Debt Defense Strategies

You have been sued by a debt collector. How should your attorney litigate the case? Attorneys have very different approaches to a debt defense lawsuit depending on their jurisdiction, the applicable court, and the attorney’s own preferences.

One approach is to litigate the case very hard, sending extensive discovery to the collector, filing motions, and raising counterclaims. This approach will often lead to the collector voluntarily dismissing the case, leaving the case in limbo, or at some point bringing a summary judgment motion, seeking to dispose of the case without a trial. When the summary judgment motion fails, the collector may stop pursuing the case.

The opposite approach is to minimize the consumer attorney’s time and pre-trial discovery and just appear at trial and see if the collector is prepared to prove its case. Collectors usually show up with either insufficient or inadmissible evidence, because they are used to an unrepresented consumer either defaulting or presenting an ineffective challenge at trial.

In choosing between these two models, one factor will be local rules. For example, some court rules require the consumer’s attorney to file an appearance prior to trial. Another factor to consider is the necessity for the attorney, prior to the trial, to include the attorney’s name in responses to requests for admissions, to file an answer, or to move to set aside a default judgment.

A consumer’s litigation tactics will also be shaped by the nature of the collector. A debt buyer required to produce admissible evidence proving its case may not be able to do so, or it would be so costly to do produce the evidence that the debt buyer dismisses the case. It is far easier for the originating creditor to introduce evidence supporting its case.

Another factor affecting litigation tactics will be the probability of the consumer recovering an attorney fee. When the likelihood is low, then the attorney may wish to minimize the number of hours devoted to the case, including minimizing pre-trial motions. This will minimize how much the consumer will have to pay to his or her own attorney.

Each case, state, judge, and type of debt is different and can require and entirely unique approach. Whatever the strategy, you can rely on SC Titus to employ the appropriate strategy in your debt collection case.