• Home
  • Bankruptcy in Brief
  • ABC’s of Bankruptcy
  • Considering Bankruptcy
  • True Stories
  • Chapter 13
  • Blog
  • About
  • TOC

Northern California Bankruptcy Lawyer

On The Bankruptcy Soapbox

The Soap Box
  • How bankruptcy works
  • Mortgage Matters
  • Consumer Rights
  • You & Your Lawyer
  • Small Business
  • Family Law

The Essential Step To Get Your Day In Court

By Cathy Moran

fighting debt collector

When you’re sued on an old debt, it’s easy to imagine appearing in court to tell the judge your side of the story.

  • I’m not the person who owes this debt
  • This debt is too old to be enforced
  • I never heard of the person suing me

You imagine the judge considering your argument and challenging the other side to prove otherwise.

It’s a comforting image, but it will never happen if you haven’t taken the first step in defending a lawsuit.

File a written answer

Only an answer on paper, filed with the court clerk, and served on the person suing gets you a day in court.

Courts rely on the written word

Courts move on the basis of paper.

If you haven’t filed an answer in the lawsuit, nothing you say to the judge will change the outcome.

Now, on the odd occasion, a judge may consider arguments made for the first time in a courtroom.  It happens just often enough to make me cautious about saying “never”.

But don’t count on it.

If disputing the debt is worth your time showing up at court, then it’s worth filing an answer in your defense.

Don’t think you can simply arrive in court and win on the basis of clever words at trial.

Life of a collection suit

The New York Times’ great feature on the dark world of consumer debt collection had a marvelous flow chart of the progress of collecting an old bill.

Only it was deceptively wrong.

After following the debt collector’s options and outcomes from first collection call to the various resolutions, the graphic showed two wildly different outcomes if the consumer got sued.

One outcome had the consumer telling the judge, “I’ve fallen on hard times and can’t afford to pay my debt“.  Result:  the consumer loses.  Hard times isn’t a legal defense to a collection suit.

The second outcome had the consumer telling the judge:  “Make them prove I owe the money“.  Result, says the article:  the consumer wins!

Not so.  You’ll get no chance to tell the judge anything, if you don’t file an answer to the lawsuit.

On time.

Lawsuits require proof

Why the different results for different scripts in the Times‘ scenario?  Because, the debt buyer has no proof of the debt.

And the burden of proof in a collection suit lies with the person who filed the suit.

When the collector bought the old account from the original creditor, or an intermediate collector, no supporting documents came with it.  The debt buyer got just a spreadsheet with the consumer’s name, account number, and amount due.  He has no proof that you owe the debt and no proof that the debt is still enforceable.

No proof, no judgment.

But that little lesson in legal procedure is not the point I want to make here.

My point is telling it to the judge at trial gets you nothing if you haven’t raised the issue in a written answer.

How to file an answer

Getting an answer on file can be a problem if you don’t have money for a lawyer.  I’ve got that.

You can do it yourself.

Many California court forms are available from the Judicial Council.

Lots of courts these days have pro per help desks where you can get guidance on participating in a lawsuit.  The California courts maintain an online legal self help site.

Here are links to  Bay Area court’s pro per resources:

Santa Clara County 

San Mateo County

Alameda County

Santa Cruz County

Check out the available resources in your area to help you file the right paper so you can defend yourself in court.

Also

What to do when sued

Get the timeline right

What happens if there’s a judgment against you

Image courtesy of Flickr and Penn State.

More from the Soapbox

  • Bankruptcy And Divorce Collide: The Threatened FilingBankruptcy And Divorce Collide: The Threatened Filing
  • Congratulations To Sergio Garcia, New California LawyerCongratulations To Sergio Garcia, New California Lawyer
  • The Strange Rules When A Creditor Is Left Off  Bankruptcy SchedulesThe Strange Rules When A Creditor Is Left Off Bankruptcy Schedules
  • Bankruptcy Judge – Umpire In A Robe?Bankruptcy Judge – Umpire In A Robe?
  • Unfiled Tax Returns Are A Life SentenceUnfiled Tax Returns Are A Life Sentence

Filed Under: Featured

About Cathy Moran

I'm a veteran bankruptcy lawyer and consumer advocate in California's Silicon Valley. I write, teach, and speak in the hopes of expanding understanding of how bankruptcy can make life better in a family's future.

Bankruptcy Basics

About The Soapbox

You’ve arrived at the Bankruptcy Soapbox, a resource of bankruptcy information and consumer law.

Soapbox is a companion site to Bankruptcy in Brief, where I try to be largely explanatory and even handed (Note I said “try”).

Here, I allow myself to tell stories and express strong opinions. We dig deeper into how to consider bankruptcy and navigate a bankruptcy case.

Moran Law Group
Bankruptcy specialists for individuals and small businesses in the San Francisco Bay Area

How Bankruptcy Works

How To Pay For Bankruptcy When You’re Flat Broke

One of the cosmic ironies of our legal system is that it costs money to file bankruptcy. Bankruptcy gets you out of debt only if you have the money to file. The costs of bankruptcy include the filing fee collected by the court; the required credit counseling; and, if you're smart, an experienced lawyer to make sure … Read more

More Posts from this Category

643 Bair Island Road
Suite 403
Redwood City, CA 94063
Phone: (650) 694-4700
Phone: (650) 368-4700

Categories

All content copyright © Moran Law Group. All rights reserved.