OKAY, SO I’VE JUST BEEN SUED ON A DEBT. WHAT EXACTLY DOES THAT MEAN AND WHAT SHOULD I DO?
It means that someone has decided not to try to settle with you or work things out with a payment plan. It means that someone has decided to turn this matter over to the court so that they can try to get a money judgment against you and perhaps put a lien on your house, or garnish your wages, or seize your bank account. They do this by filing a debt collection lawsuit in state, parish, or city court.
WHAT IS A “DEBT COLLECTION LAWSUIT”?
A debt collection lawsuit is a formal proceeding in a court of law by a creditor (such as VISA, MasterCard, Discover) or its assignee (usually a collection agency or a debt scavenger) to force someone like you to pay money that you may or may not owe.
If you do nothing, bad things can happen:
- You lose your right to make them prove their case in front of a judge.
- You lose your right to tell your side of the story.
- You lose your right to challenge the amount they claim you owe.
- You lose your right to raise objections to excessive interest or attorney’s fees or costs or penalties that they might be trying to charge you.
THAT’S PRETTY BAD, ALL RIGHT.
Well, it gets worse. If they get what’s called a “default judgment,” they might:
- garnish your wages.
- seize the money in your bank account.
- have the sheriff or constable pick-up your non-exempt car or truck or van and sell it at public auction.
- put a lien on your house.
SO WHAT DO I DO TO STOP THEM FROM GETTING A DEFAULT JUDGMENT?
You have to file a formal written response in court to the debt collector’s petition.
In a debt collection lawsuit, if you don’t file a formal written response with the court, it’s almost like admitting that you really do owe everything they sued you for. The court assumes that you have no defense, and will often sign a judgment against you for the full amount you are being sued for.
BUT I DON’T WANT TO GO TO COURT.
Nobody wants to go to court, at least not when they are the defendants in a lawsuit.
DO I HAVE TO GO TO COURT? CAN THEY PUT ME IN JAIL?
If you read closely the document that the sheriff served you with, you will note that it is NOT a subpoena to appear in court. It is what is called a “citation.” (You’ve probably got a citation before; traffic tickets are “citations.”) People get traffic tickets for breaking the law. Being unable to pay your bills is not against the law, and you can’t go to jail for doing something that’s not against the law.
A civil citation advises you that you have been sued and orders you to file a written response under penalty of default (not under penalty of imprisonment).
SO ALL I HAVE TO DO IS FILE A WRITTEN RESPONSE?
That’s all you have to do to tell your side of the story to the court. You do not have to personally go before a judge --- you can and must put your response in writing first. When you respond in writing, the debt collector will then have to go to court and prove his case against you, and sometimes they don’t have the necessary records or don’t want to take the time and effort. Debt collectors and debt scavengers go for the quick hits, the easy pickings. When you stand up to them and fight back, they sometimes run away.
I DON’T WANT TO GO TO COURT. I JUST WANT TO SETTLE AND GET IT ALL OVER WITH.
That’s understandable. A good settlement is always better than having to go to trial. The problem is, you probably won’t get a good settlement unless the people suing you believe that you’re willing to stand up for your rights and not pay them a penny more than you really owe.
WIMPS DON’T WIN.
Look, if the people who are suing you really wanted to work with you, why did they turn over your case to the courts? You’re not up against a collection agency anymore; you’re up against a collection lawyer who makes his living by taking money out of the pockets of people like you.
WHAT HARM COULD IT BE TO CALL THEM AND TRY TO WORK OUT A PAYMENT PLAN?
Well, for starters, they might record your call, and like they say on the cop shows, anything you say can and will be used against you. They might try to get you to admit that you owe the entire debt, even if you only owe a part of it. They will get your home or work phone number on their caller ID and know how to contact you. They might try to make you tell them the name of your employer and how much you make. And more importantly, calling them might cause them to flag or fast-track your court case.
THE BOTTOM LINE IS THAT IT’S ALL ABOUT THE BUCKS.
This isn’t Judge Judy or Judge Mathis or Court TV. The debt collectors who are suing you mean business, and they’re out to take what you’ve got. Sure, you may be a great street-fighter, but in court, when you’re up against their lawyer, it’s like being up against a professional boxer --- you might get lucky, but you’re probably just going to get your butt kicked.
WHAT CAN A LAWYER DO FOR ME THAT I CAN’T DO ON MY OWN?
Remember the old saying: “A man who is his own lawyer has a fool for a client.”
You need someone to stand up for you, someone who knows the law and has the experience and isn’t afraid of collection lawyers or going to court.
You need someone to talk for you and try to work out a reasonable payment plan, one that won’t leave you unable to pay your mortgage or your car note or your other bills.
You need someone to file your written response in court so they can’t take a default judgment against you. You need someone to subpoena their records and make them prove their case.
You need someone to help you get this all behind you so that you can start to get on with the rest of your life.
You need a lawyer.
BUT ISN’T A LAWYER EXPENSIVE?
Don’t be so sure. Not every lawyer charges an arm and a leg up front. Some will review your lawsuit for free and tell you what to do next. Some will defer their fees over the course of the case. And if you qualify, you may be able to get an attorney through the New Orleans Legal Assistance Corporation or the New Orleans Pro Bono Project.
And if you think that a lawyer is expensive, NOT hiring a lawyer could very well be even more expensive in the long run.
SO I MIGHT ACTUALLY SAVE MONEY BY HIRING A LAWYER.
That’s a real possibility. Remember, if you snooze, you lose. If you don’t formally appear and fight the charges, the debt collector or scavenger can get that default judgment. And then it might be too late.
“There is a popular impression, for which there is a good deal to be said, that a man who is his own lawyer has a fool for his client.”