I have my debt collection trial in the morning… What do I do now?
Debt collection trial in the morning — what do you do now? Discover the critical keys to success.
I often get these calls to my law firm — you have trial with CACH, Calvary, LVNV Funding, Midland Funding, Portfolio Recovery, etc. and the trial is in 30 minutes or is in the morning.
So let’s strip everything away except the critical keys to success.
The first thing to do is to remember the difference in owing a debt and the debt collector owning the debt.
Here’s what I mean by “owing” the debt. You may owe on a credit card and the collection lawyer may be able to question you to establish that you took out this credit card, you used it, but you did not pay it off. So you owe the debt.
That’s where they want to stop.
Now they argue (and try to get you to agree) that you owe the debt so therefore you owe the debt collector (Asset Acceptance,LNVN funding, Midland Funding, Portfolio Recovery, Unifund, Velocity, etc).
But this is a bogus argument. You never borrowed money from these debt collectors or supposed debt buyers.
Think of it this way, “You may have borrowed money from a credit card company who is not suing you.”
Instead, you have this debt collector suing you. They have to prove they actually own the debt.
If, and this is a big IF, they can prove they own it, they will be in the same position as if it was Chase, or Capital One, or Citi Bank, or whoever the original creditor is.
Understand this is an absolutely vital, critical difference. You may owe somebody but that does not mean that you own the company that sued you, unless they prove that they own the debt.
Lets look at the next thing and this is really the fundamental principle when you are testifying in court:
You tell the truth when you are answering questions under oath.
You don’t guess.
You don’t speculate.
You tell the truth.
Your obligation as a witness is to testify to things that you have personal knowledge about.
If you don’t know and you say, “Yes” what happens? Well you may be wrong. You may have just lied.
Don’t guess. Don’t make stuff up.
Instead make sure you have personal knowledge.
If you know what the truthful answer is, then you say it.
If you don’t know what the truthful answer is, then you say that. Here is a silly example you’ll always remember.
I say, “Who sat two desks in front of you, and one over to the right, in second grade, on the 17th day of school?” If you remember that I’m a little disturbed, okay. 🙂
I’m assuming you search your memory and go, “I got nothing,” okay.
Well, what would the truth be? Well the truthful answer is “I don’t know.”
That’s the truth.
If you say Suzy Smith, or Jeremy Brown, or somebody else from your second grade class, you’re just guessing, that’s not personal knowledge and you are under oath.
You have promised to tell the truth so you can’t just be making stuff up.
So what about when the lawyer for the debt collector is trying to get you to guess, to speculate, to make stuff up, about, “Yeah, this collector really does own the debt.”
My suggestion is don’t do that.
(A side note — if you are tempted to do this — remind yourself “Stop it!” Watch this silly Bob Newhart video….you’ll probably be like me and always remember these words “Stop it!”)
But what about the “Bill of Sale” they want to show me at trial or that they attached to the debt collection Complaint?
Let’s look at an example. Bill of Sale. So they’ll say now, “You owe Chase and you agree you owe us?”
Now wait a minute, I must answer truthfully.
“No, I don’t agree that I owe Unifund or Midland or LVNV, or whoever it may be.”
But then the debt collection lawyer says, “Oh, we have this piece of paper here that says ‘Bill of Sale’ across the top. That proves it, right?”
OK so let’s think about this.
They don’t have a witness at trial and they have piece of paper called a “Bill of Sale”.
By the way, when you read the piece of paper it talks about there is a purchase agreement.
The “Purchase Agreement” is what actually says the debt has been sold.
So where is that?
In almost every case I’ve seen, the debt collector refuses to produce the “Purchase Agreement”.
So the collection lawyer is showing you a pieces of paper that is missing the rest of the document — the critical document.
And think of it this way — do you know that is a true bill of sale? Do you know that if Midland bought the debt that they didn’t sell it to somebody else. There is no way that you would know that.
To be in court and swear under oath, “Well, okay, I guess you guys bought it” is crazy.
Now you are speculating. You have no personal knowledge of that. That is some secret business deal between Capital One and Midland, or Chase and Midland, or whoever the company is. There is no way you could know that.
My suggestion is remember the fundamental concept of you have to tell the truth. When they put something in front of you and you honestly don’t know, then say “I don’t know that.”
It’s like the second grade question I asked a little bit ago.
You answer, “I don’t know”
What about an “Affidavit of Ownership” from the original creditor?
Usually at this point the lawyer is getting frustrated as you are only telling the truth and are not being intimidated into guessing (lying).
So they will proudly say, “Well look, here is an affidavit of ownership. This is from Chase bank and it says Chase Bank sold the debt to my debt collector client (LVNV, Midland Funding, Portfolio Recovery, etc). So there, that proves it, right?”
If you are in circuit court or district court then an affidavit is improper unless you don’t object to it. Here is an easy thing to remember. There is this concept of cross-examination where somebody can come in and say something and then you can question them about it to make sure that it’s correct.
How do you question a piece of paper, how do you cross examine a piece of paper?
You have no idea this is true. So, you can’t agree to it and you certainly can not say, “Yes, I think this is valid evidence.”
Think about it, the big banks for the ones that did the Robo-signing, where they’d have 10,000 affidavits, signed by somebody in a day. Or already notarized before they put in any information. They had people that had died and yet, affidavits were still being cranked out that show the dead person just signed the document months after their death.
Why would we trust these jokers?
If you testify in court it’s got to be personal knowledge.
They have people signing these at a rate of one every 20 second and it says, “Oh, I made a careful review of all documents and I have determined that this amount is due and owed and we sold the debt to Midland.”
That’s complete garbage. These same banks are coming in now, they are giving an affidavit to the alleged debt buyer. The debt buyer is holding it up like it’s the gospel truth.
It’s anything but the gospel truth.
So you can’t cross examine a piece of paper. Make your own decision if you are representing yourself, I’m saying when I’m court and I see one of these things, my first though is, “Are you kidding me? Do you think that we would remotely believe that this is true? I want somebody in flesh and blood there than can look me in the eye and I can cross examine them.
Think about this, even if they sold it to Midland, how does that person know that Midland still has it, or Portfolio still has it? They have no way of knowing. Remember, they supposedly sold it so they don’t even have a say in the matter.
So you need somebody from Midland, or Portfolio, or LVNV there.
Here is the bottom line, they need multiple witnesses in these debt buyer cases.
So they come up with a bill of sale and the affidavit of ownership but remember you can only testify to things that you know are true. I don’t know how in the world you would know this bill of sale is true or this affidavit of ownership is true.
Sometimes folks ask us:
“What if they bring witnesses? How do I cross examine them? What rule of evidence do I raise as an objection?”
Here’s the thing. If you have trial in 30 minutes or the next morning, I can give you a life preserver or I can throw a whole bunch of stuff at you and you can drown in complexity.
My suggestion is, grab the life preserver.
The life preserver is, “Hey, I am going to tell the truth, that’s it. I remember the difference between owing and owning.”
So when this lawyer says, “Well, now don’t you admit that we own this debt?”
The lawyer gets snippy with you and says, “Tell me every fact you have that proves we’re lying.”
I have no idea.
“So you admit that we own it?”
No, I don’t.
See, that’s their burden to prove. You don’t have to disprove it, they have to prove it.
They try and do that with affidavits.
(Please note in Small Claims Court, a judge can, but is not required, to accept an affidavit and they can give whatever weight they want to it. My experience has been, that small claims judges in Alabama, when they are dealing with Midland and similar companies who are filing a 100 cases a week, the judges are not real interested to say, “Oh sure, just flood our courts with law suits and don’t send witnesses.”)
“Well, how do I cross examine somebody, how do I object to this or that?” I can’t teach you all that. I can’t take 22 years of trial experience and say, “Okay, here’s what you do, you got 15 minutes, let me teach you.”
I will say this. If you hold on to that life preserver of “I tell the truth, I don’t guess, I don’t speculate, I don’t make stuff up” you will be so far ahead of the game.
If you try to cram in all these rules of evidence and what about this and what about that, and let me figure out how I’m going to cross examine some professional witness from Midland (which I’ve never seen Midland send a witness), then I think you will drown.
You make your own decision.
But my suggestion is if you are doing this on your own and you’re at the last minute, hold on to the things that are going to give you the biggest bang for the buck.
Remember also this saying that supposedly the great Bruce Lee said: “I don’t fear the man who has practiced 10,000 kicks once each. I fear the man that has practiced one kick 10,000 times.”
If your trial is a little bit off into the future, then feel free to contact us at 205-879-2447.
Ask for Carolyn and she will set you up a phone call with me after pulling your court information.
I represent consumers all over the state of Alabama who have been sued. We also sue these debt collectors all over the state. If there is anything we can do to help you we’ll be more than happy to try to help you.
If you are watching this video and you do have a trial in the next 15 minutes, or in the morning, then I certainly wish you the best. If you’re successful, give us a call, let us know. If you are unsuccessful, give us a call, let us know. Either way, we’ll be glad to walk you through your options.
If you lose, what do you do now?
If you win and so many people are successful in winning these cases, then we talk about can we sue the debt collector in federal court?
So that is a much more pleasant conversation for you because if we can sue them in federal court and we’re successful, they are paying you money. It’s a much better conversation to have.
All right, I’ll bring this to an end and hope this helpful. Feel free to comment, like or share it and thanks for watching and see you soon.