PART I: WHERE DO I START?
Every collection lawyer and nearly every court views all collection lawsuits the same: a mindless task they don’t really want to do. They were trained for bigger and better things. More “important” things. However, it is the exact opposite for the consumer defendant. It is extremely important given that they intend to grab your bank account or take your wages. They literally are trying to take food off your plate. The juxtaposition of these two emotional states of mind makes for a lot of bad drama, or worse, bad legal decisions. So what does one do?
Disclaimer: How to best defend yourself depends on everything from which state and county you are in, to the amount sued for, to who the judge is, to who is the plaintiff and the lawyer, to say nothing of your possible defenses to a collection action. Further, tactical decisions must be made on a case by case basis. So numerous are the nuances to the defense of any collection case that it is impossible to provide specific insight in to what are very unique circumstances. There is no one case fits all and it is therefore impossible to provide legal advice to your specific situation.
That being said, there are a few simple rules that can assist you when you get sued by a creditor:
Rule 1: Do not ignore it. Ignoring a collection lawsuit is the same as ignoring a traffic ticket: it will only get more expensive. It will not go away by itself. This does not mean you must or should go to court. It merely means you must get a plan together and make a conscious decision on how you plan to deal with it. Also, do not make the common mistake of thinking that since the lawsuit was not served properly, you need not worry. Wrong.
Rule 2: Talk to a lawyer. Get legal advice. You may be surprised what you learn. Certain of these cases can be won by you. Consumer lawyers are becoming more and more knowledgeable about these cases and are even affordable. Perhaps more importantly, the courts are learning the truth about these cases and although many judges still appear to “rubber stamp” judgments for creditors, they are beginning (very slowly) to see the light and question the accuracy of collection cases. A lawyer can also assist you with determining if bankruptcy is best for you. Or determine if you are “judgment proof” such that a judgment against you will be nearly meaningless. Do not rely on advice from friends, the internet, or even the family lawyer. Fact is, most commonly accepted information out there is wrong. Only a lawyer experienced in consumer debt can assist you if you want to keep your food on your plate.
Rule 3: Be realistic about the court process. If after speaking with a good attorney, you decide to represent yourself and contest the collection lawsuit, it will do you well to always remember that the court process can seem bizarre (and sometimes actually is). Don’t worry about it and most of all, don’t try to change it. I am reminded of the Thomas Jefferson quote: “always take things by the smooth handle”. This was never more appropriate than when encountering the court process. It can be navigated by keeping the right attitude and asking a few questions. Keeping a realistic frame of mind will assist you to better present your case. Frustration (and even worse, showing your frustration) will hurt your presentation, no matter how justified your frustration is.
Rule 4: Always remember the judge is the King. The next thing you have to remember is that the judge is the only one who matters (and all courthouse staff are his friends). He/she will be making the decision about your case. From the beginning, they are predisposed to believe the faceless Bank of America over you. Honestly, it’s hard not to. They have seen it a thousand times. You will have to overcome this and it starts when you walk in the door. You must present yourself well. If you do not look or act like you are taking this serious, the king will not help you. Never be rude to the judge or the collection lawyer. It is also true that many judges feel as though their hands are tied by the law and that unless you give them something to “help them help you”, they have no choice but to rule against you. Your goal: Give them a reason to rule for you. And no, good looks or a good sob story will not be enough.
NEXT UP: PART II: PRESENTING YOUR CASE
Words are important. Don’t use words like debtor or creditor. Those words mean you already owe, like it has been decided already. You are a defendant and they are the plaintiff. I hate the term “collection cases”. They are in truth contract cases. These labels put you in a certain box in people’s minds (like the judge), and it’s hard to get out of those boxes!
This article was contributed by Gregory M. Fitzgerald is a California licensed attorney located in Fontana CA (Bar #153082). For over 20 years he has represented consumers with a particular emphasis in consumer rights in the field of unsecured debt and collection harassment. He is employed by The Seideman Law Firm, P.C. and manages all aspects of the firm’s national consumer protection collection harassment division. He is admitted to practice before all California State Courts and all Federal District Courts within California. He is a member of the Western San Bernardino County Bar Association. He formerly sat regularly as Judge Pro Tem for the Orange County Superior Court. He can be contacted at (909)581-7354, [email protected] or via the web at seidemanlaw.com.
This article is not legal advice and should not be interpreted as such. It is provided for informational purposes only. You should consult legal counsel about your specific circumstances and law before making any decisions about your legal rights and how to protect them.