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DON'T BE HAMMERED BY YOUR DEBT

DON'T BE HAMMERED BY YOUR DEBT

Friday, July 21, 2006

What To Do If You Are Sued By A Debt Collection Lawyer

Yes I sue people every day. So why in the world would I tell you what to do if you are sued? There’s an old adage in the law that says you would rather go up against a good attorney rather than a bad one. Why would you want that? The answer is simple, a good attorney will do everything properly. You will not have to deal with foolish, inane or even stupid tactics, motions or arguments. An inept or even worse, a stupid opponent, be they attorney or lay person, simply creates more work for me. So when I sue someone, I would much rather they know what to do rather than have them act senselessly and ultimately, create more work for me, more headaches for themselves and achieve the same result they would have had they acted sensibly.
So you have been sued. What do you do first? The answer is take it SERIOUSLY. Do not treat it like a call from a collection agency or a nasty letter regarding your past due credit card bill. It is an extremely serious matter and it demands your immediate attention. The consequences of a lawsuit can be devastating and permanent. Time is of the essence now. Deadlines have been established that you may not even be aware of and they are not flexible. You may have to file a written answer within a certain period of time or you may have a limited amount of time to file any counter-claims. The first rule of being sued is therefore, treat it with urgency and importance. If you don’t, you will most likely have to live with the consequences and regret it for a very long time.

Secondly, you need to make a determination, a decision. That decision is essentially is this my debt or not. If it is your debt, then a specific course of action is dictated. If it is not your debt, then a very different course of action is necessary.
If you recognize the debt as legitimately yours, I strongly advise you to pay it. The best thing to do is pay it in full immediately. If you cannot pay it in full immediately, then call the attorney who is suing you. When you talk to him:

Be polite at all costs. Don’t give the attorney a reason to flag your file for special attention or create personal animosity between you and the attorney. It’s just business for the attorney. Don’t change that dynamic.

Explain your situation. Tell the lawyer exactly why you can’t pay the debt in full. Tell him about your employment situation, your assets, your obligations, the more information the better.

Document your situation. If there are any documents which back up your reason for not being able to pay in full immediately, offer to fax them to the attorney.

Talk in terms of solutions. Don’t just say, "I can’t pay." Offer the attorney a method for satisfying the debt. An example would be a very low payment made on a weekly basis instead of a monthly basis (to demonstrate your commitment) coupled with a time line for increased payments as your situation improves. Offer to put the plan in writing. Of course, only offer what you can do and what you intend to actually follow through with.

Give the attorney something to take back to his client. An attorney has a boss–his client. If he goes back to his client empty handed, he looks bad. Give him something he can show the client to prove that he is doing his job. The documentation of your situation, a signed payment plan, etc. are examples of items which allow an attorney to demonstrate to his client that progress is being made.

Stay in communication. If you can’t make a payment on a payment plan, call the lawyer. Don’t just let the date for payment come and go. Periodically ask the lawyer to verify your balance in writing. Update the lawyer on good and bad changes in your circumstances. This type of communication protects both you and the lawyer.

If the debt is not yours, fight the suit. If you can afford it, hire an attorney. This is critical. And don’t make the decision that you can’t afford an attorney until you have at the very least talked to some attorneys. Get some recommendation for an attorney, don’t just pick a name out of the phone book. Talk to your friends who have used attorneys, get attorneys you know or call to make recommendations or search the internet.

If you truly can’t afford an attorney, you will have to represent yourself. Contrary to poplar thought representing yourself practically guarantees your doom. If you do represent yourself;

Know where you stand. You will be operating in a completely foreign environment on the home court of your opponent. The attorney suing has spent years being educated in the law and has years of practical on the job experience. Representing yourself in a lawsuit is akin to operating on yourself. You have the same hope of success.

FDCPA is not a golden shield. Many consumers mistakenly believe the Federal Fair Debt Collection Practices Act is a golden shield that will protect them. A few even more misguided consumers think it is a sword to be used offensively against the debt collection lawyer. The FDCPA has it’s role and place and if the debt collection lawyer is acting outside the law, it is applicable. However, if you are facing a legitimate and ethically debt collection lawyer, the FDCPA is virtually useless as a defense and totally useless as a weapon.

Get help. Get help from wherever you can. Contact your local legal aid society and ask for help. Contact any local law school and see if they have a student assistance program. At the very least, search the internet and educate yourself.

Know dates. Dates and deadlines are crucial in a lawsuit. Once a deadline passes, it is past. A judge will not take pity on you or be more lenient because you are representing yourself. If you aren’t sure about a deadline or a date, ASK.

Learn the rules. Courts operate on the basis of rules, particularly Rules of Civil Procedure (how things are done) and Rules of Evidence (what a judge can see and hear). Get a copy of the rules that apply in the court that you have been sued in and learn them. If you don’t understand them, get help.

Ultimately, you need to understand that being sued is serious and stressful, but is not the end of the world. The absolute best advice I can give you comes in three parts.
Be patient.
Be polite.
Be honest.


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26 comments:

Anonymous said...

If a payment arrangement was accepted by the law firm, can the debtor still be sued?

Anonymous said...

How do you know you've been sued by the law firm? I've been receiving letters to contact them, but there have been no other statements. And the balance is under $2,000.

Anonymous said...

Yes you can be sued unless your agreement states that you cannot.

Indian Lawyer said...

Excellent article of great use... Was a nice read!! :)

Anonymous said...

God bless you DC Lawyer...all the sources on the internet have been jibber jabber. Thanks once again.

Anonymous said...

Completely untrue that you cannot use the fair debt collection act to counter-sue collection agency lawyers. How do I know? I did it myself with an attorney hired by American Express and won a bundle (and Amex dropped all claims against me as well of course). Get a killer attorney, throw as many counter claims as possible against the attorney who is suing you. Something is almost guaranteed to stick. These people work on volume and if you are more trouble than they are worth they will move on. If not they are as foolish as the egomaniac who wrote this article. Make them prove with exact documentation every single penny they are trying to collect from you. Reschedule the hearing a dozen times, then file motions to have any judgment vacated. Claim improper procedure, move to an appeals court. And remember a judgment simply says you owe the money, THEN they have to collect from you. Never give in to the parasites. They are the lowest form of life (and if you could have paid, you would have paid)!

Anonymous said...

I am an attorney and I defend these cases all the time. I used to sue people for Master Card when banks owned their own accounts. Ihaven't lost a case yet. The lawyers who are taking tehse cases now are not competent and cannot try a case. They cannot prove that you ever agreed to anything. But you have to make them work for it with heaps of discovery. Counterclaims for unfair debt collection will make them walk away but sometimes you can actually get them to pay you something also. On the junk debt buyers cases, they will always dismiss the case if you demand to see ALL of the acquisition papers - including how much they paid for the account. Also if the junk debt buyer is not registered to do busienss in your state - they never are - the case will be dismissed.

Anonymous said...

Does this strategy for settlement apply to student loans? With a high amount of principle?

dwst said...

can you be sued by a company after a reposession???

Anonymous said...

I'm being sued by FIA which is a Bank of America collection company. I have 30 days to respond and I am using a form (PLD-C-010) to do it. But there is so much more to it. I have no idea what I am doing and don't have anybody to ask. How do I get help. Everybody says to get help. But where, who, how?

Anonymous said...

what if i did not respond to the collection lawyer within the 30 day period

in the red said...

I did not respond within 30 days from the letter I received from the law firm who is trying to collect on a credit card debt

Anonymous said...

How many years back can a collection agency persue a bill?

Anonymous said...

I am also being sued for credit card debt. I have no income at this time, so a friend has offered for me to stay with her in another state. Can I move to another state while being sued? what process should I go through in order to move?

Anonymous said...

Never respond to a debt collection letter and hang up the phone if they call. Any interaction resets the clock for how long they have to collect. The statute of limitations is different in every state.

Check you state small claims filings for yourself online. You can keep track of how things are (or are not) progressing. Never answer the door to a stranger who could be a server. Do not pick up certified mail at the post office. They must serve you, so hide!

If they succeed in serving you, absolutely show up for court. If they don't show, you win.

Demand proof it is your debt, proof of the amount, proof they own it, proof they are licensed to collect debts in your states(for debt collectors), and how much they paid for your debt. Check the rules for when and how this is done.

You need to learn at least the basics of how the courts work - rules of procedure and rules of evidence. The more your learn about the relevant law (for debt collection) and how to move (or hold up) the legal process the better - but that takes a lot of time and is confusing.

Anonymous said...

very informative! I am being sued by a debt collection agency and (along with contemplating suicide), I am extremely frustrated. I have NEVER heard from this agency; NEVER received any coorespondence stating that they represent the original creditor (Capital One); their agency does not appear on my credit report; my debt was charged off by Capital One but it does not state that it was sold, etc.; I DO NOT want to go to court unaware of defenses which I might be able to use. Furthermore, if this agency legitimately owns my debt, then I would be willing to set up some type of installment payment plan at a reduced amount (seeing that any monies I pay them will be %100 profit atop their 'pennies-to-the-dollar' purchase of my charged off debt). If anyone can help me, PLEASE RESPOND.

Anonymous said...

Ditto (exactly) the above re: Capital One. Any help would be appreciated.

Kevin said...

" AFFIDAVIT DENYING EXISTENCE OF FICTITIOUS CORPORATIONS,
OPPORTUNITY TO CURE, AND COUNTERCLAIM!"

http://affidavit-denying.blogspot.com

Anonymous said...

I'm fighting a debt collection lawyer who states representing Capital One. In fact, he's a debt buyer. We're in process of counter suing them for harassment as Capital One wrote off the debt years ago. These folks are bottom of the bottom feeders. FIGHT BACK! You can win! If you don't respond within the time states they will get a default judgment and garnish wages, you must respond via the courts.

INTOOKST said...

I too am being sued my Crapital One, and an attorney. I live in TX, and I also thought CO had charged it off. The original limit was $2000 and now it has grown to $4400. I contacted an attorney he's fee id $750,and he said he never gets CO accts dismissed but reduuced to 30%. Add that up and it comes to almost exactly what the limit on it was...Is there any of this I can do myself? I already printed a DV letter, but I don't want to send it and ruin any chance I might have otherwise. The card was delinquent 3 1/2 yrs ago. I am not wealthy but not broke either.Should I call CO and try to settle it myself? Send the letter first? Or suck it up and hire the ambulance chaser? PLEASE help I only have to Jan 2...Thank You

INTOOKST said...

I too am being sued my Crapital One, and an attorney. I live in TX, and I also thought CO had charged it off. The original limit was $2000 and now it has grown to $4400. I contacted an attorney he's fee id $750,and he said he never gets CO accts dismissed but reduuced to 30%. Add that up and it comes to almost exactly what the limit on it was...Is there any of this I can do myself? I already printed a DV letter, but I don't want to send it and ruin any chance I might have otherwise. The card was delinquent 3 1/2 yrs ago. I am not wealthy but not broke either.Should I call CO and try to settle it myself? Send the letter first? Or suck it up and hire the ambulance chaser? PLEASE help I only have to Jan 2...Thank You

Bartly said...

Guys I used this site and it worked www.answer-summons.com I had 18k against me because it was not the original creditor.

Anonymous said...

This guy is full of beans. He is trying to deceive people into thinking the best thing to do is cave in and pay up. It doesn't matter how ethical the lawyer suing you is. Was the collection agency ethical before they handed it over to an attorney? Their behavior comes into play. The FDCPA is a good weapon despite what this guy says. Of course he doesn't want people to use it- he says he is a debt collection lawyer. If your rights were violated then ethically you don't owe the people that are suing you a damn thing. Talk with your lawyer and understand you can use affirmative defenses if your rights have been violated. These bottom feeding collection agencies and bottom feeding lawyers that represent them want to get quick default judgements or summary judgements. When you show them that you are going to fight back they run with their tails between their legs just like the amoral devils they are. I was sued recently and when I fought back the lawyer ran for the hills and the case was dismissed.

Anonymous said...

I was sued by CIR (Cap. One Rep.), they put a judgment against me. I do not remember when they served me because I moved out long time ago. the account was only $300, but ended up $2,200. They sent me a letter of offer for $700, 700 and then $900. I declined all but recently, I called them and offer to pay $700, they denied that and told that I have to pay $900 to settle. I denied. and then tried back few days later, they asked me to pay $2000 to settle. How could I fix this?
thank you a lot.

Quentin said...

This is awesome!

Anonymous said...

Always defend yourself against these junk debt buyers. Attack the chain of assignment because NONE of them has the proper paperwork, signed agreement, terms, statements, etc to prove they have the right to sue you.
The writer is giving HORRIBLE advice, you have to consider the source. He wants you to be hopeless and give in and agree to pay. Actually, he'd rather you not show up at all so he gets an easy judgement. They file thousands of cases a year and 90% never show up so they get automatic judgements, then garnishments. These junk debt buyers pay pennies for your account, and you can request during discovery the amount they paid, signed agreement, proper chain of assignment. They rely on you getting scared of a trial and settling, which if that's what you want wait until trial day and negotiate for at least 50% and usually 30%. They don't want a trial either.

Don't be afraid, contrary to this article, the majority of lawyers working for the debt buyers are NOT experienced at all. Fresh out of law school, They get nervous, clam up in court, stumble over words and even the judges laugh at them. Go to court and sit in, watch a few cases. It's better than a sitcom.
One last thing make sure the statute of limitations isn't up on the debt you owe. Every state is different, but my state is 3 years. They can't sue after that time, but make sure you go to court and explain that.