Tag Archive for: stonewall

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.

 

 

Tip 7 of Uncommon Common Sense

Tip 7: You won’t believe the tricks the other side will play in discovery until you see them

Today’s tip is about the games lawyers play. If you’ve never seen them in action, you wouldn’t believe it, and so you should consider this an extension, sort of, to tip 2 (Always know the rules of the game you’re playing). In order to stay on top of things, you need to create and send discovery to the other side as quickly as possible. If at all possible, you must make them respond to your discovery before yours is due to them so you can see how the game is played.

I’ll give you a preview.

Games Debt Collectors Play

The rules of discovery – the rules that say how you ask for information from the other side – and how they are supposed to give it, are designed to make the opposing sides of a lawsuit cooperate. The rules set specific times for responding, and the other side is not supposed to make bogus objections or try to swamp you with everything but what you’re supposed to get. Then, if there are objections, the parties are supposed to “work things out” in a cooperative way without requiring the court to step in.

In reality, the debt collector will most likely not provide you the material you want on time, and when they do give you stuff, they will give you a set of objections that simply defy reason.

In short, they will play games with you.

Take Advantage of What they Do

You could get frustrated – it is frustrating to try to get things from the other side when they won’t follow the rules and act as if they can do anything they want to. And they do think they can, and the courts pretty much let them get away with anything.

Instead of being frustrated, though, you must see this as an opportunity for you to use time to your advantage. If you act with energy and persistence, you can use their tactic of trying to waste your time to your advantage. You are the one with more time – and you do not have to justify every action you take at a value of $200 per hour. Chase them with energy, therefore, and exploit your advantage: as you keep after them, you will be pushing them to spend time on a fight that will not bring them any money and which you will eventually probably win.

If you can make the lawyer for the debt collector spend anything like 2 hours per every $500 at stake in the lawsuit, you will simply make the suit unmanageable for them – and deeply unprofitable. When you do that, you make it likely they will give up. They’ll have to put of suing dozens of other people if you do this.

When they do Their Discovery

And when they send their questions for you, you will have a better idea how to proceed, although I do recommend that you be careful about this. The materials in the Debt Defense System could help you with this.

Tomorrow we will send Tip 8.