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.