D
Date of Filing: The date on which a case is filed. This can matter in jurisdictions that have standards for how long cases last (judges do not like reporting that they are taking a long time resolving their cases) or actual limits regarding dismissal of cases not resolved within specified amounts of time.
Debt: An assertion or claim that you owe somebody money. Importantly, it’s a debt for purposes of the law even if you don’t think you owe the money.
Debt buyer: a person or company that purchases debts for purposes of collection. Legally defined as a debt collector and treated the same way.
Debt collector: This term is defined by the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. section 1692a. A debt collector is someone who regularly engages in the collection of debts due to another person, or whose principle business is the collection of debts. In other words, a “debt collector” is not the person who originally lent you the money. There is some gray area about when the FDCPA applies to someone who collects debts as well as does other things – which almost all companies do.
Deceptive:Language or conditions that tend to deceive. It doesn’t have to be actually false, it just needs to be misleading–and the parties often argue over how tricky it must be: enough to mislead a lawyer or judge? an “average” person of “average” education and experience? or, often, someone somewhat “less sophisticated” than that. The courts have generally rejected an interpretation that would make anything deceptive which could conceivably fool anybody. In debt law, something is deceptive in most jurisdictions if it would mislead an “unsophisticated” person, people who might need a little help and yet would be natural targets for debt collectors.
Deceptive affidavit: See, “Deceptive.” A sworn statement that is either untrue or, while technically true, is somehow misleading. An affidavits by a debt collector’s “custodian of records” regarding the accuracy or truth of the records kept by the original creditor would, in my opinion, be “deceptive.”
Declarant: Legalese for “the person testifying” or making a statement. The important distinction to bear in mind is that when a jury is presented with something to believe, that something must come from the mouth of one who is under oath—not someone who just happened to be talking to someone who would later testify.
Default: This term has two meanings of importance to a debt defendant. The first use is, “fails to defend.” A person defaults on a lawsuit if he fails to answer or otherwise take defensive actions. If this has happened to you, check out Overcoming
Defaults.
The second definition is a contractual term — a person “defaults” on a contract if she does not fulfill her obligations, and many (if not most) debt cases involve defaulted credit card accounts.
Default judgment: The judgment entered by the court if you fail to appear and defend yourself from a lawsuit. Typically, the court will give the plaintiff whatever it asked for in the Petition, and it should not give the plaintiff any more than that. If you have a default judgment against you, you could try to get it “vacated” or removed, which would allow you to defend yourself. Click here to learn about the Motion to Vacate Default Judgment Pack. To read more on default judgments, check out Overcoming Defaults.
Defendant: The person being sued in a lawsuit. If the defendant files a counterclaim, then the defendant becomes also a “counterclaimant” and the plaintiff becomes (also) the “counterdefendant.”
De Novo: “Anew.” Sometimes courts have very accelerated processes which either do not allow (or severely limit) discovery or require arbitration, or have somewhat relaxed rules of civil procedure. In these courts you sometimes have a right to a trial de novo if you are not satisfied with the results you get at first. And a trial de novo means that you start completely over and do the whole thing again as if it had never happened (as contrasted to an “appeal,” where you ask a higher court to review a lower court’s rulings of law). Sometimes you have to pay a filing fee, and sometimes you have to pay other fees if you do not get a better result in the second trial than the first. If you are in a court which allows for trials de novo, you should find out all about the rule as early as possible.
Depose: To take a person’s deposition or record his testimony.
Deposition: This is a sometimes-lengthy question and answer session conducted by either party’s lawyer, where the lawyer asks very specific questions, and the witness (“deponent”) provides equally specific answers. There is no room for guesses, nor is the lawyer permitted to argue with, embarrass, or put words in the mouth of the witness. You can take a witness’ deposition in a case if you are representing yourself.
Direct examination: This is sometimes referred to simply as “direct,” and it refers to the questioning of a friendly witness. You are generally not permitted to ask “leading” questions on direct examination, but must ask “open-ended” questions (questions that do no suggest their own answer) such as “Who did…” “When did…” “What happened next…” or the like. You should not make the questions confusing or hide the answer if it is, in fact, obvious—a direct question is simply a non-suggestive way to ask a question.
Discovery: The formal process of asking for information, through interrogatories (questions), requests for documents or requests for admissions of certain facts.
Dismiss: A dismissal means to end the lawsuit. When it is done by the judge, it is kicked out; when it is done by a party, it is dropped or allowed to go away. Dismissal does not mean the case cannot be reinstituted—it only means that this case is over.
Dismiss with prejudice: To drop (if a party) or kick out (if a judge) a case in such a way that it cannot be brought again. The debt is eliminated if the case against you is dismissed with prejudice, but you can be sued again if it is not—i.e., if it is dismissed “without prejudice.”
Dismiss without prejudice: The case is dropped (if by a party) or kicked out (if by a judge) in such a way as to allow it to be brought again. The debt is not eliminated and will likely be sold to another person or company who will harass and sue you.
Division of the Court: The number assigned to a courtroom. Generally the same judge will preside over a division over time, but sometimes the judge must be out, and another judge will step in and replace him or her.
Docket: The list of cases before the judge on a given day.
Docket Sheet: A list of actions that have happened in a specific case. This is usually at the front of the court’s physical file of a case, and the docket sheet is often entered into a court’s computer records. Thus, it can be extremely helpful and handy to know what has happened in cases without having to go to court.
