Once a debt collector sues you it can feel overwhelming because their lawyer knows what to do next and you do not. But we have you covered with this guide on one way that you can beat your debt collector, and that’s with interrogatories.
What are interrogatories?
Simply, interrogatories are written questions sent by one party in a lawsuit to another party which the responding party must answer under oath. Interrogatories are a list of questions written on a court form. The receiving party answers the interrogatories by copying the questions onto a form called “Responses to Interrogatories” and then responding to each question, signing the document to affirm the information in the responses is true and accurate.
Plaintiffs in debt collection cases like to use interrogatories and other forms of written discovery because gathering information this way is easy and cheap. In other types of lawsuits, like personal injury, medical malpractice, complex litigation, or other similar types of cases, lawyers like to use depositions to gather information. Depositions are oral questions to which a party must respond, under oath, while sitting across the table from the questioning lawyer. These are expensive because the party requesting the deposition must pay for the lawyer’s time as well as the time for the court reporter to type all the questions and answers. But with interrogatories, lawyers can send out a form set of questions – or even have their staff send out a form set of questions – in almost no time at all. This means the expense in sending these questions to debtors is almost minimal. But the payoff can be huge, because most debtors fail to timely and properly respond.
Debt collection lawyers only get paid when they collect, which means that they want to obtain judgments in as little time and with as little effort as possible. If they can’t obtain a default judgment, the next step they will take is to issue interrogatories and other types of written discovery requests (such as requests for production and requests for admission). Because sending interrogatories is so cheap, it is highly likely that a debtor will receive interrogatories or at least one of the other types of written discovery.
Every state’s rules will differ slightly on the form and procedure for interrogatories. You will need to research your court’s rules to make sure you meet all of your court’s specific requirements. When you answer interrogatories you will have a specific deadline, probably somewhere around 30 days. And your answers must be in a specific format. When you send interrogatories, you will also need to meet certain formatting requirements and track to make sure the other party responds within the deadline.
As an example, we can look at the Federal court rules. Your state’s rule may differ slightly, but this will be a good example. The applicable rule for interrogatories is Rule 33 of the Federal Rules of Civil Procedure:
“(a) In General.
(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).
(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.
(b) Answers and Objections.
(1) Responding Party. The interrogatories must be answered:
(A) by the party to whom they are directed; or
(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.
(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.
(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.
(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.
(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.”
In summary, in Federal court, each side can send 25 interrogatories about any relevant matter to the case. The responding party must answer, and must do so within 30 days, in writing, and under oath. A responding party can object to an interrogatory. And finally the responding party must sign the responses before sending them to the other side.
Generally, interrogatories will look something like this (the questions are just examples of what you might see and will differ case by case, but the format will be generally the same:
Interrogatory No. 1: Describe the goods or services you received in exchange for promise of payment.
Interrogatory No. 2: Describe any reasons why you think you may not owe the debt.
Interrogatory No. 3: Explain how much of the debt you believe you have paid to date.
The responses should be in approximately the following format. When answering, you should restate the question and then respond:
Interrogatory No. 1: Describe the goods or services you receieved in exchange for promise of payment.
Response: I did not receive the goods or services promised.
Interrogatory No. 2: Describe any reasons why you think you may not owe the debt.
Response: The goods and services were not provided. See also all the affirmative defenses listed in the Answer.
Interrogatory No. 3: Explain how much of the debt you believe you have paid to date.
Response: Defendant does not believe he owes any debt so there is not debt to pay.
Why are interrogatories so important?
Interrogatories are important because this is the primary method the parties exchange information under oath in a debt collection case. As mentioned above, interrogatories are inexpensive to prepare, so parties can easily gather information from the other side by sending them.
Debt collectors will use interrogatories to try and trip you up and use your responses (or non responses) to obtain summary judgment. For example, take a look at the sample questions above. The first question seems simple enough. What are the goods or services you received in exchange for promise of payment? If you answer this question by simply listing the goods and services you received, the debt collector will file a motion for summary judgment asking the court to grant a judgment in its favor because you have admitted, in your responses, that you received goods and services in exchange for payment. That’s why it’s so critical to be thoughtful about how you answer. You should answer in a way that provides the information requested without admitting anything.
An example of the importance of interrogatories is unfortunately a common scenario among those sued for debt collection. Debt collectors will usually send a set of interrogatories and the person being sued doesn’t send any response. The debt collector then files a motion for summary judgment, asking the court to grant judgment in their favor because the debtor hasn’t met his or her obligations to respond under the court rules. And just like that, you’ve lost the case just because you don’t know how to respond to interrogatories.
Responding to interrogatories from a debt collector
So we have learned that the number one tip for avoiding summary judgment is making sure to timely answer the interrogatories. You do that by using a court form, restating each question, and then providing an answer afterward, as the example above shows.
When you answer, make sure you carefully think through the question and how you should respond. Remember that the debt collectors are sending these specific questions to trip you up. Each question may be a trick question, like the example Interrogatory No. 1 above. By answering what seems like a simple question, you may be admitting you owe the debt.
On the example Interrogatory No. 2 above, the debt collector is banking on you not responding. So if you don’t list every reason why you think you don’t owe the debt, the debt collector will argue that you have no defenses. For questions like this, it is a great idea to reference your Answer to the summons and complaint, which should have listed all of your affirmative defenses.
The example Interrogatory No. 3 above is another trick question. You may be tempted to write, “I haven’t paid any of the debt.” But by answering that way, the debt collector might be able to argue that you have admitted there is a debt that you owe. A better response is to state that there is no debt that you owe, so you haven’t paid anything to the creditor.
You may also want to consider objecting to the questions. Common objections may be:
- Vague and ambiguous
- Exceeds the scope of the court rules
- Calls for privileged information
- Calls for speculation
- Exceeds the limit on the number of interrogatories allowed by the court
There may be others, which you may want to research. To object to an interrogatory, as your response, you’ll want to state “Objection. [Insert the objection you want to make]. Beware that for some objections you may not have to answer the question, but for other objections, you may still need to respond after objecting. If you aren’t quite sure whether to object, the safest approach is to answer every question by stating “Objection. Subject to any objection, Defendant responds as follows: [Insert the answer to the question].
Once you complete your responses, you’ll need to send a set to the opposing party, then file a certificate of service with the court to demonstrate that you sent the responses (or follow your court’s specific procedure for how to serve responses). Make sure you keep a copy of your responses for your own records!
Drafting your own interrogatories
As mentioned above, you can send your own set of interrogatories to the opposing party as well. You simply prepare the court form, then send a copy to the opposing party. Depending on your court, you may need to also file the interrogatories or file a certificate of service demonstrating that you have served them.
Make sure that you carefully think about what you want to ask them. Anything about the alleged debt is fair game. If you need information from them in order to present your defenses, this is the place to ask for that information. If you think they may lack the information necessary to prove you owe the debt, you should elicit a response that demonstrates their lack of knowledge.
The following are some sample interrogatories you may want to consider:
- Describe the goods and services the original creditor provided to Defendant
- Describe all contracts, written or oral, that you maintain state that Defendant owes the debt
- Describe how you came to purchase the debt
- Describe all documents you have that you believe demonstrate Defendant owes the debt
- Describe every document in your file on this matter
- What is the original amount of the debt, not including any attorney fees, costs, or interest
- Describe what the interest rate is on the date and why you think that interest rate applies
- Identify any arbitration agreement that may govern this debt
The sky really is the limit as to what you can think of and ask. Some of these examples may apply to your case and some may not. And you don’t have to stick to these examples either. Be creative! Remember that the debt collection attorney doesn’t want to spend time on your case, so sending a well-crafted set of interrogatories can frustrate the attorney into negotiating the debt with you.
How you can use interrogatories to beat your debt collector
First, you need to make sure to answer all interrogatories and do so in a way to preserve your arguments. This will make sure the debt collector can’t use the interrogatories to beat you.
But you can use the interrogatories to beat them. When you send the interrogatories, make sure to keep track of the due date. If the debt collector doesn’t respond by the deadline, you need to tell the court. In some courts, you may be able to ask the court to dismiss the case by filing a motion to dismiss or motion for summary judgment. Your argument will be that the debt collector had an obligation to respond to your interrogatories, failed to meet that obligation, and so the case should be dismissed. In some courts, however, you may first need to call the debt collector and ask them to send you the responses, or file a motion to compel the debt collector to send you the responses before you can file a motion to dismiss or motion for summary judgment.
When drafting interrogatories, you also want to try to think of trick questions so that if they do answer, you can use their responses against them in a motion for summary judgment or at trial. Remember that their responses are under oath, so you can show the responses to the judge later if the responses favor the defense of your case. For example, if the debt collector suing you is a third party junk debt buyer, you might ask what goods and services were provided to you. They may not know the answer, and if they don’t, you now have a basis to ask the court for summary judgment. Remember that the debt collector has the burden to prove that you owe the debt, and if they don’t provide proof that there was a contract (i.e., that the original creditor provided goods or services to you), then they can’t prevail against you.
Do you need to draft interrogatories or respond to interrogatories in your case? We’ve got you covered with our debt collection defense forms package. You can purchase them here. We have both a form to draft your own interrogatories and a form to respond to interrogatories from the debt collector.
And we understand that it can be difficult if not impossible to pay a lawyer to defend you in court in your debt collection case. But what if an attorney could spend just one hour with you and teach you everything you need to know to defend yourself? The cost of that one hour for 1:1 coaching with an attorney will pay for itself, as you will most likely save more than the cost of that hour by winning your case or negotiating your debt by following the instructions from the lawyer. If that’s what you need, drop us a line at contact@debtbrief.com and you can schedule a time to meet with me, a former debt collection attorney who now helps the little guy.
If you think your debt collector has violated the Fair Debt Collection Practices Act, a lawyer might be able to take your case on contingency and sue your debt collector. You could be entitled to as much as $1,000 for each violation. If you want an attorney to review your case, email us at contact@debtbrief.com and let us know the potential violation and where you live.
If you have tried to fight your debt but have reached the point of needing to file for bankruptcy, a lawyer can review your situation and help you make that choice. Email us at contact@debtbrief.com and let us know where you live and we’ll find an attorney in your area to review your case.
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