A: judgment is in its simplest terms a decision by the court between a legal dispute between two or more parties.
Q: Can a collection agency garnish my wages or put a lien on my house?
A: Not without a judgment.
Q: What is a summons?
A: A summons is a notification that a case has been commenced and that the defending party must appear before the court to defend the case.
Q: What is a default judgment?
A: A default judgment is simply that... when a party has been served with a summons and they fail to respond to defend the case, the court automatically rules in favor of the party who filed the complaint.
Q: How long is a judgment good for?
A: Sometimes a very very long time depending on the state. 5 years is about the shortest, with some states over 20+ years.
Q: What is a complaint?
A: A complaint is what the plaintiff files with the court. It is an overview of the legal case. A complaint explains the background of the case for the court and what damages have been suffered.
Q: What steps must a plaintiff go thru before getting a judgment?
A: The first step is that the plaintiff files a complaint with the court clerk. (Note: in some jurisdictions such as New York City the plaintiff sends the complaint to the defendant first, then files with the court). The clerk then issues a summons to the plaintiff. The plaintiff hires a process server, sometimes the sheriff's department, to deliver the summons to the defendant. This process is known as getting served.
After the defendant has been served, the sheriff or plaintiff completes a certificate of service swearing that the complaint has been served upon the defendant and returns both to the court.
The defendant must then file a written document called an answer within 10-30 days after being served with a summons.
If the defenant files an answer, then the next step is usually a pre-trial conference. This is where both the plaintiff and defendant sit down and write out an outline of how they intend the case to be played out.
After the pre-trial, then discovery is initiated. This is an exchange of information between the parties. Discovery consists of three components. The first is admissions. This is where one party requests that the other party admit to something. The next is request for production of documents which is pretty much self explanatory. Finally there are interrogatories which is a long term for questions.
After the discovery period has been completed comes motions for summary judgments and evidentiary objections. A common tactic is to file a motion for summary judmgent and hope the other party does not respond, or responds improperly, resulting in a summary judgment. Evidentiary hearings are where one party seeks to suppress evidence based upon things such as hearsay.
The last step is the trial itself which results in a judgment.
Again, all steps are governed by the rules of the court known as rules of civil procedure and may vary depending on your location.
Q: Will sending a Debt Validation letter stop a lawsuit?
A: The answer is no but it can't hurt. Nothing in the FDCPA is meant to prevent the filing of a lawsuit against a debtor. The FDCPA even states that. At best a DV could possibly be used to get a FDCPA violation. Generally, the best bet is to use Discovery against the JDB or whoever and force them to prove their case. Discovery is a court ordered process and if a party fails to respond sanctions can be granted. This goes for both way for the plaintiff and the defendant. Simply put, Discovery is infinitely more powerful than a Debt Validation letter.
Q: I've been served with a debt that is mine, do I have any defenses?
A: Yes, there are a plethora of defenses. Most common is the statute of limitations (SOL). Even if the statute of limitations does not apply the burdon for proving a case lies with the plaintiff.
Q: Help, I'm being sued by an original creditor, what do I do?
A: Unfortunately there is not much you can do. Unlike JDB's OCs have access to just about ever single shred of evidence that could be produced, and will produce it in a heartbeat if needed. In fact, the best I can recall is that only two creditboard'ers have beaten OC's, the first was when the OC screwed up on Uniform Commercial Code, and the second was with Crap1 by successfully "importing" the statute of limitations from another state using a choice of law provision in the credit card agreement. Best adivise is to just try and become judgment proof or file bankruptcy if one cannot live with a garnishment.
Q: Help, I've just found out I have a default judmgent and I was never served a summons, what do I do?
A: You will have to petition the court with a motion to vacate. This is a court formatted document that explains why the judgment should be set aside. If successful, the judgment will be set aside and you will have to start the litigation process from back to square one by filing an answer.
Q: Should I hire a lawyer?
A: The answer is yes! Generally you will be able to accomplish much more with an attorney than without. But, there is a downside and that is finding one and paying for one. Finding an attorney willing to fight a debt collection case can be very very difficult. Most phone book lawyers will either attempt to settle the debt or provide little help. They simply do not want to put in the work required. One option is to look up NACA and get them to refer a consumer attorney.
The other issue is cost. It can cost more to defend the average lawsuit that than the amount of the lawsuit itself.
One alternative is to try and get the attorney to provide services on an as needed basis for such things as procedural questions and reviewing pleadings. Most lawyers do not want to go this route due to malpractice liability, but it may be possible to get them to agree if a release of liability form is signed.
Q: When does the SOL apply?
A: The SOL varies by location. Each state has its own SOL varying between 3 and 15 years and the statute of limitations varies depending on the type of debt. Generally most states have an oral statute and a written statute.
Q: Where can I find a list of SOL's?
A: WhyChat has a very exhaustive list of SOLs which can be found at whychat.5u.com
Q: How do I know which the written or oral the statute of limitations applies?
A: There is no good answer. Unless the statute is clearly spelled out, many times a debt collector will argue that a credit card agreement is considered a written agreement. Some on the consumer side say that because the federal Truth in Lending Act defines a credit card agreement as open ended, the shorter oral statute should apply. Of course, local judges are basing their rulings on state law and are biased towards JDB's. To make matters even more complicated it is theoretically possible to have an open ended agreement in writing provided all the components to satisfy the statute of frauds are in place. The only sure fire way to get the shorter SOL to apply is to take the agreement out of play using a combination of discovery and motions to strike.
Q: What is this affidavit thing and how can someone just swear that I owe a debt?
A: Affidavits are JDB's number one form of evidence. By simply swearing that a debt belongs to someone, its more than enough to get a default judgment in most cases since most defendants do not ever contest the allegations. Affidavits are also dirt cheap and easy to get since they are manufactured evidence.
Q: How do I defeat an affidavit?
A: One counters an affidavit by filing their own affidavit denying the debt. This affidavit is set up in a graduated matter so if one denial is proven by the JDB, then the next denial in the affidavit will hopefully stop them. This layered approach is highly effective. An example is "I deny that this is my debt, and should the plaintiff establish that the debt is mine, I deny that the Plaintiff lacks standing to sue, and should the plaintiff establish that the debt is mine and that they have the standing to sue, I deny that the amount being demanded is correct". An affidavit of denial also serves one other very important purpose, it prevents a majority of motion for summary judgments from being granted if the defendant has not screwed up in answering discovery requests.
To completely destroy an affidavit, one must file a motion to strike. A motion to strike is simply where one requests that the court take something out of evidence because it is inadmissable due to a technicality. In the case of an affidavit, they are clearly hearsay evidence made by some hourly employee and a rubber stamp notary public. The have no idea what they are testifying to other than what numbers are showing up on their computer screens.
Unfortunately, most judges do not know that and take the affidavits for face value. Generally the standard used by judges is that all motions are considered most favorably in light of the non-moving party. To counter this, one must lay a foundation using discovery. An example of this is to get the JDB to admit that the affidavit writer does not have personal knowledge of the debt. Of course, the JDB will deny the request for admission. But, if one is smart they can corner the JDB by using interrogatories and requests for production of documents. An example would be to ask "If Plaintiff denies Defendant's request for admission #1 please identify all documents and records used by the AFFIDAVIT WRITER NAME when createing the affidavit" and "Please provide all documents and records used by AFFIDAVIT WRITER NAME when creating the affidavit". JDB's generally don't have any evidence, so this may effectively force them into providing an admission. If they admit that the affidavit writer does not have personal knowledge of the debt the motion to strike will go thru like a knife thru hot butter.
Q: Can I strike a credit card agreement?
A: Yes you can. The first step is to look at the agreeemtent itself. Double check the copyright date. If the copyright date occurred AFTER the account was charged off, you can motion to strike it fairly easily as irrelevent. Most of the time again it helps to use discovery to lay a foundation as to why the agreement should be stricken. A simple interrogatory asking "Please identify when they account was charged off by the original creditor" will give you the answer you need.
Another way to attack a credit card agreement is to use lack of foundation. Credit card agreements are generic by nature. Usually there is nothing in the agreement that ties a specific agreement with a specific debtor, ie the debtors name and account numbers are not mentioned. The JDB will swear up and down that the OC sent the agreement, but since they are a third party that testimony is also hearsay and can be stricken if the defendant speaks up at the hearing. A counter for this is to send an admission asking "Admit that plaintiff aquired the alleged debt was charged off." This establishes that the Plaintiff is indeed a third party and lacks personal knowledge to testity that the agreement was sent.
To be continuted at a later time because it is time for Dixie to go to the bar, put on his beer goggles.
Please note that this is incomplete and that the next update will cover settlements and other topics. In the mean time, if anyone has a question that is not covered, please ask it and I will answer it as soon as I sober up, provided of course I have not chewed off my arm in the morning to keep from waking said whore up while I escaped.
Edited by breeze, 13 June 2008 - 11:57 PM.