In Part One of this Series, we pointed out that all litigation has three "phases" or stages, each with a few steps: the time from discovery of the lawsuit up till the first day of court or your Answer is due to be filed, the discovery or preparation phase, and trial itself. These articles focus on the first stage - the part 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.
With these things in mind, let's start with Phase I, the beginning of the lawsuit.
Do What's Best for You
The first step to take when you find out you've been sued is to decide to do what is best for you. As obvious as that may seem, this is really the most important, and least-taken step. When the sheriff or other process server leaves you with the Petition, most people panic and start looking for ways to run away or avoid, however temporarily, the problem. This means that instead of looking to defend themselves, they are looking to give up. Don't be like that. Take a deep breath and decide to respond in a rational, rather than emotional (fearful), way.
Law suits seem scary and complicated, but they are really simple business propositions. The debt collector filed suit against you because it hopes to make a profit. It will pursue the suit as long as it thinks it will make more money by doing so than quitting, and it will drop the lawsuit if it believes that it will lose money if it continues to pursue you. You will win the case if they think beating you will cost too much money - whether or not you could actually win the case and get a judgment after trial. But chances are very good that you could actually win at trial.
For Step One, don't worry about the Petition. Don't worry about what it says or how much they say you owe. Your goal is very simple: make it your business to show them that suing you will lose them money. It's just an attitude adjustment.
Step Two: Carefully Examine the Petition
In this step you will consider the Petition. Look at it and see how it is organized. The debt collectors could be suing you for the same amount of money in more than one way (that's called, "alternative theories") or could be suing you for more than one thing. It is rare that they would be suing you for more than one thing - but it could happen if you had more than one credit card or account with the same company, or if the debt collector happened to buy more than one account in your name from different companies.
In any event, if they're doing either of these things their case will be divided into "counts." That is, there will be a "Count I," "Count II," etc. Counts are legally independent, but if you're being sued on alternative theories and they win, you would only owe the money once. Remember that debt collectors make their money by getting people to give up, so they try to make the petitions scary. That's part of the reason they sometimes use more than one count. And the other reason is that they know they do not have what they need to win on any one count, so they hope to confuse you and the court into letting them prove only parts of more than one theory.
Figure Out What They Want
For now, though, you just want to see what they say they want and why they say they should get it.
The amount they want will be in what we call the "wherefore clause" which is normally the last paragraph of each "count." The "reason" they say you owe it is usually either in the title ("Suit for Breach of Contract," for example) or early in the count after they identify the parties.
In the next part of this series we will discuss what your "worst-case" scenario is, whether you need a lawyer, and what else you need to do to protect yourself.
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.
ليست هناك تعليقات:
إرسال تعليق