Sued By A Collector In Circuit Court? Find Out Your Options
Sued By A Collector In Circuit Court? Find Out Your Options.
Being sued by a debt buyer in court in Alabama is no fun.
Especially if you have been sued in Circuit Court.
It can be more dangerous for you and more expensive.
But you do have options so if you are in this situation we invite you to read about your options so you can make the right decision.
The Danger to You
Normally if you are sued in Circuit Court the amount is going to be over $6,000.
Discovery is allowed — this is where both sides ask each other questions in writing and also in depositions where questions are asked in front of a court reporter.
This can substantially increase the complexity of the case and the expense.
Finally, you are in a court that is not designed for unrepresented folks.
Small Claims is designed for “pro se” consumers — people without lawyers.
To a large extent, even District Court is more understandable to pro se consumers (although not as much as Small Claims).
But in Circuit Court, you are dealing with judges who hear wrongful death cases, medical malpractice cases, murder trials, etc.
They expect you to know the rules and will not be able (or willing) to help you understand the rules if you choose to not have a lawyer who understands how to litigate cases and ultimately try cases.
While it is dangerous to you, options are available so you should be confident that with effort or the willingness to pay, you can give yourself the best chance of having a positive solution to this dangerous problem.
Options You Have:
While this is often a really bad idea, occasionally it works out for folks to use this strategy.
The advantage of bankruptcy is you can wipe out the debt you are sued for along with alot of other debts.
The disadvantages are you have a bankruptcy on your record and it will cost a good bit of money to pay for the bankruptcy.
By far the biggest downside is the long term cost of a bankruptcy.
This is worth exploring — and for a few folks it is the right call — but for most consumers sued in Circuit Court, it is not necessary to file for bankruptcy.
For example, you could settle the case without even hiring a lawyer . . . .
2.) Settle on Your Own
You have been sued for money damages.
The debt buyer and the collection law firm want money from you.
So to offer them money is certainly one option.
When you look into this option, it means you will:
- Pay a lump sum of money;
- Make monthly payments for a set period of time; or
- Do both — make a lump sum and pay over a period of time.
This is not the time to try to obtain a moral victory — instead make a good business decision.
Decide what your risk is and what amount makes sense to you to pay and see if the collection law firm will accept that amount or less.
Do keep in mind you need to consider credit reporting and 1099 issues.
What will your credit report say on the debt buyer’s account?
Settled or will it show it as being deleted?
If you save any money off the total claimed, will you get a 1099 for the amount saved?
We see many people surprised by this so keep it in mind if you settle on your own.
Finally you will want to make sure the settlement release — the document that ends the case — is properly drafted to protect you from being sued again.
But perhaps you don’t want to settle the case — instead you want to go to court and try the case….
3.) Try the Case on Your Own
You have the right to litigate your case on your own, without a lawyer.
There is no requirement for a person to have a lawyer so you have this right.
The good news is you won’t pay a lawyer any money to defend you.
The bad news is you are on your own.
You can’t have anyone come to court to speak for you or represent you.
You will be expected to know the court rules.
One area you will need to be very familiar with are the rules related to discovery — interrogatories, request for documents, request for admissions, and depositions.
The other area is the law dealing with summary judgment motions which you will almost certainly face from the collection agency and its collection lawyers.
Summary judgment is where the collector asks that the court decide the case in its favor against you as there is no reason, the collection lawyer will say, to take the time to have a trial.
The argument will be based upon the admissible evidence (per the court rules) there is no legitimate argument about the facts or the law.
We see many consumers lose at this point because they do not know how to present the evidence to show the judge that a trial is needed.
Even though the debt buyer often cannot prove it owns the debt.
But if you are willing to spend time, rather than money, then you can start to educate yourself on the law and the rules.
Do keep in mind you are trying to duplicate what lawyers took years to learn but it is possible so this is an option.
If you decide, instead, to hire a lawyer, then you can decide whether to hire a lawyer to fight the case or to settle the case.
Let’s talk about fighting the case….
4.) Hire a Lawyer to Fight the Case
You always have the option to hire a lawyer to represent you in court.
The disadvantage is you have to pay the lawyer.
Some lawyers charge by the hour.
This means you only pay for the work actually done.
The downside is you don’t know how much the total cost may be.
Some lawyers operate on a “fixed price” — you may pay more or less than with hourly but you do know what the total cost is to you.
The advantage of hiring a lawyer is that you should have someone representing you that understands collection lawsuits.
That understands the rules of litigating and trying a case in Circuit Court.
A guide for you to follow to avoid the pitfalls and traps that may be waiting on you.
One other advantage is that if you are not subpoenaed, then you may not be needed at trial.
We normally don’t have our clients at court because the debt buyer often is trying to prove its case by not offering any evidence.
So the debt buyer will often want to try to get our client to admit that the debt buyer owns the debt when there is no way in the world our client could possibly know this.
The rules of evidence forbid testifying about things you don’t know.
The oath or affirmation to tell the truth also forbids this.
Therefore, we often don’t have our clients at trial.
But if you don’t have a lawyer then you must be there or the case end in a default judgment against you.
So hiring a lawyer is a valid option but you can also hire a lawyer to look into settling the case….
5.) Hire a Lawyer to Settle the Circuit Court Case
In this option, you pay a lawyer to settle the case.
Some lawyers charge whether they are successful or not at settling the case and this is fine.
We happen to charge a fee only if we settle the case.
So this way you know exactly what it will cost to resolve the case and if that doesn’t work then you still have your option to hire us (or someone else) to fight the case or you can fight it on your own and you are not out any attorney fees.
Some things to consider when settling a case.
If possible, it is best to avoid a consent judgment.
We have had folks come to us at the last minute before a trial and this is the only option available to them since they don’t have a lump sum to resolve the case.
There are credit reporting issues and 1099 issues for “debt forgiveness” that can be discussed.
If you hire a lawyer to settle a debt buyer case, make sure you are clear on what you are willing to pay to settle the case and what everyone’s role will be in the settlement.
There is no right or wrong way to settle a case but you need to make sure that your expectations are realistic and are being met.
Whatever you do, make sure you DO something.
A senior partner and great trial lawyer I worked with years ago (Gusty Yearout) used to say “We can fix anything except when you do nothing.”
Great point — do something and you have a chance. Do nothing and you have no chance.
So figure out your options and then do something.
Debt buyers who sue Alabama consumers in Circuit Court would like you to think that you have no options. This is not true.
Or, they get you to agree to a consent judgment.
But you do have options.
Options to fight.
Options to settle.
There is no right or wrong option.
You just need to investigate to find out the best option for you and then take it.
If we can help you consider your options, give us a call at 205-879-2447.
I look forward to chatting with you!