Perhaps you’ve just been sued by a credit card company like Capital One, or a debt purchaser like Midland Funding, LLC or Portfolio Recovery Associates, LLC. Probably they are represented by a law firm specializing in such debt collection lawsuits, such as Hunt & Henriques, or the Mandarich Law Group. There are thousands of similar debt collection lawsuits filed against consumers every month in California by banks, credit card companies and debt purchasers. Unfortunately, consumers often respond to these lawsuits with an avalanche of avoidable — and costly — mistakes. Below are the most common mistakes, if you avoid these you’ll be ahead of the game:
- Failing to file a written response with the court within 30 days of getting served. When people get served with a stack of legal papers and freak out and panic instead of reading the papers. Here is what they miss: The first full paragraph on the summons says in part “the court may decide against you without your being heard unless you respond within 30 days.” And so it is. If you don’t file a properly formatted response within 30 days, the debt collector can easily obtain a “default judgment” against you almost immediately. File a timely response.
- Filing a response that says way too much (of all the wrong things). It’s sort of the opposite extreme from the people who ignore the problem entirely. People who make this mistake, seem to assume they are obligated to vomit a confessional of their entire financial history into the public court record, including an often erroneous admission that the debt collector is entitled to every penny they asked for. The fact is, there is usually no way to know precisely what the debt collector is legally entitled to, without seeing the underlying documentation. What should a proper response say? That will be the subject of another day.
- Failing to respond to the other side’s requests for admissions. During the course of a lawsuit, there is something called “discovery” which is a formal opportunity for each side to give written requests for information to the other side. A lot of consumers think that if they receive such discovery requests for information, it is something they can blow off. Indeed, it is very tempting to blow it off, because responding to discovery requests can be a big hassle. However , there are consequences to ignoring discovery requests. The biggest consequence concerns requests for admission: If you ignore requests for admission, the debt collector can ask for the court to “deem admitted” anything that they were asking you to admit. Normally, this involves “deeming admitted” every fact that the debt collector needs, to get a judgment. Information on how to interpret and respond to requests for admission, is a topic I hope to cover in a later post.
- Making a payment on a debt that is in litigation. If the bully is going to try and beat you up anyway, there is no point in giving him your lunch money. Half the time, the consumer was already trying to work with the creditor before getting sued. Then they got sued anyway. Once they sue you, let them pry it out of your dead hand if they want it. The legitimate alternative, is to negotiate an end to the hostilities, that resolves the debt and the case, and then you pay in accordance with the resulting written terms. You have no reason to pay unless you are guaranteed that it makes the problem go away.
- Failing to object when the debt collector relies upon inadmissible evidence in court. Frankly, it’s difficult to coach you on this one in a short blog post, but the bottom line is this: Probably the majority of the evidence that debt collectors rely upon in court is objectionable and would be excluded from consideration by the court if only the consumer made the proper objections to evidence.
Hopefully, this will help you avoid some blunders.
I’m attorney, Ian Chowdhury and I defend California consumers against debt collection lawsuits. Find out how to schedule a free 15-minute virtual consultation.