In Parts One and Two of this Series, we pointed out that all litigation has three "phases" or stages, each with a few steps. These articles focus on the first stage - the partt from service of suit until the Answer is due because, in debt litigation, that is where approximately 95% of the cases are won or lost. You'll see why what you have to do is not difficult, and you have a good chance to win if you do it.
Step One was simply to make a psychological adjustment: from fear to strategic thinking - a decision to do what was in your own best interests rather than simply acting from fear. As simple as it is - as uncomplicated to say - this is probably the single most important step, because most people just give up after being served with a debt lawsuit.
Step Two was to read the Petition carefully to find out what the Petition is seeking and the legal claims they make. This helps you determine your own "worst-case scenario" - the worst that could happen for you.
In the final analysis, they can only take so much of your paycheck, depending on how much you make. So chances are your real worst case scenario is actually much better than you first thought.
If you file an Answer to the Petition- and really, most times even if you don't - they'll usually settle with you for 30 percent less than the lawsuit if you just ask for that deal. And, even if they ultimately win the lawsuit and do get a judgment, they'd probably still settle with you for 30% less than they claim you owe. That's because they don't think they can collect if you try to make it hard for them to do so. And they're right.
But I'm not suggesting that you offer to settle the case. We are just trying to figure out a realistic "worst-case" scenario here so that you, like the debt collectors, can make an economically sensible decision for yourself.
Step Three: Know the Status of the Company suing You
How far "down the food chain" is the debt collector that is suing you? Look at the petition and try to figure out who has ever owned the debt. If you don't know the name of the party suing you it's probably a debt collector - that means that they were "assigned" the debt (someone sold it to them).
See if you can figure out who that was - was it another company you've never heard of? Or was it the person or company that originally claimed you owed it the money (called, "the original creditor").
Even if the company suing you is an original creditor, there is (still) a good chance they will not have
the records they need to beat you. But if it is a debt collector, the plaintiff almost certainly does not have and cannot get the records they need to win their case.
And if the debt has been assigned more than once, there's really almost no chance at all that the debt collector could beat you if you don't beat yourself.
Step Four - Lawyer or No Lawyer?
I have written a report on this issue that you can find at my website if you want, but the question boils down to how bad your worst case scenario is:
If you cannot afford to lose, and you can afford a lawyer
and can also find a good one (not always an easy task),then you will probably want to hire a lawyer.
Otherwise, this might be a good kind of case to handle by yourself "pro se" (legalese for "by yourself"). Lots of people are successfully doing that these days.
Step Five - Figure out Due Dates
Figure out when the Answer is due or you have to be in court. This is probably a simple question: it probably says right on the Summons, which is the document theoretically created by the court that says they are suing you and that bad things will happen if you don't answer and show up in court on a certain date.
That date is your first important date - put it on your calendar and figure out how to be in court on that date. This would be a good time to look up and get your court's rules of civil procedure. I have a link to most state's rules at my site.
Are you being sued for debt or worried you might be? For a free report on the seven steps to take if you get sued for debt and a series of videos and articles showing you how to take each step, please visit my site at Seven Steps when Sued for Debt. Or just check out my site, which has everything you need to defend yourself from the debt collectors. Your Legal Leg Up.
Kenneth H. Gibert.
I Received a J.D. from Washington University Law School in 1989 and after working with the Federal Court of Appeals for a year practiced law in St. Louis city and county (federal, state and local courts) for over fifteen years, the last several of which were focused almost exclusively on debt litigation. My mission is to protect ordinary people from being taken advantage of by the debt collectors.
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