The threat of having a judgment being put against you from a collection attorney is very scary. Many people are faced with this situation every day. We hope that the information to follow will aid you in getting through this very difficult experience and at the same time allow you to have your case dismissed or settled for much less than you are being sued for. As stated on our website, there is a DISCLAIMER with this purchase. We are not attorneys and are not here to give any kind of legal advice. We are here to simply provide information to you that has been proven to work in many many cases. Each and every case is unique in its circumstances, and laws can vary from state to state. Therefore, we do recommend that you consult with a local attorney in your state to insure that you are following protocol and the laws in your state. It is also important for you to prepare your case. You never want to go to court unprepared. It can make the difference between winning and losing your case.
When you are sued by anyone, you have rights as a consumer. Most people are not aware that even though you may owe money to someone, if that other person does not following the rules of law in the collection of the debt, you, as a consumer, can in many cases, have the case dismissed and you can walk out of court not owing the money. This information is not here for you to get out of paying a legitimate debt, but it is here to make sure that the attorney that is pursuing the collection of the debt follows the collection laws of this country. Many collection agencies and collection attorneys do not follow the law as it is written. Attorneys do not always have the legal right to collect a debt even though the debt is a legitimate debt owed.
What do I mean when I say, you have been sued? I mean you have had a sheriff come to your home or office and served you with papers from the court stating that you are being sued. We are NOT talking about receiving harassing letters or phone calls from a collection attorney telling you they are going to sue you. Harassing letters and phone calls does not mean you are being sued. You are only being sued when the sheriff comes to your door and hands you lawsuit papers. He will ask you to sign a form stating you have received these papers. In many counties and many states, you must be "served" before you can be sued. If you cannot be served, then you CANNOT be sued! Check with your attorney in your state.
Once you have been served you usually have 30 days to respond to the court with an answer. This is where most people put their head in the sand and hope the whole thing goes away. It will not go away, and if you DO NOT answer the court, you WILL get an automatic default judgment placed against you by the court. What does this mean? It means! You lost the case! By not responding to the Court, you have given the attorney exactly what he wants. A judgment against you. Now he can pursue you further and garnish your employer and all of your assets, including your checking and savings accounts. You not responding to the Court is a "dream come true" for a collection attorney. Always respond to the Court. You do not need to panic. Just take a deep breath, and get ready to take your first step in exercising your rights as a consumer.
STEP ONE:
The first thing you need to do is to make sure you do respond with an answer to the Court within 30 days or whatever the court papers say is your response time frame. It will say on the "service" papers. All collection attorneys are governed under the Fair Debt Collection Practices Act, so the first thing you want to do is write a letter to the Court and also send a copy of that letter to the collection attorney that is suing you. In the letter you want to ask the attorney to VALIDATE or VERIFY the debt. It does not matter which term you use. They mean the same thing. Tell them you would like for the alleged charges to be Validated/Verified pursuant to 15 USC Section 1692(g). This is the validation section of the FDCPA. See links section on our website for FDCPA in its entirety. Under this section of the FDCPA, the attorney is required to stop all collection activity against you until he provides you with this information. Any collector found in violation of 1692(g) is subject to being sued and having penalties pursuant to the FDCPA 15 USC Section,1692(k), which is the Civil Liability section.
Let?s discuss the Validation/Verification process for a moment. It is important that you understand what this really means. There is a lot of misinformation out on the Web, so lets clarify this so you will not make yourself look foolish. Validation vs. Verification. It does not matter which term you use in your correspondence because they both mean the same thing in this process. I would suggest, pick one or the other and stick with it throughout your letter. Don't jump back and forth. It just doesn't look good. Be consistent. Proper Validation/Verification of the debt can depend on the specific nature of any dispute. Validation/Verification can vary from case to case depending on different factors about that case. The very minimum that a debt collector is required to confirm with the creditor is that the amount being sued for is correct and that the person being sued is the person who really owes the debt. In most cases the collector will only provide very basic information in the Validation/Verification process, such as the debtor's name, address, account number of the original creditor and the amount being sued for.
There are websites that claim the debt collector is required by law to provide an extensive amount of information and also answer a long list of specific questions about the debt, and if they to not do this, then the collector is in violation of the law. This is NOT TRUE. Don't be fooled by these "hacks" that do not know what they're talking about. Any collection attorney will validate what I am saying. They DO NOT have to give you a long laundry list of information about the debt for them to sue you. Under Chaudhry vs. Gallerizzo, 174 F.3d 394 (1999), "Verification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt."
Validation/Verification of the debt works in your favor for several reasons. First, it stops the collector's collection activity. Under The Fair Debt Collection Practices Act, all collection activity must stop until the collection attorney is able to get the Validation/Verification information to you. Once he has mailed it to you he can then proceed with his case, but it does give you a little bit of time. His response will usually be a simple documents signed by the creator. It does not usually take the collection attorney very long to obtain this information and mail it to you. Again, this is only to help you "stay" his activities for a short period of time. He will usually have this information to you within a few weeks. Secondly, and I believe equally important as the first is, asking for Validation/Verification lets the collection attorney know that you are not going to just give in to his threats of a lawsuit. He know realizes that he will have to put a lot more time into the case than he really wants to. This can make a difference in the outcome of the case for you down the road.
By filing a Validation/Verification request, you now send a message to the collection attorney that the case is not going to be easy for him to win. In most of his cases of this nature, the collection attorney will not have to go to court. Most people will ignore the collection letters and phone calls because they know they owe the debt and feel there is no need to fight it in court. So, what do they do? The debtor just lets the collection attorney proceed with a default judgment against them, simply because they did not go to court and exercise their "collection rights" as a consumer. Most lawsuits simply go to default judgment without any response from the debtor. Collection attorneys love these kinds of cases. The debtor ignores everything, allowing the attorney to get the judgment with ease. It's a case made in heaven for the attorney. Remember, collection attorney DO NOT like to go to court because they are put into a position where they have to prove the charges and other information pertaining to the case that we will discuss later in this report. As stated earlier, by filing the Validation/Verification, you "stay" the collection process. The attorney cannot move forward with a lawsuit. As a result of this, you lower your chances of having a judgment placed against you. Attorneys do not like it when you make them jump through these hoops. But, it can work in your favor. Your letter only needs to be short and to the point. Simply request the collection attorney to Validate/Verify the debt per the Fair Debt Collection Practices Act. Make sure you send the letter and all future letters to the attorney, Certified Mail, with return receipt. Always!! And most importantly, in your letter, do not be threatening. All this does is tick off the attorney, and it could cause him to work especially hard on your case to win, just because you acted like a "jerk" in your letter. Always be professional.
STEP TWO:
Wait to hear back from the collection attorney on your Validation/Verification letter. I recommend waiting only about three (3) weeks. By this time you will have heard from him, in most cases, if he is going to respond at all. During this three week waiting period, call the courthouse where he filed the lawsuit and check to see if a court date has been set to hear your case. Usually there is no court date set. Remember, the attorney does not want to see you in court. They hope you do not show up. Remember, they automatically win if you do not show up. I have personally had clients that received a default judgment against them because they were unaware of the court date. It is up to you to check with the court every couple of weeks to make sure a date has not been set that you do not know about. The court does not usually notify you of this court date. You will need to check in your state to find out the protocol for your state and county.
During this three week period you may or may not hear from the attorney with a response letter. At this point you can be presented with several options. #1. The attorney may withdraw the suite. Probably unlikely, but it's possible. #2. The attorney could respond with a settlement offer that you may or may not want to accept. #3. The attorney may respond with nothing more that the Validation/Verification information you requested. Obviously, #1 would be good. #2. Would be a choice for you to make, to settle or not. If he responds with the Validation/Verification information I would state to him that the information he has provided is insufficient.
STEP THREE:
At this point you would file a SWORN DENIAL with the court. Many people do not owe ALL the money being sued for, so this is a VERY IMPORTANT step. You never want to lie to the court. If you owe the amount being sue for you must acknowledge to the court that the debt is yours. However, very rarely does a collection attorney sue for the proper amount. From the time the ORIGINAL debt was charged off by the Original creditor, many erroneous charges are added on to the balance of the debt. The attorney suing you could be the first collector that purchased the account, or the second, or the third, etc. All along the way each new collection company or attorney is continuously adding on their fees. These fees can be interest, collection fees, late fees, processing fees, handling fees, account setup fees, etc. So, in most cases, it is IMPOSSIBLE for the collection attorney to have record of the correct amount he can legally sue for. Knowing that you do not know the collection laws, he will sue for everything he can.
The SWORN DENIAL letter needs to be filed with the Court where you are being sued. In the letter you simply need to state that you are challenging the accuracy of the "charges" being sued for. It needs to be in three stages. First, you are challenging that the "charges" may not be yours, and if the charges are yours, you challenge that the "charges" are valid "charges," and if they are valid "charges," you challenge that the amount of the "charges" sued for is accurate. The letter needs to be typed, signed, and notarized with the Clerk of the Court. Also make sure you send a copy, Certified Mail, with return receipt, to the collection attorney.
In addition, you should ask the court to set a court date to hear your case. Remember, the attorney will not like to go to court. The SWORN DENIAL is very powerful. By issuing the SWORN DENIAL, you have now made the collection attorney's job a lot harder. The SWORN DENIAL eliminates the SWORN Affidavit of Account that the attorney has from the original creditor. The SWORN Affidavit of Account is the document that the attorney has signed by the Creditor to validate their knowledge and accuracy of the debt. The collection attorney enters the affidavit, signed by the Creditor, that the debtor owes the debt and that the amount specified is accurate. With that affidavit, the court gives the attorney a judgment against you. The SWORN DENIAL makes that document Null and Void. Once the SWORN DENIAL is filed with the court, the collection attorney now must produce a live witness from the ORIGINAL creditor, to testify about the debt and its accuracy. He can no longer rely on the SWORN Affidavit of Account to prosecute his case.
Remember, your debt was purchased in a portfolio of accounts from the original creditor. Sometimes the portfolios contain thousands of accounts. These collection attorneys purchase these portfolios for "pennies on the dollar." Once the debt is sold by the original creditor, the creditor no longer has any interest in the account. So, for the collection attorney to be able to get a live witness from the original creditor is VERY DIFFICULT. And in many cases impossible. The chances of your case being dismissed now goes up again.
At this point, the collection attorney may contact you for a settlement. That will be your decision whether to settle or not. Going to court is not something he wants to do. It is in your best interest to go to court. By standing your ground and taking it all the way to court gives you the leverage to have the case dismissed by the court.
STEP FOUR:
If the above debt is an unsecured debt, in particularly a credit card debt, it is very unlikely that the collection attorney will have or be able to obtain a copy of the original contract/agreement or other supporting documentation from the original creditor. With this in mind, now is the time you want to file for "Discovery." The Discovery process is a request IN Writing for the "Production of Documents" from the collection attorney.. "Discovery" is NOT permissible in Small Claims Court, so if your lawsuit has been filed in a Small Claims Court, you will want to ask the Judge at trial to allow for Production of Documents in your case because you do not feel the charges ARE accurate. You will want to request for a copy of the original contract or agreement and all supporting documentation validating the charges the attorney claims you owe. This will force the collection attorney to have to go back to the original creditor and obtain this information. Your chances of having the case dismissed increase at this point again. Remember, the attorney purchased the debt, and now the original creditor has NO ownership or interest in the account at all.
STEP FIVE:
At this point, you will want to check with the court every couple of weeks to find out your court date. Many times you are not notified. It is up to you to know your court date. The only way to get it is to check with the clerk of the court every couple of weeks. Thousands of people have default judgments placed against them every year because they do NOT know their court date or they never ask for one. Make sure you SHOW UP! All of your hard work will be down the drain if you forget or miss your court date. Show up and ask the judge for a trial. As I've said before thousands of cases are lost every year simply because the consumer does not show up in court to defend themselves. Do not be afraid to ask the Judge for a trial. The worst that can happen is the same thing that would have happened if you had not appeared in court. They will simply issue a judgment against you. In most cases the collection attorney will not have a live witness available to testify, so he may ask the Judge for a continuance. Immediately tell the Judge that you have made special arrangements to be there and would like to move forward with the trial, now, if possible. For you to have to take off work again, it will cost you more money that you cannot afford. Although, the collection attorney will have a very difficult time coming up with a live witness, you do not want to give him the opportunity, if possible. You will not have any control over whether or not the Judge allows your case to be sent to trial then and there or if he decides to continue it. If he does continue it for another date, again, make sure you show up. No matter how many times it may be "continued," make sure you always show up.
You don't have to be an expert on law to be able to defend yourself and win your case. However, prepare yourself for court. Don't expect to be able to compete in court with an attorney. However, you do need to be prepared. Make sure you know the Rules of Procedure in your court, which governs how the trial is conducted in your court. Every state and county jurisdiction can be different, so look them up online and review them. In addition, make sure you know the Rules of Evidence for your jurisdiction, which governs what the Judge can see and hear in his court. Again, they can be different from state to state and from one court to another.
STEP SIX:
You've finally made it to your TRIAL. What do you do if the judge allows continence for the collection attorney, and he is able to somehow bring a witness to testify from the ORIGINAL creditor? Don't panic. Challenge the witness immediately. Do not challenge the debt at this point. Again, challenge the witness. Remember, the witness MUST have personal knowledge of the debt, the charges, and its accuracy. Generally, these witnesses have NO personal knowledge about you, your account, or documentation pertaining to your account. He, in all likelihood had no knowledge of the account at all, until he received the file from the collection department. This is very important to understand this, if he is going to testify to specific aspects of the account, without personal knowledge, he has to be the "keeper" of those records and be up to date and familiar with how they are maintained. In other words, he must have "hands on" attention to those records.
The attorney will try to make the court think the witness has been the overseer of these records and is qualified to be a witness. In most cases, the witness is not qualified. Don't let the attorney manipulate the court with this witness. Ask the witness how long they have worked for the Original creditor, how long they have worked in the department where the records have been maintained. Or does he work in another department? What are his daily duties? Ask him when he first saw the file? Very important!! Also, does he know if it is in fact a complete file?
You must be able to discredit the person as a qualified witness that is testifying about the file. When he is unable to clearly answer these questions, it will show him as an unqualified witness. Showing that the witness is unqualified has now won your case. The attorney's case depended on the qualified witness. Now, he has no case.
However, what happens if the witness turns out to be a good witness. Remember, as stated earlier, in most cases it will be impossible to get a live witness from the Original creditor. But, lets assume he is able to get one. What do you do?
STEP SEVEN:
We have seen many cases where a client was being sued for a debt that was outside the "Statute of Limitations." What is the Statute of Limitations? When a person is being sued, The Statute of Limitations is the time period in which an aggravated party has to file a lawsuit. If the lawsuit is NOT filed by this deadline, then the Statute of Limitations has expired and the debt become a legally uncollectible debt. Every state has a different "Drop Dead" date, so go to this website's Home page, and you will find a link to our Statute of Limitations table that includes all 50 states and the District of Columbia .
Many consumers are completely unaware that the debt they are being sued for, many times, is outside the Statute of Limitations. If it is, tell the judge this, and he will immediately dismiss the case. In fact, if you know this up front, you can save yourself a lot of headaches simply by telling the attorney this. You will need to know the "date of last activity" established by the original creditor. Your Equifax credit report that you can get through the mail for free will give you this date. Make sure you get the report through the mail and NOT off of the internet. Many times the internet reports will not give you this date. If it is a collection agency, look for the "delinquency date." It is the same thing as the "date of last activity." Experian and Trans Union do not give you this date. The "date of last activity" cannot be changed by law, and it gives you the start date for the Statute of Limitations. Any collection agency or collection attorney that changes this date is in violation of the Fair Credit Reporting Act and the Fair Debt Collection Practices Act.
STEP EIGHT:
If all of the above fail, there is still one last chance to win your case. If you wee to lose at trial, you can Appeal. The Appeals process can drag out for months or years. During this time, the attorney cannot have any collection action. He CANNOT garnish you in any way. In some jurisdictions, the court may require that you post an Appeals Bond during this process, so check with your jurisdiction. Dragging out the Appeals process can, in many cases cause the account to go outside the Statute of Limitations, resulting in the account becoming statute bared and NOT collectible. The statute of Limitations is a very important date to know.
Finally, remember, every step you take increases your chances of having your case dismissed. So, don't give up.
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