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Discovery – Interrogatories

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Three Questions and Answers about Discovery

When Does the Process Begin, What Is the Court’s Role, and How Do the Methods of Discovery Relate to One Another?

I get certain basic questions about the discovery process quite often.

  • When can you begin conducting discovery? And when can the debt collector do it?
  • How do interrogatories, requests for documents, and requests for admissions relate to one another?
  • And What is the Court’s involvement in the discovery process?

The answers aren’t always clear, but this article will answer these questions to the extent they can be answered.

When Does Discovery Begin?

The simplest answer to this question is no answer at all: Discovery begins when the Rules of Civil Procedure for your jurisdiction say it begins. I have discovered that the discovery process begins at very different times for different courts.

Federal Courts

In the federal courts, the defendant can serve discovery immediately upon being served with the summons, whereas the plaintiff must wait for some time before beginning the discovery process. I guess this is a way of allowing a defendant to focus on investigating the complaint and filing an answer.

Most State Courts

In most state courts, the parties can begin discovery at the same time, either immediately or after some period of time, usually thirty days after service. In debt law cases, though, I have rarely observed that debt collectors begin discovery as quickly as they could. My guess is that they are hoping everybody will default (and most defendants do), so it would be wasteful to start the discovery process before the time for default has passed. This gives a defendant an advantage to begin the discovery process before the debt collector does, and this advantage should not be allowed to slip away.

Some State Courts

In some state courts, most often courts of limited jurisdiction (i.e., for smaller amounts, as most debt cases are), the parties are not allowed to begin discovery without an order of the court that allows it. I think this is a terrible rule. But regardless of my opinion, you need to know if that’s the rule in your jurisdiction, and if it is you need to seek an order permitting discovery as quickly as possible. Remember that discovery is an important part of your defense. There is even one jurisdiction of which I am aware where no discovery is allowed at all. In this jurisdiction, though, you can seek a trial “de novo” if you are not happy with the result. That is, you can start the whole case over in a higher up court that does allow discovery. In Maryland, on the other hand, discovery begins immediately upon service of the suit – and ends about a month later – unless you receive permission from the court.

The important “take-away” from all this is that state laws vary, and you need to know your state’s law as soon as possible. Not finding this out is asking for trouble.

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Overview of Litigation and Strategic Thinking

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What to do if you have debt troubles part 2

This video goes through the reasons you should win if you get sued for debt and begins the discussion on how to send the right signals to the debt collectors to leave you alone.

 

This is the second video of this series. Here is the link to the first one: https://yourlegallegup.com/pages/RO2-1

In these videos we take a basic look at debt – the way it piles up and the problems that come along with that. And we talk about the actions you should start taking to defend yourself from possible consequences.

How and why to file counterclaim if you can

There’s a great deal to say about counterclaims in debt law cases, and I suggest you look closely at the text of the Fair Debt Collection Practices Act (FDCPA) itself as you consider what, if any, counterclaims you will bring. In this article, though, I simply want to tell you why counterclaims are so important.

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Why Having a Counterclaim Is So Important?

In most jurisdictions, a plaintiff (the person bringing the lawsuit) is allowed to drop the case (that’s called “dismissing”) virtually at any time it wants to. This isn’t true of federal court, where you have to get permission, but in most state courts it seems to be true. And debt cases are pretty much always brought in state courts.

That means that if you work hard and develop a winning case, the debt collector could just dismiss the case.

That’s just what we want it to do, of course.

However, if the debt collector simply dismisses your case, it could also sue you again later or sell the debt to someone else who would sue you later, and that means you would still be vulnerable to debt collectors. It would also mean you could receive more annoying calls and letters, and would have to put credit repair on hold. Making them dismiss – under any circumstances – is a victory, but you need the case dismissed “with prejudice” to keep it from coming back.

Counterclaims Stop Them from Suing You Again

So how do you keep them from dismissing the suit and refiling the suit later? You do this by filing a counterclaim against them. A plaintiff can dismiss its own lawsuit, but not your claim against it. So if they want to dismiss the case against you either because your claims are good or because they don’t want to spend the money chasing you, they either have to settle the case with you, or they’re still left defending against your counterclaim. They never do that, because then they’d be bound to lose money one way or another. They’d either have to pay you or their lawyers (or both), — without the chance of collecting anything from you. That’s the worst of all worlds for them, and they won’t do it. Instead, they’ll settle the whole case with you.

So a counterclaim gives you power over the plaintiff and lets you keep it around till they agree to destroy (or “extinguish”) the debt. And then not only can you rest easy about the debt, but you can also begin the process or rebuilding your credit report.

Counterclaims Have Value

Sometimes your counterclaim can be worth a lot more than their lawsuit against you was in the first place.

Actually, it is not rare at all for a debt defendant’s counterclaim to be worth more than the claim brought by the debt collector, and this is so for several reasons. First, as I often point out, debt collectors generally bring their claims without any real evidence in their possession – and without the ability to get the evidence cheaply enough to be worth doing. That means that the debt collectors’ claims against defendants will, eventually, be worthless if you just keep fighting enough.

On the other hand, a counterclaim under the FDCPA is usually the result of either something the debt collector did as part of bringing its lawsuit (i.e., bogus notice of right to seek verification, false or deceptive affidavit, etc.) or (by definition) of some other part of the debt collection practice – usually some action involving you personally. Where the violation is part of the lawsuit, there is simply no evidentiary issue at all. The facts are in the file – put their by the debt collector and its lawyers. And where the counterclaim involves some other action against you personally, you should be able to testify. Thus you will rarely have an evidence issue – the hurdle which usually kills debt cases.