A common question is always raised when someone faces a debt collection lawsuit. That question is, “can I defend myself in a debt collection lawsuit?”. Maybe it’s “how do I defend myself in a debt collection lawsuit?”. It is even a strong possibility that a search engine brought you here after you searched one of those exact questions. Should this be the first question answered though? Maybe a more appropriate question to start with is “should you defend yourself in a debt collection lawsuit?”.
Should you defend yourself in a debt collection lawsuit?
The answer to this question is most likely no. I say most likely because if defending yourself is your only option, then that is the one you should probably take. In general, the answer is that it would be better to consult with an attorney. Most attorneys offer free consultations so there really is no excuse to at least call one up and hear what they have to say.
The reason you shouldn’t represent yourself in a debt collection lawsuit is fairly simple. When your financial future is in question, you don’t add additional risk if you don’t have to. You also don’t seek solutions with a lower chance of success. When something is this important, you look for what gives you the highest probability of a successful outcome. This is very similar to when a vehicle breaks down. If you rely on that vehicle for your income, you take it to a mechanic to have repaired. You don’t watch YouTube instructions and “try your luck” when your income is at risk. A professional mechanic is what will most likely get your vehicle back on the road sooner and with the least amount of risk.
There is an old saying that has probably been heard by every attorney during law school. It goes “an attorney that represents himself has a fool for a client”. Even attorneys recognize that representing yourself comes at an increased risk.
Can you defend yourself in a debt collection lawsuit?
This is, of course, yes. You have the right to appear pro se and defend yourself against a debt collection lawsuit. You can also be successful in defending yourself IF you know what you are doing. That said, however, even if you have completely settled on defending yourself, you should still consult with an attorney.
If you are set on defending yourself and feel this is the best option for you, then there are some basic things you need to find out about who exactly brought the suit against you. This will tell you what type of debt collection lawsuit you are facing. This is probably one of the most important pieces of information you will need to know if representing yourself.
What kind of debt collection lawsuit are you facing?
This question may seem simple enough but the reality is that it isn’t for many, if not most individuals facing a debt collection lawsuit. There are generally two categories for debt collection lawsuits. Each one requires a very different approach to put the legal matter to rest. The first category comprises lawsuits brought by the original creditor. The second is made up of debt collection lawsuits brought by third party debt collectors.
Many people do not recognize the name of the original creditor. Store card accounts are probably where this is seen the most. Many major stores offer credit to their customers. Go to any “big box” store and you will most likely be asked if you want to sign up for one during checkout. There may even be a handy application you can take with you as you collect your receipt and goods. It is understandable that most would assume that it would be the store who would file the lawsuit if you opted for this credit and failed to make your payments. The reality, however, is that the store is not usually the original creditor. You are signing up with another company who only issues the cards for that store. People are often quite surprised to be sued by someone like Synchrony or HSBC and assume they are not who they did business with originally.
Time also plays a factor. Debt collection suits can stem from unpaid debts that are up to four years old. This allows many to forget who may have backed that store card years ago that they thought was closed. When a suit is brought naming them as a defendant for an unpaid debt, they just assume the Plaintiff is the original creditor. They do not even question it. Why would they question who the Plaintiff is? They barely remember the store it came from. They just believe the Plaintiff must be who issued the credit for the store when they purchased that washer and dryer combo three and a half years ago.
What is a third-party debt collector? Why does it matter?
Third party debt collectors are companies that are in the business of collecting on debt in which the underlying account originated elsewhere. These companies often purchase portfolios of debt, often referred to as junk debt, from original creditors containing thousands of individual accounts. It is not unusual for these companies to only pay 2-3% of the alleged debt to obtain these accounts. The most common junk debt buyers seen by Starks Law are Midland Funding, LLC, LVNV Funding, LLC, Cavalry SPV I, LLC and Portfolio Recovery Associates.
A third-party debt collector must bring evidence to support their complaint beyond what would be required of the original creditor. This is because the third-party debt collector bought the account. They must show, through appropriate evidence, that they have been assigned the rights to the account. Unless they can show this, then they cannot be successful in their claim.
Why does an original creditor require a different strategy?
Original creditors do not have to prove or show that they were assigned the account. They really only have to prove that one existed, that it was yours and that you did not abide by the agreement. The court may even find that they do not even need to show the original, signed agreement. This makes original creditors much harder to defeat in court. Harder, however, doesn’t mean impossible.
It is often the case that the creditor will not have the agreement, or at least the signed agreement, to present as evidence. You will have to recognize that the Plaintiff is not suing based on a breach of contract. They are suing on what is called an “Account Stated” theory. They will also be using a case called Discover v Stucka to “prove” to the court that they do not need the original signed contract.
Defeating an original creditor will require you to know precedent dealing with original creditors and what an account stated theory of law allows.
In conclusion, representing yourself is possible. It is not recommended though. You are probably reading this after searching something similar to “how to represent yourself in a debt collection lawsuit”. If that is the case, then what you are trying to do is gain the knowledge and experience of an attorney in a very short window of time. Often, that time period encompasses only 1-2 weeks before your hearing date.
Attorneys are trained and experienced in these matters. At minimum, an attorney has three years of legal education on top of a four-year undergraduate degree before they are qualified to take a bar examination and become licensed. Additionally, it is likely that an attorney is fully aware of precedent surrounding the issue you are facing and has been exposed to the arguments made by the Plaintiff. It would be naive to believe that the effectiveness of an attorney can be adequately replaced by 1-2 weeks of self-research.