I forgot to add a creditor to my bankruptcy

As hard as we try to find all of your creditors before a bankruptcy, every once in a while one slips through the cracks. What happens when a creditor gets left out?

1. First of all, don’t get any ideas. All creditors are “included” in bankruptcy. You can’t leave one out, purposely or accidentally. So there’s no point in “forgetting” to list a creditor, for example, in hopes that you can keep a credit card open. And remember, you sign your bankruptcy under penalty of perjury, so it’s illegal to leave any information out of your bankruptcy papers. And as your attorney, I know better and won’t let it happen. So don’t try.

2. In a no-asset Chapter 7 case, all debts are discharged whether listed or not. If a debt is dischargeable, then it’s wiped out in a typical Chapter 7 bankruptcy whether it’s listed or not (as long as it wasn’t left out intentionally.) Typically when a creditor has come out of the woodwork after a Chapter 7, we just send them a letter notifying the of the bankruptcy, and that’s enough to protect you. After that, any attempts to collect the debt would be illegal.

3. In a Chapter 7 cases with assets, debts may not be discharged unless listed. Unlike a no-asset case, in which a creditor generally has nothing to gain from being listed in the bankruptcy, in a case where assets are going to be distributed to creditors, it does harm the creditor to be unlisted. Section 523(a)(3) of the Bankruptcy Code makes a debt like this non-dischargeable if it wasn’t listed in the bankruptcy.

4. In a Chapter 13 case, a creditor must at least be added before the case is finished. In a Chapter 13 case, a creditor must have been listed in the plan to be discharged.  So if you’ve forgotten to add a creditor, and you’re already in your Chapter 13 plan, it’s probably wise to go back and add the creditor. This is probably fixable, since Section 523(a)(3) doesn’t apply to Chapter 13.

If you’ve left out a creditor and need help, get in touch. Or you can read more about bankruptcy.

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How to deal with an odometer rollback

odometer fraud

A prime candidate for a rollback.

In the post we describe how we can get you triple legal damages, with a minimum of $10,000, and your attorney’s fees paid for, when your odometer has been rolled back.

Shady car dealers love to find a way to make an extra buck on a used car. One way they do this is by rolling back the odometer. WIth digital odometer displays, it is often very easy for a car dealer to roll back an odometer. We sue car dealers for odometer fraud and can get significant legal damages. Here’s how you deal with odometer fraud:

1. Why scammers roll back the odometer. Easy–rolling back the odometer lets a dealer sell a heavily-worn car for newer-car prices. I drive a 2007 Honda Fit Sport. With 50,000 miles a car like mine might sell for $9,676. With 150,000 miles it sells for $5,067. An unscrupulous car dealer might see that $4,600 as easy money.

2. How to spot odometer fraud. Here are a few tips for finding a rolled-back odometer, either before or after the sale.

  • - Pull a vehicle history report such as a Carfax and AutoCheck. Sometimes these don’t show rollbacks, so just because a CarFax comes up clean doesn’t mean the odometer is too.
  • - Ask the seller for maintenance records. Even oil change records almost always mark down the mileage.
  • - Look in the owner’s manual or on service stickers inside the door or under the hood. Did the car dealer leave behind damning evidence?
  • - Look for damage to the instrument panel. There may also be fingerprints inside the glass. This is a great sign of odometer tampering.
  • - Is the brake pedal worn? Tires? Take the car to mechanic to see if they can find evidence that the car is more used than it appears.

3. The Federal Odometer Act may protect you. The Federal Odometer Act is a very powerful law that punishes the perpetrators of odometer fraud. Any dealer who rolls back an odometer, or sells a car knowing the odometer has been rolled back, may be liable for triple your money damages, with a minimum of $10,000. Plus they have to pay your attorney’s fees if you win.

We’re Minneapolis auto fraud lawyers. We handle odometer fraud cases. Get in touch if you think you’ve been a victim.

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Photo: http://www.flickr.com/photos/nicholas_t/6963327133/

Common FDCPA violations in student loan collections

The total amount of federal student loan debt in the U.S. is about one trillion dollars. When a borrower falls behind on payments, the collection process begins. Although federal student loan collectors have impressive collection powers, it’s important for consumers to recognize that the Fair Debt Collection Practices Act still prevents a debt collector from making false or misleading statements or otherwise harassing or abusing a consumer. Here are some of the most frequent FDCPA violations in student loan collections:

Misleading threats to garnish wages. Debt collectors often mislead or lie to consumers about the imminence of a wage garnishment if the consumer doesn’t pay immediately. A federal student loan collector may institute an administrative wage garnishment against a consumer who is delinquent. No judgment is required. But there are important steps that a collector must follow before starting an administrative wage garnishment. They must send the consumer a notice–at least 30 days before starting the garnishment–that advises the consumer of their right to inspect the records related to the debt, their right to a written repayment agreement, and their right to a hearing. The consumer then has 15 days to request a hearing. And a private student loan collector doesn’t have the ability to do an administrative wage garnishment. They have to sue the consumer and get a court judgment first. So, a collector can’t just start a wage garnishment immediately if the consumer doesn’t pay and any threats to the contrary probably violate the FDCPA.

Lies about how to get a federal student loan out of default. Debt collectors often lie to or mislead consumers about the ability to get a federal student loan out of default. A federal student loan is considered to be in “default” if the borrower goes 270 days without making a payment. Once the loan is in default, a 25% collection fee may be tacked on. But a borrower can get a federal student loan out of default by “rehabilitating” the loan. This means making nine voluntary, reasonable, and affordable monthly payments within 20 days of the due date during ten consecutive months. A borrower may also be able to get the loans out of default by consolidating into a single loan. Debt collectors often tell consumers that there’s nothing they can do to get the loan out of default, or don’t tell them about all of their options, which may violate the FDCPA.

Telling consumers that they can’t discharge student loans in bankruptcy. Student loan collectors often tell consumers that student loans can’t be discharged in bankruptcy. While this is often true, it isn’t always true. A borrower may be able to get a student loan discharged if they can prove undue hardship. The burden of proving undue hardship is very difficult, but it can, and has, been done. A debt collector that tells you that student loans can never be eliminated in bankruptcy isn’t telling the truth and is likely violating the FDCPA.

Illegal contacts with third parties. Under the FDCPA, a student loan collector (or any collector) can’t communicate with your family members, co-workers, friends, or other third parties. Even threats to do so probably violate the FDCPA.

The bottom line. If a student loan collector chooses to give a consumer legal advice, they better get it right. Making false statements about the law or a consumer’s options probably violates the FDCPA.

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Turning the tables

I recently sued a debt collection agency and one of its collectors for violating the FDCPA. The collector made some illegal threats to my client. The threats weren’t the worst I’ve ever heard of, but my client was dealing with some other things in his life and was pretty shaken up by them.

Right after they were served with our FDCPA suit, I got a call from the individual collector I had sued. He must have been really nervous during the call because he kept fumbling over his words and repeating himself. His voice faltered a few times. He told me that this was the first time that the agency had been sued and that they wanted to do the right thing and take care of the FDCPA lawsuit. He said that they were a small agency with only four employees, that their cash flow was tight, and that they were having a hard time making payroll. He made a settlement offer that was significantly lower than what I would typically settle the case for and asked if I would allow them to split the settlement amount into smaller monthly payments. He said that was really the best that they could do under the circumstances and that anything more would put them in a big financial bind. Based on my research of this agency, I believe that what he was telling me was largely true. There’s no doubt in my mind that he was genuinely shaken up by getting sued. I felt bad for him.

I don’t usually take any personal satisfaction in suing a debt collector. I really don’t. But this situation was different. Although the irony was probably lost on the collector, I recognized it immediately. He finally experienced how a consumer feels when she gets sued by a debt collector. He experienced the shock of being served with a lawsuit and felt the stress of having to figure out how to pay on a tight budget. He worried about how the lawsuit would affect his ability to keep the company afloat. He begged me to be reasonable and accept a lower amount than I would normally take. I just hope he remembers how scared he felt the next time he is tempted to bully a consumer into paying a debt that she can’t afford to pay.

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FDCPA amendment could roll back consumer rights

Last week, a bill was introduced in the U.S. House of Representatives that proposes to amend the Fair Debt Collection Practices Act. If passed, the bill will exempt attorneys from the FDCPA if they are: “serving, filing, or conveying formal legal pleadings, discovery requests, or other documents pursuant to the applicable rules of civil procedure” or “communicating in, or at the direction of, a court of law or in depositions or settlement conferences, in connection with a pending legal action to collect a debt on behalf of a client.” In other words, the bill would provide a safe-harbor from the FDCPA for attorneys engaged in litigation. The text of the bill can be found here.

InsideArm.com, a collection industry website, portrays the proposed bill as a technical amendment to the FDCPA that won’t affect a consumer’s rights. I disagree. According to the U.S. Supreme Court in Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489 (1995), the FDCPA applies to debt collection attorneys who regularly engage in consumer-debt-collection activity, even when that activity consists of litigation. And several circuit courts have either expressly held or implied that false statements made in litigation can be actionable under the FDCPA.

For example, in Hemmingsen v. Messerli & Kramer, P.A., 674 F.3d 814 (8th Cir. 2012), the court held false statements made in litigation–even if not made directly to the consumer–could violate the FDCPA. Similarly,  in Sayyed v. Wolpoff & Abramson, 485 F.3d 226 (4th Cir. 2007), a case involving false statements made in legal documents, the 4th Circuit held that the FDCPA applied to such litigation activity. The Sixth Circuit implied the same thing in Miller v. Javitch, Block & Rathbone, 561 F.3d 588 (6th Cir. 2009).

The Fourth, Sixth, and Eighth Circuits encompass 16 states and are the supreme law in those states unless the U.S. Supreme Court says otherwise. So to argue that the proposed FDCPA amendments don’t affect existing consumer rights is false, at least in the 16 states in the 4th, 6th, and 8th circuits. What the bill actually does, then, is give collection attorneys a free pass under the FDCPA to lie to consumers, judges, and court personnel as long as those lies occur in the course of litigation.

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Same-sex married couples can file bankruptcy together

We wrote about the evolving status of same-sex couples in bankruptcy here and here. Now that the Supreme Court has struck down the Defense of Marriage Act, the federal government must recognize same-sex marriages valid in the state in which they were performed. Although this specific issue hasn’t come to bankruptcy court, it’s clear that the bankruptcy system will have to follow the Supreme Court’s ruling and allow same-sex married couples to file joint bankruptcy cases.

1. Anyone legally married in Minnesota can file bankruptcy together in Minnesota. Any married couple can file a joint bankruptcy case if their bankruptcy was legally performed in Minnesota. This includes same-sex couples whose weddings were performed on or after August 1, 2013.

2. Anyone legally married in another state can file bankruptcy together in Minnesota. Any couple married in Iowa, New York, or any of the other 11 states allowing same-sex marriage can file a joint bankruptcy. It’s not clear how a Canadian marriage, for example, would shake out in U.S. bankruptcy court, but I’m sure this is something we’ll learn soon.

3. Anyone who’s legally married in any of these states can file bankruptcy together anywhere in the U.S. The full faith and credit clause of the Constitution basically says that a public act (such as marriage) valid in one state is also valid in any other state. This means that any same-sex couple married in any of the 13 states allowing same-sex marriage can file a joint bankruptcy anywhere in the U.S.

4. Filing a joint bankruptcy has benefits. Most attorneys will price a joint case lower than two individual cases. Instead of paying two attorney’s fees, a same-sex married couple can now pay one. The same thing goes with for the court’s filing fee. Plus it’s much easier to provide an attorney one set of information, rather than having to handle each case separately. This is a BIG deal.

Have questions about same-sex marriage and bankruptcy? Give us a call.

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How to deal with student loans

By many accounts, student loan debt has reached crisis levels. Among our clients, it’s a huge issue that can be very difficult to solve. As total student loan debt in the United States approaches $1 trillion, many borrowers are going into default. On federal student loans alone, the number of people who went into default during the first three years after graduation was a staggering 13.4 percent. There are a few things borrowers can do to deal with runaway student loans.

1. If the loan is not in default. If a federal student loan is not in default, there are numerous repayment options available, including Income Contingent Repayment (ICR) and Income-Based Repayment (IBR). Each of these programs allow a borrower to pay a percentage of his income to his loans (sometimes as low as zero percent) and the remaining debt is forgiven after a number of years (20-25). The government has a web site that allows you to explore these options.

2. If the loan is in default. A federal loan goes into default if it has not been paid for more than 270 days. Once default occurs, repayment plans like IBR and ICR aren’t available anymore and the student lender can (and will) tack on a 25 percent collection fee to the balance. The lender can then garnish wages, etc. If a loan is in default, your best bet is rehabilitation. To rehabilitate the loan, the borrower makes “reasonable and affordable” payments for 9 out of 12 months. Once these payments have been made, the loan can brought back out of default. Once it’s out of default, ICR and IBR are on the table again.

3. Discharge outside bankruptcy.  A federal loan can be administratively discharged by the U.S. Government for a few reasons. These include things like the borrower becomes totally disabled or the school closes while the borrower is attending. These debts are discharged by a borrower submitting a form to to the lender.

4. Private student loans are a whole different story. Private student loans have hardly any of the protections that a federal student loan borrower has. If a borrower goes into default on a private loan, his best bet is just to negotiate with the lender for an affordable payment plan. On the other hand, private student lenders have to sue you to collect their money, while federal lenders can skip the legal process and go right to garnishment.

5. Discharge in bankruptcy. Contrary to popular belief, student loans can be discharged in bankruptcy, but it’s not always easy. A student loan can be discharged if paying it would cause “undue hardship” to the borrower. It’s not totally clear what this means, since different courts have interpreted this in different ways, but it’s definitely something more than just not being able to afford to pay off loan on a borrower’s current income. A borrower generally has to show that she will never be able to pay off the loan to have it wiped out in bankruptcy.

6. Payment plans in Chapter 13. One last option for borrowers struggling to pay private loans is Chapter 13 bankruptcy. In Chapter 13, a borrower can force the lender to enter a repayment plan over a five-year period.  This can be necessary where a borrower is being sued and the lender is demanding the full amount to be paid at once “or else.” The downside to this approach is that if the court-ordered payments are low enough, interest will accumulate faster than it’s paid off and the borrower will owe more at the end of the five years.

We can help explain any of these options to you. Get in touch if you want to discuss how to deal with student loans.

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Changes to Minnesota court rules affect debt collection lawsuits

On July 1, 2013, some pretty significant changes to the Minnesota Rules of Civil Procedure went into effect. The amendments deal primarily with the initial stages of litigation and could have a big impact on debt collection lawsuits here in Minnesota. The full text of the amendments can be found here.

Cases must be filed within one year of commencement

The new rules require that all civil cases served after July 1, 2013 must be filed with the court within one year of the date of service. Under the old rules, there was no deadline for filing the case with the court. Now the plaintiff must file the case within a year of serving it or it will be dismissed with no opportunity to refile.

I’m sure that the debt collection law firms have put procedures in place to ensure that all cases get filed within a year, but it wouldn’t surprise me if some cases fall through the cracks and don’t get filed. This would be a huge win for a consumer, because if the case is dismissed with prejudice (meaning no right to refile), it can never be brought again.

Mandatory initial discovery disclosures

Another big change involves the way that the early stages of the case proceed. Under the new rules, the parties must make mandatory discovery disclosures within 60 days of the initial due date of the answer. The new rule requires the parties to disclose (1) the name of all persons with discoverable knowledge in the case, (2) a copy of the documents that relate to the case, and (3) the plaintiff must provide an itemization of damages.

I’m interested to see how the debt collection attorneys respond to this rule. Typically, they don’t have access to any documents from their client at the early stage of the case. I think they could comply with the new rule by disclosing what they have and updating later when they receive more documents. I had initially hoped that the this new rule would eliminate the need for extensive discovery later in the case, but that will only happen if debt collection attorneys take the spirit of the new rule seriously.

Mandatory early discovery conference

The parties are required to meet and confer within 30 days of the initial due date of the answer. The purpose of the meeting is to discuss the discovery phase of the case and to prepare a written report to the court that contains the parties’ discovery recommendations. Under the old rules, no such meeting or report was required.

This discovery conference is unnecessary in most consumer debt collection cases. There are rarely discovery issues to be discussed and discovery disputes are pretty rare. I think it’s a good idea in other types of cases, but in debt collection cases it’ll only add to the cost of litigation without offering any meaningful benefit.

Optional court discovery conference

In addition to the mandatory discovery conference between the parties, the new rules give the court the option of having an early discovery conference with the judge.

I suspect that most judges will forego this conference in debt collection cases, but I could see some judges using it as an opportunity to get the parties together and urge them to settle.

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Watch out for fraudulent transfers in bankruptcy

A fraudulent transfer is a transfer of property before filing bankruptcy that may get you in trouble. If you’ve given away or sold any property in the six years before filing a bankruptcy case. you might be on the hook after your bankruptcy.

1. When you’re actively trying to screw your creditors. An actual fraudulent transfer is where the bankruptcy debtor transfers property actually intending to evade his creditors. So for example, a bankruptcy filer gives away a car to her nephew three months before filing bankruptcy because she doesn’t want her creditors to be able to seize it. That may be a fraudulent transfer. And the bankruptcy trustee can go after the bankruptcy filer and her nephew to get back the car (or the cash value of it.) An actual fraudulent transfer can also result in the bankruptcy discharge being taken away.

2. When you’re not trying to screw your creditors, but do it anyway. A constructive fraudulent transfer is where the bankruptcy debtor gives away property and doesn’t get fair value for it. So the bankruptcy filer isn’t trying to evade creditors, but sells her car to her nephew for $1,000 when it’s really worth $10,000. The bankruptcy trustee may have a claim against the filer and her nephew for the remaining $9,000 value of the car. Because this kind of transfer isn’t made with bad intent, it won’t be a basis for taking away the bankruptcy discharge. The trustee must show that the bankruptcy filer (1) was insolvent; and (2) didn’t get fair value back for the transfer.

3. The person who received the transfer may also be on the hook. The bankruptcy debtor isn’t the only one who can be chased by the trustee for a fraudulent transfer. The person who received the goods can also be sued. The best defenses the recipient may have are (1) that the property wasn’t actually worth anything in the first place; and (2) the transferee accepted the property in good faith and gave back fair value for the property.

4. The trustee can look back six years to find fraudulent transfers. The bankruptcy forms require a filer to disclose any transfer made within the two years before filing. However, the trustee can go after any fraudulent transfer made up to six years back. So people who have a fraudulent transfer in their past often wait until the time limit is passed before filing a bankruptcy.

We deal with fraudulent transfer issues all the time. If you have questions about a fraudulent transfer you made before your bankruptcy, or if you’re being sued by a trustee, get in touch.

An overview of a typical debt collection lawsuit in Minnesota (and some tips for how to deal with it).

Dealing with a debt collection lawsuit can be a scary and confusing process, particularly in Minnesota where the initial stages of the case often take place outside of court oversight. My hope is that this post can shed a little bit of light on the debt collection litigation process and allow you to make a more informed decision about how to get your case resolved as quickly and painlessly as possible.

Before we begin…

First, reading things on the internet is not a substitute for consulting with or hiring an attorney. A blog post must necessarily be generic, but your case involves specific facts and circumstances that require specific legal advice. Don’t rely on this, or any post, on the internet when faced with a collection lawsuit. It’s best to consult with an attorney with experience defending debt collection lawsuits in your state at the very beginning of your case. I know this advice sounds self-serving, but I’ve been handling debt collection lawsuits for over 7 years–3 years on the creditor side, 4 plus years on the consumer side–and it’s extremely, extremely rare for a consumer to win in court without hiring an attorney. I know that money is a concern, but many consumer attorneys offer flexible payment options to make it affordable for consumers to get help for a debt collection lawsuit.

Second, this post describes the basic steps of a collection lawsuit in District Court in Minnesota. Every state has different laws and procedures and what happens in a Minnesota lawsuit may be very different from what happens in a collection lawsuit in another state. If your collection lawsuit is not in Minnesota, then this post will not help you at all and you shouldn’t rely on anything I’ve written here. And if your case is in Minnesota Conciliation Court, or small claims court, then the steps are different than what I’ve described here.

Step 1 — Service of the Complaint

In Minnesota, a debt collection lawsuit begins when the consumer is served with a copy of the Summons and Complaint. The Summons is a notice that a lawsuit has started and contains basic instructions about what to do next. The Complaint details who the parties are and what claims are being made. The Summons and Complaint are not required to be filed with a court and most debt collection lawsuits will not be filed with the court at the time they are served. Accordingly, the Summons and Complaint will not have a court file number on them. There is a lot of information on the internet that suggests that a Complaint without a file number is not valid. This may be true in other states, but it isn’t true in Minnesota.

I’m often asked what it means to be “served.” Served essentially means “notified.” In Minnesota, the most common way to serve a defendant with a Summons and Complaint is to personally hand it to the defendant. Another common method of service is to hand the Summons and Complaint to a person of “suitable age and discretion” that lives with the defendant. This is usually a spouse, older child, or roommate. In Minnesota, it’s possible to serve a Summons and Complaint by mail, but the defendant must sign an acknowledgment that they’ve received the complaint or it’s not effective service. It’s also possible to serve a defendant by publishing notice of the lawsuit in a newspaper or similar publication, but this is very rare in collection cases.

Step 2 — Answer the Complaint

Once a lawsuit is served, the defendant has 20 days from the day he was served to respond with an Answer. An Answer is a formal, written, legal document that specifically responds to each of the allegations in the Complaint and lists any defenses that the defendant has. Phone calls or letters are not considered Answers under the court rules.

If the defendant does not answer a lawsuit within 2o days of being served, then he is in default and a judgment may be entered against him. In a debt collection case, a default judgment is a final court order that the consumer owes the money. A default judgment is granted not because the creditor has better evidence or arguments, but because the consumer didn’t participate. It happens administratively and no judge will ever see the case. If you want to protect your rights and force the creditor to prove its case in front of a judge, then you must answer the lawsuit within 20 days of being served.

Step 3 — Discovery

Assuming that the consumer answers the Complaint properly, the next step in a debt collection lawsuit is discovery. If the case has not been filed with the court, there is no explicit time frame for discovery to happen and the parties are free to serve discovery whenever they wish. Once the case is filed with the court, the court will issue a deadline for discovery to be completed by.

Discovery is simply an opportunity for the parties to exchange information about the claims and defenses involved in a case. Discovery is not compulsory and a party is only required to provide information if they’re properly asked. The most common forms of discovery in a debt collection case are Interrogatories, Request for Production of Documents, and Requests for Admission. Interrogatories are basically just questions that one party asks of the other. Requests for Production of Documents, as the name implies, requires that certain documents related to the case be produced. And Requests for Admission are essentially true or false questions about the claims or defenses in the case.

To request discovery, a party has to properly serve their Interrogatories, Requests for Production of Documents, or Requests for Admission. Written discovery is usually served by mailing the requests to the other side. The other party then has 30 days from the day the discovery was served to respond fully. Simply mailing a letter to the other side asking them to provide information about the case is not sufficient and doesn’t trigger the other side’s duty to respond.

Requests for Admission are probably the most critical part of discovery, because if they are not responded to within 30 days, they are considered admitted. Creditors write their Requests for Admission carefully so that if the consumer doesn’t respond to them, they will end up admitting each element of the creditor’s claims. I’ve seen cases where the only evidence that the creditor put in front of the judge was the consumer’s failure to respond to the Requests for Admission.

The bottom line: if you receive discovery requests, you must truthfully respond to them in writing within 30 days. If you don’t, you risk losing your case on a technicality and being penalized by the court. And if you want to ask questions of the other side and see what documents they have, you must mail them proper discovery requests. If they don’t respond within 30 days, you can ask a court to make them respond and penalize them if they don’t.

Step 4 — Summary Judgment Motion

The next step in the majority of collection cases is the creditor’s summary judgment motion. This is a hearing in front of a judge where the creditor will offer all of its evidence and legal arguments and ask the judge to give them a judgment. Defending a summary judgment motion is a complicated and involved process, but essentially it requires the consumer to file a brief with his legal arguments, any written testimony that he wishes the court to consider, and any documents that he wants the court to review. There is a hearing where the judge will have an opportunity to ask questions of both sides. The judge then considers all of the arguments and evidence and decides whether the creditor is entitled to a judgment. If the judge rules in favor of the creditor, a judgment is entered and the case is over. If the judge rules against the creditor, then the case will proceed to trial.

Defending against a creditor’s summary judgment motion is probably the most difficult thing for a consumer to do himself. There are a myriad of rules, procedures, and deadlines that must be strictly followed. Many summary judgment motions are won by the creditor on a technicality rather than on the merits. For this reason, a consumer faced with a summary judgment motion should strongly consider hiring an attorney. If you want to hire an attorney to help you at this point, you should hire one immediately after getting notice of the creditor’s summary judgment motion. There are strict deadlines to file your response and an attorney will need as much time as possible to get up to speed. Don’t wait until the week before the hearing to call an attorney.

Step 5 — Pre-Trial and Trial

If you’re fortunate enough to defeat the creditor’s summary judgment motion, the case will proceed to trial. The judge will issue detailed instructions about the time leading up to trial. There are so many variables at this point that it’s difficult to describe all the potential scenarios. If you get to this point, you would benefit greatly from discussing your case with an attorney. You have a great deal of leverage to get the case resolved if you defeat the summary judgment motion and an experienced consumer attorney can help you maximize that leverage to get the best possible outcome.

A word about settlement

At any point in the process described above, the parties may agree to settle the case. Usually, this means that the consumer will pay an agreed-upon amount of money and, in exchange, the creditor will dismiss the lawsuit. The amount of money that the creditor will agree to settle for depends on many factors, but generally speaking, the better your legal defenses, the better deal you can get. An experienced consumer attorney will be able to advise you about what a reasonable settlement is in your case.