TQ White II

There is, in this world, a class of people whose goal it is to find a weakness in your past and find a way to confuse you and make you screw up enough that they can garnish your wages, drain your savings and take your money. These people are called collection companies.

What they do is buy paperwork from credit card and other financial companies and try to turn that into money. The paperwork is the record of an abandoned credit card balance or some other debt that has not been paid. The company buys the legal right to try to collect on that debt.

One could make a political point about this, but mainly, it is very often unfair and, even more often, simply abusive. While I am sure that there are some people who can pay for these things and simply choose not to, I am equally sure that most people who leave debt like this behind simply came upon bad times and can't cover the bill. Sucks to not be able to control all the economic events in one's life and these people are there to take advantage of that weakness.

In my case, it was an old credit card. My ex-wife is sure she paid it after our divorce but, she is not good at paperwork and had no records of any kind from that era. The debt was for a few thousand dollars and, even if I had believed the debt was legitimate, I had absolutely no way to pay it off. The economy has not been kind to me. I had to fight them. It turns out that this is easier than I ever would have thought.

STRATEGY

The salient point is this: They do not have a case. If it gets to a lawsuit, they will lose. The paperwork they buy from the previous creditor is mere decoration. It has, on it's own, no legal value. It is, if you watch tv legal dramas you will recognize this term: hearsay.

The company (in my case it was a nationwide company called Resurgent Legal Group) is there to produce dollars. The way they do this is to put you through a modestly complicated legal process and hope that you will fail to execute properly so they can go to the judge and get a "Summary Judgement". They will tell the judge that you have not made any claims that the facts are wrong and, therefore, they are entitled to garnish your wages, etc. If you have not done the paperwork correctly, that claim will be correct and the judge will give them your money.

THE OVERVIEW

If you execute properly, you will have established for the judge that there is a  disagreement about the facts and he or she will have to grant a trial to figure out the real truth. Since the collection company only has hearsay paperwork, they will not want a trial and will dismiss the suit.

If a miracle happens and they do show up for the trial, you would have to tell the judge that the paperwork is hearsay. You would, at the beginning of the trial, object to the paperwork being entered as evidence because it's hearsay. The collection company lawyer might say that records collected in the normal course of business are exempt from the hearsay rules.

That is true, but these records were not collected in the normal course of the collection company's business. These were supposedly collected in the course of the credit card company's business. Unless the credit card company is the one suing you, it is still hearsay. It means that the only evidence that the collection company has is not allowed. QED

THE PROCESS

More likely they will give up without a trial but, to get to that point, you have to pay close attention. In my case, in addition to the standard paperwork, they changed the date for the summary judgement hearing several times over the course of months. It would have been very easy for me to miss the real court date. You also have to do the paperwork correctly.

Let me hasten to preface: This is the story of how it went for me and it's only the parts I consider important. I got several letters that were announcements of this or that which were not important. More importantly, in your state/county/village, the details might differ. YOU HAVE TO PAY ATTENTION AND ACT QUICKLY. Read carefully to figure out if you should do something. You should also TALK TO A LAWYER.

GETTING STARTED

One day, you get a letter offering to settle a debt. It says that it will take half the money and call it quits. It says that this is a collection effort and that anything you say can be used against you. As far as I can tell, you have no obligation to respond to this. Later you will get a letter saying that they have retained council. It is not mandatory that you reply (I didn't) but, now I think it would have been good to reply to this letter saying that you have no idea what they are talking about. Send it registered, return receipt requested.

(Someone also told me, when I got this, that it was a good idea to get set of credit reports to have a record of them at that time. I never found a use for them but, better safe than sorry.)

IT GETS REAL

Later, you will get a letter that says something "Complaint". It will be very formal and will have "Counts" and "Sections" and such. Do not tell them anything except that you deny everything and even then, refer to it by their paragraph, don't use your own words.  I admitted that I lived at an old address and they kept telling the judge that this was proof I owed the money. They will use anything you say against you. I went through it and denied each paragraph (they are numbered). "Paragraph #1, I know of no such account." "Paragraph #2, ...". Then I sent it to them, registered, return receipt. 

You should be better than me and go to the public legal help office (in my state, the civic center has a "Legal Self Help" office that will let you talk to a lawyer for fifteen minutes whenever you need to). Show him or her the paperwork and your response and do whatever your told, unless it's to settle. Don't do that.

REQUEST FOR ADMISSIONS

Eventually, you will get a more formal paper that makes a list of assertion questions. "Did you live at..." "Do you owe this money..." "Do you have such and such an account..." You can't lie but, you also probably don't really remember things that long ago. The less you tell them the better.

Here's the thing, these things MUST BE DONE PROMPTLY. There is a time period when you must respond. In my case, it was a couple of weeks.

What I said is "I do not admit that I have ..." for every single assertion. For the section called "Interrogatives", I said, "I choose not to discuss ...". And ended it by saying, I demand that you "cease and desist from bothering me further on this matter." Someone suggested that. It made me feel good but I'm not sure it mattered.

Once you figure out what to say, take your answers to the legal self-help guy and show them to him or her. Then file the answer in whatever way the lawyer says.

If you can't bring yourself to do that, I got away with mailing the answer to the collection company. I used registered mail with a return receipt so that I had a record. Were I to do it again, I would sign it and have it notarized but, I didn't and it still worked.

JERKED AROUND BY PROFESSIONALS

Eventually, I got a notice for a summary judgement hearing. Then I got a notice that it had been rescheduled. Then another and another. Clearly, they were trying to confuse me in the hope that, when the time came, I would not show up. Because I was very, very suspicious, I actually went to the courtroom  for every one of the dates– four or five times – just to make sure that nothing was going on behind my back.

I think this was probably a waste of time. If this happens to you, I suggest that you call the judge's office. It's like a doctor. A clerk answers and, you can ask your question. In this case, instead of wasting my time going there, I would call and ask, "I got a reschedule notice for case #xxx [it's on the paperwork]. I want to make sure I have it right. I think I am supposed to show up on [whatever date]." The clerk, once I met her, was very nice and just wanted to make sure everything was smooth and easy for her judge.

In any case, do whatever you have to do to keep this organized. THEY ARE TRYING TO CONFUSE YOU. DON'T LET THEM.

WHERE I SCREWED UP

When I finally got to the hearing, I found out that I screwed up. It turns out that none of the stuff that I had mailed to thecollection company  made it to the judge in a form that could be used for my benefit. (My two letters were in their package but, for some reason, those did not constitute 'disagreement of facts'.)

What I had thought was that those two documents would be in the case already. The judge explained that I was wrong. They weren't. She also said, and this is really important, that I was to be held to the same procedural standards as an attorney. If you have this, or anything else adverse happen, ASK THE JUDGE FOR TIME TO MAKE IT RIGHT. Tell him or her that you will see the legal self-help, hire a lawyer, whatever, to get the paperwork right. Probably the time will be granted.

FILING A FORMAL ANSWER

Turns out that the response during the extra time I was granted also must be done promptly. I don't remember the exact number but, my paperwork had to be filed within a week and a half or something. This time I did meet with the legal self-help. I told him my objections and he told me to write them down, get it notarized and file it with the court office on the third floor.

I did this immediately but was horrified to find that there was a substantial fee for filling the paperwork, $324! However, legal self-help can give you paperwork to file with the judge to get the fee waived. I'm under the impression that they are fairly lenient about that, but I just paid it. I did not want to have any more interaction with the judge than necessary.

Remember though, THIS SHOULD BE DONE AS SOON AS POSSIBLE AFTER YOU GET THE FIRST NOTICE FOR THE HEARING.

The disagreement fact that I claimed is that I believed that I had paid all my debts and that I did not recall owing money to this company. I said other stuff but don't think it mattered. The important thing is that I had to formally say, "I do not owe that money," to get a trial.

In retrospect, I think that I could have simply used notarized copies of my first two letters. They made clear that I disagreed with the facts and did not agree that I owed money.

SUMMARY JUDGEMENT HEARING

At the second summary hearing (also at the first but that was moot), I asked the judge if I could make a statement. I said a bunch of things that I don't think mattered and one that did. I ASKED THE JUDGE FOR  A TRIAL. YOU HAVE TO ASK.

The collection company responded that I had waited too long to file, that I was implausible, that it was obvious I was lying, and several other things that she just made up on the spot. If there had been a kitchen sink nearby, that would have been thrown in.

The judge said that this was a hearing for summary judgement, not time to decide what was true and false. Then said that there was clearly a disagreement of fact and that she would grant my request for a trial.

She set a trial date about six weeks ahead. (Goal achieved.)

After the first hearing when I got the extension, the lawyer for the collection company was very confident. I told her that I thought this was a mistake and that I didn't remember owing any money. She insisted that I couldn't say that in court (I could and did) and that, if it went to trial, there would be no settlement. That last said with heavy emphasis and a hilarious attempt to be a powerful bully. If you are inclined to be intimidated by people, just tell the person you'll talk about it later and walk away. YOU HAVE ABSOLUTELY NO OBLIGATION TO TALK TO OR BE NICE TO THE COLLECTION COMPANY LAWYER AND YOU SHOULD NOT. Anything you say will be used against you.

THE SUIT IS DISMISSED

About two weeks before the trial, an envelope shows up from the collection company. It is a request to dismiss the suit, "without prejudice". A couple of days later, a signed copy arrives where the judge says it's dismissed "with prejudice." "Without" means that they can raise the case again if they ever want to. "With" means that this judgement is to be considered final. That is, a new judge should consider this already to have been settled. That is better.

Before I got this, I did go to legal self-help after the hearing and before the trial (and before the dismissal) to ask if there is anything I should do to prepare and what I should say in court. He told me I should object to the collection company putting copies of old bills into evidence at the trial and that that should do it.

He also told me to lay low relative to the collection company. I had thought to do something like, ask for documentation about the old bills or something. He said not to telegraph my strategy. He said do not contact them at all.

A WARNING ABOUT LEGAL SELF-HELP

This brings up another point about legal self-help. They are not strategists. Nobody brought up the idea of using hearsay as a way to defend this suit. When I suggested it (a lawyer friend of mine instructed me on the strategy of this entire experience), the self-help guy was amazed. I asked him if it fit the law hereabouts  and he said yes and that he thought it should work. He said that the judge would be surprised because it was rare for a civilian to defend this kind of thing on a "matter of law".

Which is to say, use legal self-help to help you with forms and paperwork and filing. Though the strategy I used seems to me to be universally applicable, talk to lawyer friends about it. If can afford it, get a lawyer and tell him or her about this experience. Tell the legal self-help person about it. Bring as many brains to bear on your issue as you can. For good measure, explaining it will get you ready to tell the judge if you have to.

The good news is that you probably won't.