Tag Archive for: discovery

Motion to Compel Cycle

The “Motion to Compel Cycle”

– What to do when the Company Suing You Won’t Answer Discovery

If you’re being sued for debt and following our system, you will serve “discovery” on the other side. That is, you will send them questions to answer called “interrogatories,” requests for documents, and requests that they admit certain things.

We do this because debt buyers usually don’t have the proof they need to establish their case, and even original creditors often don’t. We need to know exactly what they do have so we can prepare to show that it isn’t legitimate evidence. That will be important in resisting any motions they file, in filing our own motions, and preparing for and winning at trial.

You will send discovery, and no matter what you send, you will receive nothing but objections in response. This is called “stone-walling,” and it’s in every debt collector’s playbook. Do NOT just send another set of questions – it doesn’t matter what you ask, they will always object, so that would be useless. They might be stonewalling because they know they don’t have legitimate evidence, but frankly I think it’s mostly just a strategy to convince you to give up – to make you think you don’t have a chance against their lawyers and their money.

Don’t give up. Make them give you your answers.

To do that, you’re going to have to do the things that allow you to file a motion to compel, and then you will, obviously, have to file the motion, too. This whole process is what I call the Motion to Compel Cycle. So what is that?

Look at your rules of civil procedure for the rule on motions to compel. READ THAT RULE!

You will notice, in every jurisdiction I’ve ever seen, that the rule requires you to negotiate “informally” in good faith to resolve the issues raised by the other side’s objections. That is going to require you to call them up on the phone, speak to the lawyer on the other side, and discuss the objections. You will do this in good faith, but they certainly will not. And when you get through with this conversation, you will send them first a confirming letter if they’ve agreed to anything, and secondly what’s called a “good faith letter,” which outlines the items remaining in contention and states your basis for demanding the evidence.

So it goes like this:

Send discovery and wait for response

Call them to discuss objections

Write good faith letter outlining disputes and giving them a certain time to provide the information you demand

Wait for that time to expire

Write and file motion to compel.

It is possible they will respond with an argument. You should reply to that argument, but remember never to make any admissions of owing them or anyone money, of any prior relationship to the creditor, etc. NO ADMISSIONS AT ALL EVER. This is critical because they may slip a question in asking “don’t you owe __ the money?” or “don’t you already have the records? It was your credit card account!”

The only issue you should discuss is whether and why they owe you the discovery. Don’t forget.

This whole process is tedious and annoying because you know they are not in good faith. However, remember this: your efforts are requiring more attorney time spent on your case than many other cases combined would require. You are drawing blood with every minute you make them spend. And it’s the only way you will get what you need.

Remember in your first phone call to ask about EVERY SINGLE OBJECTION. I know there are dozens. Go through each one. It’s your right and responsibility, and it costs them $250/hour to talk with you.

Write a “confirming letter” if they make any concessions at all. Say “you said you would give me __ by [date]” and mention everything they agreed to. If they said they didn’t have anything responsive to a question or request, confirm that in the same way, too. You must create a written record.

You won’t get much, so you have to take the next step, the good faith letter where you say why you’re entitled to the information you request. If you’re using our model discovery, you’ll know what to say here.

They won’t give you anything even after this, in all probability, so your next step is the motion to compel. In that, you will include a statement about the phone calls you attempted, and you’ll attach your good faith letter. The court won’t hear your motion otherwise.

We have materials that could help you with all of the motion to compel cycle, from phone call to hearing.

 

 

Difference between Original Creditors and Debt Collectors

Debt Collector or Original Creditor

For a free copy of this article in pdf format, click here: difference between original creditors and debt collectors

We used to face a simple either/or question in debt defense. Were you being harassed or sued by the original creditor? That’s the person who allegedly lent you the money in the first place. If so, you were dealing with a person who had better rights against you – but some concerns over public perception that could help you. If it was a “debt collector” who had bought the debt from someone else and had nothing else to do with you, you had better rights and a better chance of winning.

Various things have blurred the line somewhat, but it is still worth keeping the distinctions in mind. There are now really three important categories to consider: original creditors, debt buyers, and “debt collectors,” and the last two categories overlap to some extent.

How Debt Arises

Debt can arise in a number of ways. If you buy a club membership, for example, and then stop paying on it, the club is the original creditor. If you stop paying, the club will bug you for a while, and then they may send the account to a debt collector to bug you some more. Eventually, they may sue you or sell the debt to another company. Whatever they do directly to you, however, they must worry about their reputation in the community, and harsh collections might reduce their sales.

This concern, that they needed to have – about reputation, was considered a check on their debt collection practices. The legislature thought that was enough protection against the worst abuses.

Debt Collectors

Debt collectors, by contrast, lack that relationship with the consumer. Their only client is the creditor company or, if they have purchased the debt for themselves, their only loyalty is to their own bottom line. Thus that protection from abusive collection practices was not there, and the FDCPA was designed to put it there.

The emphasis was on how the debt originated and how it came into the possession of the person bugging you. Thus for a long time we simply considered anyone who bought debts as a “debt collector.” Such people or companies had no need to protect their relationship with the public, and so the public needed protection from them.

Supreme Court

The Supreme Court has made things a little tougher for debt defendants by holding that debt buyers are not, by that fact alone, now defined as “debt collectors” under the Fair Debt Collection Practices Act. Legally, a company can be a “debt collector” under the FDCPA if its “principle business” is the collection of debts. But otherwise a debt buyer isn’t necessarily a debt collector.

This will protect some very bad people from consequences for some of their actions, and it will prevent many people from being able to get lawyers to protect themselves from debt lawsuits.

It will also complicate the way you handle your lawsuit against someone who may be a debt collector, since you will have to try to prove the company bugging or suing you is a debt collector. We have changed our model discovery to address that new reality, and if you’re being sued, you will need to take it into account.

New Reality

Unfortunate as the Supreme Court decision was, it’s now the law until and unless it gets changed. In the current political climate, that seems unlikely. So you must bear in mind some practical distinctions.

Debt buyers, whether or not they are “debt collectors” under the FDCPA, will have difficulty getting or using certain evidence in court. The distinction is very important in assessing your defenses against a lawsuit for debt. Debt buyers will likely face major hurdles from the hearsay law, and they won’t have the same records as an original creditor.

You will have more and easier counterclaims against those who are defined as “debt collectors” under the law, but you will need to conduct discovery specifically to prove that they are, in fact, debt collectors.

Original creditors will probably have fewer issues with hearsay and may or may not have many records. They seem to have fewer records and less control over their files than they used to, for whatever reason, so you will need to explore this in your discovery and defense strategy. And you will have a better chance defending against an original creditor than used to be the case.

Difficulty of Defense

It is not more difficult to defend yourself from one group than another. The legal process itself is basically the same. You have to do all the same things to defend yourself, from answering the petition to showing up in court, responding to discovery, and going to trial if necessary. But the content of the discovery as well as the process of the suit, will likely be different. The original creditors will be more reluctant to sue you, but will have more materials to support the suit. The debt buyers will be more willing to sue, but have less material to support their claim, and if you  can prove the other side is a debt collector, you’ll probably have a counterclaim.

Whichever you’re facing, you should defend yourself. We suggest our materials and membership if you’re ready to do that on your own.

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.

The Best Defense is a Good Offense

Debt Law and Motions for Summary Judgment

Get a copy of this article in PDF format: Sometimes the Best Defense is a Good Offense article

If you’re being sued for debt, your case is going to head for a show-down on a couple of main issues. These will probably involve some billing records or some record-keepers wanting to testify. And these are primarily “legal” issues – that is, the facts may be clear and undisputed, and the judge might be able to make the important decisions in the case. When a judge does that by motion and before trial, it’s called a “summary judgment,” and the parties ask for that by filing a “motion for summary judgment.” You will want to consider trying this.

Before we get deeply into motions for summary judgment, let’s discuss the way cases develop, go away, or are decided. It’s really just one process after the case is filed and you’ve answered.

The Way Debt Cases Develop

First, the parties conduct discovery which aims to find out what facts are, indeed, uncontested, which ones are disputed, and what evidence there is in support of them. What this really means is, discovery looks for what you can prove about your case or their case. In debt law, you either want to prove it was all a horrible mistake (if that’s what’s going on) or that the debt collector cannot prove its case. Since most debt cases come from what were at one time legitimate debts, most debt defense boils down to an attack on the debt collector’s case. And you will have an excellent chance of winning.

In your discovery, you will probe for what evidence they have and how they plan to get it “into evidence,” i.e., into the court’s consideration at trial. (Incidentally, our Discovery Pack is designed to help you do this.)

As facts emerge, and as work happens and becomes necessary, the debt collector might decide to drop the case. In fact that often happens, and of course it often doesn’t, too. Sometimes the debt collector will try to shorten things up by motion for summary judgment, but more usually they just want to get to trial as quickly as possible. If they do either one of these things before you have conducted your discovery, there’s a good chance you will be snowed under. Thus you should do your discovery quickly.

You want to aim for the motion for summary judgment right from the time you file your answer. If it doesn’t work, well, you’re halfway to being ready for trial anyway, and you will have started talking to the judge about the issues that matter.

Now to talk more specifically about motions for summary judgment.

Motions for Summary Judgment

A “motion” is just the formal way you ask the court to issue a ruling of some sort. A motion for summary judgment is asking the court to find that all the necessary facts for a ruling in your favor have been established, and to grant you a judgment as to them. It’s possible to get a summary judgment about some parts of a case but not others (a “partial summary judgment” in legalese).  To end the case, you have to get a judgment on all of the claims.

What to Do

If you are being sued, you need to begin with the ending in mind. That is, right from the beginning you should think long and hard about what it takes to win your case. In debt law, the first big challenge most defendants face is to answer the petition – just to take that first step in defending yourself. If you’ve managed that, congratulations. Just by doing that you’ve given yourself a better chance to win than approximately 90% of the other people being sued. And in some cases, to be sure, that’s all you need – the debt collector may walk away right now. But in most cases they won’t.

So your next specific step is to start discovery – the sooner the better. And you should start discovery with the firm goal of finding and proving the things you need to win. We have a product that can help with that, but this video is about the next step following discovery: the motion for summary judgment.

In a way, it’s simple, although this is one time you should never confuse “simple” with “easy.” If they’re alleging a breach of contract, for example, you will discover that they must prove the existence of a valid contract, its breach (failure to pay as agreed), and damages. The burden of proof is on the debt collector as to each of these things, and they have to show it using admissible evidence.

In your discovery, you should have narrowed down exactly what they have to offer as proof. In the case of a debt collector this is usually documents created by some other person, usually the original creditor. And they may have documents or testimony by some of their own employees as well. This material is generally intended to try either to fool the court into believing the other evidence is admissible, or to pull it within the rules of evidence.

Your job will be to look at each bit of evidence and show why it cannot do what the debt collectors want it to do.

Filing a Motion for Summary Judgment

Of course this isn’t very easy, and there are significant procedural requirements, but going through this process increases your chances of winning dramatically in three important ways. First, if you can show your right to a summary judgment, you should win the motion and get the case kicked out. Before that happens, though, you will be putting the plaintiff to the expense and effort of responding, and if they think they will lose (and often even if they think they will win), they’d rather just drop the case than keep going. And finally, even if the court does not rule, or rules against you, you will have learned a tremendous amount about the law and begun the process of teaching the judge what he or she needs to know, improving your chances of winning at trial a lot.

There’s every reason to do it. You just need the energy and courage to try. We can help.

Product Information

Because much of this article involves taking action and creating legal document, we include an addendum of the products we have that can help. First, if you are at the beginning stages of your case and needing to answer (or otherwise respond to) the petition, our First Response Kit is designed to help with that. If you have already answered and need to start (or restart) conducting discovery, our Discovery Pack will help. The Discovery Pack is included within the First Response Kit, so don’t get both. If you are trying to force the debt collector to respond to your discovery, you may want our Motion to Compel Pack.

If they’re filing a motion for summary judgment and you are not ready to file a motion for summary judgment yourself, our Motion for Summary Judgment Defense Pack could help. But if you want to respond to theirs and file one of your own, you will want our Cross-Motion  for Summary Judgment Pack. And if they haven’t file a motion for summary judgment but you want to, that would be our Motion for Summary Judgment Offense Pack. Don’t get more than one of the MSJ packs.

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If They Never Have Evidence Why Do Discovery

People ask me why they should do discovery in debt cases when everybody knows the debt collectors don’t have any evidence. The answer to that question might seem obvious once you’ve been around, but it’s a critical part of defending yourself from the debt collectors.

As we point out in The Most Dangerous Myth, you can’t depend on anybody to do anything for you. You can’t depend on the courts to get rid of debt cases that don’t have evidence. If they did that, they’d get rid of most of them, but that isn’t their job. It’s going to be up to you.

There are a couple of fundamental reasons to do discovery as soon as possible. You have to make them show you what they have or admit what they don’t have. And the process of discovery costs the debt collectors money and often drives them away by itself. In addition, conducting discovery will likely make the judge and the other side take you more seriously and be more cooperative when you need it.

Make them Admit what they Have or Don’t Have

The first, legally-based reason, for pushing discovery despite all their objections and BS is that to win the case you must PROVE they have nothing. Or rather, you must prove that what they have, if anything, is not enough for them to win.

Ideally you could do that by motion for summary judgment, which would spare you the risk and effort of trial.

If you can’t do that, then you must prepare to win at trial.

On the other hand if they do have things, you need to know about it so you can prepare for them.

Now, to be clear, debt collectors, who are always represented by lawyers (they have to be), start with the advantage of the court’s attention and respect. You, on the other hand, as a non-lawyer, will have to earn the court’s respect. Maybe it’s not fair, but that’s just the way it is.

And one result of this is that you simply cannot count on the court to pay close enough attention to any arguments you make unless you give it time. A motion for summary judgment – win or lose – is the best way to present your arguments about the debt collector’s evidence to the court.

In order to do that, you must know, in detail, what that evidence is and where it comes from.

Discovery is Expensive for Debt Collectors

The debt collector is almost certainly going to object to every single request or interrogatory you give it. They can’t help themselves, and it’s usually a good tactic because it drives so many defendants into submission. But it’s a two-edged sword, and when you’re pro se and determined, their objections will be a large advantage for you.

Part of filing a motion to compel answers is an “informal conference” and attempt to negotiate discovery disputes. You will have to call the other side’s lawyer up, ask him or her why she objects to each item of discovery, tell her why you want it, and argue each objection. And their objections will be numerous, absurd, and repetitive. They’ll object, for example, to your request for information about the alleged purchase of your debt on the basis of attorney-client privilege. In all likelihood no lawyer will have been involved – or it will be strictly in an arms-length transaction where no attorney-client privilege ever applies. And they’ll make many other absurd arguments.

Take your time. Take their time. And know that it’s costing them about $200 per hour for you to do so.

Find out whether they actually have anything they aren’t giving you. If they say they don’t, then once you confirm the message you’ll have what you need for the summary judgment motion. If they say they do, keep fighting until you know exactly what it is. Again, all this is costing them a LOT of money.

And nothing makes a debt collector rethink the wisdom of suing you more than having to spend money. Not even it looking like you can win the case outright.

Conclusion

So go through the process. Chances are good that they’ll either give up or you will have what you need to win by the time you get through. And there’s no other way to get to that point.

 

How to Create Good Faith Letter

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Court Involvement in Discovery

What is the court’s involvement in discovery? Does it oversee interrogatories, requests for production and requests for admissions?

In most jurisdictions, there is no court involvement in the discovery process unless and until a motion to compel becomes necessary. Even in those jurisdictions, a lot of people will send a “notice of service of discovery” which simply informs the court of the date and type of service certain discovery was served on the other side: “On this date, defendant served his first set of interrogatories, requests for admissions, and requests for production on plaintiff by first class mail, postage prepaid, at the address noted below as the service address.”

Perhaps a very few courts require this by local rule. For other courts, it probably does not hurt and may occasionally do some good. If, for example, some issue of notice arises, parties are usually held responsible for knowing what was in a notice to the court. I’m not aware of that ever actually making a significant difference, however, and most lawyers do not send such notices unless required by rule.

In a very few courts – I just heard of one shortly before writing this article – the courts still take copies of the discovery. That’s a question you could ask a court clerk and probably get an answer, because if they don’t want it, they really don’t want it. That is, for most courts if you send them a copy of the discovery you sent to the other side, the court will return it to you and not accept it.

The Way Discovery Works

What happens is simple. You serve discovery directly to the other side. They answer, object, or ignore you.  If you take no further action, nothing will happen. No one looks out for you! Some people think that’s wrong, but the court gives the parties the freedom to choose their fights, and if you don’t fight about it, the court is only too happy to forget it.

Specifically this means that if you serve discovery on the other side and they ignore it, the court will probably not prevent them from using things they should have given you at trial. If you want to protect yourself you have to follow through.

If you want to force the debt collector to answer, you must file a motion to compel (and typically you have to send them a “good-faith” letter to try to get them to agree to answer, first). Then you attach all your discovery requests and their answers and objections, and file it with the court. That’s the first time the court will see it, so your motion to compel has to be thorough and complete.

And there’s more. After the other side responds, you will need to “call” (schedule your motion with the court) and argue it in front of the judge in order to get the court to rule. The court will either sustain their objections or overrule them and order them to answer the requests. It will usually give them a little time to do that.

At the argument and in your motion, you have to go through each item of discovery and every objection one at a time. It can be maddening, but you are asking the court to rule on a long series of objections, and it must make up its mind on each separate thing.

 

Discovery – Starting to Win your Case

It is not necessary to begin discovery at the time you file your Answer and Counterclaim, but if it is at all possible for you to do, it gives you a big advantage.

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Push or Be Pushed – Get that Discovery Started

In the law, it is push or be pushed. That is, if you aren’t already pushing the debt collector to give you discovery or respond to motions, chances are good that they will be giving you things to do. When you’re pushing them, your chances of winning go way up. When they’re pushing you, they go down.

You might not think it would have to be that way. There’s usually plenty of time given to do everything that needs to be done and that the law expects both sides to do things at basically the same time. But theory aside, the reality is that people – lawyers included – will usually do what is pressing them first. And then they may – or may not – do the rest of what they should do.

People in general, and lawyers especially, make sure they’re pretty close to being as busy as they can be. And this inevitably means that choices will have to be made when and if things get tighter. If you push the debt collectors to answer your discovery, in other words, they very well may choose to skip discovery on you. If you skip discovery on them, you will soon discovery they have plenty enough time to keep you busy. That’s just the way things work.

So if you’re in a case where they’ve already served discovery on you, you’re going to have to do double duty – make sure you serve your discovery on them before you give them your answers. If you don’t, the next thing you know they’ll be filing a motion for summary judgment against you.

Better yet, make sure you are first out the discovery gate – and then keep tightening the screws. Serve discovery on them along with your Answer. This requires you to be prepared for your case pretty quickly, but it will pay off in a big way down the line.

Make them Answer Discovery

Read more

Importance of Early Discovery

Read more

Discovery – Requests for Documents

This is going to be a brief article. For a fuller discussion and samples, look in the Litigation Manual and Forms. Still, you should be able to create your own after reading this. If you do not already own the Debt Defense System, you should consider it. Membership with us allows us to help and guide you every step of the way.

As with other discovery, Requests for Documents are controlled by the rules of civil procedure for your jurisdiction. And there are two sets of rules you must consider: your state rules in general and, if you are in some sub-court of the state, the rules regarding your court; and your “Local Rules” if your court has them.

Sub-Courts

An example of what I mean by “sub-court” might be what we have in Missouri, Associate Circuit courts. These are courts that are designed to handle smaller amounts of money. Or small claims courts (even less money). Many states have similar types of arrangements, and these sub-courts will have their own special rules, and these rules always control when and how much discovery you can conduct. I normally suggest that people avoid these courts because the can be a little too relaxed about the rules. Relaxed rules may seem “easier” for you, but in reality what they do is let the debt collectors get information in that they couldn’t otherwise – and your best chance of winning is to keep that evidence out.

Even if you’re not in that sort of sub-court, your court may have “local rules,” which are rules designed to elaborate on your state’s rules of civil procedure. The rules of civil procedure will create the general structure of discovery and set the penalties for not cooperating – the local rules will establish certain limits: only a certain number, for example, or that they must be in a certain format (not “compound,” usually, meaning without sub-parts).

Whatever the situation, you must find the rules controlling your discovery, or you may do something wrong, giving the debt collector an easy out. To find your rules of civil procedure, follow this link. Any special rules may be mentioned in your rules of civil procedure or in your court’s web-page. I am not aware of these rules – but you must be.

Content of Requests for Documents

The term “document” for purposes of requests is very broad and contains things like electronic records, facsimiles, any non-identical copy of a record, etc. The term is usually defined in the rules of civil procedure, and the way you would define it is to refer to that rule: “by requesting documents, defendant intends all documents as defined by Rule ___, ____Rules of Civil Procedure.

What You Request

You want everything thing the debt collector could use to support its case or attack yours. At a minimum you should ask for any document in their possession or control which you signed or which they contend applies to you in any way. You want all documents relating to the amount or terms of any alleged debt, every document showing or relating to any agreement you made with them, including any notes or comments. You want every document showing or relating to anything you said. If you have a counterclaim, you’ll want to create requests that get everything they have related to that.

Standard

The standard for requests for production is that you are asking for documents in their possession or control. Possession is obvious, but control includes documents that other people have created for them or in support of their business: accountant’s records, for example, or account records (of your account) if the original creditor agreed to provide them if requested. If these documents are not provided or objected to, but then they try to use them at court, you should request to have them excluded from trial.

Objections

When the other side objects – as they will, to everything you ask – you will, eventually, have to eliminate those objections so that you can be sure you have everything they have. Just because they deny having something you would expect them to have, though, does not mean you can file a motion to compel. Rather – once they have answered, you pretty much have to take them at their word for not having stuff they say they do not have. That is, unless you have evidence they are actually hiding something.