Preparing for Your Court Date
DIY Debt Defense - Defending Creditor Lawsuits
Step 2: Preparing for Your Court Date
You have received a summons and complaint and you filed your answer.
What should you do next?
Step One: Confirm the Date and Time of Your Appearance
After you file your answer, the court will mail you a notice with the date and time of your first court appearance. If you don’t receive this notice within a few weeks after you file your answer, you should call the clerk’s office and ask whether your court date has been set. You’ll need to provide your name and case number.
DO NOT miss your first court date, because the court will enter a default judgment against you If that happens, you will have the difficult job of trying to convince the judge to set aside the default. You’ll have to file a motion to set aside and make extra court appearances and you will have made the whole process much more difficult.
Step Two: Gather Your Evidence
If you want to submit evidence in support of your defenses, now is the time to gather and organize it. For example:
- If you were served at the wrong address, you should get proof of your address at the time of service. The best kind of proof is a copy of your lease or a utility bill or a letter from a government agency, such as the Social Security Administration, HRA, or Medicaid.
- If you are an identity theft victim, you should get a police report.
- If you have paid the debt, you should gather proof of payment like cancelled checks or insurance letters and payoffs. If you have paid the debt once already you should contact me ASAP because that violates State and Federal law and the creditor / debt buyer should have to pay your legal expenses in defending a frivolous action.
- If the debt was discharged in bankruptcy, you should gather your bankruptcy records, especially the schedule F and creditor matrix, the list of debts to be discharged and your proof of discharge.NOTE: if your debt was properly listed in your bankruptcy papers then the creditor and or debt buyer may be guilty of violating the bankruptcy discharge injunction in your case. In which case you may be entitled to damages and at minimum your legal fees in defending such a frivolous collection action. TALK TO A CONSUMER / BANKRUPTCY LAWYER ASAP. You’ll have a much easier time of it with a consumer lawyer at your side.
- If you have exempt income, bring proof of the source of your income, such as an award letter from Social Security or Worker’s Compensation. You should also bring your last three bank statements showing these exempt income deposits was your only income. REMEMBER, IF YOU CO-MINGLE exempt funds with non exempt funds the creditor will be able to argue that it is entitled to the non exempt funds.I advise my clients to file an sworn statement/affidavit with the court stating the only income they have is exempt from collection and attach their last three bank statements as proof. I have provided this affidavit of exempt funds in the free materials on my web site. Use it. If the creditor attempts to garnish your wages after being served with a copy of the affidavit and your bank statements CALL ME ASAP because that’s an illegal garnishment. You do this even if the creditor has already obtained a judgment against you and is now attempting garnishment of your exempt assets.
Don’t worry if you do not have evidence to submit. In credit card cases, it is very common for the defendant not to have any evidence at all. Remember that the plaintiff has the burden of proof. That means it is the plaintiff’s job to come forward with proof that you owe the debt, or the case must be dismissed. Also remember that your testimony under oath is also evidence which will win the day if the plaintiff can’t come up with its own evidence to rebut it.
Step Three: Make a Decision About Settlement
At your first court date, the plaintiff and the judge will ask you if you want to settle the case by making a payment agreement. If you really owe the debt (and the plaintiff can prove it, AND THAT’S A MIGHTY BIG “IF”), then you should prepare for this moment in advance by deciding whether you want to and can afford to settle the case.
If you do wish to settle, you should decide on an amount that is affordable to you. Write your bottom line down (but don’t spill it at the beginning of the negotiations), and bring it with you to the court date. There is also a Michigan State income / expense form to calculate what you have left over at the end of the month. I’ve put it on my website for your use in “free forms.” You can look the rest of my website for some helpful guidelines to consider as you decide whether or not to make a settlement agreement.
Step Four: Practice Your Part
Court can be confusing, and you will not have much time to tell your side of the story. Therefore, it is important to pick out a few key points and stick to them. Practice in front of the mirror. Below are some possible points that you might want to make in court, depending on your situation. If you need help deciding what points to focus on, call my office 810 653 3300 and schedule an appointment.
If you have a solid defense: By “solid defense,” I mean a reason why you clearly should not have to pay. Examples of solid defenses are: 1) you were served at the wrong address, 2) you are an identity theft victim, 3) it is not your debt, 4) the debt is past the statute of limitations, 5) the debt has been paid or discharged in bankruptcy, or you do not owe the debt for some other reason. In this case, you should refuse to enter into a settlement agreement and you should assert your defense at every possible opportunity. See Common Defenses to Creditor Lawsuits.
If you feel you owe some money, you can afford to make payments, and you want to negotiate a settlement agreement: You must still assert defenses. But you can use your defenses as a bargaining chip in order to negotiate a lower settlement amount. Remember that if the plaintiff is a debt buyer, it bought your debt from your original creditor for pennies on the dollar, and it frequently lacks the evidence it needs to win the case.
The plaintiff can afford to reduce the amount of the debt significantly and still make a profit. Offer a little less than you want to pay, and be firm. Don’t agree to pay more than is comfortable for you. If the plaintiff won’t agree to your terms, ask to see proof of the debt.
If you feel you owe some money, but you cannot afford to make payments: You have no choice but to dispute the debt. You can honestly dispute the debt if you are not 100% sure either that you that owe it or how much you owe. Many times illegal fees and interest are added to these debts and you have a right to see how they calculated the amount they claim is owed.
You must insist that the plaintiff come forward with evidence that it has the right to sue you and that you owe the amount it has demanded. Most likely, the plaintiff will not have this proof, and the case will have to be adjourned for another day. In the unlikely event that the plaintiff does have some evidence of the debt, ask for an adjournment so that you have time to examine the evidence against you.
What to Expect on Your Court Date
The court will tell you the address of the courthouse, the number of the courtroom, and the time of your appearance. The court is usually crowded for these types of proceedings, and you may have to wait in line to pass through metal detectors and to board the elevators depending on what court you are in. You should arrive early so that you can get up to the courtroom before your appointed time. You should be prepared to spend the entire morning at the courthouse. Most of that time will be spent in the courtroom waiting for your case to be called.
When you find the courtroom, you will see a bulletin board next to the door. The bulletin board has lists of cases that will be heard in that courtroom on that day. Look for your name on the bulletin board to confirm that you are in the right place. Write down the number of your case. Enter the courtroom and sit or stand quietly until the clerk begins the calendar call. Some courts will have a counter where you can let the clerk know that you’re here and then she put your file on the judge’s desk in the order received.
Remember that each court may have slightly different formats to one I’m describing here. It’s a good idea to call ahead of time (about a week before is good) and find out from the clerk just how the process unfolds in that particular court. Best time to call the court is later in the afternoon, after 3:00 when things are not so busy.
The Docket Call
At some point in the morning, the clerk will begin the “docket call.” The clerk will begin by explaining the rules of the court, and then will read a list of cases to verify that the parties are present. Case names are read in the same order that they are posted on the bulletin board. Listen carefully for your name. When you hear your name, stand up and say, “Ready your Honor”. When the clerk says, “marked as ready,” take a seat. Your case will not be heard until after the docket call is finished. If you need an interpreter, be sure to ask for one at the counter when you check in.
Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, you have a right to an interpreter if you need one. It is important that you understand what is happening in the courtroom, so do not be afraid to ask for an interpreter. The court can and will provide interpreters in ANY language.
Negotiating with the Plaintiff’s Attorney
As the morning goes on, you will notice the attorneys in the room (who represent the various creditors) calling out the names of defendants. At some point, the attorney who represents the plaintiff in your case will probably call out your name and ask you to step outside the courtroom. Remember, the attorney represents the plaintiff, and the attorney’s job is to get money from you. The attorney may seem nice, but he or she is not on your side. The attorney will ask you whether you want to settle the case.
Hopefully, you will be prepared for this moment because you will have thought about it in advance and reached a decision. Your job is to stick to the decision you made. If you decided not to settle the case, tell the attorney that you do not want to settle at this time. Do not allow the attorney to pressure you into paying more than you think you can afford.
Remember! You do not have to agree to a settlement. If you can’t afford to make payments or if you don’t owe the debt, you should never enter into a settlement agreement.
If you do not feel comfortable negotiating with the attorney in the hallway, you can always request a conference with court personnel. The court staff cannot give you legal advice, but they will help ensure that the plaintiff’s attorney treats you fairly.
Seeing the Judge
Later in the morning you probably will go before the judge. Not always but probably. Generally, if you and the plaintiff agree that the case should be discontinued or adjourned to another day, you will not see the judge. However, if you and the plaintiff cannot reach agreement, you probably will see a judge. When you go before the judge, the judge will want to hear your defenses and why you do not want to enter into a settlement agreement. You should make the same points to the judge that you made to the attorney. Keep it to bullet points.
We live in a sound bite society and judges are people too. They will appreciate your preparedness and conciseness. If you think the case should be dismissed because you have a solid defense, you do not owe the debt, or the plaintiff lacks evidence, you need to speak up and ask the judge to dismiss the case. Remember to be truthful and respectful, because the judge will be deciding whether he or she should believe you and your story. After speaking to both parties, the judge will decide how to resolve the case.
Usually, the case will be adjourned to another day, and the plaintiff will be instructed to bring proof of the debt to the next court date.
If you were not properly served, you have the right to ask the court to dismiss the case. However, you must assert this defense on your first court date, or you will lose it. If you want to argue that you were improperly served, do not agree to adjourn your case for another day. Instead, tell the court clerk that you want to see the judge.
Ask the judge to dismiss the case for improper service. Some judges do not like this defense as you are present in the courtroom and you did get notice of the lawsuit. Nevertheless, the Michigan court rules clearly set forth the process by which a Plaintiff is to serve the lawsuit and these rules need to be followed in a collection case just as in any other case.
Your Second (or Third) Court Appearance
Your second (or third) court date is likely to be very similar to your first court date. You should follow the same steps outlined above to prepare for your court appearance. If you have a solid defense, you should continue to assert it. You should also continue to ask the plaintiff for proof of the debt. If the plaintiff lacks proof of the debt at the second court date, you should ask to see the judge. Ask the court to dismiss the case for lack of evidence.
The plaintiff never should have filed the case in the first place without adequate proof and now on the second or third court date they still have not show admissible evidence that they own the debt and have standing to sue. The court will decide whether to dismiss the case or give the plaintiff one last chance to get proof of the debt. If you are attending your third court date, and the plaintiff still has no proof of the debt, you should insist that the case be dismissed. Try to get the case dismissed “with prejudice,” which means that it can never be brought again.
Sometimes the plaintiff might come forward with some documentation of the debt, or the plaintiff’s lawyer might give you some additional legal papers. If so, ask the court for an adjournment so that you have time to respond to the documents or papers. Call my office at (810) 653-3300 if you need further advice.
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This guide provides general information for Michiganders who are facing debt collection lawsuits in the Michigan State civil courts. It does not apply to courts outside the state of Michigan. It is not a substitute for obtaining legal advice in your individual case.