What is a summons?
October 26, 2009 by Todd Murray · Leave a Comment
A summons is a notice that comes with a lawsuit. The purpose of a summons is to notify you of the lawsuit and to let you know how long you have to respond to it. In Minnesota, this is what it says on a summons:
YOU ARE HEREBY SUMMONED and required to serve upon plaintiff’s attorney an Answer to the Complaint which is herewith served upon you within Twenty (20) days after the service of this Summons upon you, exclusive of the day of such service. If you fail to do so, judgment by default will be taken against you for the relief demanded in the Complaint.
That’s about as clear as mud. What it really means is this:
YOU HAVE BEEN SUED. The papers in your hands are a lawsuit. You must answer the lawsuit within 20 days. The day you were served does not count toward the 20 days. If you don’t answer the complaint within 20 days, the other side will win automatically without a judge ever seeing the case.
If it were up to me, the summons would also explain that an answer is a formal document that admits or denies the allegations in the complaint. And that an answer must be in writing and merely calling the plaintiff’s attorney is not an answer. And if you don’t know how to answer a complaint, you should talk to a lawyer right away. Unfortunately, though, I’m not in charge. So this article will have to suffice.
If you live in Minnesota, feel free to download my free Answer form and instructions. And if you want help defending yourself against a collection lawsuit, feel free to contact me.
Debt collectors cannot lie or mislead you when collecting a debt
September 14, 2009 by Todd Murray · Leave a Comment
The Fair Debt Collection Practices Act (FDCPA) prohibits debt collectors from lying or misleading you when collecting debts. Probably the most common false or misleading representations made by debt collectors are when they misstate the character, amount, or legal status of a debt.
Examples of misrepresenting the “character” of a debt include: (1) threatening a lawsuit when the statute of limitations has expired; (2) claiming you owe a debt you are not legally obligated to pay, such as a debt of a deceased relative; and (3) suggesting a debt is due even though it has been discharged in bankruptcy.
Examples of misrepresenting the “amount” of a debt include: (1) failing to give you credit for payments you made; and (2) adding unauthorized charges, such as interest or fees, to the balance of the debt. This prohibition would also apply to a debt that you’ve already paid in full.
Examples of misrepresenting the “legal status” of a debt include: (1) attempting to collect money on a non-existent judgment; (2) threatening immediate garnishment when judgment has not been taken; and (3) implying that a lawsuit has been filed or served.
In addition to misrepresenting the character, amount, or status of a debt, the FDCPA also specifically defines the following conduct by debt collectors as false and misleading:
- Telling you that they are an attorney when they are not
- Implying that you have committed a crime or that you will go to jail if you don’t pay the debt
- Threatening to garnish your bank account or wages if the debt collector does not intend to do so
- Implying that documents are legal process, such as a lawsuit, when they are not
- Suggesting that documents are not legal process or do not require action by you when, in fact, they do
The FDCPA does not limit its definition of false and misleading representations to the conduct described above. It forbids just about any conduct that can be construed as false or misleading. If you live in Minnesota and a debt collector has told you something you believe was false or misleading, fee free to contact me for a free FDCPA case evaluation.
(photo: Joe Penniston)
What to do if you’re abused or harassed by a debt collector
August 31, 2009 by Todd Murray · Leave a Comment
The percentage of delinquent accounts has reached record highs in the current economic climate. Unfortunately, that means that the volume of collection calls and letters has increased as well. With consumers strapped for cash, some debt collectors will inevitably resort to harassing, abusing and misleading consumers in an attempt to obtain payments. This post details many common violations of the Fair Debt Collection Practices Act committed by debt collectors. What can you do if you are have been harassed or abused by a debt collector in violation of the FDCPA?
First, save all voice messages left by debt collectors. Next, you should take detailed notes of every conversation you have with a debt collector. These notes don’t have to be fancy. Just use a pen and paper and make note of everything that was said during the conversation. Then, sign and date each note and save them. Third, save all copies of letters and other correspondence from debt collectors. Finally, if you believe that the debt collector’s conduct has violated the FDCPA, consider discussing your case with a consumer lawyer. You have a right to sue debt collectors that violated the FDCPA and receive money damages.
If you live in Minnesota and believe a debt collector has violated the FDCPA, feel free to contact me for a free case evaluation.
(photo: Joriel “Joz” Jimenez)
You cannot go to jail for not paying your debts
August 24, 2009 by Todd Murray · Leave a Comment
A fairly common tactic of shady debt collectors is to tell people that they will go to jail if they do not pay a debt. I’ve even heard about debt collectors impersonating the police and telling unsuspecting people that they have a warrant for them and that they will be arrested immediately unless they pay their debt.
You cannot go to jail for not paying your debts. Period. Any debt collector that tells you otherwise has violated the Fair Debt Collection Practices Act (FDCPA). The FDCPA prohibits false and misleading representations when attempting to collect a debt. This prohibition specifically includes telling you that the nonpayment of a debt will result in imprisonment.
If a debt collector has lied to you and told you that you will go to jail if you don’t pay a debt, you have the right to sue them under the FDCPA. If you win your case, you are entitled to $1,000.00 in statutory damages, any acutal damages, such as for emotional distress, and the debt collector must pay your attorneys’ fees. Most consumer lawyers will take an FDCPA case on a contingency fee, which means you won’t pay any attorneys’ fees unless you recover money. If you live in Minnesota, and have been told that you will go to jail if you don’t pay a debt, feel free to contact me for a free case evaluation.
(photo: jakevol2)
How to answer discovery in a debt collection lawsuit
August 23, 2009 by Todd Murray · Leave a Comment
I’ve written in the past about the importance of answering a debt collection lawsuit. But answering the lawsuit is only the first step. After the debt collection law firm receives your answer, they will usually send you written discovery. The discovery will probably have interrogatories, requests for production of documents, and requests for admission. In Minnesota, it is critical that you respond to each of these components within 30 days of receiving them. I’ll address each separately, with the most important first.
Requests for admission are usually short, true or false statements. You are required to either admit or deny each statement. If the statement is completely true, you must admit it. If any portion of the statement is false, you should deny it. If you don’t have enough information to admit or deny the statement, then you should deny it. For example, if the request asks you to admit to owing a very specific sum of money and you are not sure if that amount is accurate, then you should deny the statement. If the request asks you to admit that a certain debt buyer purchased your account from the original creditor and you cannot be sure that they have, you should deny the request. It is critical to respond to the requests for admission within 30 days. If you do not answer them within this time, the court will treat each question as if you admitted it. Debt collectors routinely structure their requests for admission to contain statements about each element of their case. That way if you fail to respond to them, they will have proven their case in its entirety. You don’t want to give the debt collector this free pass. Make sure you answer the requests for admission within the 30 days and force them to produce actual proof of their case.
Interrogatories are simply just questions about the case. Debt collectors are allowed to ask about anything that is relevant to their claims or your defenses. Do your best to answer each question. If you don’t understand what the interrogatory is asking, then you may answer that you object to the interrogatory as vague or ambiguous. Like requests for admission, your answers to each interrogatory are due within 30 days. Unlike requests for admission, though, it is not fatal to your case if you don’t answer within this time. But you should make every effort to answer within 30 days and you should never just ignore the interrogatories.
Requests for production of documents allow the debt collector to determine what, if any, documents you have to support your defenses. Again, your responses are due within 30 days. You only have to produce documents that are in your possession. If you don’t have the document, you don’t have to produce it. In fact, in most debt collection lawsuits, the consumer does not have any documents that they can respond with. But if you have what the debt collector is asking for, you must send them a copy of it. Like interrogatories, there is no fatal penalty for failing to answer the requests for production of documents within 30 days, but you should make every effort to do so and you should never ignore requests for production of documents. Once you’ve answered all three types of discovery, you should send a copy of your answers to the debt collector’s attorney. Make sure to keep a copy for yourself.
A final word of caution: there are many forms available online that purport to help you answer debt collection discovery. Before you just copy and paste from the internet, make sure you understand what the form answers mean and whether they apply to the discovery requests for your case. And be careful with objections. Unless you understand what an objection means and are relatively sure it applies to the question you’ve been asked, it is probably best to just answer the question.
If you live in Minnesota and need help answering discovery in a debt collection lawsuit, feel free to contact me.
