Archive for January, 2013

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

Victim of Identity Theft Crime Has Default Judgment

Thursday, January 10th, 2013

Question: I was the victim of identity theft. A credit card collection company is now suing me on one of those debts and has a judgment in my name. I had nothing to do with it. This was not mine! I’ve contacted the collection lawyers and told them that this was not my debt and that it was identity theft. They have sent me an affidavit of fraud to fill out and return, but I find it little confusing and I am not sure what I should do about this lawsuit or what to expect.

My response:
I need to see the document that they sent you, the file from the court case, and your identity theft papers, such as a police report and FTC Identity Theft Complaint. With an estimated 10,000 identity theft crime rings around the country, it is not surprising that there are so many victims of identity theft, both consumers and small businesses. Here’s a link to the crime story on NBCNews.com.

Many identity theft victims end up being sued on the unpaid debt and a percentage of those debt collection lawsuits end up as default judgments. A default judgment can appear on the victim’s credit report and can result in attempts to garnish the victim’s wages and levy their bank account for the judgment amount plus interest. In particular, because the theft was perpetrated using an address that was not the victim’s correct address, the summons and complaint might be served at that address, so that the victim would have no idea that a lawsuit was filed and being pursued in court.

I have successfully set aside default judgments for lack of proper service and also default judgments against victims of identity theft. Properly defending a debt collection lawsuit or setting aside an invalid default judgment requires promptly taking action in the court case and documenting those efforts, so that the judge or the collection lawyers don’t challenge based on the defendant doing nothing after learning of the lawsuit or default judgment. I have discussed this subject in several other blog postings. I also have a list of steps to take for identity theft victims on Avvo.com.

If you have a police report documenting the crime and this account, as one of the false accounts obtained, then you can expect that the default judgment will be set aside and the case dismissed against you. Perhaps the collection agency will try to pursue the identity thief, but more likely they will not have the resources to learn their identity and whereabouts. Also, if the company learned from you that this was identity theft and continued to prosecute the case against you, then you may have recourse for damages and attorney’s fees, under California law and the Fair Debt Collection Practices Act. I’d suggest you retain experienced counsel to represent you, to reduce your frustration and ensure that the T’s are crossed and the I’s dotted.

Robert Stempler
www.StopCollectionLawsuits.com
Twitter @RStempler

Facebook: www.facebook.com/SoCalConsumerLawyer