How to respond to a debt collector’s request for admissions

January 25, 2011 by Todd Murray · Leave a Comment 

A favorite litigation tactic used by debt collectors is to serve an unsuspecting consumer with requests for admission. These are typically a series of statements that you are asked to admit or deny. In other forms of litigation, admissions are typically used to figure out what facts are disputed in the case. But debt collectors don’t use requests for admission to learn more about what facts you dispute. In fact, they could probably care less about your answers to the admissions and would prefer that you didn’t answer them at all.

284894404_cef7f3e0471Why? Because if you don’t answer the admissions within 30 days, every statement in them is then considered to be true. So debt collectors structure them in a way that if you don’t answer, you’ve admitted each element of their case. And debt collectors are well-aware that the majority of people will not answer the admissions because they don’t understand the serious consequences of not doing so.

This is just another example of debt collectors using a court rule for something other than its intended purpose. I’ve seen debt collectors ask judges to rule in their favor based only on the consumer’s failure to respond to the requests for admission. They didn’t produce any billing statements, applications, terms and conditions–any evidence. And though I suspect that most judges know exactly what the debt collector is up to, their hands are tied to a certain degree by the court rules.

So the lesson here is to respond to every request for admission within 30 days. You only have to admit the statement if you know for a fact that its true. For example, if the statement asks you to admit having a credit card with a specific 16-digit account number, unless you know for sure that is your account number, you can probably deny the request. Of course, if you have copies of your billing statements with that account number on them, you’ll probably have to admit that request.

If you live in Minnesota and want help responding to a debt collector’s discovery requests, feel free to contact me by using the contact form in the upper right corner of this page. I offer a number of flexible representation options, so even if you can only afford to pay a few hundred dollars, I might be able to help you.

(photo: David Micheal Morris)

Recent lawsuit alleges that debt collector used Facebook to harass woman into paying debt

December 1, 2010 by Todd Murray · Leave a Comment 

A Florida consumer, Melanie Beacham, has sued a debt collector for allegedly contacting one of her family members by using Facebook. The lawsuit alleges that Mark One Financial created a Facebook account using the pseudonym “Jeff Happenstance” and sent a message to Beacham’s cousin asking him to have Beacham call a number that leads to a Mark One collection representative. Beacham also maintains that Mark One used Facebook to contact her sister.

When reached for comment by the Huffington Post, a Mark One spokesman denied any knowledge of “Jeff Happenstance” and claimed that the company only uses Facebook when there is no other way to contact a debtor. In Beacham’s case, however, Mark One called her numerous times before resorting to Facebook, which indicates that Mark One already knew how to contact Beacham and resorted to Facebook to attempt to shame her into paying the debt.

The lawsuit, which seeks to restrain Mark One from using Facebook to contact debtors, appears to be the first one of its kind. But others are almost certain to follow as the economy continues a slow recovery and Facebook and other social media grow in popularity. And the use of social networks to contact debtors raises a number of interesting questions. For example, the Fair Debt Collection Practices Act requires that every communication from a debt collector contain a notice that “this communication is from a debt collector.” Does a message through Facebook fall under the FDCPA definition of “communication” and therefore require the notice? I say yes, but the ultimate answer will be up to the courts.

If you live in Minnesota and have been harassed by a debt collector through Facebook or other social network sites, feel free to use the contact form in the upper right corner of this page to contact me for a free case evaluation.

Woman Sues Debt Collectors Over Alleged Facebook Harassment | Huffington Post | November 17, 2010

Photo: http://www.flickr.com/photos/fbouly/3568409530/sizes/l/in/photostream/

What is a summary judgment motion?

April 5, 2010 by Todd Murray · Leave a Comment 

A summary judgment is a final decision by the court without having a trial. Debt collection cases rarely go to trial and most are decided on a motion for summary judgment.

The purpose of a trial is to resolve the facts that are disputed. In other words, the jury (or judge in a court trial) listens to all the witnesses’ testimony, reviews any exhibits, and decides whose story is more believable. When someone brings a summary judgment motion, they’re arguing that all the important facts are undisputed–so there’s no need for a jury to hear testimony–and that the judge should just apply the law and make a decision. In debt collection cases, it’s the creditor that usually brings the summary judgment motion.

So what should you do if the creditor’s lawyer brings a summary judgment motion in your case? First, you need to figure out if there are any facts that are disputed. If there are, the judge must deny the summary judgment motion and schedule the case for trial to resolve those disputed facts. If you come up with some, you’ll need to put them in your response to the creditor’s motion. In Minnesota, a response to a summary judgment motion must be filed with the court–and sent to the creditor’s attorney–at least 12 days before the hearing. If you don’t file a written response, you’ll probably lose your case and the judge might not allow you to make any oral arguments at the hearing.

Served with a debt collection lawsuit? You must respond within 20 days.

November 18, 2009 by Todd Murray · Leave a Comment 

In Minnesota, a lawsuit begins when the defendant is served. “Served” is just a fancy legal word that basically means “delivered”. There are two main ways you can be served: (1) by having the lawsuit handed to you personally; or (2) by having it left at your home with someone of appropriate age. Once you’ve been served, you have 20 days to answer the lawsuit. An answer is a formal legal document that responds to the allegations in the complaint. This post talks about how to answer a lawsuit.

If you don’t answer the lawsuit within 20 days, your opponent can apply for a default judgment. The court considers all of the allegations in the complaint to be true and gives your opponent whatever they are asking for. In other words, your opponent wins not because they have a better case, but because you didn’t participate. In debt collection cases, a default judgment is entered administratively by a court clerk without a judge ever seeing the case.

A judgment, whether entered by default or otherwise, is a court ruling that you owe the money. And once a debt collector has a judgment, they have the power to garnish your bank account and your paycheck.  Altough judgments can sometimes be overturned, for the most part they are final. That’s why its so important to answer the lawsuit within the 20 days. If you don’t, you no longer can raise any defenses and will probably have to either negotiate a settlement or payment plan with the debt collector or, if the situation is serious enough, consider bankruptcy.

If you live in Minnesota and want help answering a debt collection lawsuit, feel free to contact me by using the contact form in the upper right corner of this page. I offer a number of flexible representation options, so even if you can only afford to pay a few hundred dollars, I might be able to help you.

How to answer discovery in a debt collection lawsuit

August 23, 2009 by Todd Murray · Leave a Comment 

In the past, I’ve written about the importance of answering a debt collection lawsuit. But answering the lawsuit is only the first step. After the debt collector receives your answer, they’ll usually send you written discovery. The discovery will probably have interrogatories, requests for production of documents, and requests for admission. In Minnesota, it’s critical that you respond to each of these things within 30 days of receiving them. I’ll talk about each of them separately, with the most important first.

Requests for admission are usually short, true/false statements. You’re required to either admit or deny each statement. If the statement is completely true, you have to admit it. If any part 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’re not sure if that amount is accurate, then you should deny the request. If the request asks you to admit that a certain debt buyer purchased your account from the original creditor and you can’t be sure that they have (and you almost never can), you should deny the request. Most importantly, it’s critical to respond to the requests for admission within 30 days. If you don’t answer them within this time, the court will treat each question as if you admitted it. Debt collectors sneakily structure their requests for admission to contain statements about each element of their case. That way if you fail to respond to them, they’ll 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’s 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 doesn’t 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 seemingly can be used to answer debt collection discovery. But 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’s probably best to just answer the question.

If you live in Minnesota and want help responding to a debt collector’s discovery requests, feel free to contact me by using the contact form in the upper right corner of this page. I offer a number of flexible representation options, so even if you can only afford to pay a few hundred dollars, I might be able to help you.

Photo: http://www.flickr.com/photos/lifepaused/2504754199/