You Don’t Want To Pay or Can't Pay -
But You Don’t Have An Attorney !
FIRST STEP ! DEMAND VERIFICATION:
If your financial situation is such that you cannot afford to defend yourself in a lawsuit with an attorney, or satisfy the court judgment if you lose, we suggest that you set up an appointment with an attorney from the Credit Card Defense Center to find out about your options as soon as possible. We can enter your case with a Letter of Representation, stopping the calls, stopping the harassment immediately and buy you time to figure out what to do about the debt under the protection of our attorneys. Even if you do not retain us, our attorneys can still help you understand what the debt collectors can and cannot do to collect from you and your options under all circumstances.
In any event, if you’ve been contacted by a debt collection attorney or collection agency and don’t have legal representation, here’s what you should do even if the debt is really yours and you don’t want to pay for whatever reason and can't afford an attorney.
First, demand a Federal Fair Debt Collection Practices Act DEBT VERIFICATION because this buys you time and some breathing space. Note that under the FDCPA, all collection activity must now cease until the debt is verified. Unfortunately, the verification is usually a simple statement signed by the creditor and it easy to obtain by the collector assigned to your account. But until then, nothing will happen. Demanding verification also sends a message to the collection agency and attorney that you are not going to take this lying down and intend to protect your interests and assert your rights. In fact, a high percentage of collection suits simply proceed to default judgment without any response from the debtor. This verification request signifies to the creditor that you will fight back.
Now, note that the FDCPA operates on the least sophisticated debtor standard. So,
keep your letter simple. Just make sure your demand for verification is in
writing and sent by certified mail so there can be no denial latter by the
collection agency. You can also have us write such a letter for only $99.00 and
represent you with the pre-suit credit after that. More information.
Sometimes, if you are lucky, and often if there is something wrong with the claim itself, this simple FDCPA verification request, sent by certified mail, return receipt requested, will abruptly end the collection process. It is not something you can count on. But it does happen regularly enough that it’s definitely worth your time to demand the verification, send it by certified mail and keep your fingers crossed.
HERE IS A SAMPLE OF ONE OF THE "demnd for verification" LETTERS OUR ATTORNEYS UTILIZE WHEN REPRESENTING CLIENTS:
the credit card defense center
, 244 Fifth Avenue, Suite J282
• New York, new York • 10001-7604
Phone: 212-591-0400 • Fax: 212-591-XXX
TO: CREDIT CARD AGENCY
FROM: YOUR ASSIGNED ATTORNEY [WE ASSIGN AN ATTORNEY TO EACH CASE]
Dear Credit Card Agency,
This letter is regarding account # [xxxx-xxx], with respect to which you claim that my client owes
[ $1,000,000] dollars. We represent [YOU] as his/her attorneys.
This is a formal notice that your claim is disputed. We are requesting validation of this claim against our client, made pursuant to the Fair Debt Collection Practices Act.
Therefore, immediately provide this office with any and all evidence you have containing our client’s signature, showing that our client presently has, or ever had, some contractual obligation to pay you or the original creditor that you purport to represent.
Please also be aware that any derogatory notation mark found on our client’s credit reports, including [ChexSystems/TeleCheck], from your company or any company that you represent for a debt that our client does not owe is a violation of the Fair Credit Reporting Act. Therefore, if you cannot validate the debt, you must request that all credit reporting agencies delete the entry.
Pending your validation of this disputed debt, and until my receipt of the documentary evidence that you claim support this claim you presumably have against our client, you are directed to take no further action that could be detrimental to any of our client’s credit reports as reported to the national credit bureau. Or his/her overall finical circumstances.
Please take further notice that your failure to respond within 30 days of receipt of this certified letter will result in legal action against your company. My lawsuit will request a minimum of $10,000 in damages for:
1. Defamation 2. Negligent enablement of identity fraud 3. Violation of the Fair Credit Reporting Act
For the purposes of 15 U.S.C. § 1692 et seq., this notice has the same effect as a dispute to the validity of the alleged debt and a dispute to the validity of your claims and is an attempt to correct your erroneous records. Any information received from you will be collected as evidence should any further action be necessary.
Your Assigned Attorney
WHEN A LAWSUIT STARTS: ANSWER IT !
If you are in fact served with A SUMMONS & COMPLAINT, the first step is of course to file an Answer in Court through the attorneys for the Credit Card Defense Center or on your own as a pro se (unrepresented) litigant. Your Answer must be a statement in writing that you actually file with the Court where you have been sued denying the claim against you . Or, at the Office of the Clerk most courts provide there is a form you can fill out at the Court, which constitutes your Answer and can be filed right at the Courthouse. And a copy must be sent to the collection lawyer. Usually, the Court will have an office to help non-represented defendants. Go to the Courthouse and ask to see that individual. They will help you file you Answer and instruct you how to send a copy to the creditor’s attorney.
The Answer you will file under oath with the Clerk of the Court will become a very useful tool in your defense above and beyond allowing you to avoid a default. And this is because most collection suits are initiated without a witness for the creditor. Therefore, if you simply answer and deny the debt, the collection attorney must then prepare and file an affidavit signed by the creditor that the debtor owes the debt and that is this amount. With that affidavit in hand, the court gives the creditor a judgment unless you do answer and deny the debt. See, went an Answer is filed under oath, the debt collection attorney can not rely upon a sworn affidavit of account, but must instead produce a live witness to testify about the debt in Court. Now, the requirement of a live witness again increases the likelihood that the action will go no further.
The next step after you file an Answer with the Clerk of the Court, is to file DISCOVERY demands. In fact, you need to file a written Request for Production of Documents asking for a copy of the contract or agreement upon which the debt is based. If the debt is a credit card debt, it is likely that the debt collection it may be that the collection attorney will not be able to secure a copy of the original agreement or if he is, he will not be able to do so timely. Most credit card signature agreements are scanned or if older, microfilmed and stored away in electronic archives. If it is an old debt which has been sold to a debt purchaser the likelihood of retrieving the original signed agreement and the necessary backup information decreases exponentially. So, demand a coy of the original agreement on which your signature appears.
The next step is to show up to Court on each date set by the Clerk of he Court. Remember that most of debt collection suits proceed to default judgment because the consumer never shows up to dispute them. So, file our Answer and then show up to Court and demand a trial. You have a right to a trial. Remember, the worst thing that can happen is the same thing that would have happened if you hadn’t appeared at all, a judgment. You can’t make it worse by showing up in Court.
But you can make it worse if you do not show up. And if the attorney doesn’t have his live witness available, oppose the case being continued. Tell the judge you’ve taken off work to be there and are ready to go forward. If the judge does continue the case to a new trial date, show up again. You will need to educate yourself. So, try to acquaint yourself with the basic Rules of Procedure that govern the court and the Rules of Evidence for the Court in which you are appearing. Usually, there are booklets and pamphlets at the Court explaining the process applicable in your case.
And there are sometimes volunteer attorneys who gain continuing legal education credit or are merely civil service oriented and spend time helping non-represented considers at the Courthouse. So, ask the Clerk if there are volunteer lawyers at your Courthouse . And, then, take advantage of these resources. Remember that the Rules of Civil Procedure will govern how the trial is conducted. And the Rules of Evidence will govern what the Judge is allowed to see and hear. Become familiar with the rules applicable in your jurisdiction before you go in for trial.
If you do have a trial, and the creditor produces a live witness, ask that witness some questions when it is your turn to inquire. Note that the witness can only testify from personal knowledge. Generally, the witness has no personal knowledge about you or your account, but only knows what’s in the file he got from the collection department. If he is going to testify without personal knowledge, but from the records and documents of the business, then he has to have a basis to do so. He needs to be the regular keeper of those books and records and be familiar with how they are kept and their contents. Don’t simply accept his answer when the debt collection lawyer asks him if he is the regular keeper of those books and records and be familiar with how they are kept and their contents and he says yes. Ask him how long he has been with the company, in that job, what he does on a daily basis, when he first saw your file, if he knows from personal knowledge if it’s a complete file, etc.
Your job is to destroy his credibility in the eyes of the judge and raise questions about his ability to testify about the papers he has in front of him. (The papers that he brought to Court to testify with against you.) If you can call into question the veracity of the live witness, then the chances of being finished with this debt increase yet again.
Now. if the witness is actually a good witness and you can’t “shake “him or her, then you need to know your defenses to the debt. The best defense is the Statute of Limitations. The Statute of Limitations is the time limit that an aggrieved party has in which to file a lawsuit. It is a drop dead deadline. Find out what your state’s Statute of Limits is and determine whether the lawsuit was initiated biotin that deadline. If it was, ask the judge to dismiss the suit.
The final step, assuming the worst cases scenario, and that is that the creditor will not give up and you in fact do lose at trial, is to APPEAL, which is your automatic right. Be advised, however, that appeals are complicated, even for attorneys, and can take a long time to work through the system, from months to years. That time is valuable and no collection action such as garnishments can occur during the pendency of the appeal. Note that in some jurisdictions, such as New York State, you may be required to post an appeal bond to stop collection during an appeal.
Always remember that at each step in the litigation process, you increase your chances that the debt collection attorney will give and simply put your file away. And if you have further questions, contact us here at the Credit Card Defense Center and we will be glad to answer your questions about defending yourself when you simply can’t afford legal representation.
Lee & Associates at
The Credit Card Defense Center
are now available for
Free Consultation regarding your situation.
Contact us now for details.