Originally published by Seyed Abbas Kazerounian as part of an Avvo.com piece focusing on the various reasons consumers should actively defend and litigate credit card lawsuits:
There are a myriad of reasons why you would want to defend and litigate a credit card suit against you.
Your Opponent: - You are not usually litigating against seasoned litigators – usually the firms that bring these cases are debt collectors under the guise of law firms. These are firms that file approximately 2000 lawsuits a month. These are firms that are using large secretarial/paralegal staff and very few attorneys. Essentially, the few attorneys that are working at these firms have so many cases to deal with that they do not wish to deal with a real litigant opponent. Even if they did have the litigation experience, they do not have the time and/or the resources to deal with additional paper work.
Step 1 – The Complaint: Such firms work on the premise that over 95% of lawsuits will default and that they will get a judgment without any fight. So all the complaints are boilerplate form complaints and only names and figures have been changed. A lot of the time errors have been made in quickly putting together these complaints and you may have a chance to demurrer the complaint, which immediately starts the paper work process for the overworked plaintiff counsel. If the debt is small enough, they may dismiss at this early stage.
Step 2 – Initial Discovery: If and when the plaintiff has overcome your demurrer and/or you have answered, immediately propound discovery. The last thing they will want to deal with is discovery and the paper intensive work that is related to that. If it is a debt buyer plaintiff, you will want to request paper work showing how they have standing to bring the suit in the first place. You obviously must request any contract that you they have alleged exists and the lawsuit is based on.
Step 3 – Meet & Confer and Discovery Motions: More than likely the Plaintiff counsel will delay in responding and miss deadlines, and even if not, 9/10 times the responses are insufficient. It is crucial that you meet and confer and calendar the response date. More than likely they will miss the date and at this point you will have the opportunity to be the aggressor. Bring your motion to compel and seek sanctions. Far too many times these plaintiffs bring lawsuits and they are not prepared to engage in good faith discovery and that is where you can win your case. You will win your motion and the plaintiff will see that it is facing heavy sanctions. You will see a high success rate at this stage. A lot of cases are dismissed (don’t forget you can seek costs if they drop the case) and/or the offers to settle are drastically lower than before. By this time you have bought yourself or your client close to 8 months to save money so that you can settle at this stage.
Step 4 – Trial: If you have not settled by now, you have to maintain the willingness to go to trial attitude because the likeliness is that the Plaintiff will not want to go to trial (and more importantly for them, they will not have the resources and the time to take you to trial). You will have bought yourself or your client close to 12 months of more by now. You will have a good chance of receiving pennies on the dollar offers to settle the case if it has not already been dismissed. If you do go to trial, do not let them testify by declaration; force their witnesses to fly in (causing more expense and hassle). Also be sharp with your rules of evidence as a lot of the time the witness that has been brought in by the Plaintiff will not have actual knowledge of the documents and will not be able to lay foundation in order to get them into evidence. It is possible to non-suit these cases if you are alert. For debt buyer plaintiffs, attack their standing to bring the suit in the first place. Furthermore, debt buyer plaintiffs very rarely will have the full account documents or the any alleged contract that you or client was alleged to have made with the initial creditor. The information provided on this article is for informational purposes only and should not be construed as legal advice or as forming an attorney-client relationship. No attorney-client relationship between the reader and Abbas Kazerounian should be deemed to have been formed. Mr. Kazerounian is only licensed in the State of California and only writes as to his experiences in State of California.