What should I do if I want to defend my own collection lawsuit?
What should I do if I want to defend my own collection lawsuit?
You’ve been sued and you’ve made the decision to defend yourself in your own collection lawsuit.
You’re not going to hire a lawyer, or give up, or even settle.
You want to defend yourself and fight the lawsuit.
What should you do?
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If possible, go to court and watch your particular judge.
At the time of this article, in 2020, we are still in the middle of the pandemic. In Alabama, where I practice, every court is different.
Some courts have lots of people packed into them.
Other courts only allow people in the courtroom who are involved in the case being heard at the moment. You sign in and then wait in your car until the judge calls you to come in.
Every court is different.
Are they formal or informal?
What is the feel of the courtroom?
This may not be possible due to the current circumstances. But if you have the option to do this, then do it.
Read the entire lawsuit and any attachments.
For the purposes of this post, I’m assuming that you have responded to the complaint.
Tear the complaint apart. Read every line.
Look at the attachments – a bill of sale, an affidavit, or maybe statements.
Whatever has been included with that lawsuit. Read all of it.
When you read, look for ways you can attack the lawsuit.
For example, the lawsuit says the plaintiff (LVNV, Midland Funding, Portfolio Recovery, etc.) loaned you money or created a credit account with you.
Is that true?
Did you borrow money from LVNV, or Portfolio, or Midland?
Did you have a credit card that said LVNV, Portfolio, or Midland?
No?
Circle this. Make a note of this untrue statement.
Do they say, for example, that you had a car that was repossessed and this is a deficiency?
But you never had a car. You had a credit card.
This is a common mistake that happens where they have the wrong type of account listed.
Usually, these complaints are pretty generic.
The complaint will simply say that the plaintiff or their predecessor had a credit transaction with you and you did not honor your obligations.
Look at the affidavit and trace the chain of titles.
How did this debt get from Capital One all the way to Midland Funding?
Did it transfer directly to Midland or were there multiple steps?
You need to take note of everyone that they list.
Often, with LVNV they will want to say they bought it from Credit One.
But they didn’t buy the debt directly.
It went to Sherman, then to Resurgent, and then to LVNV.
When we call them out on this, they usually say they are all the same company so it doesn’t really matter.
You can look at these companies listed by your secretary of state. They are all separate corporate entities.
Look at the open date, the chargeoff date, date of last payment.
Compare this with your credit report and your records.
Look at everything so you can point out every single mistake and false statement they make in the lawsuit.
Understand the rules of evidence that can be used in your case.
We have an ongoing series highlighting some rules of evidence that you can use to your advantage in a collection lawsuit:
- Evidence Rule 106: Completeness Doctrine in Debt Collection Lawsuits
- Rule of Evidence 408: Settlement talks in a debt collection case
- Rules of Evidence 601 and 602 in a debt collection lawsuit
- How to know if Rule of Evidence 106 applies in your state court debt collection case
There are many different types of rules of evidence that are pretty standard across the nation.
You need to understand these going into your lawsuit.
That way, you’re not claiming that the rules of evidence forbid something without anything to back it up.
Know what they are and what they allow or prohibit.
You need to know how a lawsuit works procedurally in your state.
You get sued. Do you file your answer physically? Do you show up on the day of trial and file your answer?
In Alabama, where I practice, they sue you, you file an answer, and if you don’t file an answer you never have a trial because you are going to lose.
Make sure you understand the rules of court in your particular jurisdiction.
Finally, understand how to act in court.
How can you know what to do in court?
I suggest that you watch our video on the 7 mistakes that we see people make when they go to court.
This will give you a good overview of how to act in court.
Listen to the mistakes others have made and do the opposite.
This will put you in good shape for court.
If you are fighting this lawsuit on your own, be ready to commit.
Understand that you are either going to spend time or you are going to spend money on this.
If you hire a lawyer, you will be spending money.
If you’re doing this on your own, you will be spending time.
Make sure you’re committed to doing this on your own, not giving up, and fighting them.
It’s great if you want to do this, just make sure you’re willing to invest the time, energy, and effort to do this.
You’ll be going up against a lawyer that handles cases and goes to court every day, all day long.
You can often be successful in defending yourself in court depending on many different factors.
Here’s the universal fact: you have to be prepared.
Do your research. Prepare. Rehearse.
Do everything you need to do to be successful.
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Thanks and have a great day!
John Watts