Alabama Debt Collection Lawsuit Questions — Part Eleven — General Questions About Trial
Welcome back to our continuing series of articles where we answer your debt collection lawsuit questions. Before we jump into this article (which is about general trial questions), 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
- What happens before trial?
OK let’s jump into our topic in this article which is a series of general questions about what happens during trial. I hope you find this helpful!
GENERAL QUESTIONS ABOUT TRIALS IN DEBT COLLECTION CASES
“Should I go watch a day of trial in front of my particular judge before a trial date?”
Absolutely. Now, it’s easier in small claims and district court, because they have tons of collection cases. Circuit court is more difficult.
The goal is to see how does your judge react in the court room.
Some judges are very formal. Some judges are pretty casual.
You’ll find some judges don’t want anybody talking. Some judges don’t care.
In some courts, the judges walk out and they expect everybody to stand.
Other judges say, “No. No. No. Keep your seat. Keep your seat.”
So you just want to know. There’s no right or wrong answer. You just want to know the approach of your judge.
Let me tell you kind of the hidden reason also that I want you to do this.
I want you to know where the courthouse is, if you’re doing this on your own. Where the courthouse is, how to get through security, where your judge’s courtroom is – and that sounds silly, but here’s why I say it.
I’ve had a lot of people contact my firm. They got sued. Then they filed their answer. They show up to court, and they sit in the wrong courtroom. Sometimes they sit in a dark courtroom. The lights are off. They are just sitting there.
Other times there are multiple judges in the courthouse and each courtroom might have 100 people in it and the consumer just happens to be in the wrong courtroom. And so when their case is called in courtroom number two, they are sitting in courtroom number one.
Remember what happens if you don’t show up to your trial (even if you are sitting next door in the wrong courtroom).
You lose.
So I want you to know in absolute confidence what your the judge looks like. Know their courtroom number. So that on the day of your trial, you have that part down without any worry.
And so when you go and it’s not your trial, you’re just watching, there’s no pressure on you. You just get to observe.
How do people speak? How do they stand? What looks effective? What looks not very effective?
Do that before so that when it’s your day of trial, you will be much more comfortable.
“Why does the collection lawyer want to talk to me in the hallway before my trial?”
The judge will call the cases. Let’s say Midland Funding versus Smith. And the lawyer for Midland Funding will stand up. You will stand up. And judge will say, “You all are free to go talk. We’ll take a break here in a minute.”
And the lawyer will turn to you and say, “Can we go out in the hallway and talk?”
They are wanting to talk to you about settling the case. Now you have the right to chat with them. You have the right to settle. You have the right to not settle. That’s up to you.
And obviously if you have a lawyer, your lawyer is going to be there with you.
The collection lawyer wants to talk is to see can he or she can resolve your case before the trial.
“If I talk to the collection attorney, does this mean I agree I owe the debt?”
No but be careful.
So the lawyer says, “Alright. We’ve sued you for $5,000. What can you agree to pay?”
If you say, “Well I can pay X dollars,” you are not admitting you owe the debt.
But now if you may say, “I admit I owe the debt.” Well that may be used against you whether properly or improperly.
If you don’t settle, the lawyer may say, “Out in the hallway, you admitted to me you owe this debt, don’t you? And you admit you owe it to us.”
So I would not make any admissions, unless you have thought this through very carefully.
The court encourages settlement talks. So you offering to pay does not mean you owe the debt. The same as the collection lawyer offering to take less than the full amount does not mean the lawsuit is bogus.
So let me put some numbers on it.
You’re sued for $5,000. The collection lawyer says, “We would take $4,000.”
And you don’t take it. Well then when the collection lawyer says in trial, “You owe me $5,000,” you can’t say, “Ah, in the hallway you said $4,000.”
It doesn’t work that way.
Same thing if you offered $3,000 and they turned it down.
They can’t say, “Well you admitted you owe it, because you offered us $3,000.”
No. We want to encourage settlements. So just be careful as you talk to the lawyer about not admitting you owe Midland Funding, Portfolio, whoever it is, unless that’s what you really want to do.
“What is a consent judgment?”
If you’ve been reading this whole book, then you know a consent judgment is where you agree to a judgment. You consent to it.
I think these are terrible.
If you have a lawyer, your lawyer will help you with it. If we represent you, I can just tell you, we are not agreeing to a consent judgment.
But if you are representing yourself, then you have to decide.
“Do I want to agree to a consent judgment?”
You must make understand what a consent judgment is and the consequences of a consent judgment on your credit report as well as the consequence on getting loans in the future.
This is a real judgment so make sure that you really understand it before agreeing to it.
“Will the judge swear me in before I testify at the trial?”
The answer is yes.
The judge will have you raise your hand, “Do you swear or affirm to tell the truth?”
And so anybody who is testifying must be sworn in before they actually give their testimony at a trial.
“Should I bring witnesses with me to trial?”
It depends.
Do you have witnesses that can help you win your case? If you do, then sure, bring them.
Assuming you properly disclosed them if you have to disclose them. But I would just caution you to think it through if you’re doing this on your own. What witnesses can help you win your case?
Make sure that you have a clear understanding of that, and that you’re not bringing somebody that will actually hurt you in your case.
So for each witness, ask yourself, “How does this witness help me prove my case?”
Does the witness help you prove an affirmative defense such as statute of limitations?
Does the witness help you prove the debt collector does not own the debt?
For most people, they will find that they should not bring any witnesses to trial. But this is a decision you will make with your lawyer or on your own if you are representing yourself.
“What should I take with me to trial?”
On all of these questions, if you have a lawyer, your lawyer will tell you. When we have clients, there’s nothing that they bring to trial with one exception.
Because you have to assume if you take something into the courtroom, the collection lawyer can ask you about that.
But if you’re doing this on your own, you need to ask yourself, “What do I need to help me at trial? Do I have exhibits that I want to get introduced into evidence? Do I have notes I want to take?”
It is the same as bringing witnesses.
Will this document, that you are thinking of taking, help or hurt your case?
That’s our rule also for our clients – we only have them bring a document if it will help us prove a defense or it will help disprove what the debt collector is saying.
Often the only documents we would bring relate to payment dates for the statute of limitations.
Bottom line – you literally pick up each piece of paper and ask, “How does this help me?” If it is not clearly helpful, then you may want to not take it.
“Should I answer questions from the collection lawyer?”
Absolutely. You must answer questions when you are testifying.
I have seen people that the collection lawyer will ask them a question, they go, “Judge, I refuse to answer this lawyer. He’s a collection lawyer.”
That’s not how it works. The collection lawyer is entitled to ask you questions while you are under oath. And unless the question is improper, then you need to answer it.
If you have a lawyer, your lawyer will object to bad questions. If you represent yourself, you will need to do your own objecting. My rule is to object very little, if any.
Normally the “bad” questions will just be aimed at getting you to admit certain things you can’t possibly know – such as whether the original creditor sold the debt to the debt collector. While that may call for an objection, the truth works perfectly in our cases – you simply say, “I do not know.”
“What should I do if I don’t understand the question the collection lawyer asks me?”
This is my rule. If you do not understand the question, then do not answer it because you promised to tell the truth. And if you do not understand the question, then the truth is you do not understand.
Let’s even back it up a step.
If you don’t hear the question, how can you answer it truthfully? So if you do not hear the question, if you do not understand the question, my suggestion, the way that my clients respond is that, “I’m sorry. I did not hear that.” Or, “I did not understand that.” Or, “What do you mean by this word?” Or maybe it’s just a really confusing question. Then say, “I just don’t know what you’re asking for. Can you rephrase that?”
And if you’re doing that in a legitimate honorable way, the lawyer is not going to mind.
Look, if the lawyer acts like he does mind or if she acts offended, the judge is certainly not going to mind because you’re taking your obligation to testify truthfully very seriously. And that is mission critical. So if you do not understand the question, then you have the right to say, “I am sorry. I did not understand that. Can you rephrase that?”
Here are some quick examples:
“When you met him and then the other guy what did he say to you and then how did the guy respond to what you said?” Who are the two men? Which one is the lawyer asking about first? Then which man is the lawyer asking about his reaction? It is confusing. You can properly say, “I’m sorry, can you tell me who you are talking about as I got a little confused in that question.”
“Isn’t it true that according to the doctrine of res ipsa loquitur that you are guilty?” What in the world does that Latin phrase mean? Do you really want to say ‘yes’ to something you don’t understand? So you could legitimately say, “I’m sorry I don’t know what those words mean. Can you explain them or rephrase your question so I can answer it?”
Hopefully I’ve done a good job of making this single point – if you do not understand a question, you cannot truthfully answer it. Take your obligation to answer truthfully very seriously.
“Should I only answer the question asked or should I do more than just answer the question?
Here is where this comes up. You are asked a question, and you want to say, “Yes, but,” or, “No, but,” that is where you are answering more than what’s been asked. So let me give you a silly example.
So your spouse says, “Hey, on your way home, can you grab some milk?” And you blow right past the grocery store. And you walk in the door, your spouse looks at you, and he or she says, “Did you get the milk?”
Well what are the only possible answers?
Yes.
No.
I don’t remember.
I don’t know.
Now the truth is, the answer is no. But we feel a little hesitant about that. So we say, “No. But I’ve been thinking, why do we feed our kids milk from some animal?” Or, “No, why would adults drink milk? That just makes no sense.”
You see, the “but” part is where you realize the truthful answer makes you look bad, so you add the “but” to try to justify or explain your answer.
To make you look better.
So when you want to start explaining it, and typically the way you do that is you say, “Yes, but.” Or, “No, but,” you realize you’re answering more than just a question. We stress to our clients to never do this as it can lead to some bad consequences. If you do this on your own, you make that decision.
Here’s an example in a debt collection context.
“You took out this credit card, made charges on it, enjoyed what you bought, and now you have not paid for it?”
Well, that makes us look kind of bad. So we are temped to say, “Yes, but let me explain. I had a job loss, or I went through this terrible divorce.”
My position is, you should only answer the question asked. At least, if I’m representing you, I only want you answering the question asked. Don’t start explaining it, unless you’re asked to explain it because people get themselves into trouble doing this.
Lawyers on the other side love it when you start trying to explain it and justify and answer more than a question. It gives them lots of things to work with and it makes you appear to be evasive.
So, again, you can make your own decision if you represent yourself, but for my clients, we hammer this point home. Only answer the question that’s been asked.
If there is any explaining necessary, we will do that when we question you under oath.
“What should I do if the judge asks me a question?
You answer it.
The judge evidently has a question about something and needs clarification. That’s why the judge is asking the question.
I’ve never understood when people act offended or annoyed that the judge – the one making the ultimate decision – asks a question.
I would answer it the same as if your lawyer asked you a question or the other side asked you a question.
Here’s my suggestion, the way I have my clients do it. You answer my questions, the other side’s questions, and questions from the judge all the same way
I saw this one time in court where the consumer, when his lawyer would ask him questions, he would answer them perfectly. When the collection lawyer would ask questions, he’d go, “What? I can’t hear you. I’m confused by that.” And he was just doing that on purpose. And he had this smirk on his face, and he’s winking at his lawyer, like, “Boy, I really showed that collection lawyer.”
What he couldn’t see is the judge was about to just explode. You don’t play games like that. You answer every question the same way. Answer it accurately and truthfully because that’s your obligation. If you’re asked a question, you are to answer that question truthfully. Whether that’s from your lawyer, from the other lawyer, or from the judge.
In my experience, this increases your credibility which is mission critical.
“Will the debt collector always have a lawyer at trial?”
Yes.
I suppose it’s possible in small claims they might not have a lawyer but most judges apply the rule in Alabama that a debt collector suing must have a lawyer even in small claims court.
Bottom line is the collector will have a lawyer in court.
Sometimes people will say on the online, “The collection lawyer won’t show up.”
I have, with one exception, never seen a collection lawyer not show up. Collection lawyers will show up to trial. That’s their job, and I can say by and large, the collection lawyers in Alabama are very skilled. The lawyers that I deal with on a daily basis will show up to trial.
Now, the other side of that is, will the debt collector send a witness to testify in trial?
Usually not.
But I can’t promise you in your case because I don’t know what your case is. So if we represent you, we’ll talk about that. If you represent yourself, you have to make your own judgment on this.
Will they send a witness to testify in trial? I can tell you in my cases in Alabama, the normal answer is no. They typically will not send a live witness, a person in the flesh there who’s going to testify.
Note: In small claims court, the judge may allow an “affidavit” which is a sworn statement. In district court, if you object, the judge is not to allow an affidavit. If you face an affidavit (and we discuss this a little later), you have to carefully study it to see a number of things including:
- Does the person signing it have actual knowledge?
- If they referenced documents, are those documents attached?
- Are there contradictions in the affidavit that gut its credibility?
But in terms of a live witness, that is pretty rare in my experience.
“What do I do if the collector has a witness?”
So they show up with a witness. Well, if you have a lawyer, your lawyer will cross-examine that witness.
If it’s you, you’ve got to figure out how to do that.
And I’ll just be blunt, that’s going to be very hard.
And that’s way beyond the scope of this book.
But if you represent yourself, you have to be prepared for it. They may bring a witness, and you’ve got to decide, how do I object? How do I cross-examine this witness?
“What is the difference in the purchase agreement and the bill of sale?”
The bill of sale is something they typically bring to court. And this is where Midland or Portfolio, or whoever it is, will say, “See here’s the proof that we bought the debt.” And it’s usually a paragraph. It’ll say, “On this day, Chase sold and Midland Funding purchased the accounts attached as Exhibit A to the purchase agreement per the terms of the purchase agreement.”
And the collection lawyer will say, “See. That proves it.”
But the purchase agreement is the actual document where they supposedly buy the debt. It’s going to be a 30, 40, 50-page document. And it’s going to explain who’s promising to do what. So think of the purchase agreement as the contract. The bill of sale is just the record of it saying,
“Hey, there is a contract out there.”
And normally, the purchase agreement is attached to the bill of sale.
“Does the bill of sale mean the collector has proven it owns the debt?”
They will tell you yes. They wave that thing around like this is the gospel truth. “Look, we got the bill of sale.”
My position is, so what?
You got a bill of sale.
The bill of sale says, “Look at the purchase agreement that’s attached to it.” OK, where’s the purchase agreement?”
They tell the judge, “Oh no, that is top secret. That’s like the formula to Coke, or KFC’s secret recipe.” And they act like this is some just national security issue. It’s not. It’s a contract. Really, it’s like any other contract where you’re buying stuff.
So my view is, the bill of sale does not prove anything because it’s an incomplete document.
Where we would really find some evidence about whether or not these accounts were purchased is going to be in that purchase agreement. And there are reasons that they do not want to share, or put into evidence, the purchase agreements.
But just understand, there is a big difference between bill of sale, and the purchase agreement and in my view the purchase agreement would have to come into evidence for the collector to potentially prove it owns the debt.
“What is an affidavit in a debt collection trial?”
A lot of times we will see there is not a live witness but instead there is an affidavit saying, “We bought this, and you can look at the bill of sale.”
But it’ll say, “We bought this debt, and you the consumer owe it. And you have no defenses.” And they argue, “See judge, this is my proof.”
That’s what an affidavit is.
It’s an attempt to get in testimony without bringing the person live, and without giving you the chance to cross-examine the person.
“Does an affidavit prove the collector owns the debt?”
Absolutely not.
Every affidavit I’ve seen, I’ve been representing just hundreds and hundreds of people over I guess, 11 or 12 years now. I’ve been a lawyer since 1995, but 11 or 12 years where I’ve been involved with these collection type suits. I’ve never seen an affidavit that I thought was valid. So I don’t think it proves that they own the debt. They’re always defective in my experience.
“Can the collector use an affidavit in my trial?”
It depends on what court you’re in.
In circuit court, or district court, as long as you object, no they cannot use them. The rules say they cannot use an affidavit. Because you’re supposed to be able to cross-examine a witness, question them.
In small claims court, it’s up to the judge. What I have found from all my years of doing this, is most judges will not allow these. When we’re talking about these professional plaintiffs, or serial litigants, where Midland Funding will file a hundred lawsuits a week in Alabama. And then they don’t bring witnesses. They try to use an affidavit.
Really, the affidavit in small claims court is more for two neighbors are fighting, and you get a third neighbor to testify. And we’re not necessarily going to make him come down to court. But the judge has discretion on this. Most judges will not allow these affidavits. Or if they do, you can read the affidavit, and point out the inconsistencies in them.
You can point out that the purchase agreement is not attached. There is just a bare statement that “We bought the debt.”
Make the affiant (the one who signed the affidavit) prove it. They can’t as they won’t attach the purchase agreement.
“How about the monthly statements from the original creditor –– do these prove the debt collector owns the debt?”
So they have five months of old monthly statements from my credit card. Does this prove they own the debt?
You know what it proves?
It proves they have monthly statements.
Now they’ll wave them around like, “Look, we must own the debt because we have monthly statements.”
My response is, Judge, it simply proves they have monthly statements.
That’s all it proves.
If I’d grab them out of their hands, now, I’ve got the monthly statements. Does that mean I own the debt? No, of course not. There are so many copies of these monthly statements. It proves nothing, okay?
Now, they’ll make arguments from it. You have to be prepared for that. But sometimes I’ve seen consumers representing themselves, and the lawyer goes, “I have the monthly statements.” The consumer then says, “Oh well, I guess it’s over now.”
And if you’re representing yourself, just understand that it does not necessarily mean it’s over. Now you’ve got to make the right arguments, but having the monthly statements proves they have the monthly statements.
That’s all it proves.
“How does the debt collector prove it owns the debt?”
Well, let’s think about it. How do we prove we own anything? Well, we might look for a contract where we bought it. We might look for a title. So if I’m proving to you I own my car, I say, “Here’s the title to the car.”
Or if you imagine I’m getting into my car after shopping at Target, and some loss prevention guy comes out and says, “Hey, you stole that loaf of bread.” And I respond, “Well, here’s the receipt from 45 seconds ago, and it’s got the loaf of bread on there.”
So we just use common sense and think about how do we prove we own a house, a car, a boat, etc.
So how would the debt collector prove it owns the debt?
Well, first, it’s got to buy the debt. You can’t own it if you don’t buy it.
How do you prove you bought it? There’s a contract where you bought the debt (the purchase agreement).
What else would it be? There will be a description of the debt.
So it’s just common sense things that, in this world, the collection agencies, these debt buyers, they make it sound like, “Oh, well, we can’t show you the contract. That’s top secret. You should just believe us. Hey, we’ve got the statements. That proves everything.”
No!
Prove you own the debt. This is the position I have taken in hundreds of trials.
So again, if you’re doing it on your own, you have to figure this out. But just think in general terms, how does somebody prove they own something? Well, that’s what the debt buyer needs to do. And think about it this way. Particularly if the debt buyer is number two or three in line. Would we need the previous debt buyer?
So my position is, if they say, “Chase Bank sold it to Midland, who sold it to Portfolio Recovery,” well, there better be a witness from Chase. There better be a witness from Midland. Better be a witness from Portfolio.
What is coming up next in our series?
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!