debt defense know that debt collectors do not have the materials they need to win and have to spend money to get them. These lawyers know how to expose the weaknesses of the debt collectors’ cases and force the debt collectors to spend money trying to get the evidence they need and defending against counterclaims and motions. The debt collectors know these lawyers and what they can do and choose not to fight most of the time.

Lawyers who do not specialize in debt defense often suggest you settle the case right away. They do not know what debt collectors have or need and find it expensive to try to defend the cases. They often tell their clients that it will cost more to defend than is in dispute in the case. And the debt collectors know these lawyers are not familiar with the debt collection business and take advantage of them.

Pro se defendants who get YourLegalLegUp materials know what the lawyers who specialize know, but they are inexperienced in the courtroom and have to get used to the way courts work.

The lawyers for the debt collectors do not know what the pro se defendants know (at first) and (at first) do not expect or believe that the pro se defendants will continue to fight. As they do continue to fight, however, the pro se defendants become more experienced and comfortable in the courtroom, and the debt collectors become more aware of what the defendants know. They become willing to settle on much better terms because they can see that continuing to litigate will lose them money. As far as I can tell, the longer the pro se defendant is willing to keep fighting, the better the terms get, and often the debt collectors drop the case because they do not want to lose money.