CC's lawyer called...question

[toomuch]

Now that is funny!!!!!!

[Rover]

Let me give you some information and advice based on my real life experience with credit card lawsuits over the last 12 months.

It takes at least six months (probably longer) of not paying a credit card bill before a lawsuit will be filed. When a lawsuit is filed, the collection attorney is betting that you will not respond so that he can quickly get a default judgment. The last thing the attorney wants is a response because he does not want to put in the effort to respond to your response and he certainly does not want to go to court.

When you are served with a complaint, you can file an "answer" or you can file pre-answer motions within some period of time -- usually, 20 days. If you file an answer, your case then heads to trial.

However, if you file pretrial motions, you stop the clock and you do not have to file an answer until after your pretrial motions are heard and ruled on. That approach can buy you a tremendous amount of time if you need it for some reason.

I have also learned that the complaints that collection lawyers draft are very shoddy, full of holes and can easily be fought in pretrial motions. Remember, the lawyers are betting that you do not respond and that they can then quickly get a default judgment. So, they have the youngest, most inexperienced lawyers in their firm draft the complaint and then follow through on the lawsuit.

After not paying a credit card bill for almost a year, I was served with a complaint in late December, 2005. The first thing I did was buy several books on how to represent myself in court. On the 19th day of the 20 day period that I had to file an answer, I filed a motion to dismiss with the Clerk of Court and sent a copy of the motion to the plaintiff's attorney. That was in mid-January, 2006. Then, shortly thereafter, I filed several other pretrial motions. In March, 2006, the plaintiff's attorney submitted an amended complaint that addressed several of the defects in the complaint that I had pointed out in my motions. In response to the amended complaint, I dusted off my pretrial motions and filed them again in response to the amended complaint.

After filing a pretrial motion, it's up to the plaintiff or defendant to request a hearing on the motion. As the defendant, you don't want to be requestiong a hearing. In my case, a hearing on one of my motions wasn't held until October, 2006 -- 10 months after the complaint was served on me. And the motion that was the subject of the hearing was not even my most important motion. And at the hearing, the judge ruled in my favor that the complaint needed to be amended again.

Here it is almost February (over 12 months since being served), and I have heard nothing more from the plaintiff's attorney. I have not received an amended complaint and no hearings have been scheduled to argue my Motion to Dismiss. It appears to me that we could be many months away from having to file an answer. All I've done is recognize that the complaints filed against me were very poorly drafted, filed a few motions and recognized that collection attorneys do not want to work for their money. (Ain't our legal system great!)

But it gets even better. Last June I was served another complaint related to a different credit card that I had not paid in well over ayear.

In response, I filed my Motion to Dismiss and several other less important motions. A hearing was schedule for November, 2006.

In my state and in most states (I suspect), a complaint that involves a contract must have a copy of the contract attached. A credit card involves a contract, but the collection attorneys don't bother filing a copy of a contract with their complaint because they are betting that the debtor will not respond and that they will never have to argue the complaint in court.

My Motion to Dismiss included many points but the first one that was argued at the hearing was that the complaint should be dismissed because no contract was included with the complaint. The judge immediately dismissed the case without prejudice and ripped the young plaintiff's attorney a new one.

The judge gave the plaintiff's attorney 20 days to refile the complaint. Almost 70 days have now passed and the complaint has not been refiled.

I am not an attorney. I had never tried to handle a lawsuit pro se before. But I've discovered that it doesn't take much to drag things out in court and to discourage the collection attornies from aggressively working a lawsuit.

One other thing has occurred to me. I don't think I could have gotten the same result if I had hired a real attorney to represent me. An attorney would have wanted a considerable sum to file the motions that I've filed and to attend two court hearings. But what I think is most important is the I don't believe that an attorney would be as creative or aggressive in constructing defenses as I have been. I think attorneys are more concerned about how they look before the judge and other attorneys than they are concerned about doing everything they can to drag out or win your case.

What I have done hasn't taken that much time. I found examples of motions to use to draft my motions -- that helped a lot.

Finally, the bottom line is that if a collections attorney sues you, respond within the time period allowed. File a Motion to Dismiss. I don't believe it really matters whether the motion is even drafted well. If you just respond, you can buy yourself many months. If you can go to hearings and defend your motions, you can buy, perhaps, years.

[Rover]

One other thing, if you can't pay your bills, there is almost never a reason to talk to any bill collector -- including attornys.

In the case of unsecured creditors, there is nothing they can do to you until they file a lawsuit and get a judgment. If you are judgment proof, there's nothing that can be done to you then.

Of course, this advice assumes that you are not concerned about your credit rating. If you can't pay your bills, there's nothing really you can do about your credit rating except file for BK. Also, if you can't pay your bills and you are concerned about your credit rating, aren't you just asking for more trouble? You're probably better off with a bad credit rating. The bad credit rating will prevent you from taking on even more debt.

[Rover]

Please delete this message.

[CPO]

Excellent post Rover.

Lotsa great information.

Thanks again.

[ChainSmokin]