0:11
Hello, everybody. This is a second tutorial on how to respond to a debt collector. And the reason why I want to explain this is so that you at least have some basic understanding of what's going on. If you're in the situation where you get sued by a creditor or a debt collector in this case, it's a debt collector, so it's a little bit different than a creditor.
0:31
It's also the same plaintiff. As, in the other case, I showed you two different state different person. but it's LV NV Funding. This is a third party debt collector, is not in the lending business. It has to acquire the rights, and they never do it actually, legally, So, they really don't have, if you had a fair core system, there's no way that they can actually win.
0:49
But what you really want to do is, there's some technical understanding here, but then, also, and the background you want to make yourself uncollectible anyways, assuming that they win. Right. And I'm not saying that the wind makes it justifies the collection or that it's valid.
1:04
It's not the whole thing is a fraud, but this is the nature of where we are today.
1:09
So, you don't want to spend a lot of time and money, uh, and frustration, and try to win a case in court, because you can, you can take it to the trial court. And you can go to the Appeals Court, You're gonna end up in the appeals court. Just like, if you want to win a traffic ticket, you're pretty much going to have to go to the appeals court, OK? Who wants to do that? It's a waste of time. I'm not even going to do that.
1:30
So, I'm going to show you the very basics, how to respond to a lawsuit and help you understand what is going on and give you some language. So let's look.
1:38
I'm gonna do a screen share right here and I'm just gonna got both right here. So here's your Here's your complaint I'm talking about.
1:45
This is your elvie envy creditor complaint.
1:48
We just widen that screen a bit.
1:52
All right. So there's your. This is called your Court title, OK, all this stuff at the top of the screen.
1:57
State of Minnesota, 10th Judicial District. All this is called your court title.
2:02
This here, where the names, the parties and the case number. Now, in this case, there's no case number because just the way the rules work in filing new lawsuits.
2:10
So, this is called your, the caption.
2:14
All right. So you got the court title on the top, you got your caption in those boxes.
2:18
Then you've got a summons here.
2:20
And in the summons, it should tell you that you have so many days in which to respond. In this case, it's 21 days, as you can see down here.
2:28
So, it's telling me you got an answer or whatever now you can answer. Or you can file something known as a well, I called responsive, pleading. I think most of the rules call it a responsive, pleading, something that responds to the complaint.
2:42
I'd like to do a motion to dismiss and I'll show you why.
2:44
So here's what we do so Elvia NV.
2:47
They write this complaint and says, Complaint.
2:53
and it says, Defendant was issued alone by Wetback, OK?
2:59
Well then why is LV MD suing?
3:02
Got a problem there.
3:03
There's gotta be some next behind Web Bank and Elvia Andy. And then there's gotta be some nexus with the defendant.
3:10
There isn't, but again, the whole thing is a money laundering system, anyway, so, just want to point that out. So then you go into Elvia Envy and they're saying it owns the account.
3:19
And this is a successor, an interest.
3:22
But, there's no evidence of that and it just can't all of a sudden just own the account, that'd be like, if your neighbor had a really cool card, you just went over there one day and said, I own this car.
3:31
Well, no one's gonna stand for that, right. So but these guys, they have their own little system and that's what they do.
3:38
Then we're going to say it's going to say well the defendants in default.
3:42
So there's going to be no evidence supporting this, OK. There's gonna be no credit agreement, no, no default terms, but of course they're gonna lead to this OK.
3:51
$18,000.
3:53
And, of course, there's the demand for as much money.
3:57
Oh, gosh. It costs $3000 to write up this document.
4:02
I doubt it.
4:03
So this is the exhibit that was attached to the complaint, and this was a bit different than the one I showed you before. The other one didn't have any exhibits. So this one has an exhibit.
4:12
And it's calling the debt obligation promissory note, a loan agreement.
4:18
And promissory note says, right at the top there, It's got the names of the parties, Web Bank Care, avant. That's interesting.
4:27
Then we come into the terms, your percentage rate, this, I'm out financed, OK? All that stuff, right?
4:37
Amount financed, here's how we itemized it.
4:39
Other provisions bunch of gobbledygook, nonsense, OK, we don't need to talk about that Promise to pay.
4:46
So here is purportedly a promise to pay like, remember where I just said, there's no promise to pay well, if this is with Web Bank, where's the promise to pay LV envy and where is the defendant named?
4:59
Where is evidence of the definitive expression of his or her will to agree to this, to consent to these terms, is not here.
5:06
So it's a copy of an example credit agreement that has nothing to do with this case. This is the kind of the Layman's way of explaining this, OK, This is how you analyze the debt collection lawsuits.
5:17
And, this is your typical is your typical terms, now. There's Governing Laws in Utah and all this stuff. OK.
5:22
Um, the governing laws in Utah.
5:26
Then, why is it being filed in Minnesota?
5:31
That has to assume that the contract is valid in the first place, and so, you'd have to make that argument. You're going to have to say the contracts valid. Well, you can do that in A Motion To dismiss because when you file a motion to dismiss, you're admitting everything in the complaint, which is fine because you can admit everything. You can say, well, judged if I admit everything in the complaint. Let's say I did everything the complaint. The plaintiff still doesn't have the right to sue me, because XYZ, that's what I'm going to show you how to do right here, OK?
5:56
Now, let's say the judge denies the motion, which is 90% of the time the judges do that.
6:00
You would file and answer that.
6:02
Now, the answer, you can deny the allegations and you didn't miss anything. Even though you admitted them in the motion to dismiss, you can then deny them and the answer. You can also bring up the same legal arguments in your answer and those are called affirmative defenses. And I'll explain that again. Anyways, I'm just looking at the facts here.
6:19
They said, Web bank was the lender then prove all of a sudden LV and V gets involved.
6:24
And then what we had these, these credit terms, then we scroll down here, your typical credit terms, give up all your right provisions, right?
6:39
Um, then we have the I look for this, the arbitration clause.
6:47
So we have an arbitration provision. Now, I'm very careful to look these I want to make sure that there's not an arbitration provision where the only way to initiate a dispute resolution is through binding arbitration, meaning binding, meaning once you go through arbitration, you can't bring the issue again from the beginning on the merits to the Court. You can only ask the Court to confirm the arbitration award. Alright.
7:07
So in this case, it says that your arbitration provision, your waiving your right to a trial by jury trial. And you're waiving your right to a class action. Now, you can opt out of this at the very beginning. Most people don't do that. So I get the cases at this point, and it doesn't matter anyways.
7:24
But what I want to make sure is that arbitration is an option and not binding. So it's an option, then it changes the way I'm going to write my motion.
7:33
If it's binding and they go to Court first, I'm going to argue that the contract was subject to binding arbitration, and therefore, the Court doesn't have jurisdiction. You've. You've heard a video played a video on that before in this case.
7:47
Um.
7:50
You can opt out.
7:51
Rate is telling you you can opt out right here, But, again, the client didn't do that.
7:57
But if we scroll down, we're going to find out.
8:04
Either party may bring a lawsuit in court if the other party does not demand arbitration before or after the lawsuit is brought.
8:10
So it's an option, the way it's worded here, you can either go to arbitration, and if you do that, you waive your right? to have the Court here, the merits. The Court can confirm an arbitration award, but that's it. If you go to Court first, that's all good to OK.
8:24
According to this provision of the contract, see? Says If a dispute is arbitrary.
8:31
There you go. See what you're waving.
8:34
All right.
8:35
Anyways, now that we've looked at that, and now I'm so I'm looking at to see if there's an arbitration provision that's exclusive to arbitration.
8:43
This one is not: you have the option to go to court or arbitration first.
8:48
Not mutually exclusive.
8:49
Well, they aren't mutually exclusive, But not you're not required to do only one like arbitration. I'm also looking to see what the credit terms were. I'm also looking to see what the names of the parties were.
9:00
So far, I've seen Web Bank and I have not seen LD MD. In this contract, assuming it's even ballot, and I've not seen the defendant, I mean, her name was up here somewhere.
9:11
But that doesn't mean she can send these terms. There should be some expression. like, here, it says, customer signature.
9:16
So, well, you could argue and say, Well, that's the customer's signature. Well.
9:21
How is it? How do I validate that? Who's going to authenticate this? Here's the problem of planer patch.
9:26
If you say that's not my signature, the plaintiff then has the burden to prove that it is your signature because it alleged it was your signature, right?
9:34
So in order to do that, the plaintiff has to produce a witness that can they can testify under oath that he has personal knowledge, witnessing the execution of the signature.
9:44
That's never, so it's worthless.
9:48
If you understand that, if you don't, you waive it, and the Court will take silent judicial. Notice that you consented.
9:55
And then that is your agreement to whatever all these pages already say.
10:00
So you want you want to object at some point.
10:03
We're not there yet. I'm going to show you because we're going to do a motion to dismiss, and we're not here. We're not we're not ready to really talk about the merits of the case.
10:10
Um, I just want to give you the full view of this, right, so we go all the way back up, just to get back on the thing. So now what I want to do is understanding this overview, that I've just review the case, and I'm like, OK, I see what's going on here.
10:25
I'm looking at the complaint. I'm seeing what they're alleging.
10:29
So it alleges here.
10:31
L: The envy owns the account. Alright, so it doesn't say anything else. Like, on what date did acquire ownership. What were the terms? Are they did the seller, the seller, and confirm that, did the seller waive all its claims and rights under the contract? or did you only by purchase certain rights under the contract? I don't know what we see. These are not allege. So, how can I be expected to make a pleading to either admit or deny when it would be to my detriment to do so?
10:57
So in that case, I would ask the Court to dismiss the case because it doesn't state enough allegations.
11:02
It doesn't sufficiently allege a cause of action, which is not a fancy way of saying the Court doesn't have jurisdiction.
11:08
So, if I flip over here to my already written motion to dismiss in this case, I was a bit late on getting the thing back. So, we asked for more time and that's how you do it.
11:18
I just said, basically, we want to leave to, if there is a default entered, I don't know, I think this case they didn't even file with the court for.
11:26
So, I just do this as a as a precaution cautionary method measure.
11:32
But, you can see here, there are, There are four criteria for asking for more time to answer, in other words, to answer a complaint late.
11:39
So, don't stress out, if you're like, I've even answered up to 60 days late on a civil case like this.
11:43
And I've answered 14 months late on a federal lawsuit, even with the IRS, and the judge accepted it, you just have to ask a certain way.
11:52
So, these are the criteria A, B, C, D, I'm not going to go through and read it to you, say, that's not important here. So what is important is, I do like to make a special appearance, or even know how that factors in anymore, because I think everybody ignores that. In fact, I think the judges running a competent anymore.
12:07
Anyways, I like to call it my motion to dismiss a verified motion to dismiss. And at the very bottom, I like to verify and say, I'm making this motion in, good faith.
12:15
That's just my style. You don't have to do that. But, I'm going to say that the complaint fails to state a cause of action, OK, or a claim upon, which really can be granted.
12:24
And for the reason, you have to give them a reason that the exhibits attached to the complaint conflict with the material allegations of the complaint or they fail to allege things like an exhibit is an allegation, a statement.
12:36
Like, if we go back to the complaint, this right here.
12:39
that is an allegation, OK, number two, that is an allegation.
12:46
An exhibit is an allegation, I would argue is that the complaint fails to include an allegation, establishing when LVAD acquired the rights.
12:58
Ownership rights out of the account.
13:00
It even fails to allege that the account even existed with Web Bank because, for all we know, they just made up the name, Web Bank or for all we know, they're lying.
13:10
They didn't acquire an account from Web Bank. They just claimed that they did, there's no third party verification authentication here. And this is something we would get into during discovery, you see. So, what we want to do from the beginning is say, because you didn't say these things that are material, they're necessary, they're important.
13:24
How can I admit or deny without without waiving some rights or are doing so to my detriment?
13:33
So that's why we get into this motion to dismiss, or, here's how my, my, my language is, assuming everything's to be true here. The exhibits attached to the complete our exhibits on which the complaint is based, but they tell a different story than the allegations in the complaint.
13:44
The exhibits conflict with the bleeding, specifically, the defendant not identified in any they exhibit, boom, that's what I was telling you before, C: Because of that, the exhibit is not relevant as furthermore, none of the exhibits represent instruments that have ever been executed by the defendant nor even contemplated.
14:01
How can someone be held to something, some terms, which there's no evidence that he ever even considered them?
14:09
None of these exhibits have been served upon the defendant, right.
14:11
He's never seen this before, He never had a chance to object is the first time he's ever seen A, I always say that The field, the plaintiff has failed to notice the defendant any of these exhibits. Now, if you go back and look at the contract, you'll see in there.
14:23
It says in there that they have to try to work it out.
14:27
So, that would if they didn't have to allege that I see and they didn't. So, these are, these are important points and by all, measure, the judge should actually grant the motion. But what I'll do is if the grants, the motion who ordered the plaintiff to amend the pleading and then the plaintiff will just cure the defects and then we'll just move on, you know. But that's how it works.
14:44
So The plaintiff has failed to allege any underlying data that would give rise to any Cognizable, call it a cause of action.
14:51
any Cognizer, that means anything the Court could conceivably have the right to hear, Cognizable, yeah.
14:59
The complaint also fails to laser plaintive is a bona fide assignee.
15:02
Mean we can probably, I could have probably added 7 or 8 more different reasons why that states fails to state a cause of action. I kinda was lazy here because it doesn't matter, because more than likely, the judge is going to deny the motion, in which case we're going to do an answer and India in the affirmative defenses. And that's what I'm going to tear apart the complaint.
15:20
OK, so I'm already expecting that.
15:22
The cleaning fails to comply with the rules regarding items alleging the complaint to be included as exhibits where the complaint. I don't know what the rules say, I just made that up.
15:30
You see how this works?
15:33
I love to describe the exhibit's as just pieces of paper, with words on them.
15:39
There's no substance there, OK.
15:40
And then here's my verification, I did, sign it, and then we get into, You gotta have this certificate of service. You got to certify that, It was mailed in a certain manner to the attorney fees, are, now do not name the law firm. The law firm should never be mentioned, ignore the law firm. You only name the individual attorney. That signed the pleading.
15:59
And if you go back here, we find that person is at the very bottom of the complaint, whoever sign here in his name is here OK.
16:08
We want we mark it out That is the attorney of record and that is the only turning we're dealing with. We're not dealing with this law firm this PA type deal OK. We ignore all that.
16:18
So.
16:21
Then, we give the judge a proposed to her, right? It's called an Order.
16:25
It makes it easier.
16:27
This matter, having come before the Court, the Court thought about it. And here's the Court's order. And, you know, this has to be changed.
16:34
Whatever you guys going to do there, the judge will change that if he wants, Then that goes to the attorney and a copy, so when the judge signs it, if he does use this form, you will send one to each party. Now, what does this do? It keeps you out of court, Huh?
16:48
It keeps you out of court.
16:50
Yeah, when you file a motion to dismiss, you're saying The court doesn't have the right to proceed and so as of that moment the Court does not have the right to proceed unless the court decides that it does That's how it works.
17:02
The moment the judge denies this motion, if he's going to deny it, the burden is then on the defendant to respond with an answer.
17:09
So, you would file an answer and generally, I would just deny each and every allegation complaint, which is like, What, five or something like that?
17:18
And we get into that.
17:19
Deny, Well, deny one, denied to deny three. I'd even read them, who cares, Deny four.
17:26
Then, for anything I forgot to deny, and I didn't admit, I'm a deny it. That's how I do it, OK? That's That's the answer. Now, the affirmative defenses.
17:35
We spoke about this before. And I don't have an example here, but basically, the affirmative defense is, the complaint fails to say a cause of action, for all the things I already said on my motion to dismiss, plus the things I didn't feel like saying.
17:48
Then we get into discovery, Which, by the way, I mean when you start looking at this, these exhibits are not that you're going to be skilled at this, but you start looking at it.
17:55
Like, for example, if the if the, if the, the contract they're saying is the contract, the, the controlling law here is going to be the state of Utah.
18:08
Well, then why is it being filed in Minnesota?
18:12
So with that, what does it do?
18:14
Well, then maybe the court doesn't have jurisdiction or proper venue.
18:16
So maybe you'd be entitled to summary judgement or maybe you could file a new motion to dismiss based upon jurisdictional defect that wasn't never cured, right? Or are never brought up? And by the way, jurisdictions never wake.
18:31
So if you brought it up later because you just discover something well, then the court's going to have to accept that the Court can't act as if it has jurisdiction when it never did, have jurisdiction. So, for example, let's say the court goes through the whole proceedings, and you lose. And then, just dawns on. You or a curse, your cursor to the court, that the court didn't have jurisdiction.
18:48
Well, the Court can dismiss the case, even though the cases already adjudicated, the court can set aside its order and or dismiss the case, and make it up of no consequence to anyone and nobody.
18:58
All right. You can file a motion to dismiss after the case is over, even though you didn't appeal it.
19:05
And usually, within a year, after the cases, as, as a judgement, is reasonable. But you can do it even further, because jurisdictions never wait.
19:14
That argument is never waived.
19:17
I like to make it as soon as possible, because I have better things to do with my time, Right? So that's the idea. But anyways, I just want to share that with you all. And so what you do is you write the motion to dismiss certificate of service. You send to the attorney, and you send to the clerk of the court. In this case, I am send it to clerk of the court, even though I don't think, as far will the clerk.
19:35
I had to look up the clerk of the court and the address just to, just to cover it just in case it was filed with the clerk. I'm not sure.
19:40
Some states, you don't file first with a court, you send to the opposing party. So.
19:47
Anyways. I hope that enlightens you a bit, and you can see my forms, You're welcome to copy them. And there's a lot more, if you guys are inclined to fight a case, I would love to take a case as an example and show you, you've got, you know, after this. You've got your answer, an affirmative defense. In my personal strategy that I like to use, is, once I ask the complaint with my answer, I start discovery. And the discovery is written based upon what I'm looking at in the complaint.
20:12
I pick apart every little weakness, and I phrase a question that exposes that weakness all intended to show the court why there's no cause of action, OK?
20:21
Or why the complaint wasn't properly written, or why they're at the proper party, or whatever, right? So, you do an answer if you have to, If it's your motion is denied.
20:29
You do an answer from the fence start discovery, which includes questions. Those are called interrogatories. You can also ask them to admit certain facts is called requests for admission.
20:40
And then you can ask for production of documents. You can also take a deposition, which I usually don't recommend because they're costly. You can also do a depositional written questions.
20:48
Don't really need to do that. Interrogatories usually work pretty well. And the purpose of it is that you want to start discovering first so that you can then ask for summary judgement later.
20:58
And I use these terms so that you can just look them up on the Internet lookup summary, judgement on rural 56 or the federal rules of civil procedure.
21:05
It'll give you an idea of what that thing is all about, OK? You can even find the history of summary judgement.
21:12
I can tell you that summary judgement is overused and abused today just because our, our court system is so corrupted.
21:20
It does not serve our interests. It only serves the interests of banks.
21:23
In fact, I think our core system is a bank, it's a banking system, So in any case, that's how it goes. I do have one case, I have to admit, in my 30 years of doing this work, I do have one case, just recently I decided to appeal it.
21:35
It was a credit card case, just because the judge clearly made a mistake, and he knew he knew better, and I just felt like it's not something we should let go.
21:43
So, we went ahead and appealed it anyways. I don't really recommend that.
21:47
What I recommend is not being collectible, not being you know, you want to be in a situation where it doesn't matter if somebody gets a JSON because once you deal with one possible credit or one actual predator that suing you, you've dealt with everyone else who may want to sue you. That's an unsecured debt.
22:02
It's very efficient.
22:04
Alright, thanks for watching!