CEASE & DESIST LETER
Your first priority needs to be filing the Notice of Appearance, Answer,Affirmative Defenses, and Certificate of Service. (and Declaration of Exempt Income if applicable)
Secondly, I would send a Cease & Desist Letter to the collector who is suing you. You can use the letter that is included in your E-Document Package.
This letter instructs them to communicate with you in writing only and severely limits their scare tactics. When I was first served with a lawsuit, the collector/attorney contacted my neighbors in an effort to reach me. Talk about embarrassing!
I quickly faxed and mailed, Certified Mail, Return Receipt my Cease & Desist Letter. I had also filed my Notice of Appearance, Answer/Affirmative Defenses, and Certificate of Service in a timely matter.
And do you know what? I heard nothing from them for 3 months and then they dropped the lawsuit. They had no case and they didn't want to bother with me since I had asserted my rights!
Many of these companies are banking on the fact that you are going to roll over and accept a default judgment. They don't want to invest time and money fighting you in court when they can direct their efforts at apathetic consumers who will not fight them.
Still feeling nervous?
Be sure to read the Document “Example of a Recent Junk Debt Lawsuit” included in your E-Document Package to gain even more confidence about your lawsuit situation!
What Happens After I File My Answer?
If you DID NOT have a court date on your summons:
If you did not have a court date on your summons there is a very chance that after you file your documents you will hear nothing. This is good, ie. Don't Wake the Sleeping Bear!
Once the collectors see that you are going to make them prove their case, your file is likely to end up in the “to deal with later” file and will likely fall off their radar screen and will be dropped.
IF YOU ARE ASSIGNED A COURT DATE:
The Plaintiff may try to contact you prior to the court date to settle the case. They really don't want to go to court (and very few of these lawsuits actually end up in court) so if you are able to make an arrangement and want to, now would be a good time. Otherwise, there will be a trial if the case does not settle. (See the “Example of a Recent Debt Buyer Lawsuit in your E-Document Package)
Mandatory Arbitration may be required in some counties.
Arbitration is a form of dispute resolution that is mediated by an impartial third party that is usually agreed upon by the Plaintiff and Defendant. The decision of arbitration is binding. This is a case where you can often work out either a payment plan or a significant discount on the initial balance owed.
There may be other steps before a trial begins, such as Discovery which can include questions sometimes called Interrogatories.
If you need to respond to Discovery documents, please see the “Instructions for Answering Interrogatories” document that is included in your E-Document Package. Also included in your E-Document Package is YOUR Demand for Production of Documents from Defendant to Plaintiff.
Discovery Procedures
Discovery exists to give all litigant parties in a contested case a fair preview of the evidence so that a "level playing field" is achieved and surprise (traditionally regarded as an unfair tactic) is avoided at time of trial.
There are four types of formal discovery tools that are frequently used in
lawsuits. They are:
• Requests for production of evidence/documents. This is generally how discovery will take place in anything you might do. You will be asking for any proof that a creditor has regarding the debt. Requests for production are usually used to gather pertinent documents, such as contracts, employment files, billing records, or documents related to real estate.
• Depositions. In a deposition, the parties meet face-to-face and answer questions. The participants are sworn in and anything they say is regarded as being under oath. The questioner can be either the party taking part in the lawsuit or the party's lawyer. The questions and answers are recorded and used as evidence. Typically, in consumer credit lawsuits, depositions are not used.
• Interrogatories. An Interrogatory is a written list of questions which must be answered. In some states, an interrogatory is sent to a consumer along with a summons to trial. They are used exactly like depositions - any answers to questions in an interrogatory can and will be used against you.
• Requests for admission. In a request for admission, one party asks the other party to admit, under oath, that certain facts are true or certain documents are genuine. The request for admission is also usually sent along with the summons and is required to be filed along with an answer. We usually do not see this request in debt lawsuits.
THESE COMPANIES DO NOT HAVE DOCUMENTATION and chances are very good that your lawsuit will be dropped during the Discovery phase as they will not be able to produce the requested documentation.
Congratulations on being in the 7% of consumers who actually respond and fight a credit card debt lawsuit. You should be proud that you've taken the time to protect your financial future and your family's assets.