If you are afraid of a debt collector getting a judgment against you, we’re going to teach you a simple trick to avoid this. A debt collector can only obtain a judgment against you in one of two ways: by winning a trial and by filing a motion. Debt collectors don’t like to go to trial. It takes too much time, effort and money to chase down the debt. So to defend your case, you want to push them to a trial. That gives you the greatest chance of success, whether success is winning your case outright, convincing the debt collector to drop the case, or by obtaining a favorable settlement. But to get your case to trial and reap the reward of doing so, you have to learn how to stop debt collectors from getting judgments by motion. When you receive a “motion” in the mail from a debt collector, there is a very good chance that they are asking the court to order you to pay the amount owed.
What is a Motion?
A motion is a request to the court for a specific order. Motions are typically made in writing but can be made orally if a party is in court for a hearing or trial. A written motion will look like a pleading and be titled something like “Motion for….” The most common motion in debt collection cases is a motion for default judgment. When a debt collector files a motion for default judgment, the debt collector asks the court enter an order for default judgment against the defendant. The judge will review the motion and determine if it warrants such an order.
What Should I Do if I Receive a Motion From a Debt Collector?
The number one rule when receiving a motion from a debt collector is that you have to respond. If a debt collector files a motion and you do not respond the judge will assume that you do not oppose the debt collector’s requested order. It is highly likely that the judge will grant the order. If you give the court a written response to the motion the judge will weigh the request in the motion with your response and decide which side wins. It should be obvious, but if you don’t respond to a motion, the court will order you to pay the debt collector, even if you don’t owe the debt!
How Do I Respond to a Motion?
Opposing a motion is simpler than you might think. First, you need an opposition memorandum form. You can get that form right here. On that form, you should title your document “Opposition to Motion [Insert the name of the plaintiff’s motion]. Your state my have more particular rules for how to name your document, but it will probably be something like this.
What Types of Motions Do Debt Collectors File to Obtain Judgments?
If a debt collector sends you a motion, it will likely be one of two types of motions. The first is a motion for default judgment. The second is a motion for summary judgment. A judgment is a court order that legally requires someone to pay another person a specified amount of money. In this case, a judgment would be a court order requiring you to pay the debt collector a specific sum of money. Judgments are usually for an amount of money more than the original debt. Judges will often order the debtor to pay the original debt, plus interest, plus the costs incurred by the debt collector (like the filing fee collected by the court when the debt collector files a lawsuit), plus some fees that will be paid to the debt collector’s attorney (also known as “attorney fees). Default judgments and summary judgments are obtained at different times in a lawsuit, but they both ask for the same thing: a court order that legally requires you to pay a specified amount to a debt collector.
Motion for Default Judgment
A motion for default judgment is granted when you don’t respond to the lawsuit at all. A lawsuit starts when a debt collector sends you a “summons” and “complaint.” The summons informs you that you have been sued and that you need to respond. The complaint tells you exactly why the debt collector is suing you. If you do not respond to the lawsuit in writing, the debt collector will file a motion for default judgment. That motion tells the court that you didn’t respond to the lawsuit, so the court should assume that you admit the allegations in the complaint. The judge will see the motion, see that you didn’t respond, and order that you pay the debt, plus interest, attorney fees and costs.
Motion for Summary Judgment
A motion for summary judgment is granted when you respond to the lawsuit, but in doing so, you admit that you owe the debt. A debt collector files a motion for summary judgment when you have admitted that you owe the debt. Typically debtors admit they owe the debt in a few different ways. First, in responding to the summons and complaint, they just admit they owe the debt. Second, a debt collector might send a form called “requests for admission.” These are written questions the defendant is required to answer in a lawsuit. If the debtor does not answer, the judge will consider them admitted. If a request asks you to admit you owe the debt and you do not answer, the judge will believe that you admitted you owe the debt, and will order you to pay the amount of the debt plus interest, attorney fees and costs. Third, a debt collector could file a motion for summary judgment if you do not cooperate in the lawsuit. The debt collector will tell the judge that you have obligations to cooperate in the lawsuit, and since you did not, the court should order you to pay the debt, plus interest, attorney fees and costs.
So What is the Takeaway Here?
The takeaway is that if you receive something in the mail called a “motion” from a debt collector, you need to respond. You do this by writing a document that explains why what the debt collector is asking is wrong. For example, you might explain why you don’t owe the debt. You should also make sure that you include proof for what you are saying. For example, if you have emails or letters from your debt collector, or receipts showing you have paid part or all of the debt, you should include that with your submission to the court. If you learn nothing else from this post, it is that you cannot just ignore a motion. You have to respond!
If you need help responding to a motion, you can get court forms here, including an opposition memorandum.
If you want to learn more how to defend your debt collection lawsuit without the help of a lawyer, send me an email at contact@debtbrief.com and you can schedule a call with me. I will teach you the basics so you don’t need to pay a lawyer to do it all for you.
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