There are few feelings worse than being on the receiving end of a lawsuit. If you receive a letter in the mail informing you that a credit card company or debt collector wants to take you to court, your first feeling may be one of despair. But even if you are being sued by a big company, you have a lot working in your favor. Follow along with this guide to learn how to beat the debt collectors in court.
While your first instinct may be to panic and make a hasty decision, that is not in your best interest. Instead, try to stay calm so you can put together a well thought out response. Debt collectors try to make everything sound urgent and will warn you of terrible consequences if you don’t immediately make payment. If they are taking you to court, assume this step is a last resort for them as they are out of other options.
Lawsuits happen every day, and many people come through relatively unscathed. If you freak out and hand over a big check or, even worse, your bank account information, the debt collectors have already won. Instead of panicking, create a plan to win in court.
Consult with a Legal Expert
If the lawsuit is filed in a small claims or magistrate court, you are allowed to represent yourself. If it is filed in a higher court, you are generally required to bring a lawyer to represent you. Even if you don’t need an attorney in court, it may not be a bad idea to consult with one to ensure you handle everything correctly.
There are expensive lawyers and cheap lawyers. Some advertise on TV and billboards and others only work with inbound clients. Do a little homework and find a lawyer that specializes in debt and financial matters. Try to avoid the sketchy lawyers on TV that give you the same vibe as Saul “Better Call Saul” Goodman from Breaking Bad. Go with someone who shows that they have integrity, experience, and genuinely wants to help you.
If you want to go it alone, that’s fine as well. Just make sure to research any state laws regarding debt collection, your rights, and what the debt collection company has to do to legally prove that you owe them money. This is the key to winning in court.
For a debt to be legally collectable, the debt collector must produce documentation showing that you signed an agreement to pay, that the debt was legally sold to the collector, and that the amount and debt source in question are both legal and valid, and not past a statute of limitations for collection.
Send the plaintiff’s lawyer, and send a copy to the judge as well, a Request for Production of Documents via certified mail with return receipt. You can find free templates to use online, such as this one for Massachusetts lawsuits.
This letter serves two purposes. First, it is requesting that the debt collector provide documentation that proves they have a claim to collect the debt. If they can’t provide this documentation, you win. And, seeing as most credit card companies don’t keep copies of all account signup documentation and virtually never provide that to the debt collector, this alone could win the case for you if the plaintiff is unable to meet the request.
The second purpose is to show the plaintiff that you are playing hardball and won’t just rollover and pay. Because lawsuits can be scary, debt collectors hope that you’ll just pay before it even gets to court, won’t show up and get a default judgement, or won’t know what to do and will lose because you don’t know what to do. Sending the request for production of documentation shows that none of those apply. In many cases, the debt collection agency will drop the lawsuit at this point because they know it may be a losing battle. But if they don’t drop the suit, make sure to take the right steps to stay on track for a win on your court date.
Do Not Miss Your Court Date
It should go without saying, but you have to physically show up in court on your court date to win. If you don’t show up, you will automatically lose with a “default judgement.” In this case, without having taken the opportunity to defend yourself, the judge says that you lose automatically and owe every cent that you allegedly owe going into the lawsuit.
The same goes if you show up and the plaintiff does not show up. So on the off chance you show up and they don’t, you automatically win without saying a word. But assume that the other side will show up, and do the same yourself. If the court date falls in the middle of your regular workday, you don’t have to tell your employer you need the time off because you were getting sued. As far as anyone else has to know you were sick or had a doctor appointment. Whatever you have to do to make it work, get to your court date. Ideally show up about an hour early to find where you need to go, deal with parking, fill out any required paperwork, go to the bathroom, and make your way into the courtroom with plenty of time to spare.
Bring the Right Script to Court
When you get to court, you have to say and do the right things to win. If you open up with a big sob story and hope you’ll win out of sympathy, you are gravely mistaken. The worst thing you can do is admit the debt was yours. Your case hinges on the debt collector being unable to prove you actually owe the money. If you lose that edge, the debt collector can win and get access to garnish wages or withdraw funds from your bank account.
Instead, remain calm and professional and focus your case on questioning the documentation that proves the debt is yours. The first thing you should say, and add nothing more, when it is your turn to speak is a concise statement that explains you do not know the origins of the debt and want evidence that it is, in fact, your debt that you owe. The legal terminology quoted below come via Brian Gray at ToughNickel.
Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff’s claim, and based on that denies generally and specifically Plaintiff’s claim.
This statement does not admit fault in any way. If the plaintiff is unable to show the documentation at this point, it’s case closed. You win. The plaintiff may present a blank copy of the document you signed, but unless it has your legal signature on it, it is just a worthless piece of paper. If they present anything other than an original signed document, respond like this:
Plaintiff has failed to state a claim upon which relief may be granted.
This is you telling the court that you have not seen sufficient evidence that you owe anything at all. Through this point, everything presented is just heresy and is not legal documentation that can be used to prove a court case. If, by some of chance, the plaintiff is able to produce this document, you still have a few tricks up your sleeve before calling it a loss.
The plaintiff is required, by law, to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiff’s claim that he is the present owner of the cause of action.
This statement explains to the court that while they did provide documentation of a debt agreement between you and a credit card company, medical provider, or other debt source, that you do not believe the debt collector is the legal owner of the debt. This places the burden on the plaintiff to prove that the debt was legally sold and the debt collector has the right to collect.
In many cases, debt collectors buy debt in bulk and just get a big spreadsheet filled with names, contact information, and dollar amounts. They do not have further proof that you owe the money to them versus to the original lender. Again, if they don’t have proof, you win by default.
If, at this point, the debt collector has been able to provide the original signed contract with your signature and a legal document showing the debt was legally sold and transferred to the debt collector, you may be out of luck and have lost the suit. But odds are it won’t make it this far. In most cases, just knowing the law and avoiding admitting fault is enough for you to win.
If you win, you can walk away with the debt discharged and no longer owed. What a relief! In some jurisdictions, at this point you have enough of a case to counter-sue and possibly win a judgement against the debt collector for filing a frivolous lawsuit in court. But either way, you are off the hook if they can’t produce the right documents in court.
Being Informed is the Best Defense
The best defense you have in court is being well armed with a knowledge of your rights. You do not have to pay a cent to the debt collectors unless they can provide documentation proving you actually owe the money and owe it to them. The burden of proof is on the debt collector to prove it, and unless they can, you win in court. So take the right steps, stay calm, and stick to the script so you can beat the debt collectors in court.