If You're Suing or Being Sued...Read This..

[nascar]

Done. Thanks for the suggestion.

[legal_loansharking]

Admin,

If you find this posting is good, please add as a sticky. I see lots of people in panic mode when they are served, this posting can help a lot of people.

If you have received a summons, read it and see if it requires a response, 99.9% of them actually do. Some are as simple as calling the courthouse and letting them know of your intention to defend.

On occasion, once the attorney receives your notice of intent to defend from the courthouse, either they will not show up or withdrawl the case. These attorneys were looking for a default judgment without doing any work. Or they have no evidence at all to present.

Remember this, the attorney is acting as a collection agency during all legal proceedings. Even if they do have statements such as credit card statements, the typical attorney will use you as their witness to prove their case. Your case will be called and since they are suing you, they go first. They will call you to the stand and ask you your name, address, etc... all of the info readily available to them. If they have statements or not they will ask you if you had an account with so and so and basically make you incriminate yourself.

This needs to stop and you can stop it by citing the following case about the 5th amendment: In Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S.Ct. 316 (1973), the U.S. Supreme Court stated this rule as follows:

"The Amendment not only protects the individual against being involuntarily called as a witness against himself in a criminal prosecution but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future proceedings."

Unless they actually bring an employee from the credit card company with them to testify or have a notorized affidavit they have no case. In the event the debt was purchased by a JDB, they really do not have first hand knowledge about the debt and therefore cannot really be used as evidence, but you will have to let the judge know this. Check with the county in which the notary was issued, see if this person is actually a notary. It is too easy to get a rubber stamp made up and pretend they are actually a notary.

If you are using SOL as a defense, bring your bank statements and any other evidence with you to prove your case, the judge will base his/her decision on who has the most evidence.

If you have FDCPA violations and are going to countersue, hire an attorney. They attorney will add on his/her fees to the suit if they feel as though you have a case. You may have to pay the filing fees, but if you did this pro se, you would have to pay the filing fees anyway.

When choosing an attoney pick one that does this for a living a consumer advocate / bankruptcy attorney, dont hire the local ambulance chaser, they more than likely do not know the laws. The consumer advocate attorneys know the laws and the JDB attorneys in your area and can give you a good handle on what to expect.

A decent attorney will charge you 50.00 for a consultation, or free if you have a case and retain them.

[DebtLawRookie]

If you have FDCPA violations and are going to countersue, hire an attorney. They attorney will add on his/her fees to the suit if they feel as though you have a case. You may have to pay the filing fees, but if you did this pro se, you would have to pay the filing fees anyway.

Great suggestion, I just wanted to add that in some states, it doesnt cost anything to add a CC (counterclaim) while also answering a lawsuit. And in many states, it is free to answer the complaint (lawsuit), and therefore free to file CC's.

Im putting this here because many who come here seeking info (as I did a few months ago) may not know this, if in fact it applies to their state's ROP (rules of procedure).

[Betty109]

Unfortunately, it appears that he removed this document from his site. I couldn't find a link to it:(.

[jdjlocksmith]

NY Civil court: When you go to file your answer, pull your court file and see what papers they filed. Did they:

1. Did they file statements to prove the amount they are suing for?

2. Did they filed a Letter of sale or assignment from the original creditor?

If the collector brought the debt they must have this if they claim they are the assignee of the account. Without that, they have no case. Your answer would be no letter sale or assignment.

If there is a letter of sale, they can not be an assignee. The letter will state that they were assigned that debt and that they can charge interest. Therefore, they cannot charge interest. The debt should be what the OC is reporting, not what the collector added. The FDCPA states they can only collect the original debt no fees or interest; no letter - no fees. no interest.

It worked for me and a few friends.

[admin]

Florida Discovery Handbook:

http://www.flatls.org/index.php?option=com_rubberdoc&view=category&id=40&Itemid=62

[NotSoGoodAtProSe]

Florida Discovery Handbook:

http://www.flatls.org/index.php?option=com_rubberdoc&view=category&id=40&Itemid=62

Nice find! Thanks for posting it.

[skywench]

Here is the Tx federal pro se guide. Should help some.

http://www.txwd.uscourts.gov/forms/files/prosemanual.pdf

The link above appears to be dead. Here's an updated link:

http://www.txwd.uscourts.gov/prose/docs/prosemanual.pdf

[FlaLawyer]

http://www.ll.georgetown.edu/tutorials/

A legal research and writing blog.

[Lilmspj]

There is a procedure called " SHEPARDIZING" Sheparidizing is when you go to a case,,,, on that has gone up in the courts and has been published. In that case you will find other cases that that particular case relied on to get the verdict it did..

there is a program called LEXIS/WESTLAW. and it is time consuming, but if you go to a law library, a public on is fine too..... you can ask about how you find case law...

If you look up a case that is posted on this site.. Pintos vs. something auto towing..... in that decision there is case law that is quoted.. your job is to read those kind of cases and decide if that case helps you or not... if it doesn't -- move to the next case, and site cases that help your position.

Let me give you an example... let's say that my car was towed because I had too many parking tickets and the fees to get my car back were so high that I could not get my car back so it was sold at auctions. The company who sold the car did not get their fees so they sue me for the balance..... I want to use the case of Pinto vs. Something Car Towing in my argument because I want to say to the judge.. Look Judge... you should dismiss this matter because in the case of Pinto.. her car was towed, and that car was sold.. the company did not get the fees they thought they should get so you should grant my position because my case is very similar to hers......

Usually when you Shepardize, you will have a list of cases to review, and you want to note the HOLDING in each matter....

[RobinHood]

What Lilmspj is trying to say is that you need to check and verify that the case you cite is still GOOD law. That is, that it hasn't been overruled or overturned by a higher court. You check a citation by Sherpardizing - a verb from the name of the book publishing all the cases citing cases. Shephard's Citations. You can find these books in any law library. Using Westlaw or Lexis is the short and easy way to Sheperdize a case but is very expensive if you're not a law student.

Not only does Shepardizing your case and your opponents case make sure the law being used is good, but it will also, as Lilmspj suggest, give you all cases that cited to your case so it can help find other similar cases to help distinguish yours, etc...

http://legal-dictionary.thefreedictionary.com/Shepardize

http://en.wikipedia.org/wiki/Shepard%27s_Citations

Here's what the book looks like in the library:

http://www.amazon.com/Shepards-Citations-Federal-Citaation-Statute/dp/0769837263

Do a google search for guides on how to use it. The codes for the cases can be difficult to interpret.

[newryman]

Ohhhhhhh I am so conflicted here. Yes what has been said above is correct. however, a skilled advocate will use case law that is against him to establish why it is wrong and should be overturned.

In short case law is good for the uninitiated when it backs their point of view but in reality is probably best avoided. The Judge will know from the points made what the law is, there is no need to try and educate him. The opposing counsel is likely to tie you up in explaining why it backs your point of view. A dangerous position to place yourself in pro per.

Case law for me in the hands of a pro per is a dangerous thing. It is useful to know to keep you on track but can backfire real quick.

Sorry to go a little bit off topic guys but I just wanted to point out what is obvious to the posters in this thread but may not be to people who are not familiar with running a case at trial.

Please carry on with normal service whislt I now retreat

[RobinHood]

Ohhhhhhh I am so conflicted here. Yes what has been said above is correct. however, a skilled advocate will use case law that is against him to establish why it is wrong and should be overturned.

In short case law is good for the uninitiated when it backs their point of view but in reality is probably best avoided. The Judge will know from the points made what the law is, there is no need to try and educate him. The opposing counsel is likely to tie you up in explaining why it backs your point of view. A dangerous position to place yourself in pro per.

Case law for me in the hands of a pro per is a dangerous thing. It is useful to know to keep you on track but can backfire real quick.

Sorry to go a little bit off topic guys but I just wanted to point out what is obvious to the posters in this thread but may not be to people who are not familiar with running a case at trial.

Please carry on with normal service whislt I now retreat

I have seen a layperson get tripped up but I've also seen very smart pro per's knocking the socks off both lawyers and judge's with case law. Think of the law as gray area - your job is to convince the judge your version is correct. Use everything at your disposal. Spend a lot of time researching and briefing the issues. You can spend more time on your case than opposing counsel and be more prepared.

No offense newryman, you know a lot and I respect your knowledge and experience, but from my personal experience, I have seen judge's apply the wrong law, public policy, or use no law, etc... If trial judge's did it right every time no one would win on appeal.

[admin]

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=302814

[FL4answer58]

IMO Good Read for Everyone.

Has anyone read this – it has a lot of good information!

Note: Out of the Big 4 - O percent go to trial!

Debt Deception

How Debt Buyers Abuse the Legal System to Preyon Lower-Income New Yorkers

May 2010

http://nedap.org/pressroom/documents/DEBT_DECEPTION_FINAL_WEB.pdf

This study has very useful information...for everyone - not Just NY.

Maybe Admin can push or add to appropriate sticky.

Great post, wonder what usctrojanalum has to say about the sewer service by process servers documented in New York. Yeah, as I've said before, there are bogus default judgments across the country that need to be reversed.

Great post, wonder what usctrojanalum has to say about the sewer service by process servers documented in New York. Yeah, as I've said before, there are bogus default judgments across the country that need to be reversed.

What we need is immediate legislative and regulatory action to end abusive debt collection lawsuits. Here are the key recommendations:

Prohibit debt buyers from filing lawsuits without evidence.

Debt buyers routinely file frivolous lawsuits against low-income residents even though they have no evidence to prove the debts are owed. The legislature should crack down on this unfair practice by enacting the Consumer Credit Fairness Act (CCFA), which would raise the bar on what information debt buyers have to submit to the court when filing lawsuits and applying for default judgments.

Aggressively regulate and monitor process servers.

Many people never receive notice of debt buyer lawsuits because process servers routinely engage in “sewer service” – failing to serve court papers and filing false affidavits of service with the courts. The New York City Council recently passed groundbreaking legislation intended to curb this unlawful practice. Other states should implement strong regulations to carry out the new law and make enforcement of the new law an agency priority.

Expand government enforcement action against debt collectors.

The states Attorney General should continue to take aggressive action against the debt collection industry and use the findings of this report to initiate new investigations. The Federal Trade Commission (FTC) should continue to make debt collection an agency priority, with specific focus on the debt buying industry.

Ensure judicial review of default judgments and settlements.

Court clerks, rather than judges, routinely grant default judgments to debt buyers despite glaring legal deficiencies in their applications. Many people sued are pressured into unfair and unaffordable settlements that leave them in a worse position than if they had ignored the lawsuits. To ensure fundamental fairness, additional resources need to be provided to the courts so that judges can review default judgment applications and settlement agreements.

Increase legal representation and resources for people sued by debt buyers.

Overall, only 1% of people sued by debt buyers (in NY an most likely reflected across the nation as a whole) are represented by counsel. The abusive practices described in this report have flourished because of the gross imbalance of power between represented debt buyers and unrepresented residents. The sate should seek to correct this imbalance by supporting increased legal representation and resources for low-income people sued by debt buyers.

Also of note from this study:

Lack of Proof

"The staggering number of default judgments obtained through sewer service masks the fact that debt buyers rarely have admissible evidence of the debt and that many cases are meritless. As discussed above, debt buyers typically do not purchase documentation of debts, such as credit applications bearing signatures, the contracts that applied to each account, account statements, or customer service records that would confirm or clarify fraud claims or customer disputes. While some debt buyers have a contractual right to obtain a portion of this information in a limited number of cases, this is far from the norm. In the vast majority of cases filed, debt buyers cannot provide documentation of the underlying debt. The law requires that debt buyers provide proof of their claims in order to win a case. If a debt buyer cannot do so, and the case is contested, the case must be dismissed."

And:

"When people do appear in court, judges and court personnel actively encourage settlement because it tends to free up court resources and allows the court to remove cases from the crowded calendar.

Collection attorneys typically take people into the hallways for one-sided settlement discussions, out of earshot of judges and other court personnel. In these conversations, attorneys exert extreme pressure upon people to pay some part of the debt regardless of their defenses or the debt buyer’s lack of proof. This is a trend seen across the country, and raises questions of how fair the outcomes in these cases can be, given such an uneven playing field."

"In the Court Sample, most settlement agreements provided for a payment plan of $50 - $100 per month, with the condition that if the individual defaulted in payment, the debt buyer would be able to enter judgment for the full amount of the debt, plus costs and interest. Defaults in payment were not uncommon, leading us to conclude that people are often pressured into unaffordable and unsustainable settlements. Settlements thus provided a potential bonanza for debt buyers. When people in the Court Sample defaulted on their settlements, debt buyers were able to obtain judgments that exceeded the original debts by nearly 24%. Defaulted settlements offered the worst possible outcomes for individuals and the best possible outcomes for debt buyers."

"When unrepresented people enter into settlements, they often waive significant defenses on which they could have prevailed if they had understood how to assert them."

"In one shocking example, a debt buyer sued (defendant) twice for the same debt. In the first case, she obtained a dismissal with prejudice, which means that the court made a final determination that she did not owe the debt, and the case could never be brought against her again. Despite this result, (the JDB) sued (defendant) again two years later on the same debt. This second suit was unlawful and never should have been filed, but (the JDB) ultimately agreed to settle this unlawfully filed case for $75 per month."

In my neck of the woods, it's the court that exerts extreme pressure on the parties to settle. I was threatened with financial ruin by a (supposedly neutral) magistrate in a pre-trial.

In my neck of the woods, it's the court that exerts extreme pressure on the parties to settle. I was threatened with financial ruin by a (supposedly neutral) magistrate in a pre-trial.

Exactly why I posted this – most of us have a similar story.

“Court clerks, rather than judges, routinely grant default judgments to debt buyers despite glaring legal deficiencies.”

“When people do appear in court, judges and court personnel actively encourage settlement because it tends to free up court resources and allows the court to remove cases from the crowded calendar.”

“The problem is exacerbated by the Court’s practice of giving [applications for default] judgments to clerks instead of judges. Court clerks are often not lawyers, and they do not have the ability to assess whether the application meets minimum evidentiary standards.”

Worth a sticky.

Great post, wonder what usctrojanalum has to say about the sewer service by process servers documented in New York.

There is none, the AG basically lost his case against the debt collection law firms. The AG did not provide one shred of evidence of any defective service or affidavits, that is the main reason why his settlement was a joke. (And because the Courts/County Clerks told the AG you can't overburden us with vacating judgments that have already been paid)

Edited September 10, 2010 by admin
We have enough stickies

[AEJustin1]

Thanks for these, I plan on reading up on this stuff as much as possible!

[workingpoor]

Interesting quote from the article in the OP.

"Creditors lose their exemption if they use a false name that indicates a separate debt collector is involved, or those that do not clearly indicate that the creditor is, in fact, collecting the debt. Thus, a defendant must carefully examine the nature of the communications to the consumer to ensure that a viable argument could not be presented that a "least sophisticated consumer" would be lead to believe that the person collecting is not truly employed by or affiliated with the creditor."

Sounds like the scam CAP1 is playing...

[smacd05]

I was served 11 days prior to court date and i am totally unprepared . what are my options?

[sweeneytodd]

Again thanks all for your input on this site it has been VERY helpful. I had thought we had the case settled - rec'd a letter of dismissal from acting atty but then 3 days after getting dismissal rec'd a packet with s'posed inv on the acct. And then about 1 week later got a set of interragatories from acting atty??? I signed the dismissal letter sent certified copy to both the court and back to accting atty for ca - so now my question is am I s'pose to answer the interragatories? Do I go to pretrial conference?

Thanks in advance for the help!!!

[allamuchy]

I was served by the Constable and being sued by Citibank for $1800.00. I need to answer this summons and was HOPING for a little direction in this. From everything I have read.... if I do answer the summons, go to court and asked to step out in the hall to make a "payment plan"... what would one suggest my answer be????? Wait to speak to the judge? The only paperwork that was included in the summons was a copy of a statement from months ago.

ANY ADVICE WOULD BE GREATLY APPRECIATED!!!

[hopefulscambeater.]

go to court and asked to step out in the hall to make a "payment plan"... what would one suggest my answer be?????

I'm assuming you denied this? IF so, why would you consider a "payment plan" on an unproved alleged debt???

[ausag]

Thanks for all the info.

[Tony N.]

Thanks for the information everyone. This is very helpful.

[Chemburleigh]

When I went to court for the first time I did not speak to a judge. I was sworn in as a group in the court room then taken to a side room to talk to the Plantiff's attorney. The attorney did not identify themselves as a attorney for the Plantiff and was dressed in casual attire. The attorney asked what kind of payment plan I could do. I told them none. Then the attorney pulled out the already made default judgement packet that contained credit card statements and other documents that did not accompany my Warrant in Debt/ summons. The attorney asked if that was my name on the papers, I said yes and asked for a trial date. Then the attorney took me back to court room to set a trial date with the clerk. The clerk gave me the date a Bill of Particulars were due and a form and date for my Ground of Defense. The judge was not in the court room at the time.

[Czillag]

Hi Everyone. I feel like I'm at my wit's end trying to find free or low-cost legal assistance. I scoured the internet, including this site about how to answer Discovery requests. I called up NYC legal aid, I was turned away because I live just outside NYC. I called legal aid for the county I live in and they're impossible to get on the phone.

As all you good folks know, this is a time-sensitive issue. I just need to know how I

should present my answers to Discovery and what the legal implications are for my

answers. Can anyone suggest any links?