WHAT ARE YOUR RIGHTS AS A DEFENDANT? THE WHO, WHAT, WHERE AND WHY OF LAWSUITS AND WHAT TO EXPECT AT THE PRETRIAL HEARING
Many of you looking at this page because you are being sued by a company claiming you owe them money for a credit card account. Sometimes you know the company suing you, however, more and more often people are being sued by a company they have never heard of. These companies claim they bought your debt from a company you owed money to. The debt may or may not be your debt and/or you may question the amount the company says you owe. Often the debt is very old and the company has waited too long to sue you. There may be a number of defenses you can bring to the lawsuit. You may be able to get free legal advice and representation from your local legal aid office. You can call the local legal aid office who will refer you to an attorney for low cost advice. If you call me I will give you a 15 minute free telephone consultation. (407) 330-4998.
If you have any questions about whether you owe the specific company filing the lawsuit or if you have any questions about the amounts they say you owe, you have the right to have your “day in court” to make the company filing the lawsuit prove this is your debt, that they own the debt and that the amounts they claim are right. If you want your day in court you should deny the claim. If you dispute the claim attend the pretrial conference and ask for a trial so you can get the documents that prove or disprove their claim Some of these debts are very old and there are no documents or they have waited too long to bring the suit and you likely win the suit.
When you attend the pre-trial hearing you are going to be called by the Clerk or the judge. If you are asked by the Court if you admit or deny the debt in your case you must deny the debt if you do not believe you owe the debt or that the person claiming the debt does not own the debt or if you question the amount of the debt. Deny the debt to everyone. If you deny the debt you will asked to either step into the hallway with the Plaintiff’s attorney to see if you can work something out. This attorney is your adversary. He is not your friend. He is not a mediator. He is there to drag as much money out of you as he can. You may not get the opportunity to mediate and if you are told to go in the hallway the person you are speaking to is not a mediator.
In some counties courts will be given the opportunity to “mediate” your case for free of for a very low cost. Mediation is an opportunity for the parties to agree upon a settlement amount if you believe you may owe the debt but the amount is incorrect and most debt collectors will set up a monthly payment plan. Make sure you can afford the monthly amount you agree to. If you cannot afford the monthly payment the debt collector demands (or states they cannot take less), do not enter the agreement. If you miss a payment the debt collector will get a judgment against you and sometimes the debt collector’s agreement are very punitive if you miss a payment.
If you do not agree at mediation, your case will be set for a trial date in the future. You do not have to hire an attorney to represent you at trial, however it is a good idea for you to call an attorney for legal advice. You may get free advice from your local legal aid office or I will give limited general advice over the telephone. Telephone advice is only general advice. Each case is different and you must sign a retainer with me to become a client. I represent most clients on a contingent fee shifting bases which means if you win, your costs and attorney fees are paid by the debt collector. You will be expected to pay a small retainer fee based on your economic status for costs. The retainer can be put on a payment plan.
You may feel you should admit the debt if you owe something to somebody, but if you admit the debt the Court assumes you admit owing the whole amount claimed, including interest, and other fees and charges, including attorney’s fees and costs. The Court will also assume this means you admit you owe the whole amount claimed to the company suing you, even if you disagree with the amounts claimed or have never heard of the company suing you. In other words if you have a good faith bases to dispute the debt, deny, deny, deny. The debt collector has to prove you owe the debt and that you owe the amount they state you do and they have to prove they timely brought the suit against you.
If the company can provide the legally-required documents and other evidence to the Court to prove the debt is your debt, the amount they claim you owe is correct and that they own the debt, the result will be the same as if you admit the debt. However, if they can not produce the legally-required documents and other evidence to prove that they own the debt or the specific amounts claimed, they cannot get a judgment against you. In other words the company suing you has the initial burden of meeting all of the legal requirements to prove its case.
If you feel you have defenses and cannot afford to hire an attorney contact your legal aid office. The worst thing you can do is nothing. If you don’t think it is your account, go to court and tell the judge it is not your account. If it is not your account and you do not go to court you will be responsible to pay the debt whether it is yours or not.
You may be asking yourself “if I do not have money to pay the debt how can I afford an attorney?” Representation may be more affordable than you think. Contact me to get general advice and if you like I can discuss a contingent fee shifting retainer with you at that time.