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What to do first when you are harassed or sued by a debt collector, Part 2
 

 Click here to download the full report, or see below.

(continued from here)

What is a Summons


First off, what, exactly, is a summons?

It’s actually just a piece of paper that notifies you that there is a lawsuit against you and tells you that you have to answer the lawsuit or a judgment might be rendered against you. Normally, the lawsuit, called a “petition” or “complaint,” is attached to the summons, but the summons itself is just that piece of paper.

The summons is theoretically coming from the court in most jurisdictions (courts). Having it be properly served is necessary for the court to have power over you (called “jurisdiction over your person”).

In reality, in most courts, nobody from the actual court had seen or thought about your case. There will in most states be a “Case Number” stamped on the complaint and the summons, but this is done by a low-level clerk and is automatic once the lawyer has followed a few rules and paid the proper fee. No one from the court know anything about you, and the “court” is not suing you.

The person named on the lawsuit is suing you. That person is against you and, as I’ll show below, should not be believed or trusted by you at all. More on that later. My point here is that just because there is a lawsuit does not mean that there is any truth to what the debt collector says and, even more important, it does not mean that the debt collector can prove its case at all.

However, it DOES mean that you have to fight the case – true or not, fair or not – or you will probably get a judgment against you. You CANNOT assume for one minute that just because you may never have heard of this debt collector, may have paid the debt or never owed it, may have settled it, or it may be twenty years old that you can ignore what’s happening. You can’t do that or they’ll probably get a judgment against you. As the summons says, you have to respond or face a judgment. They’ll get it almost every time if you don’t fight.

Likewise, you ALSO can’t assume that just because you owe or may have owed someone some money at some point, this debt collector will be able to prove that you owe IT the money. They almost never can prove their case if you fight intelligently.

So if you don’t fight, you’ll (almost) always lose. If you do fight, you’ll almost always win. You just have to be brave enough and energetic enough to do it. And remember, “courage” doesn’t mean you don’t have or feel fear – it means that you do what you need to do even though you are afraid. Everybody is afraid.

I was a lawyer for almost fifteen years, and I’m not sure I ever stepped into a court without at least some fear. Or at least anxiety, because important rights are going to be decided, and where people are involved, mistakes can be made.

In the next section we’ll discuss what exactly you need to do once you’ve settled down from the shock of getting the summons.

What to Do First


The first thing you’ll want to do is read the petition carefully. Most debt lawsuits are amazingly sloppy and careless. Allow yourself to realize that you aren’t up against a genius or even a particularly energetic opponent. Usually, to be quite frank, the lawyers representing debt collectors are near the bottom of the pool of lawyers in talent, brains, and energy. But that isn’t always so.

They’re usually so near the bottom of the pool because they spend almost all their time filing lawsuits a piece of software generated against people who almost never ever fight back and who, if they do fight back, are usually strapped for resources and money and having things going on in their lives that make things difficult. And finally they are fighting in a kind of law that is very basic and where all the cases are pretty much exactly the same.

Can you imagine that that combination draws out the best talent in lawyers? Not at all. And that means that with some effort you can know this stuff as well as or better than the lawyer up against you. Really. Most people who work with Your Legal Leg Up will tell you they ultimately felt that way, and it’s part of why this whole thing changes so many things for the better for you.

Does the Court Have Power over You?

The first thing you have to decide is whether this court has power over your person. That is broken into two questions. First, were you properly served? Second, is this the right court for this kind of case.

Were you Properly Served?

Remember we said that you have to be given the summons in a way specified by your state. Getting into this question is beyond the scope of this report, but how did they give it to you? If a process server actually handed it to you, that’s almost always good enough. If they mailed it to you, that’s usually not enough, but in some states it is. If they tacked it to your door or stuck it between your screen door and the door frame it’s almost never enough. And if they threw it on the ground somewhere near your door or home it’s really never enough. But you need to check on your state requirements to see.

If they didn’t do it right, you’ll want to consider filing a motion to dismiss the case.

Is this the Right Court?

If you’re being sued on a consumer debt – a debt for household goods or expenses, including most credit card debts – the debt collector is required to sue you in the jurisdiction where you live. If you live in Memphis, they can’t sue you in Nashville. If you live in county A, they can’t sue you in county B. Except that they can sue you where you lived when you first allegedly took on the debt.

They often get this wrong, and it’s a violation of the Fair Debt Collection Practices Act. You can file a motion to dismiss the case if they’re in the wrong court, and if they sue you again in the right place you can also file a counterclaim against them under the FDCPA (for the first suit). You could, theoretically, even file suit against them in the court they wrongly sued you in, although there might be many reasons for not doing that.

Is the Lawsuit Aimed at You?


The next thing you’ll want to check is whether the lawsuit is even aimed at you at all. Does it seem to be talking about you? Is it talking about a debt you’ve ever heard of?

Even if it isn’t, you still have to deal with it! But they may simply have the wrong person in a surprising number of cases. They are careless!

Answering


If the case was served on you correctly, and it was filed in the right place and seems to be aimed at you, then you may need to file an Answer. As we discuss on our site, you might consider filing a motion to dismiss for various other reasons, but for now we’re going to assume that the claim was filed in time (and not too late for the statute of limitations) for an allegedly legitimate debt, and that you can understand the petition. If not, you’d want to consider a motion to dismiss.

But if that’s all right, it means you will need to answer the petition. That means, you will need to file a formal “Answer” with the court. In some jurisdictions, you will also need to go to court on a designated day. If you are supposed to go to court, the summons should say so.

If you must file an Answer, you should NOT PANIC. Most people have to do that, and it’s no big deal. The Answer itself is really quite easy, and you can do it yourself in about half an hour, really, once you know what you’re doing.

And that brings us to the next question, in the next section.

Should You Get a Lawyer? Do You Have to Have One?

It’s easier to answer the second question first – you DON’T HAVE to have a lawyer. You are entitled to represent yourself.

The first question, whether you should get a lawyer, is a little tougher. We have addressed that at much greater length in an ebook called, Do I HAVE to Have a Lawyer, but the answer is usually, with debt law, that you can do this on your own. Getting a good lawyer in this area is actually trickier than you might expect, but assuming you can find and afford one, you will probably make your chances of winning more easily go up a little bit. Being able to afford one is a much bigger and more difficult question. A lot of times it costs more than you can afford and possibly more than the debt collector is demanding to get a lawyer. Quite often it would cost more to get a lawyer than you think the debt collector would ever be able to get from you even if it won.

Lawyers are expensive – everybody knows that.

But the good news is that you can do this yourself if you have to. That’s what our site is all about, and although people don’t always tell me what happened, out members win almost all the time if they try.

Here’s what a member just emailed me – pardon the length, but I think the whole thing is valuable for you to read.

Ken,

I just wanted to say "Thank You" again in written form. 

In the last couple of weeks two separate Debt Buyer petitions have been dismissed by the Plaintiff's because I learned how to defend myself in Court through your videos, web site, downloads and conference calls.  I do think the conference calls were massively helpful and provided support and encouragement at a personal level.  It was also instructional to hear others in similar situations describe how they were handling their cases.

I had been blindly winging my defense on a Debt Buyer petition for six months when I was served with a second petition from a different Debt Buyer.  The Plaintiff in the first petition filed a Motion for Summary Judgement because I had failed to answer Plaintiff's Interrogatories to Defendant.  I was clueless as to how to respond and knew that I had to do serious research or hire an attorney. 

After searching the Web I decided to buy your Debt Defense System and spent the time to read the entire package.  I also bought the Motion for Summary Judgement pack and reviewed.  Eventually, I submitted my own Defendant's Interrogatories to Plaintiff and this was the key to my success.  The Plaintiff in the first Petition was ordered by the court to produce Discovery by a certain date and did not.  I filed a Motion to Dismiss or for Sanctions.  The Plaintiff submitted his own Motion to Dismiss on the day they did not produce Discovery as ordered.  

The second Petition was dropped when I objected to their request for an extension to file Discovery, produced Answers to their Petition and filed a Counter-claim.  I simply could not have successfully defended myself "Pro Se" without your materials.

Most Sincerely,

Jim

You can do it, too. Our site has a lot of information on it for free, and you’re welcome to use that. If you’re seriously going to try to win, we obviously recommend that you consider one of our memberships. FightDebt, our newsletter, will also give you some help, and you’re already signed up for that.

If you have any questions, you can email us at . We’d love to hear from you.

About Your Legal Leg Up

  
          We are a website designed to help people defend their legal rights. You will find information that tell you:

  • What your rights are;
  • How to defend them;
  • What to watch out for if you are being harassed or sued for debt;
  • How to protect your credit report;
  • How to negotiate with debt collectors in order to reduce the time and money you spend resolving debts while improving your credit scores.

We offer many products on an “a la carte” basis as well as memberships which give you all the resources you would need throughout a case or wherever you may be in the life of the debt.

If you are being pursued by debt collectors, you owe it to yourself to check us out.

More by Ken Gibert


            We have many books that may interest you, although if you are being sued your first consideration should be the Debt Defense System, which provides you everything you will need to defend yourself from the debt collectors.

Sued for Debt - Garnishment and Other Ways the Debt Collectors Will Try to Get Your Money 

If you have been sued by a debt collector (or original creditor), and you have either failed to respond or they have managed to get a judgment against you, things may have gotten "quiet." Does this mean that they have decided to leave you alone? Are debt collectors that nice and kind-hearted? Do debt collectors take account of the hardship a debt could cause you and decide to leave you alone? Not a chance. They could be preparing one of the worst disasters possible for you. This report is designed to help you understand and prepare for the consequences of a judgment being entered against you. 

Dealing with Debt Collectors, Debt Collection, and Debt Litigation

Are you in debt? Being called or harassed by debt collectors? Afraid to answer the phone? 

If so, there are some basic questions you need answered: should you talk to them, and if so, what do you say? Should you ever give them money, and what would be the legal effect of doing so? But these are just some of the FIRST questions you may need answered - - there will be many more. This report explains the debt collection process to people who are having trouble making their credit card payments or other bills or who are being harassed or sued by debt collectors. This in turn helps them think strategically about their own best interests when confronted by the debt collectors as opposed to merely reacting defensively and responding in self-defeating ways. 

Getting Out of the Trap: How to Stay out of Trouble with Student Loans, or Get out of Trouble if you're in it

The problem with student loans and the bankruptcy courts, as everyone knows, is that the schools, the courts, and congress have all tried to make it nearly impossible to get out of the loans. 

And to be frank, it can be quite hard to get out of them. I do not want this book to leave anybody with the sense that there is some secret or magical way to get out of the deep trouble they’re in. 

It isn’t that. HOWEVER, it is still true that it isn’t as bad as most people, including bankruptcy lawyers, seem to think. Only a tiny percentage of people burdened with student loans and declaring bankruptcy even try to get out of them. Of these, a very significant number succeed – the statistics aren’t clear, and they do vary, but it would appear that somewhere between thirty (30%) and almost sixty (60%) of people trying to discharge student loans succeed to some extent in doing so. To me, that suggests that not enough people are trying, so I DO want to encourage you to try if you need the help. 

 The Fair Debt Collection Practices Act and Bankruptcy: How the Bankruptcy Act and the FDCPA Help or Hinder Each Other

This Report is about the way the Fair Debt Collection Practices Act and the Bankruptcy Law interact. Both laws are designed to address certain rights between people and those who claim to be owed money. The laws overlap to an extent, and when that happens, what should you do? 

This book is for you if you are (1) contemplating bankruptcy; (2) are in bankruptcy and have noticed that some of your creditors are submitting overly large claims or out-of-date claims; or (3) you have gone through bankruptcy and debt collectors are now trying to collect from you on one or more debts that were discharged. This book could be for you if you have a great curiosity about how the law sometimes works - including how courts can come to diametrically different interpretations of the same laws, or if you are interested in how the class war can sometimes play out in the law.

This book is not for you if bankruptcy is not a part of your landscape and you are not interested in the ways laws can be read and interpreted. This book is not for you if you just want a general understanding of the bankruptcy law or if you are just looking for light reading. 

Sued for Debt - What to Do if You Think You Might Really Owe the Money

You're being harassed or sued by a debt collector, and you think you might really owe them (or somebody at least) the money. What should you do? Should you fight the debt collector and defend yourself? If you do not, you may end up having to pay twice. This ebook discusses the moral and practical issues that come when you're sued for a debt you think you might owe - or that you do believe you owe to someone. Do you have a moral obligation of some sort to roll over and pay? or let them get a judgment?

Or what does an “adversary” legal system mean to you? This ebook explains why you should take the steps to protect yourself from the ruthless debt collectors.

The Ultimate Choice

            The Ultimate Choice – This is not a law book. It’s a work of fiction that is designed to encourage you, though, to improve your life.

            It’s about Joe, a lonely guy getting ready to end it all. He’s gotten everything he needs to do himself in, but then he gets a disheveled visitor who changes everything.

            The visitor isn’t overly impressed by Joe’s accomplishments and invites him to examine some of the main choices that led him to the point of suicide. Believing he will at least to revisit some of the dramatic points in his life, Joe agrees, but then he finds himself closely scrutinizing seemingly pointless moments in time. Through the process, however, he learns some important things about how we make the choices which determine our lives.

            This novel was written to help people begin to see a way to start over and improve their lives. Things are never so bad that you can’t learn from what you’re doing and begin to improve. Most of what is stopping you is inside your own head. 

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