Alabama Debt Collection Lawsuit Questions — Part Ten — What Happens Before Trial?
Welcome back to our series on answers to your debt collection lawsuit questions. Before we jump into this article, here is what we have previously covered:
- Overview of the complaint or lawsuit filed against you
- What does it mean to be served?
- Overview of 5 options you have when sued
- Bankruptcy option
- Fighting the lawsuit on your own option
- Settling the lawsuit on your own option
- Hiring a lawyer to fight the lawsuit
- Hiring a lawyer to settle the lawsuit
- Filing an answer in the lawsuit
OK let’s jump into our topic in this article which is a series of questions about what happens before trial. I hope you find this helpful!
WHAT HAPPENS BEFORE A TRIAL?
“How will I be notified of the trial date?”
How will you be notified of the trial date?
Typically you either get a letter or an order from the court giving you the trial date. Sometimes it looks almost a postcard – think of your voter location card you get.
Now it is very important that you be looking for that. You’re not going to get it by certified mail. No sheriff’s deputy is going to hand it to you.
And sometimes people say, “Well I think that the sheriff’s deputy should bring out the trial date to me.”
It might be nice but it is not happening. The court will mail it to you.
Here’s sometimes a surprising thing. If the notice of the trial date gets mailed, but you do not actually receive it, the trial date still goes forward. And if you don’t show up, you lose. You lose by default judgment because you “defaulted” or failed to show up to the trial of your case.
Now maybe later you can explain to the judge, and maybe if you’re within the very strict time limit, the judge will undo the default judgment against you. But here’s my practical suggestion.
When you file an answer in small claims or district court, typically you’re trying your case in four to eight weeks. So one to two months.
With a case in circuit court, it can be this quick or it may be a year. Completely depends on your particular judge.
So I would be on the lookout for anything from the court. Anything from the collection lawyers. If you live alone, make sure you go through every piece of mail.
If you have family members, tell them, “Do not throw anything away in the mail until I look at it.”
This may sound almost like a joke, but this is real.
The trial notice could be stuck between the glossy Pizza Hut and the Captain D’s coupons. If you just throw those away, you may have thrown away your trial date. Well, guess what? You don’t show up at your trial date, what happens? Default judgment.
So if you aren’t seeing the trial date, I would call the court and say, “Hey, I filed my answer a week ago. I just wanted to check and see do we have a trial date. I do not want to miss my trial date.” And then they can look it up for you. Now obviously if you have a lawyer, your lawyer is going to handle this for you.
“What happens if I need to change the trial date?”
If you have a lawyer, you’ll let your lawyer know and he or she will handle it. But if you’re doing it on your own, you need to get with the collection lawyer and see if they agreeable to moving the trial date, and then you have to file what’s called a motion to continue.
A “motion” is just a request of the court, and that’s done in writing. And to “continue” the trial date just means to change it.
And so here is my suggestion. Don’t wait until the last minute. There are people that will call the collection lawyer who’s driven two hours for trial for a 9:00 trial. They will call them at 8:55 and say, “Yeah. I’m not going to be able to make it. I need to continue it.”
Well, you can imagine the collection lawyer, unless there’s some really bizarre circumstance like you’re in an ambulance, is going to say, “No. I drove two hours. You’re not calling me at the last minute. At least I am not agreeing to do this.”
So as soon as you know you need to change that trial date, get with the other side if you’re doing this on your own. I find the collection lawyers are typically reasonable if you don’t wait until the last minute. And if you and the collection lawyer agree, normally the judge will. Again, if this is not done at the last minute unless there is some very good reason you had to wait until the last minute.
“What is a status or scheduling conference?”
We typically do not see these in small claims or district court but it is possible. These are very common in a circuit court case.
A status or scheduling conference is where the judge says, “Okay. What’s happening? What kind of case is this? Where are we in the case? Are we ready for trial? How much time do you need?”
Normally you do not have these in small claims or district court. You just get the trial date after filing the answer.
In circuit court it varies a lot from judge to judge – you may have one 2 weeks after you answer the lawsuit or it may be 6 months later. Make sure you find out from your judge when this is set.
“What is discovery in a collection case?”
We definitely do not have discovery in small claims. It’s very rare in district court. In circuit court, the highest court, discovery is very common.
Discovery is where either side can ask the other side questions or ask for documents.
This first type is called interrogatories. Think of it like an interrogation, but in writing.
Either side can send requests for production of documents. So you might say to Portfolio Recovery, “Hey, I want all of XYZ documents.” They can say to you, “We want all these documents.”
You can have what are called requests for admissions. These are probably the most dangerous type of discovery for people representing themselves because they are so easy to mess up on.
A request for admission, for example, will say “Admit that Midland Funding purchased the debt.”
“Admit that you owe Midland Funding this money.”
“Admit that Midland Funding is now the owner of the debt.”
Well, a lot of people get these and think, “I’m not answering this. This is stupid. I’m just going to wait until trial.”
This is a terrible mistake because it means you just admitted these “admissions”.
You see, if you do not properly answer requests for admissions, you admit them. The admitted request for admissions are not established facts.
So discovery is very important. We have what’s called paper discovery that I’ve mentioned. Those would also include subpoenas. That’s where you’re asking somebody who’s not a party to the lawsuit to provide documents or testimony.
And then we have depositions where somebody can ask you questions under oath with a court reporter.
That’s what discovery is in a collection case.
You will not have discovery in small claims cases. And it is rare, but possible, to have it in district court cases. Again, in both courts, you typically file your answer and get a trial date.
In circuit court, you should assume there will be discovery.
“Do I have to answer discovery?”
Absolutely.
If you do not answer those requests for admissions, you admit them. If you do not answer the other types of discovery, there can be sanctions or very serious consequences to you. These consequences can include even losing your case, because you did not answer the discovery. So you must answer discovery in the proper way and in the proper time frame.
Now if you have a lawyer, the lawyer will help you with this. If you’re doing it on your own, you must follow all the rules of discovery. Because even though you don’t have a lawyer, the judge is going to expect you to have the knowledge of a lawyer.
As a reminder, this is normally not an issue in small claims or district court but beware of the possibility of discovery in district court. And in circuit court, you will almost certainly face discovery so you must be prepared with understanding the rules on how to respond.
“What happens if I don’t answer discovery properly?”
You could lose your case. Think about those requests for admissions. It says, “Admit that Portfolio Recovery now owns this debt.”
And you do not answer it. Or you admit it.
Same thing.
You’ve now established as a fact Portfolio Recovery owns the debt.
So when you get to trial and you go, “Yeah, but judge they don’t own the debt,” they pull out those requests for admissions and say, “Judge, the consumer defendant admitted that we own the debt.”
So the bottom line is you can lose your case by not answering discovery properly.
You may read stuff on the internet where people will say, “You don’t have to answer that. That’s unfair. No judge will expect it.”
I’ll tell you that every judge I have ever been in front of in Alabama expects discovery to be answered.
Remember discovery is not allowed in small claims court – if the collection lawyer tries to serve you discovery I would ask the judge to disallow it.
And in district court it is rare – but if you do get discovery, you must respond to it properly or you could lose your case.
Certainly, you should expect to get discovery in circuit court and this is where most people fail when representing themselves. So be very careful and make sure you follow the rules.
“What is a summary judgment motion?”
A summary judgment motion is a request that the judge summarily enters judgment against you. And the concept is that the collection lawyer says to the judge that there is no way you the consumer can win. So there’s no point having a trial.
I’ll say this. This is not something we typically see in small claims court. And it is very rare in district court. Remember that typically you answer, and then you get a trial date. Frankly, it is just as fast to try the case as to argue about summary judgment.
But in circuit court, this is very common and it catches many “pro se” (representing themselves) consumers off guard.
If there’s no way the consumer can win, then why go through that time and expense of the trial? This is the argument from the debt collector. So think back to what we have talked about different types of judgments.
If we don’t answer or we don’t show up at trial, what’s that called? A default judgment.
What if we agree to a judgment on a settlement? That’s a consent judgment. Those are real judgments. Hundred percent legit judgments.
A summary judgment is 100 percent legitimate. Sometimes people will say, “Oh I don’t believe in these summary judgments. I am not going to respond. I’m just going to show up at trial. I want my day in court.”
There is no day in court if you lose summary judgment. Or stated differently, that is your day in court. People go, “No. No. No. I want a trial.”
You don’t get a trial if you lose summary judgment.
So it’s very, very dangerous.
Critical that you understand this if you have the unusual situation of facing one of these in small claims or district court or the common situation of facing these in circuit court.
“Do I have to properly respond to the summary judgment motion?”
Absolutely.
If you do not, you lose your case. And people will say, “Well I don’t know about all those rules. I’m not a lawyer. There’s a hearing set for summary judgment. I am just going to go there, and argue my case. And I’ll print some stuff off the internet. Midland Funding or LVNV, these are bad companies, and that’s all I need to tell the judge.”
To be blunt, you will lose taking this approach.
You have to respond properly under all the rules on summary judgment. The timing. When do you have to respond? How do you respond? What format do you respond? What type of evidence do you need? And what format does that evidence need to be in?
You must know all of these rules, if you’re dealing with summary judgment.
Now if you have a lawyer, presumably your lawyer knows how to handle that.
But if you’re doing it on your own, just understand this is probably the most dangerous moment in the lawsuit, because out of the dozens and dozens of situations where people have tried to do this on their own, I can think of one where the consumer did not lose.
So if you are doing this on your own – spend the time (you are not spending money on a lawyer) to fully understand the Alabama Rules of Civil Procedure (particularly Rule 56) and the Alabama Rules of Evidence. Of course, you also need to know the substantive law to see if the collector has proven whatever theories they have sued you under.
“What happens if I lose the summary judgment motion?”
It means you lose the case.
There is a (summary) judgment entered against you.
And then we go back to all the things we started off with in this discussion:
- Wage garnishment.
- Bank garnishment.
- Seizing your property including your home.
- Selling your home.
- Damage to your credit report.
Bottom line is you must avoid a summary judgment.
“What is a pre-trial hearing?”
We do not normally see this in a small claims or a district court case.
But it is fairly common in a circuit court case.
A pre-trial hearing is where the judge wants to talk to both sides, or their lawyers, before the trial. It might be a month before. It might be the Friday before a Monday trial.
And typically a judge will say, “Hey are there any issues? Anything I need to rule on? How long will this take? How many witnesses are we going to have?”
It’s where the judge gets a game plan for what’s going to happen in the trial whenever the trial happens. This is more common in a jury trial and most (but not all) collection cases are “non-jury” trials but it can happen in any type of case.
“What happens if I do not properly disclose my witnesses and exhibits as required by a pre-trial order?”
Here’s something that’s very critical. Usually, in the pretrial order, both sides will be told what the deadline is to disclose their witnesses and your exhibits.
What happens if you do not disclose your witnesses and exhibits? Normally, you’re not allowed to present any. Now, you have to think about and really understand do you need any witnesses? Do you need any exhibits at your trial? If you’re the defendant, you’ve been sued by the debt collector, so what do you need to prove?
This is a strategic question that you or your lawyer must make.
I can tell you, when we represent people sued by a debt collector, it’s pretty rare that we have witnesses and exhibits.
And there are some reasons which I won’t get into this public book. But if you want to have witnesses and exhibits and you need them, and you do not properly disclose them, you may be prohibited from using them.
You can see consumers at trial arguing to the judge, “That’s not fair. I brought five witnesses with me to trial.”
Judge says, “Well did you file the witness and exhibit list?”
The response is often, “No, but look. My witnesses are here.”
Then you often hear the judge say, “Sorry. You have no witnesses.”
Same thing with exhibits – physical evidence.
It is very important to understand what the rules and orders require in your particular case and make sure you follow them. The flip side is true also – if the debt collector violates those rules and orders, they may be prevented from offering witnesses and exhibits. You have to know your judge and how she or he reacts to these situations.
What is coming up next in our series?
In part eleven, we’ll talk about general questions related to the actual trial of an Alabama debt collection case.
Thank you for reading this and I hope these questions — and answers — are helpful to you.
Feel free to call us if you have a question about a collection lawsuit in Alabama — you can call us at 205-879-2447 or fill out our contact form and we’ll email or call you right back.
Look forward to talking to you soon!