If a debt collector is suing you, you may be intimidated or even panicked. You may be thinking about giving up, but that usually isn’t a good idea. You have an excellent chance to win if you will just fight a little bit. Defending yourself isn’t that hard.
If They Have Already Filed Suit
If you are already in a lawsuit, you need action now. You should be doing things to protect yourself NOW. Our debt defense system gives people what they need to defend themselves.
You can beat them. It’s mostly a question of knowing what you need to do and doing that thing throughout the lawsuit. At the same time, not doing the things you should not do is equally important. It sounds simple, and it is – if you know what you’re doing. You can know those things with the Debt Defense System and get help doing the right things while avoiding the wrong ones.
You have probably heard of the saying, “inch by inch it’s a cinch.”
Defending a lawsuit is never actually a cinch. However, debt defense just requires a series of decisions and steps. These are steps that anybody with some determination can take. You can do them well enough to do a good job overall of defending. And that is usually good enough to win.
I have had a great deal of experience both as a litigator and web master. Over the years, I’ve realized that almost everyone representing himself or herself in a debt case does much better with an opportunity to talk to other people facing the same issues. People can help each other with insights and information. Seeing a variety of samples is helpful as well. The Debt Defense System, gets you a membership which gets you the full resources of Your Legal Leg Up’s website and our weekly teleconferences.
Pro se (Self-Representation) in Debt Litigation – Easier than you Think and Sometimes Even Fun
Should You Represent Yourself in Debt Law?
Pro se defense (representing yourself) in debt cases is not as hard as many people fear. You can do it – and you may need to do it.
Although hiring a lawyer might be the “gold standard” of defense, lawyers are always expensive. If a debt collector is suing you, and you can’t afford a lawyer, you still have a chance. You CAN represent yourself. This is not complicated law, debt collectors are not innovative or particularly energetic, and the debt collection system is a “factory” approach. It isn’t designed to work against people who defend themselves intelligently. You can do it and win.
Okay – maybe debt defense isn’t always very fun. In fact, most of the time it isn’t exactly fun, but it is easier than you expect, and winning is great. Going from the threat of having to pay (somehow) $1,000 to $50,000 to some debt collector, to having them drop the case – or to settling with you for pennies on the dollar… that’s fun.
And it changes the way you look at debt and debt law forever.
Pro se legal representation means representing yourself rather than hiring a lawyer to do it for you. You have the right to do that in essentially any court proceeding, whether as defendant or plaintiff. And it doesn’t matter whether the matter is civil (for money) or criminal.
Some Think It’s Scary
Although many people fear the thought of representing themselves in court, pro se representation is not rare. According to National Center on State Courts in 1991-92, 71% of domestic relations (family law) cases had at least one unrepresented party, and in 18% of the cases both parties were pro se. It is a growing trend in debt collection law as well as family law and other matters.
The right of self-representation has long been established in the United States. It predates even the ratification of the Constitution, as Section 35 of the Judiciary Act of 1789—enacted by the first Congress and signed by President Washington, states that, “in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel.” Most states have a similar constitution provision.
Will the Courts Protect You from Mistakes?
The California rules of Civil Procedure explicitly express a preference for resolution of every case on the merits, even if resolution requires excusing inadvertence by a pro se litigant that would otherwise result in a dismissal. The Judicial Council justifies this rule with the argument that “Judges are charged with ascertaining the truth, not just playing referee.” And the Council suggests “the court should take whatever measures may be reasonable and necessary to insure a fair trial.”
Although most states and the federal courts share this bias in favor of hearing courts on “their merits,” (based on what is actually fair), pro se litigants cannot rely on any special treatment. Some courts explicitly will not extend favorable treatment to non-professional litigants.
Pro Se Litigants Often Do Very Well
They may not need any extra help. According to Erica J. Hashimoto, an assistant professor at the Georgia School of Law, criminal defendants are “not necessarily ill-served” by the decision to represent themselves. In state court, pro se defendants charged with felonies probably fared much better than represented defendants. Of the 234 pro se defendants studied by Ms. Hashimoto, “just under 50 percent of them were convicted on any charge….for represented state court defendants, by contrast, a total of 75 percent were convicted of some charge.” And just 26 percent of the pro se defendants ended up with felony convictions, whereas 63 percent of represented defendants in Ms. Hashimoto’s study did. In federal court…the acquittal rate for pro se defendants is virtually identical to the acquittal rate for represented defendants.
Of course there could well be other important variables that the Hashimoto study did not include. It seems clear, however, that there is nothing like an “automatic penalty” for daring to represent yourself. And as I have pointed out many times elsewhere, there are certain types of cases and situations where pro se representation may actually be an advantage.
In debt collection cases, for example, the economic factors often outweigh legal issues, and a vigorous pro se defendant can gain a significant advantage by being able to take energetic steps in his or her favor that a lawyer—always on the clock—would pragmatically be unable to take.
Courts are not always favorable to self-represented people for various reasons. You face a headwind when it comes to the court taking what you say seriously, for example. But even with that bias, pro se plaintiffs have recorded some significant victories in civil courts.
Most members of Your Legal Leg Up, for example, either win their cases outright or reach very satisfying agreements.
Pro Se Representation in Debt Collection Cases
As pointed out above, defendants in debt collection cases have some significant economic advantages in conducting their cases. They also have fewer of the disadvantages that many other types of cases have. This may simply be because debt collection cases tend to be document-intensive rather than witness-intensive. In the somewhat unusual case which actually goes to trial, the evidentiary questions are pretty basic: can the debt collector produce enough evidence? And is their evidence “admissible” under the rules? That is, do the rules let the court consider it?
You almost never need to call a witness in debt cases.
This basic legal simplicity, the fact that debt defendants obviously did not seek out and initiate the suit, and the general economic difference between typical debt defendants and plaintiffs often seem to create a favorable impression on the judges.
Protect Your Rights
If debt collectors are contacting you, you need to be alert to protect your rights. These calls are often a prelude to their suing you. You might consider membership with our site, which gets you our ecourses for free, plus gives you many other benefits.Check out some of our e-courses. Or consider our prepaid legal plan to protect you from future possible litigation. With that, if a debt collector sues you, you’ll get a lawyer to defend you for free.
What if a debt collector sues you for a debt and think you really owe the money? Should you defend yourself from the suit?
Debt collectors often sue the wrong people and usually overcharge. If you don’t defend, you run the risk of having to pay twice. And if you do defend yourself, you probably won’t have to pay at all. If that bothers you, give the money to somebody who really needs it.
Most People Debt Collectors Sue May Actually Owe Someone Some Money
If a debt collector is suing you, you probably think you owe them the money. Or think you owe someone the money, although it’s surprising how often people who do NOT owe anybody any money get sued. If that’s you – you still need to fight the case, it won’t go away by itself. But if you actually do owe somebody the money for which you are being sued, you still need to be careful.
And you should still defend yourself as well as you can.
You must make the debt collector prove every part of its case. This includes not only that you owe the money, but that you owe it to them. And exactly how much you supposedly owe. That’s because old debts get sold – often more than once – and if you don’t make the debt collector prove it owns the debt, you may pay the wrong person. And then you might have to pay again if the person that actually owns the debt sues you.
In addition, most people do not owe what the debt collectors are trying to collect. They routinely add fees and interest they should not, and consumer protections agencies and organizations say that almost all debt collection suits include extra charges. Many of them are for far more than is owed.
The Good News
The good news about debt collectors is that they usually CANNOT prove their cases if you make put them to the test. The whole process by which they get these debts is so sloppy and careless that they usually cannot find or obtain the proof that they need to win their case. IF you defend yourself.
If you would like us to take a look at your case and give you a sort of roadmap to what you need to do and how, take a look at our Personalized Evaluation product. If a debt collector is suing you and you know you want to defend yourself without spending a lot of money on lawyers, then get out Debt Defense System.
Protect Your Rights
If debt collectors are harassing you, you need to be alert to protect your rights. These calls are often a prelude to their suing you. You might consider membership with our site, which gets you our ecourses for free, plus gives you many other benefits.Check out some of our e-courses. Or consider our prepaid legal plan to protect you from future possible litigation. With that, if they do sue you, you’ll get a lawyer to defend you for free.
How to Answer the Petition When You’re Sued for Debt
When you’re sued for debt, one of the first things you have to do is write and file an Answer. This is your formal response to the lawsuit. You could lose the case very easily usually automatically – until you do. Luckily, it isn’t hard, and this video and article will show you how. For more detailed information and help on fighting and winning your suit against the debt collector, get the Debt Defense System.
Answering a petition in a debt law case is actually very simple. Keeping in mind that it is up to the plaintiff to prove its case if you deny a part of the petition, there is little incentive to admit anything.
Should you Admit or Deny?
Pro se defendants also frequently overestimate the things they should admit. For example, you may know that you borrowed some money or used a credit card, but do you really know how much you borrowed or whether all the charges were legitimate? Do you know for sure that you did not pay some of the debt or that you truly, legally, owed every amount claimed? And do you know with certainty even that the company suing you owns the debt at all?
In most cases, the answers to these questions is legitimately “no.”
Most people do not keep careful enough track of their credit card bills (or other bills) to need to admit either the fact or amount of debt. And there’s really no way you could know whether you owe anything to a third-party debt collector.
With those things in mind, answering the petition is easy. It will usually go something like this:
The reason an Answer is so easy is that the pleadings stage – the petition and answer – really exist just to tell the court what issues need to be proved. Since you want the debt collector to prove its whole case, you deny every allegation.
There’s Much More to Pro Se Defense
Of course that’s just the first step in the process of defending yourself. You will also need to consider whether you have a counterclaim. If so, you should submit that as part of your Answer. And then you need to try to win the case. The Answer frames the issues, and you will need to conduct discovery and do some legal research to win the case. It isn’t always easy, but putting up a legitimate fight is within the ability of anyone. And fighting is often all you need to do to win.
Verification under the FDCPA and FCRA – Use Both to Protect Your Rights
Three are two kinds of verification. Knowing and using them both can help protect your rights. Both the FDCPA and the Credit Reporting Act give you rights of verification. They are different, though, and you can use both. You probably should.
Two Kinds of Verification and How to Use them to Protect Your Rights
We have spent much of our time talking about “verification” on our site and videos. What we have usually meant has been the “verification” process provided by the Fair Debt Collection Practices Act (FDCPA). But there is another kind of validation you can use – validation as permitted by the Fair Credit Reporting Act.
We talk about that below and discuss how you can use both forms of validation, together or separately, in defending yourself from the debt collectors and in repairing your credit.
Verification under FDCPA and FCRA are Different
The two kinds of verification are different rights. They apply in different circumstances, to possibly different “persons” under different circumstances. They also give different rights and have different time requirements.
You can use them both, but they are completely separate. It is important to keep them straight.
Make sure you keep track of everything you do under either statute. And you need to make sure that the response you get is appropriate for the specific right you invoke.
Rights under the FDCPA
Under the FDCPA, when a debt collector first contacts you it is required by law to notify you of your right to dispute the debt and require “validation.” The two words (validation and verification) are used interchangeably, and the requirement is quite simple in general.
First, the debt collector must notify you within five days of your right to dispute within 30 days. It must also give the “mini-Miranda” warning – that anything you say may be used for collection of a debt.
And then, the debt collector must “verify” the debt if you ask within the thirty days provided.
Just to make clear, it is YOU who have 30 days to dispute after getting the notice of your rights. The debt collector does not literally even have to do anything at all and also has no time limit. However, if you dispute and request verification, it cannot make further attempts to collect on the debt until it has verified it.
Exactly what verifying it is, is not exactly clear.
It would appear that contacting the original creditor and “establishing” that the debt is yours would be enough. The purpose of the requirement is not to require a separate lawsuit, but just to protect consumers from harassment based on typos or mistaken identities. The debt collector has to take some action to connect you to the debt if you dispute it under the FDCPA.
Even this low burden often seems to be too much for the debt collector. Possibly that is because the second owner of the debt (if there is one) has no relationship to the original creditor and simply cannot get the debt verified. Whatever the reason, asking for verification is often enough to make them go away. If they try to collect without having verified, that violates the FDCPA. And that in turn might allow you to stop a lawsuit brought against you.
Remember, however, that when the debt collector immediately files suit against you, this is not a “first contact” which triggers your right to notice and dispute. If you get served, you have to answer (or move to dismiss). It is not enough to request verification.
Disputing under the Fair Credit Reporting Act
There is another kind of validation, and it is completely different from the FDCPA. You can still can use it to fight debt collectors, thought. It is the validation provided for by the Fair Credit Reporting Act (FCRA).
This is your right to “dispute” a harmful item on your credit report.
You do this after looking at your credit report and seeing something that is not positive. Let’s say you see a debt collector reporting that you owe a debt. Remember your right to verification under the FDCPA comes when the debt collector first contacts you to try to collect the debt. You can dispute a line item on your credit report at any time.
There are rules, and there are better and worse ways to do it. But the Credit Reporting Act does not depend on the other side being a debt collector or having tried to collect the debt. It simply requires that they have put some bad information on your credit report.
When you seek verification under the FDCPA, the debt collector has to verify the debt before making further attempts to collect. When you “dispute” the debt under the FCRA, it doesn’t affect collection. Instead, you are forcing the company to “investigate” the debt and show that what it is telling credit reporting agencies is true.
What FCRA Accomplishes
If the company reporting you cannot validate the debt, it is just required to withdraw the offending credit reference. But it could still try to collect the debt.
If it does keep trying to collect the debt after withdrawing a bad credit reference, that might be a type of admission that it can’t prove the debt if the case goes to a lawsuit.
But it probably isn’t controlling on the case because “validation” of a credit report is not
the same thing as proving that the debt is valid.
A Helpful Strategy
Here’s a strategy that might be helpful. If you receive a bill from a junk debt buyer – a company that bought your debt from the original creditor, in other words – you should
send a request for verification under the FDCPA right away. Then you should and get your credit report and look at it.
If the debt collector is reporting your debt on your credit report, you will want to dispute the credit report and seek validation under the FCRA. Separately.
Remember these are completely different rights. Your sending two different disputes may confuse the debt collector, so that may be good for you. Remember that under the FDCPA it must provide proof as to your identity and its right to bug you, while under the FCRA it must explain why the information it put on your credit report was correct. If the debt collector does not verify under the FCRA, you can clear your credit report.
FCRA Dispute May be Helpful to Debt Defense
If a debt collector DOES try to validate, it will probably give you information that it would object to having to provide in a law suit. So it’s a shortcut to some discovery in that situation.
Using FDCPA and FCRA
You should not try to do the FCRA verification first because it takes too much time.
To do the credit dispute right you have to get your credit report and dispute it with the credit bureau before you dispute it with the debt collector under the FCRA if you want to protect all your rights. You don’t have time to work your way through the FCRA before asserting your FDCPA rights.
On the other hand, if the company does not verify under the FDCPA, that would be worth mentioning as a basis for your credit dispute.
We should add that when you get the first letter from the debt collector you may not even know whether it is reporting you on your credit report. They often do not, so you won’t know whether or not you will have anything under the FCRA. But if they are contacting you, you have the right under the FDCPA. Since it only lasts for 30 days, you need not to delay in disputing.
We always recommend sending your disputes by certified mail (and keep all the proof). You don’t have to do this legally, but these things often come down to a question of what you can prove, and having proof from the postal service is a very good investment.
You can use the Credit Reporting Act to clean your credit.
You probably know I am a big believer in filing a counterclaim to a debt lawsuit if possible. Having a counterclaim gives you some very important control over the lawsuit itself. And it also can help prevent other suits or harassment on the debt. If you do not have a counterclaim, the debt collector is free to drop the case at will in most jurisdictions. Your counterclaim prevents this.
There is also another reason relating to your life after litigation: Repairing your credit after the lawsuit.
Protect Your Credit Report
You may not know it, but when a creditor or debt collector sells your debt to someone else, it should report that information on your credit report. That way, if the next company also reports you, it is clear that they are doing so on a debt that someone else previously owned. And this in turn prevents one “bad debt” from looking like several bad debts. After charge-off and sale of the debt, the original creditor should not be adding information to your file. That is the right of the next person who obtains the debt. In other words, only the person who currently owns the debt has a right to report information about that debt.
Why is this important?
It’s important because if you force the debt collector to settle a debt as a dismissal “with prejudice,” you terminate the debt collector’s right to collect. You also end its right to report the debt as a debt. That is because it, and any subsequent owner of the debt, is bound by what is known as “res judicata” (or more commonly now called “collateral estoppel”). Basically what that means is that once a court has ruled on the validity of the debt – that ruling will apply no matter who later owns the debt.
Use the Credit Reporting Act
We’ll discuss how you can use the Credit Reporting Act (also called the “Fair Credit Reporting Act) to force debt collectors to remove negative credit references from your record once you’ve beaten them in a debt lawsuit in Part 2 of this article. You can get the rest of this article by clicking here: Using the Credit Reporting Act.