If you want to beat your debt collector in court, you need to do more than follow the basic advice you find on most websites. If you search for articles on what to do if you receive a summons from a debt collector, the common advice is to file a response, known as an answer, and deny that you owe the debt. Some websites will recommend that you send the debt collector a debt verification letter disputing the debt. If you do this, the debt collector must cease efforts to collect until they send you proof that you owe the debt. This is all great advice. But most advice stops there. Many, many debtors follow this initial advice. But it’s not enough! If you have an unorganized debt collector, that advice will work. But if your debt collector has gathered its evidence against you, filing an answer and sending a debt verification letter is not enough to beat your debt collector.
What Should I Do After Filing an Answer?
A debt collection case does not end after you file an answer. A debt collector is going to try and obtain a judgment against you in primarily two ways. The first is a default judgment. A debt collector obtains a default judgment by filing a complaint and serving you with a summons, then hoping you do not file a response. If you do not file a response, the creditor asks the court to grant a default judgment in the amount of the debt plus interest, filing costs, and attorney fees. If you file an answer, you thwart the debt collector’s first attempt at a judgment.
The second method by which a debt collector will attempt to obtain a judgment is a summary judgment. A court will grant summary judgment if the evidence presented during the case can only show one possible outcome at trial. For example, if the debt collector presents evidence that you owe the debt and you present no evidence in response that you don’t owe the debt, the court could grant a summary judgment. Likewise, if the debt collector does not produce any evidence you owe the debt and you produce evidence you do not owe the debt, then the court will grant summary judgment for you. This would effectively mean you win the case and do not owe the debt.
In a debt collection case you want to avoid a default judgment or a summary judgment and get to a trial, or delay enough so that you can reach a favorable settlement. To do this you need to make sure you follow court rules which will help you avoid a summary judgment.
The first step in avoiding a summary judgment and the first thing you should do after filing your answer is send the opposing party “initial disclosures.” An initial disclosure is a set of information that supports your case. In most courts, you must disclose any information favorable to your defense to the other side prior to trial or you cannot use that information at trial. In other words, early in the case you must tell the opposing party the names of the witnesses who will testify at trial and the documents and other items you will use as exhibits at trial, or the judge will not let you present any witnesses or exhibits. If you don’t present any witnesses or exhibits, the opposing party could ask the judge for a summary judgment since you can’t effectively defend your case without presenting any evidence. So you need to make sure that you send the opposing party this information after you file your answer.
How Do I Create Initial Disclosures?
You want to make sure you include at least two types of information in your initial disclosures: a list of witnesses and a list of documents that support your case. You do this by creating an initial disclosure document. You can get a form initial disclosure document here on Debtbrief. On that form you will list every witness who could testify at trial that would support your case, along with their contact information. In most cases, you will just need to list yourself. But if you have a friend or family member who has information about your case or who has helped you pay your bills, you may want to list them too.
After your list of witnesses you want to include a list of documents or other items you want to show the judge which would help you defend your case. This could be a contract, a receipt, a ledger, or almost anything else that would help prove you do not or should not owe the debt. Then you’ll want to make a copy of each document that you list and attach it to your initial disclosure document.
Once you’ve completed this disclosure, you need to mail a copy to the opposing party. Before you mail, make sure to keep a copy for yourself so you have a record of what you’ve sent. In some courts you will also file a copy of your initial disclosures with the court, but in other courts you will not file anything, or you will just file a certificate of service.
This is the general framework for how to create initial disclosures but your court might have specific rules or guidelines you must follow. You should make sure that you research your court’s rules so you know if you need to make any modifications.
For an example, we will use the Federal court rules. It is unlikely that your debt collection case will be in Federal court, but it will serve as a good example of what a rule looks like. The applicable rule is Rule 26 of the Federal Rules of Civil Procedure. That rule gives the following instructions for initial disclosures:
“A party must, without awaiting a discovery request, provide to the other parties:
(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information – that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;
(ii) a copy – or a description by category and location – of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;
(iii) a computation of each category of damages claimed by the disclosing party… (this would not apply to the debtor, unless you are filing a countersuit against the debt collector)
(iv) for inspection and copying as under Rule 34, an insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action… (this likely doesn’t apply to a debt collection case).
…
(C) Time for Initial Disclosures – In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order…”
In other words, in Federal court your initial disclosure must include:
- A list of each witness with their name, phone number, address, and the information they have about the case;
- A copy of all documents in your possession that support your claims or defenses.
You would need to provide this information within 14 days after your initial meeting with the opposing party in the case.
Your court will have its own rules that you should follow, but they will likely be similar to the rule above. Your court will also have a deadline to provide your initial disclosures and you should make sure you meet that deadline. In practice it is a good idea to just prepare and send your initial disclosures with your answer.
Make Sure To Supplement Your Disclosures
These are called “initial” disclosures because it is the first thing you do in the case after filing your answer. But you can supplement these disclosures at any time. If you find a document that you didn’t provide in your initial disclosures but you want to use it at trial, just create a new disclosure and call it “supplemental disclosures.” The court will probably set a deadline to do this, but it never hurts to send the name of a witness or a document you want to use to the other side.
Also, don’t think that you are going to surprise the debt collector by holding back a key document that proves you don’t owe the debt. For one, if you have a key document like that, you should provide it and use it in settlement negotiations. But also, if you don’t disclose the document in a disclosure, the judge will probably not let you present it as evidence during the trial.
Beat Your Debt Collector By Pointing Out Errors in Their Disclosures
The key takeaway here is that you can use initial disclosures to beat your debt collector in court. If your debt collector provides you with initial disclosures and you do not provide them with initial disclosures, you put yourself at risk for a summary judgment. The creditor will tell the judge that they have documents and witnesses to prove their case and you do not have any witnesses or documents, so the judge should grant summary judgment in their favor. So to avoid a summary judgment, it is absolutely critical that you prepare your initial disclosures.
The best case scenario for you would be that the creditor is just trying to get a judgment with as little effort as possible and fails to serve you with initial disclosures. In that case, you should absolutely serve your initial disclosures and monitor the deadline the court sets for discovery. Once that deadline runs, if the creditor has not served initial disclosures, you should file your own motion for summary judgment. You can get a motion form from Debtbrief here. Your court will also probably have specific rules for what to include in a motion for summary judgment. You should make sure to follow those rules. But your argument would basically be that the plaintiff has the burden of proof to establish that you owe the debt. The plaintiff can only prove that you owe the debt by presenting evidence in the form of witnesses and documents at trial. But because the plaintiff has not disclosed any witnesses or documents, the plaintiff should not be allowed to present any evidence at trial. And if the plaintiff cannot present any evidence at trial, the plaintiff cannot prove that the defendant owes the debt. And for that reason, the court should grant summary judgment in the defendant’s favor. If your creditor fails to provide you with initial disclosures it really can be that simple!
Of course, if your creditor serves you with initial disclosures, and you also serve initial disclosures, this does not mean you automatically win the case. But it sets you up to win at trial. Creditors do not want to take debt collection cases to trial. Trials can be time consuming and attorneys that represent creditors do not want to take the time to prepare for a trial. Attorneys that represent debt collectors only receive payment on contingency, meaning that they only get paid if they collect on the debt. For that reason, they make the most amount of money when they receive quick judgments, preferably default judgments, but also summary judgments. Trial severely lowers the attorney’s return on investment. So even if you cannot obtain a summary judgment in your favor, the fact that you’ve served disclosures and done enough to get to trial puts the attorney and the creditor in a position where they have to make a difficult decision. Do they expend the time, effort and cost to take your case to trial, or do they drop it? Do they try to settle for the full amount of the debt, or do they take pennies on the dollar just to avoid spending a full day in trial with you and risk getting nothing if you win? By signaling to the other side that you are capable and willing to go to trial you have given yourself great leverage in settling the case.
Furthermore, if you have served initial disclosures, you can take the case to trial yourself and win! You’ve already identified the witnesses and documents you need to prove that you don’t owe the debt. All you need to do at trial is present the witness testimony and show the judge your documents, and the judge might just find in your favor.
If you need forms to help in your debt collection case, you can find those forms here. And if you need any other tips or tricks to beat your debt collector, sign up for our free email list.
