FAQ Collection Lawsuit Defense
Q – If sued, what steps should I take to protect my rights?
A – From the moment you first learn about a lawsuit, you should contact a lawyer to start protecting your rights. Even if the summons and complaint have not been served on you [link article about have you been served], it is best not to wait for that to happen, as sometimes people don’t get served at all, yet there is a proof of service filed in the court’s records that you were served. Once a proof of service has been filed in the case, it’s usually just a matter of time before the collection firm asks the court for a money judgment against you, if you don’t have a lawyer. Contact a lawyer, in particular one having the skills and experience in defending collection cases, such as Robert Stempler.
Q – Can I ignore a lawsuit that was filed in the wrong courthouse?
A – More often then people realize, lawsuits are filed in the wrong courthouse (also known as wrong venue), even the wrong county or the wrong state. It happens mostly with people who have moved, making the debt collector’s contact information outdated. You can be sued in the court district where the contract was entered into or where you currently reside. Any other courthouse is improper, so you have the right to request a transfer to the proper venue or you can elect to defend yourself where the case was filed, even if not the proper courthouse. However, a judgment obtained at the courthouse may still result in wage garnishments and bank account freezes. There are very strict time limits in collection cases, and an experienced lawyer will be quickly able to formulate and implement the appropriate procedure.
Q – What NOT to do if you are sued?
A – Even if you cannot afford to hire a lawyer now, a lawsuit will cost you much more down the road, if you sit and wait. Do not procrastinate, even if the summons says you have 30 days or you believe that you were not properly served. Most people don’t have the luxury of knowing an attorney they can contact at the last minute. If you were served [link article about have you been served], the rules require filing a timely response. Try to settle with the collection law firm yourself. Call the collection law firm and see what they are willing to accept to settle the debt and (once paid) dismiss the case. Put the conversation in writing in a letter you send them or ask them to put the offer in writing to you. Doing nothing permits the collection law firm to obtain a money judgment against you. The court has its civil procedures, which allows a money judgment to be enforced against your wages, bank accounts, real estate, and other property rights.
Q – Will it be worse if I call the collection law firm and reveal my financial problems?
A – It may make sense, and probably not be any worse to call them upon receipt of the complaint. You can tell the debt collection firm about your finances, because they would rather negotiate with you for a lower settlement [link to article on Negotiating with collection law firms], if they believe it will be difficult to enforce a judgment or that you may file for bankruptcy. Even if you have a job or some money in the bank, they may still prefer to settle with you, because it is less hassle for them to accept what they can get paid sooner, rather than risk getting more over a longer period. If you have many debts totaling a large amount, you may also want to explore whether to file for bankruptcy. If you receive a Chapter 7 Bankruptcy discharge, your creditors and debt collectors may get nothing. Thus, realistically talking about filing bankruptcy gets their attention and usually a more favorable settlement proposal.
Q – What should I do if I learn about a judgment against me?
A – Don’t delay, even if you were not served [link article about have you been served]. Court procedures permit you to contest the judgment [link to article about judgments] and get it set aside, but they also require you to act promptly from the time that you learn about the judgment, to file a motion with the court. While the courts try to allow everyone the right to present their case, the courts also are overworked, and procrastination causes people to lose certain rights, such as the right to contest a lawsuit or a money judgment. There may also be other deadlines that require prompt action.
Q – What legal fees are typical to defend a collection lawsuit?
A It’s not as expensive as people think, and lawyers who regularly defend collection cases usually do a better job at lower cost, then lawyers who take any type of case that walks in the door. The fee depends on the damages amount being claimed and the nature of your defenses and any counter claims. The California Superior Court has two categories of cases filed by debt collectors: Unlimited Civil and Limited Civil. Unlimited Civil are for cases over $25,000 and permits much more paperwork, because the stakes are higher. Cases seeking damages of $25,000 or less are called Limited Civil, which has rules limiting the paperwork and making trial preparation easier. Thus, Limited Civil cases require less time, so the fee is lower, sometimes even a flat rate. The fee also depends on whether there is already a money judgment [link to article on judgments] that must be set aside, which requires extra time and cost to prepare and file. In some cases, the debt collector harassed you, or the lawsuit was filed too late or they sued the wrong person, and you may be able to counter-claim for your damages and attorney’s fees.
Q – Can any licensed attorney defend a collection lawsuit?
A – This is like asking a GM dealer to service your Volkswagen. Sure, it can be done and it may turn out okay. But, each brand requires unique parts and instructions, and each requires techniques that a mechanic develops from direct experience. Few lawyers have defended enough collection lawsuits and filed enough collection harassment cases, to have developed a battle-tested strategy for such cases, which is different in many ways from other case types. Also, a skilled collection defense lawyer knows how to keep costs down, and has learned critical case weaknesses and developed tools to optimize the likely outcome. Because general practice lawyers will need to invest additional time into a collection case, that often quote much higher fees.
Q – Should I file an answer to complaint myself and hire the defense lawyer later?
A – Many clients file an answer for themselves (known as “pro per” or “pro se”) and pay the court’s fee to appear. They forget the adage that ‘he who represents himself in court, has a fool for a client.’ Perhaps you have a defense, such as the lawsuit was filed too late or there was fraud by the original creditor, but this requires key language in your answer. You may mistakenly admit to owing the debt, carelessly waiving objections, or attending hearings and trial unprepared. Many collection law firms take advantage of people who try to represent themselves, and may win the case without trial. The court can sanction you to pay money or strike your answer, because you missed a filing or response deadline. Fixing past errors may be impossible or require much extra work, so if you cannot afford a lawyer when you file an answer, hire a defense lawyer soon after, before facing paperwork from the plaintiff’s lawyer that you don’t understand.