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Tag Archive for: procedure
Sometimes a Rain Dance is Just a Dance – – and it Rains (Pt. 1)
Have you seen some of those sites by people who have been sued by debt collectors? They start out saying something like “I was sued by a debt collector and won. Let me show you how I did it…”
Everybody’s an expert. And capitalizing on a person who is being harassed by debt collectors’ natural distrust and dislike of lawyers, this new expert is going to show you a way to defeat the debt collectors. Just like he or she did. You’ll learn from someone just like you – someone you can trust.
There is a problem.
As you know if you have spent much time on my site, sometimes debt collectors drop lawsuits simply because you file an answer. Sometimes a debt collector will stop harassing you because you seek verification of the debt. Sometimes they’ll drop a suit because you request discovery – sometimes they’ll drop the suit because you show up the first day. Sometimes they don’t even show up. I hear stories like that all the time. And for you, as a defendant who has been harassed by a debt collector, the relief is wonderful.
But it doesn’t make you an expert. It makes you “lucky.”
I put “lucky” in quotation marks because in almost all the scenarios above, you had to take some action to trigger the dismissal by the debt collector. Just by taking some action – good or bad, right or wrong – you are, as they say, putting yourself “on the side of the angels” – you’re helping to make your own luck. And if you get lucky and win you deserve it, in my opinion.
But there are right things and wrong things you could do at every stage of a lawsuit. If you do the right thing, your chances of winning go up. If you filed something that wasn’t the right thing but still happened to win, for every 100 people who follow in your footsteps, 98 of them will lose and wonder why. And the reason is, that without understanding the debt collectors and debt law, anything you do is just a dance – it happened to rain for that guy in Texas that one time, but it still wasn’t a rain dance. You do that dance and you’re going to get burned.
That make sense? The more you know, the better the chance you will do the right things that make it more likely the debt collectors will walk away or that you will still win even if they do not walk away. This is where YourLegalLegUp, with a long history of helping a lot of people in widely different situations win a lot of cases brings something to the table most sites do not. The value of experience, practice and knowledge.
In the next part of this article we will look at the steps of litigation – how each one presents you an opportunity to get lucky – and the better you do them, the more likely you are to get lucky. Sometimes a Rain Dance is Just a Dance (Pt. 2)
Sometimes it just rains.
This is the second part of this article. Click here for the first part. In the first part we talked about how people sometimes get lucky in defending themselves from debt lawsuits, but that doesn’t make them “good” – it makes them lucky. The question is, how can you increase your chances of being lucky, too. Should you do what worked once for somebody? or do what has repeatedly worked for a lot of people in a lot of ways over time? The answer is obvious. The rest of this article talks about how you can be lucky, too.
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: it’s 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 files this petition with the court and needs no permission to do so. When they file it, the also get a summons.
Some courts let the debt collectors issue the summons, too, although technically it comes from the court. The debt lawyer, as an _ 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.
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 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 either to move to dismiss the case or answer the petition. Check your rules to see what the rules of pleading are, and if the plaintiff’s case does not comply – 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 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, 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 – 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 it to do so “with prejudice.”