How to Beat a Debt Collector in Court
BL
Summary:
The first step to beating a debt collector in court is to promptly follow up on the complaint(s) and question the right of the debt collector to sue you. If your creditor violated the law in any way, you might be able to file a countersuit. Once you go to court, make sure you follow some standard procedures and provide documentation. If you are unable to beat a debt collector in court and end up having to pay, then your best hope is a negotiated settlement or even bankruptcy.
Debt can be tricky to understand fully, as there is both good debt like mortgages and bad debt like unpaid bills and credit card charges. For many Americans, bad debt is like that constant pulsating heart in Edgar Allen Poe’s famous story, the “Tell-Tale Heart.” The slow-beating sound of too much high-interest credit card debt can drive a debtor crazy. However, unlike Poe’s protagonist, there are ways to overcome the constant paranoia of being in debt. One of the ways to alleviate debt is to take a debt collector to court and win. Below, we outline the steps to winning your case and some other options for resolving the debt.
Compare Credit Cards
Compare the rates, fees, and rewards of leading credit cards.
How to win vs. a debt collector
In order to beat a debt collector in court, the first step is being on top of the administrative process. This means making sure that you send the complaint and all subsequent correspondences in a timely manner. The second order of business is to challenge the debt collector’s right to sue you in the first place. It’s possible that:
- they might not be the debt instrument’s original issuer
- they cannot show a proper burden of proof
- it could be past their statute of limitations
If the debt collector is still adamant about suing you, you can always perform that classic American tradition of filing a countersuit in the hope of scaring them off. If you try all of this to no avail, then you are probably headed to court. Before going to court, you might want to try to negotiate a settlement or file for bankruptcy. If you do end up in court, make sure your answers are brief, to the point, and backed up by evidence. Let’s break down each step in the process in more detail.
Step 1: Administrative duties
The United States’ legal system revolves around a tremendous amount of paperwork. There are deadlines with this paperwork, and missed deadlines can cause a myriad of issues with your case. Here is how to get started.
Receive a complaint and prep an answer
Most states don’t require that you officially file an answer if you receive a complaint from a debt collector in small claims court. However, you should always double-check even if your state doesn’t require an answer, as some cases will still require it.
Replying to the answer
When filing an answer, it’s important to note that the complaint and summons will come with numbered paragraphs. For example, paragraph No. 12 says you took out a loan at said time from Party A. If you agree with this statement, then you can write, “Paragraph No. 12 is admitted.” Likewise, if you don’t agree with certain statements or paragraphs you can deny them. This can be done either solo or with the help of an attorney.
Pro Tip
It’s important to note that not only should the correspondence be done in an official manner with official documents, but it should also be carefully mailed. Most advisors will tell you to send two copies using USPS Certified Mail.
What if I don’t file an answer?
If you don’t file an answer, then the plaintiff can ask for the judge to perform a default judgment. In this case, regardless of the merits of the case, the judge will rule in favor of the plaintiff. Remember, if the debt collector wins, they can go after your wages through wage garnishment, property liens, and seized bank account funds or other assets.
Decide if you want a lawyer or not
Depending on the merits of the case and the amount of debt, you might want to consider hiring an attorney. Obviously, this will cost more, but in cases where there is a lot of money involved, it might be a smart idea. They can both help to make sure you comply with the administrative process, as well as defend you in court when push comes to shove.
2: Question their right to sue
Remember, debt collection companies don’t want to spend a fortune on litigation. Therefore, if you can question their right to take you to court before you get wrapped up in a lawsuit, you should try with all your might to make that happen. Here are some common ways you can question a debt collector’s right to sue.
Question the burden of proof
Remember, in most cases, the debt collection company is not the company that originally issued you the loan. In fact, debt is frequently turned into a financial security and can be sold multiple times. If the collection agency does not have the proper burden of proof, this can prevent them from winning in court. You can question their burden of proof in the following ways:
- Ask the debt collection agency to produce documents to prove that it is you who owns the debt and not someone else.
- Ask for your balance and supporting documents that show the debt and the subsequent interest or fees associated with it.
- Ask for all copies of correspondence between you and the debt collection agency. They need to be able to prove you have indeed been notified multiple times about problems with delinquent debt.
Look at the statute of limitations
The statute of limitations is the time limit in which a party has to sue or take legal action against another party for an alleged transgression. This timeline can differ from state to state, but it’s generally about 4-6 years. If you incurred any of the debts outside of the statute of limitations, then you can question it in your official answer to the summons. Remember to read all the fine print because a debt collection agency may be trying to recoup money they are not lawfully entitled to collect.
Benjamin Ivory, an attorney in Chicago, has seen cases dissolve when one party realizes that they are beyond the statute of limitations. “Usually it’s a surprise and can be a good one or bad one depending on which party (it applies to). It’s important that you follow court procedure always, rather than wasting your money on legal fees.”
Usually it's a surprise and can be a good one or bad one depending on which party (it applies to). It's important that you follow court procedure always, rather than wasting your money on legal fees. - attorney Benjamin IvoryClick to Tweet
Step 2: Look into filing a countersuit
In filing a countersuit, not only could you wipe the debt away, but you could also theoretically win damages. In fact, under the Fair Debt Collection Practices Act (FDCPA), third-party collectors can be countersued for their alleged bad behavior. This can include:
- calling you continually and harassing you
- using unreasonable language, slang, or curse words.
- creating a burner Twitter account and harassing you via Twitter
- harassing you at work or in a place of business
- mispresenting themselves on the phone
All of the above are reasons you could file a countersuit and win. However, be forewarned that if it doesn’t scare them away, filing a countersuit means that the case’s resolution could drag on for a while.
Step 3: Go to court
If you couldn’t avoid going to court or you think you have such a tight case that going to court is the best option, here are some suggestions for what to do to win your case.
Dress appropriately
Dress as if you were going to your best friend’s wedding, or at least a day at the office. You want to do everything possible to ensure that the judge takes you seriously.
Bring your proof
You would have submitted the evidence before the court date, but make sure you have all necessary documentation organized in a binder or folder. You might be asked to dispute certain figures and dates.
Deny deny deny
Deny as many of the claims as possible on the summons. There will be some that you need to affirm, such as how old you are and where you live. However, as with most things legal, denial is the name of the game until the other side can probe it in court.
Keep your answers short
Don’t delve too much into the intricacies of your childhood or how that debt came to be. This is a legal case, and thus your answers must be short and to the point. As long as your evidence and your answers align, you stand a good chance of winning your case.
Step 4: Consider a settlement or bankruptcy
If it turns out that a lawsuit isn’t right for you, consider these other options.
Negotiated settlement
Most debt collection agencies don’t want to spend the time and money for the case to make its way through the court system, so they might be willing to settle. The settlement could be a lump sum for a lesser amount or a payment plan with a break on interest and or fees. This can either be done personally or through a designated attorney representing you in the case.
There are also debt settlement companies that can help you reduce the amount you owe. Compare your options below.
Bankruptcy
Bankruptcy is not the end of the world! In fact, as many can attest, bankruptcy can be the right decision if you are drowning in debt and need to rebuild your financial health. If you have answered, are awaiting the court date, and are unable to reach a settlement, you might want to consider contacting a bankruptcy attorney. As long as you file for bankruptcy before your court date, the judge will issue an automatic stay, which will freeze the debt collection lawsuit against you. A bankruptcy will have some significant consequences, but it won’t stay on your credit report forever.
FAQ
How do you outsmart a debt collector?
The easiest way to outsmart a debt collector is to use the law against them. Remember, when a debt collector files a complaint, they need to do it with the proper legal method and have the proper evidence. If they don’t and you question it in the correct way, you can avoid or win a lawsuit.
How do you respond to a debt collection lawsuit?
You respond with an official answer, which is a reply to a summons and complaint.
How do you fight a collection agency and win?
The first step is to make sure you followed all administrative procedures correctly. Then you must decide if you want a debt collection attorney or want to do it yourself. You need to question their right to sue, make them provide evidence, scare them with a countersuit, or provide enough documentation to win in court.
How do I fight unfair collection?
You need to try to fight the complaint before it ever goes to court. But if it does, there are ways you can win if you keep your answers short and have supporting evidence. If it’s an unfair collection or the collectors are harassing you, you can countersue them as long as you have enough money to hire a lawyer.
Key takeaways
- The first step to beating a debt collector in court is to promptly follow up on the complaint(s) and question the right of the debt collector to sue you. Also, consider hiring an attorney.
- If you are sued by a debt collector, make sure you ask about the burden of proof as well as the statute of limitations. Remember, most debt collection lawsuits are not with the initial lender.
- Consider a countersuit to scare them off. Debt collection agencies do not want to spend a fortune on litigation.
- If you do end up in court, remember to dress appropriately, bring your evidence, and keep your answers straight and to the point.
Share this post: