Archive for the ‘DIY Lawsuit Defense’ Category

What difference is there with an attorney or DIY?

Sunday, February 22nd, 2015

There are plenty of sound reasons to hire a seasoned professional, who has the knowledge, tools, and experience to do the job correctly through to completion. Clearly, others agree with me by their referrals of folks in need of debt collection lawsuit defense or debt settlement. Superior Court dockets around California are flush with money judgments against people who had no legal representation, though the debtor filed documents in the case that he or she believed would prevent a money judgment.

A few people assume that lawyers simply type their new client’s name and case number on a standardized legal form, then pay the court’s fee to file it. Trial could be many months off, so what happens now? Next is the discovery phase, in which both sides get to ask the other for their documents and evidence of the case, to prepare for trial. Lawyers who do these cases are ready, so expect to receive those requests from the debt collection lawyers soon after your response is filed. They can also ask to have you appear in their law office to answer questions under oath at a deposition. Is this something you can handle without an attorney present? You may also expect the debt collection lawyers to file a “motion” stating that you did something incorrectly, which can result in your papers being stricken or you may be ordered to pay more money, known as “monetary sanctions,” to the collection lawyers. If you are fortunate to get to trial, what do you say when the debt collection attorney asks you if this was your debt and if you disputed any of the credit card statements that the judge is reviewing? The knowledge of how to deal with each of these experiences is not learned in school, it is learned by handling these types of cases every day.

Some people believe that they have the same tools as a debt collection defense lawyer uses for taking on a debt collection law firm: a computer, a printer, and the internet. As anyone with a new computer can remind those people, a computer is useless without certain programs and the information those apps require. Even MS Word is a blank slate that needs legal forms in document files, before a lawyer can file it in court. There is also the challenge of representing yourself, when it comes time to serve a document. Serving a legal document must be done by someone who is not party to the lawsuit, which is why a process server, a lawyer and anyone in the law firm can serve legal documents.  Anyone but a party, who is at least age 18.

I cannot imagine someone believing that they have the experience of an attorney who every day represents consumers against debt collection attorneys. Lawyers who rarely handle debt collection cases don’t have the experience to know how much these cases often settle for and which debt collection agencies and creditors settle for less and which demand more. That is why many lawyers who do not handle these cases quote astronomical fees to prospective clients, because they don’t have any idea how much time the case requires and they’d rather not deal in unfamiliar territory. Also, because those lawyers don’t routinely handle debt collect cases, they will take much longer getting papers together and making sure, from start to finish, that key areas have been covered.

When you hire an attorney with the experience handling debt collection cases, you benefit from his or her knowledge, tools and experience, which ends up saving money and reducing the risk of bad outcomes posed by such lawsuits.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler
Facebook: www.facebook.com/SoCalConsumerLawyer

Debt Collection Lawsuit for Unpaid Balance of a Car Loan Contract

Friday, March 8th, 2013

Question: About three years ago, I was unemployed and did not have enough money to keep paying for the insurance, gas, and installment payments. I contacted the finance company and they told me to surrender my car at the dealership and they would take care of the paperwork. The car was in great condition and I got a notice from the lender after the drop off that they would sell the car at an auction if I did not want the vehicle back. I thought that it would be over, but it wasn’t. They sent me a bill for the unpaid balance, reported it on my credit reports as a repossession, and now they hired a debt collection law firm from Orange County, which is pursing me in court. I was served with the debt collection lawsuit yesterday.

My response:
Please review my legal guide on Avvo.com which explains the California consumer’s rights following repossession of a motor vehicle. The fact that you took it yourself to the dealership and voluntarily surrendered it during business hours rather than have a repo agent come to your home at night to seize it does not change the fact that it was a repossession and the finance company’s duty to give you proper notice before they may sell the vehicle at auction or private sale. Essentially, before the finance company may sell the vehicle and then have the right to the unpaid balance, they must send you a proper notice of intent to sell or dispose and then perform the sale in a commercially reasonable manner. More details are in my repossession legal guide.

Once you have an idea of the substantive law regarding repossession from my legal guide, now you can review my blog on your options and the civil procedure for defending a debt collection lawsuit, in my “Next Steps” blog posting. That blog posting provides guidance on the defendant’s options when receiving a debt collection lawsuit and how much time is appropriate to avoid a default judgment, as some people confuse a hearing date with the due date for a proper, written response. Usually, the defendant has 30 days to file the defense papers in court from date of personal service by a process server.

To reduce the risk of losing and a money judgment entered against you, I’d recommend hiring an experienced consumer attorney who handles debt collection lawsuit defense. Most of these cases are settled or dismissed, once the consumer and his or her lawyer see what documents the debt collection law firm has or is missing. Sometimes the notice of intent was missing a required disclosure or the amounts were not correctly stated or the vehicle was not sold in a commercially reasonable manner. These are challenging arguments to present in court and not for the do-it-yourself types, even if you’ve been in a courtroom before.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

I was just served with a credit card collection lawsuit. Now what?

Monday, March 4th, 2013

Question: I stopped paying on my credit card a while back, because I was tired of paying a high interest rate and I did not have enough money to pay it all off. I sort of suspected that this debt would be sold to a debt collection agency for pennies on the dollar, but the papers are asking for me to pay the full balance, plus the high interest rate that I thought I was going to avoid. I contacted the company and they are holding firm on that number. I don’t have the money for this and my income is too high to qualify for a Chapter 7 bankruptcy.

My response:
First, please check out the short videos on my home page. The first video is a quick overview of all options that are possible to the situation of being served with a debt collection lawsuit. That will help you narrow down your options to the one or two that suit your situation and your own preferences. Your posting did not specify what bank had the original credit card or when you last paid it, which will help determine if they filed the lawsuit after the statute of limitations period had expired. That is very important in these cases and makes a big difference.

I’d then suggest reading my blog posting on the defendant’s Next Steps when the consumer has been sued in a debt collection lawsuit on a defaulted credit card. That blog explains how much time is appropriate to avoid a default judgment, as some people confuse a hearing date with the due date for a proper, written response. If you want to defend this lawsuit and have a good chance to settle for much less or possibly get the case dismissed, do not miss the deadline for filing a response or having a lawyer do this for you. It is usually 30 days from the date of being personally served, but please don’t wait for the last minute.

I don’t suggest that consumers or non-litigation attorneys try to handle the lawsuit defense for themselves, as I have seen too many people either pay way more than they should to settle with the debt collection law firm or they file papers with the court, which get stricken as being defective or improperly admit most or all of the debt collection lawsuit. Almost as bad, is when the debt collection lawyers press the case very hard against the defendant, using court procedures and formal discovery requests to overcome the defendant’s attempt to get the case to trial. I have some of these as PDFs on my website, in the Case Examples tab.

To avoid the risk of losing a money judgment for the full balance in the lawsuit plus accrued interest, I urge you to contact an experienced consumer attorney, who regularly handles debt collection lawsuit defense. An experienced attorney should be able to help negotiate a satisfactory settlement or get the case dismissed, depending on the admissible evidence that the debt collection law firm can obtain or not obtain.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

DIY Collection Lawsuit Defense: Key Pitfalls

Tuesday, January 15th, 2013

Question: I am not attorney, but I want to represent myself in a debt collection lawsuit. What are the major pitfalls that I should study at the law library or online, so that I am ready to take the case to trial?

My response: There are so many books on the web that brag about having had one or two victories in court against debt collection lawyers. While I have gotten many collection cases dismissed for my clients and settled many others, when an individual expects to prevail in court on an unpaid debt, probably they have read too many web sites selling books and other materials that probably will do nothing, other than get a money judgment entered against them for the full balance, plus interest, costs and attorney’s fees.

Here are several of the major pitfalls, which is why it takes years of law school and experience defending debt collection cases, to really be able to have a sound strategy to help the client reach the outcome they desire for the case:
a. If the answer to complaint contains errors, the court may disregard it and enter a money judgment, if the Plaintiff’s attorney files a motion to strike or demurrer to the answer to complaint. Sometimes, the Defendant does not pay the court’s appearance fee.
b. The Plaintiff’s attorney sends written discovery to the Defendant or sets their deposition to answer questions under oath. If the defendant fails to respond timely and in proper form, the Plaintiff’s attorney can seek sanctions of more money or limit the important facts at trial.
c. The Plaintiff’s attorney can file a motion for summary judgment, which adds more costs to the case ($500). If granted, there is no trial, only a judgment.
d. The Plaintiff’s attorney can ask questions at trial of the Defendant, many of which might result in the court entering a judgment.
e. The court can set hearings and conferences that require both sides to attend. Missing these can cause the court to strike the answer to complaint.
f. The Plaintiff’s attorney offers evidence at trial that is hearsay or unreliable, but the defendant does not object properly or fails to explain why the evidence should be rejected, so the evidence is admitted and a money judgment entered.
g. The Defendant does not understand the rules that apply to the debt lawsuit, such as the Statute of Limitations, so they expend their efforts on incorrect views of the law and don’t pursue legitimate defenses that an experienced attorney would have found.

I have had many clients come to me after they try to represent themselves. They typically received papers from the Plaintiff’s attorney or from the court, but didn’t know how to respond, so that they are facing sanctions or have been sanctioned by the court for noncompliance. Or, even worse, a judgment has been entered at trial, but the defendant still believes that they should spend more time and money on an appeal.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer

If I file a Really Good DIY Answer, Is it 50/50 that I Can Win at Trial?

Saturday, December 1st, 2012

Question:
I’ve read your web site and many law blogs. Now that I have all this information, I feel that I can file for myself the form answer in court, pay the fee to the clerk, then wait for trial to see what the judge does with my case, when I show up. The lawsuit is for under $6000 plus the collection complaint wants interest at 29% from November 2010, court costs, and attorney’s fees. Maybe I’ll get lucky and the judge will dismiss. One of the other web sites said that at trial, the judge will probably throw out the evidence, because they don’t have original documents. Is it really 50/50? Sound like a plan?

My response:
As the first video on my home page makes clear (home page link), representing yourself against the debt collection lawyers is one option. However, as stated in my blogs in the category DIY Lawsuit Defense, many people who try DIY Lawsuit Defense get picked off by the debt collection lawyers, who know the drill and are in the civil courts almost every day on debt collection cases.

I have had many people come to me, while trying to represent themselves. The common situations when the DIY consumer-defendant contacts me are: (a) they don’t know what to do with the interrogatories, document demands, and requests for admissions received from the Plaintiff’s lawyers; (b) they did not respond to something that they received or do not recall receiving it, so now the Plaintiff’s lawyers have filed papers with the court for sanctions (a form of penalty on a party who does not follow the rules), on top of the judgment for the unpaid debt; ( c) the Plaintiff’s lawyers filed papers in court to get a judgment, even though trial has not been scheduled or is months away; (d) the court granted a money judgment for the full amount, after appearing at the trial to do this DIY Lawsuit Defense.

Certainly, there are a small percentage of debt collection cases in which the Plaintiff’s lawyers dismiss, after the defendant has filed a valid response in court, to prevent the entry of a default judgment on the complaint, or the case is dismissed shortly before trial, because the Plaintiff does not have their evidence ready for trial. More likely, however, is the likelihood that if the Plaintiff’s lawyers receive the paperwork from a DIY consumer defendant, they will look for and exploit any weaknesses, given their considerable experience collecting from DIY consumers. In my experience, the consumer-defendant’s papers are almost always defective. Even if the consumer-defendant’s court papers are excellent, the consumer later makes other big mistakes, which result in entry of a full money judgment against them at or before trial.

What is the basis for those web sites that claim a DIY consumer can get their case dismissed at trial or even before? Do they have verifiable results, or is it merely anecdotal? How many money judgments do those web sites acknowledge are entered against people who try DIY Lawsuit Defense? Often, the web sites don’t rely on actual statistics, they make unsubstantiated claims or have only a handful of favorable results. When the dust clears, the DIY Lawsuit Defense typically yields to the plans of the plaintiff’s lawyers to get a money judgment against you, if you did not agree to the terms they proposed. Otherwise, the debt collection clients will be dissatisfied with poor results and hire other lawyers who will get better results.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

They did not say, “You’ve been served,” so can I just ignore the Summons Form SUM-100?

Friday, September 21st, 2012

Question: The Summons (Citation Judicial), Form SUM-100, that came with the lawsuit for an unpaid credit card debt has a handwritten date to the left of the Clerk’s signature line.  The summons does not have a date at the bottom, where it says “Notice to Person Served.”  Box 1 is checked for individual defendant.  Someone handed it to me a week ago, but they did not say anything, such as “You’ve been served!” I just received a letter from the attorney firm that says I should call them to settle, because I was served.  Can I just ignore this, until they come back? If I must respond to it, when does my 30 days expire?

My response:
The date on the summons next to the clerk’s signature is the date the summons was endorsed by the Clerk of the Court, typically the same date as the collection complaint was filed. Thus, the summons date should match the complaint filing date.  It would be pretty rare for a lawsuit to be served on a defendant the same day that it is filed with the clerk. Thus, the filing date is usually not used to calculate the due date of the defendant’s response in court.

The date when you (the defendant) must file a response in court is determined by the date and method of delivery to you of the lawsuit papers.  For instance, if the defendant was personally served (meaning the summons and complaint were handed personally to the defendant), then he or she has 30 days from that date to file a written response in court.  If not personally served, but a method known as substitute service was used, then the due date is 40 days from the mailing date, which is why I recommend people save even the envelope, to keep the postmark date on the envelope.

In California, the process server need not say anything if the defendant is being personally served.  The movies about someone saying, “You’ve been served,” either reflect laws of other states or are entertaining in their drama.  Only where the person is not the defendant, should the process server explain that they are being given the legal papers for a lawsuit for the defendant and those papers should be given to the defendant right away.  Problems arise, such as a default judgment, when the recipient receives the papers, but fails to promptly give them to the defendant.

I have on the home page of my web site, a video of understanding your options to consider, before filing a DIY response yourself, against these professional debt collection lawyers.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Founder of “Debtorboards.com” Dodges his Creditors: No Surprise Here

Thursday, November 3rd, 2011

Most of us have the common wisdom to know that information online is only as reliable as its source. For years, I’ve taken that common sense approach and applied it to the practice of helping consumers navigate away from bad legal decisions. I have warned people: if you want reliable legal information, the source should be a licensed attorney. I have also warned people against getting their legal advice from non-attorney neighbors, friends, coworkers, and the clerk at the courthouse.

Recently, the popular magazine, Mother Jones (online at MotherJones.com), reported on Steven Katz (not an attorney), who prevailed in court over a debt collector who harassed him to pay an unpaid credit card debt. See article at: http://motherjones.com/politics/2011/01/steven-katz-credit-card-debt

According to the article, soon after that victory, Mr. Katz proclaimed himself a “credit terrorist” and started a crusade to help others fight the banks in court by founding www.Debtorboards.com and offering people hope with the slogan of: “Sue Your Creditor and Win!”). Mr. Katz also sells books and other materials through his web site that are supposed to empower people.

You’d think that Mr. Katz would be at an Occupy protest rally, handing out his materials and trying to get people to stop paying their credit card debts in an effort to “bring down the system.” You’d be wrong.

Mr. Katz, now saddled with at least $80,000 in credit card debts, has decided that he and his wife should to leave the country and work in China. Apparently, his aggressive tactics would not have done anything to stop the mountain of credit card debt from getting and enforcing money judgments against him.

Those of you who heeded common sense and ignored these non-lawyer charlatans, are not surprised. Certainly, such websites may be fun for a few minutes, but please do not waste your time and money trying out their nutty tactics, which Mr. Katz himself has proven are ineffective and a reason to flee the country.

Robert Stempler, Attorney at Law
www.StopCollectionLawsuits.com

Received papers for a judgment in my DIY defense credit card lawsuit

Sunday, January 2nd, 2011

Question:
I was sued on an old credit card.  I filed an answer in court and paid the fees.  There is a Case Management Conference in a few months. Can I ignore the papers that I received from the debt collection attorney? I want to wait for the hearing and speak with the judge, but the papers show another hearing date and something about a judgment.

My response:
No, you cannot ignore these documents if you want to avoid a judgment against you.  My web site has examples of debt collection lawsuits and other common papers used in court by professional debt collection attorneys against consumers.  See:  Case Examples from the Web Site.

Many people who try to represent themselves don’t realize that their plan to speak with the judge is not what the debt collection defense attorney wants.  Judges are prohibited from giving legal advice to either side.  Seasoned collection attorneys want the court to enter a judgment in your case as soon as possible, with the least amount of work.  Keeping the court costs low also is important, unless they know the defendant cannot file bankruptcy, such as their income exceeds the means test or they filed a Chapter 7 Bankruptcy within the last few years.

Debt collection attorneys are experts in getting a judgment against unrepresented consumers and against general practice attorneys, who don’t know what weaknesses to expose at trial of the debt collection case.  In most collection cases, a default judgment is entered for the debt collector after the consumer misses the deadline to file responsive papers in court and pay the filing fee.  See the sample PDF of a “Request for Entry of Default form.”  Many consumers believe that they may wait until the hearing to file their papers or that a verification letter can protect them.  I discuss these myths on my blog posting entitled: “You are Summonsed to Court for an Unpaid Debt: Your Next Steps Count.”

After the unrepresented consumer files a response in court and pay the court fees, debt collection attorneys have several procedures that can use to get your papers stricken and a judgment entered.  I discuss some of these in by blog posting entitled: “Today A Court Entered Money Judgments Against Consumers Who Tried DIY Lawsuit Defense.”  They can also file a motion for summary judgment (known as an “MSJ”), which means that the consumer will almost always lose, unless they have an experienced defense attorney representing them.  The main problems with the MSJ is that the state court now charges $500 to file an MSJ.  Unless the collection attorney believes that the consumer will have the funds to pay this fee if a judgment is entered, they may refrain from filing an MSJ.  Thus, I expect that debt collection attorneys will file fewer of these since the court fees more than doubled from $200 before October, 2010.

Thus, I would suggest that you contact an attorney whose practice focuses on helping consumers against debt collection lawsuits.  Time is crucial, as many of the motions that the debt collection attorney may file have a limited amount of time in which to file opposition.

Robert Stempler

Twitter: @RStempler

Motion for Summary Judgment: How it Costs You Money and Avoids a Trial

Sunday, December 12th, 2010

Most people want their “day in court” with a trial on the merits.  Debt collection lawyers have several procedural tricks up their sleeves to keep their time to a minimum in credit card lawsuits, by getting a court judgment without a trial.  I discussed the civil procedure known as, “motion for judgment on the pleadings,” in my September 2, 2010 blog entitled: “Today A Court Entered Money Judgments Against Consumers Who Tried DIY Lawsuit Defense.”  In this blog, I discuss the “Motion for Summary Judgment,” which many lawyers and judges abbreviate to “MSJ.”

Many consumers believe that they can explain their side of the case to the judge at trial, if they file the right papers within 30 days of being served with the lawsuit. Even those debtors who timely file the “right papers” in court, lose almost all the time, after the debt collection attorney files an MSJ.  The case is stacked against debtors. MSJ is the procedure in which the judge reviews the law and the evidence, determines if there are any material issues that require a trial, or if a judgement can be entered for the moving party.

Debt collection lawyers file many MSJs every week, because it is efficient for them to win without having to go to court for a trial.  It’s also more efficient for the court.  In the time that the court can hear one debt collection trial, it could probably enter judgment on five or more cases, when the creditor files MSJ.

In a recent conversation that I had with a seasoned debt collection lawyer, he told me that in ten years of representing debt collection agencies and creditors, he has filed five or six MSJs per week on average.  Assuming six MSJs over 10 years with 50 weeks per year, that means he has filed about 3000 MSJs and won almost all of them.

Under the 2010-2011 State Budget, the filing fee for an MSJ is now $500, which will be added to the judgment against the consumer, if the MSJ is granted.  Or, if the debtor defeats an MSJ, the $500 fee may still be added to the final judgment, if the creditor wins at trial.

To view a sample MSJ by a debt collection law firm, please follow this link: http://www.stopcollectionlawsuits.com/collection_lawsuits_examples.php on my web site.  About half-way down, you’ll see six PDF files that are actual examples of the papers used by a debt collection law firm filing an MSJ.  Most debt collection firms use a similar format.

Hiring an experienced debt collection defense attorney is no guarantee that you will defeat an MSJ and have “your day in court.”  However, your chances improve markedly, because we know what facts to prove to defeat an MSJ.  And, we also have the experience to know when we should advise our client to settle, so our client does not lose a judgment and end up paying the extra court costs.

Robert Stempler