June 24, 2016

Consumer protection lawsuits in federal court: part 12 -- request for production of documents

Request for production of documents is a type of discovery that instead of asking for written answers (like interrogatories), this request is for paper and electronic documents. You can think of it as "Don't tell me what the documents or videos say, just give me the documents or videos etc."

What can you request with this type of discovery?
Basically any physical item or piece of data however it is stored. Here are examples:

**Emails
**Policy manuals
**Pictures
**Audio files
**Video files
**Inspect land or a building or an office
**CDs
**Thumb drives
**Cloud storage
**Letters
**Paper documents
**Bank records

Who can make the request?
Any party can use request for documents.

Who has to answer the request?
Only other parties -- this type of discovery is for the parties. Now if a non party has documents, we use subpoenas to get their documents and we'll cover those in a different article.

How long do you have to answer a request for documents?
30 days from when you receive the request.

Can you object to the request for documents?
Yes if there is something wrong with a particular request, you can object to it. The obligation is to answer the request as best as you can and only object to the part that is truly objectionable.

What if you don't answer them?
The other side can file a motion to compel.

What is a motion to compel?
This is where the "asking" party tells the court that the other side won't respond or won't respond properly. The court can take away objections, can force the non responsive side to pay for attorney fees, and can take other more drastic action.

What if you just want the other side to admit or deny certain facts and don't care about the documents?
Then you use what is known as a "Request for Admission" that we will discuss in our next article.

We hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts


PS -- the rule for request for production of documents is Federal Rule of Civil Procedure 34. Here is the text of that rule....

Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes

(a) In General. A party may serve on any other party a request within the scope of Rule 26(b):

(1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party's possession, custody, or control:

(A) any designated documents or electronically stored information—including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations—stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form; or

(B) any designated tangible things; or

(2) to permit entry onto designated land or other property possessed or controlled by the responding party, so that the requesting party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(b) Procedure.

(1) Contents of the Request. The request:

(A) must describe with reasonable particularity each item or category of items to be inspected;

(B) must specify a reasonable time, place, and manner for the inspection and for performing the related acts; and

(C) may specify the form or forms in which electronically stored information is to be produced.

(2) Responses and Objections.

(A) Time to Respond. The party to whom the request is directed must respond in writing within 30 days after being served or — if the request was delivered under Rule 26(d)(2) — within 30 days after the parties’ first Rule 26(f) conference. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(B) Responding to Each Item. For each item or category, the response must either state that inspection and related activities will be permitted as requested or state with specificity the grounds for objecting to the request, including the reasons. The responding party may state that it will produce copies of documents or of electronically stored information instead of permitting inspection. The production must then be completed no later than the time for inspection specified in the request or another reasonable time specified in the response.

(C) Objections. An objection must state whether any responsive materials are being withheld on the basis of that objection. An objection to part of a request must specify the part and permit inspection of the rest.

(D) Responding to a Request for Production of Electronically Stored Information. The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form—or if no form was specified in the request—the party must state the form or forms it intends to use.

(E) Producing the Documents or Electronically Stored Information. Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i) A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;

(ii) If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and

(iii) A party need not produce the same electronically stored information in more than one form.

(c) Nonparties. As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.

June 23, 2016

Consumer protection lawsuits in federal court: part 11 -- interrogatories

One common form of discovery is called an interrogatory which means one party in your lawsuit sends the other party a written question (or series of questions) that must be answered in writing.

What is an interrogatory used for?
Interrogatories are used to get information from the other side. So you might ask things such as:

**Identify all calls you made to the Plaintiff, listing date, number called, number called from, substance of conversation, was the call recorded, length of call, etc.

**Explain in detail why you claim the statute of limitation is a valid defense in an Fair Debt Collection Practices Act lawsuit that was filed in 3 months from the date of your first call.

So the basic idea is you ask the other side for information -- sometimes we ask for broad information and sometimes the information is very narrow.

Who can send an interrogatory?
Only a party to the lawsuit. So that is you and the defendant who you sued.

Who can interrogatories be sent to?
Only to another party. So you can send interrogatories to the defendant or defendants and they can send them to you.

No one can send to a person or company who is not a party. For that, we would use subpoenas to get a non party to give a deposition or produce documents.

How long does the other side have to answer interrogatories?
Normally 30 days from when they receive them. In some ways 30 days sounds like a long time but the time goes by quickly and often the answering party wants an extension of time to answer the interrogatories.

And this 30 days is the time to answer or object. A party objects if they think the interrogatory is improper in some way.

How important is it to answer interrogatories?
Very. If you don't, or if the other side doesn't, then a motion to compel can be filed. Objections to a specific interrogatory can be waived if not answered or objected to in time.

How important is it to answer interrogatories completely?
Again it is very important. These answers can be referred to in a deposition and may appear in court filings so you want to make sure you have given a complete answer.

Normally defendants give very vague answers as they think lawyers who represent consumers won't push them on this. Sometimes we don't because their answer will come back to bite them at trial but other times we do push them to make them give us complete answers.

What happens if someone doesn't fully answer an interrogatory?
A several step process happens.

Step one is to write the other side and let them know there is a problem with one or more interrogatory answers. Give them a deadline to fix it and make sure it is clear what the supposed problem is so everyone is clear on this.

Step two (sometimes combined with step one) is to request the other side (through their lawyer) "meet and confer". That is a legal term that means you get together in person or over the phone to try and resolve your differences over the response to the interrogatories.

Federal judges want to know that you at least tried to get the other side to talk about the dispute.

Step three is to file a "motion to compel" which is where the judge is asked to get involved to decide who is wrong and who is right. We'll discuss this a bit later in our series on consumer protection federal lawsuits.

What if you (or the other side) want documents and not just written answers?
You send what are called "request for production of documents" and that will be our next article in our series of blog posts.

We hope this helps and look forward to continuing our series with you.

John Watts

PS -- If you have questions, give us a call at 205-879-2447 as long as you are in Alabama and don't have a lawyer representing you.

Oh and if you want to read the Federal Rules of Civil Procedure (Rule 33), here it is....

(a) In General.

(1) Number. Unless otherwise stipulated or ordered by the court, a party may serve on any other party no more than 25 written interrogatories, including all discrete subparts. Leave to serve additional interrogatories may be granted to the extent consistent with Rule 26(b)(1) and (2).

(2) Scope. An interrogatory may relate to any matter that may be inquired into under Rule 26(b). An interrogatory is not objectionable merely because it asks for an opinion or contention that relates to fact or the application of law to fact, but the court may order that the interrogatory need not be answered until designated discovery is complete, or until a pretrial conference or some other time.

(b) Answers and Objections.

(1) Responding Party. The interrogatories must be answered:

(A) by the party to whom they are directed; or

(B) if that party is a public or private corporation, a partnership, an association, or a governmental agency, by any officer or agent, who must furnish the information available to the party.

(2) Time to Respond. The responding party must serve its answers and any objections within 30 days after being served with the interrogatories. A shorter or longer time may be stipulated to under Rule 29 or be ordered by the court.

(3) Answering Each Interrogatory. Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing under oath.

(4) Objections. The grounds for objecting to an interrogatory must be stated with specificity. Any ground not stated in a timely objection is waived unless the court, for good cause, excuses the failure.

(5) Signature. The person who makes the answers must sign them, and the attorney who objects must sign any objections.

(c) Use. An answer to an interrogatory may be used to the extent allowed by the Federal Rules of Evidence.

(d) Option to Produce Business Records. If the answer to an interrogatory may be determined by examining, auditing, compiling, abstracting, or summarizing a party's business records (including electronically stored information), and if the burden of deriving or ascertaining the answer will be substantially the same for either party, the responding party may answer by:

(1) specifying the records that must be reviewed, in sufficient detail to enable the interrogating party to locate and identify them as readily as the responding party could; and

(2) giving the interrogating party a reasonable opportunity to examine and audit the records and to make copies, compilations, abstracts, or summaries.

June 21, 2016

Consumer protection lawsuits in federal court: part 10 -- initial disclosures

After the parties have met to prepare a proposed scheduling order, then discovery begins and it starts with "initial disclosures" in a federal consumer protection lawsuit.

What are initial disclosures?
These include information and documents that each side gives to each other, without being asked. Almost all other forms of discovery only require a response when the other side asks you for documents or information.

But initial disclosures are given automatically.

What are some examples of initial disclosures?
**List of witnesses

**Documents that support a claim or a defense

**Documents that show damages

**Copies of insurance policies that can pay for a judgment in the case

Why do we have initial disclosures?
The idea is to make sure that there is a basic level of information and documents given to each side. This helps the parties evaluate the case and see if the case is one to settle.

If it is not going to settle right away, then the initial disclosures help the parties to see what is in dispute so that they can do the rest of the discovery process in the best and most efficient way possible.

When are initial disclosures due?
Normally these are given to each other 14 days after the parties meet to discuss deadlines. But often the scheduling order will say something different so it does vary in each case.

In our next article we'll discuss an "interrogatory" which is a common form of written discovery.

We hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

PS -- Here is the relevant text of the Rule 26 of the Federal Rules of Civil Procedure that apply to initial disclosures in case you would like to read this directly from the source:

(a) Required Disclosures.

(1) Initial Disclosure.

(A) In General. Except as exempted by Rule 26(a)(1)(B) or as otherwise stipulated or ordered by the court, a party must, without awaiting a discovery request, provide to the other parties:

(i) the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment;

(ii) a copy—or a description by category and location—of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

(iii) a computation of each category of damages claimed by the disclosing party—who must also make available for inspection and copying as under Rule 34 the documents or other evidentiary material, unless privileged or protected from disclosure, on which each computation is based, including materials bearing on the nature and extent of injuries suffered; and

(iv) for inspection and copying as under Rule 34, any insurance agreement under which an insurance business may be liable to satisfy all or part of a possible judgment in the action or to indemnify or reimburse for payments made to satisfy the judgment.

(B) Proceedings Exempt from Initial Disclosure. The following proceedings are exempt from initial disclosure:

(i) an action for review on an administrative record;

(ii) a forfeiture action in rem arising from a federal statute;

(iii) a petition for habeas corpus or any other proceeding to challenge a criminal conviction or sentence;

(iv) an action brought without an attorney by a person in the custody of the United States, a state, or a state subdivision;

(v) an action to enforce or quash an administrative summons or subpoena;

(vi) an action by the United States to recover benefit payments;

(vii) an action by the United States to collect on a student loan guaranteed by the United States;

(viii) a proceeding ancillary to a proceeding in another court; and

(ix) an action to enforce an arbitration award.

(C) Time for Initial Disclosures—In General. A party must make the initial disclosures at or within 14 days after the parties’ Rule 26(f) conference unless a different time is set by stipulation or court order, or unless a party objects during the conference that initial disclosures are not appropriate in this action and states the objection in the proposed discovery plan. In ruling on the objection, the court must determine what disclosures, if any, are to be made and must set the time for disclosure.

(D) Time for Initial Disclosures—For Parties Served or Joined Later. A party that is first served or otherwise joined after the Rule 26(f) conference must make the initial disclosures within 30 days after being served or joined, unless a different time is set by stipulation or court order.

(E) Basis for Initial Disclosure; Unacceptable Excuses. A party must make its initial disclosures based on the information then reasonably available to it. A party is not excused from making its disclosures because it has not fully investigated the case or because it challenges the sufficiency of another party's disclosures or because another party has not made its disclosures.

June 20, 2016

Consumer protection lawsuits in federal court: part 9 -- discovery process begins

Now is the time for "discovery" which is the biggest part of the case before the trial. This is where the parties exchange information and documents so each side can be prepared for trial and to evaluate settlement options

Despite what we see on TV shows, the big picture idea of trial is not to have surprise witnesses and documents at trial. Instead, both sides are given the opportunity to ask each other questions to find out what each side knows about the case.

Here are the basic types of discovery:

Initial disclosures -- each side must give the other side information about witnesses, documents, damages, insurance, etc. even without being asked to give this information.

Interrogatories -- You can ask the other side to answer questions in writing. Think of this as a written "interrogation".

Request for production of documents -- You ask the other side to give you specific documents. Often the amount of documents in a typical federal consumer protection lawsuit numbers in the hundreds or the thousands.

Request for admissions -- You ask the other side to admit or deny certain specific facts. This helps to go ahead and establish certain facts so you don't have to spend time nailing down these facts -- the other side has already admitted them.

Subpoenas -- This is for non parties who are not a part of the lawsuit. You can require them to produce documents or even give a deposition. So this could be telephone records, credit reporting information, etc.

Depositions -- This is where each side can ask questions under oath with a court reporter present. This is usually in the final stages of the discovery process after the written discovery mentioned above but it can also take place before written discovery.

We'll look at each of these in detail in future blog posts.

The key point is this article is to understand that the whole idea of discovery is that each party can gather up the facts and know what the other side knows about the case.

If we, for the most part, remove the element of surprise, then the theory is this allows both sides to properly evaluate the case. This makes it easier for both sides to settle as they can see how strong or weak their case is and properly evaluate the value of the case.

And if the case does not settle, then trial will go relatively smoothly without surprises.

In our next article we will cover "initial disclosures" and why these are important.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 16, 2016

Consumer protection lawsuits in federal court: part 8 -- court enters scheduling order

The lawyers for the defendant have met with us on your case and we have all submitted to the judge a proposed scheduling order -- now it is time for the judge to enter the actual order which gives everyone the deadlines and other rules for the case. This is called the scheduling order.

Does the order have to be the same as the proposed order the parties give to the judge?
No. Often it is but sometimes there are minor changes made. And occasionally there are significant changes between what the parties submitted and what the judge actually puts in his or her order.

Then why do we give the judge a proposed order or what's called a "report of the parties"?
It gives the judge a good starting place to prepare the scheduling order. The judge doesn't know the case very well at the beginning of the case -- not like the lawyers do. So the judge in essence is saying, "Ok lawyers, you know your case. Tell me what its about and how long it will take to get to trial. How much discovery you need, etc."

So we as the lawyers give this to the judge.

We lay out the deadlines for discovery (where we swap information and can question each other), the amount of discovery (how many depositions, written questions, etc), and when deadlines should be for certain parts of the case.

Each judge is different -- some like us to have longer time periods and some shorter. We may say a case will be ready for trial next July but the judge knows she has a major criminal case set then or a vacation or something else so she adjusts the trial setting.

I'll say this -- it is often surprising to folks how smooth this process goes. The lawyers we work with are all good about coming up with something we can all live with. And the judges appreciate that. If by chance there is a problem with the scheduling order, the judges are very open to listening to the lawyers and will change the order if needed.

What exactly does the scheduling order typically say or include?
Deadlines and limits. Let me explain.

There are all sorts of deadlines:
**Exchange what are known as initial disclosures (initial information and documents)

**Deadlines to amend or modify the complaint or the answer

**Deadlines to take depositions

**Deadlines for expert witnesses

**Deadlines to file what is known as a motion for summary judgment

**Deadlines for mediating a case to try to settle it

**Deadlines to submit witness and exhibit lists for trial

**Deadlines for jury charges

**Dates of the actual trial

There are more but this hopefully gives you a good idea.

There are limits on amount of each type of discovery:

**Depositions -- when a lawyer can question the other party about facts and other information relevant to the case.

**Interrogatories -- written questions the other side has to answer.

**Request for production of documents -- documents the other side has to produce or give to the party asking for the documents

**Request for admissions -- asking the other party to admit or to deny certain facts.

Will I get a copy of the scheduling order?
Yes. If we represent you we will give you a copy and usually a summary of the deadlines as sometimes the orders can be pretty long.

What happens next?
The "discovery" portion begins. We will talk about discovery in general in the next article and then take each type of discovery and explore it in more detail in future articles.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 15, 2016

Consumer protection lawsuits in federal court: part 7 -- meeting of the lawyers to create a draft scheduling order

Since the defendant has answered your federal court lawsuit, now we meet with the lawyers for the defendant to pick out proposed deadlines and the schedule for the case so let's talk about that now.

The lawyers meet by phone or in person to discuss the case
In some parts of the country the meeting has to be in person but normally in Alabama we do this by phone. We will reach out to the lawyers and pick a date to speak about the case.

Normally we will go ahead and prepare what is known as a "Report of the parties planning meeting" which lays out the deadlines as well as other required information.

We talk about the amount of discovery, the claims and defenses, and deadlines
In our meeting, we go over the case. What is it about? What are the claims? What are the defenses?

Any special concerns or problems?

Then we go over the deadlines and other information in the draft report we sent to the other side.

We put our agreement in writing and file that with the court
Everyone makes any edits they have to the report and then that is submitted to the court.

The court is not bound by what we submit but usually accepts it all or most of it when it issues a scheduling order
We know what the judges look for and what they like so we normally can do a good job of putting a proposal in front of the judge that will be accepted. We'll look at the judge's scheduling order in our next article.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 14, 2016

Consumer protection lawsuits in federal court: part 6 -- defendant answers your lawsuit

Now is the time for the defendant to answer (respond to) your consumer protection complaint filed in federal court. What does this mean and what happens next?

What is an answer?
The "Answer" responds to the complaint. So the complaint alleges certain facts. The answer either admits or denies those facts.

In Federal Court, the answer should go paragraph by paragraph and either admit or deny the allegations. So here would be some examples:

**Denied
**Admitted
**Defendant admits that it credit reported on Plaintiff but denies it violated the law in doing so.
**Defendant admits that it is a debt collector but denies the remaining allegations of this paragraph.

The concept is that you could lay the complaint on your kitchen table and the answer on your kitchen table and go through them together. So you look at paragraph 73 in your complaint and the response to paragraph 73 and you can tell if there is a dispute or not over that fact.

And then the answer puts "affirmative defenses" before the court.

What are affirmative defenses in the defendant's answer?
An affirmative defense is where the defendant says, "Ok I may be guilty but the Plaintiff still loses because of ______."

Here is an example:

**Statute of limitation -- this means that the defendant claims you waited too long to file the suit. So even though the defendant is guilty, it gets off the hook because of the time it took to file the lawsuit.

Again, the basic idea is, "I may be guilty but because of ____ I get to win the lawsuit."

What do I need to do with the answer?
You can either do nothing with it (your lawyers will handle it) or you can go through and compare the complaint and answer to see what it looks like is actually in dispute. Generally the defendant denies most everything in the lawsuit and, in essence, says to you, "Prove it."

But sometimes they are honest and say, "Yes, this allegation is correct."

Knowing the affirmative defenses can also give you an idea of how the defendant is going to defend the case but I will warn you that almost every defendant literally puts in every single affirmative defense so it doesn't really mean much.

What happens now that the defendant has filed an answer?
Now the case is moving. The lawsuit has been filed and now the defendant has responded. So the next step is to have a meeting of the lawyers to pick out a proposed schedule for the court to consider -- we'll look at this in our next article.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 13, 2016

Consumer protection lawsuits in federal court: part 5 -- motion to dismiss filed by defendant

The defendant has filed a motion to dismiss your consumer protection lawsuit in federal court -- what happens next?

What is a motion to dismiss?
A motion is where the person filing it is asking the court to do something. To take some action.

Dismissal means to get rid of the case.

So a motion to dismiss is where the defendant, who has been served with your complaint (lawsuit), is asking the court to throw the case out of court.

The defendant will argue that there is no way you can ever win your case. Taking your facts in the complaint as being true, you still lose under the law.

The defendant will also try and argue that no matter how much detail you put into the complaint, the facts are not enough, or the defendant will say that the court should ignore your facts.

This gets absurd very quickly but this is the typical approach taken when a defendant asks the court to dismiss your lawsuit.

Do I get a chance to respond?
Yes.

Almost always the court will issue a "briefing deadline" or other order that tells you when your response to the motion to dismiss is due. And normally it will also give the defendant the chance for the "last word" -- it can respond to your response. The reason is that the defendant has to convince the court it is right and so it gets the first and last word since it bears this burden to convince the court.

You can point out why you have alleged the right facts and how the law is not against you -- so it is possible for you to win. That is all that is necessary at this stage in the lawsuit -- that it is possible you will win.

Sometimes we will take whatever the arguments are of the defendant about the facts and then amend the complaint so we clearly answer their arguments. These arguments are almost always absurd but sometimes it is quicker and easier to just change the complaint rather than to argue about the meaning of a word.

So for example, we might say "The defendant failed to investigate Plaintiff's dispute after Equifax properly notified the defendant that Plaintiff disputed the account on Plaintiff's credit report."

The defendant, say Bank of America, might argue "Judge, the Plaintiff never said we were notified within 5 days by Equifax so we have no obligation to investigate the Fair Credit Reporting Act dispute."

That's crazy as we said "properly notified" but rather than fighting, we might just amend or modify the complaint to say:

**Plaintiff disputed to Equifax about the Bank of America account.

**Equifax notified Bank of America within the required 5 days of receiving the dispute.

**Bank of America was properly notified as required by the FCRA and it's obligation to investigate was triggered under the FCRA.

I'm short cutting this so it doesn't go on for too long but you get the idea.

Will the court have a hearing on this or will the court rule without oral argument?
If we don't amend the complaint (which normally gets rid of the motion to dismiss), then the court has the option to decide the arguments on the written papers (briefs) or to have oral argument in the courtroom.

In the Northern District of Alabama where we primarily practice, it is most common to NOT have oral argument. The judges have found it to be most effective to look at the briefs (written arguments) and then decide.

Occasionally we have oral argument but most of the time the motions to dismiss are so lacking in merit that there is no need to take up the court's time.

How long does it take to get a ruling from the court?
This depends on the judge and the judge's schedule. So for example, if your judge is starting a 4 week long criminal case, then the motion to dismiss is going to be a distant memory as trials are very time intensive.

Generally, we get a ruling in about 30-90 days. Sometimes it takes longer if the judge is very busy or needs to take more time to decide the motion to dismiss.

What happens after the ruling?
Three possibilities:

1. Case is dismissed completely.

2. Case is partially dismissed.

3. Motion to dismiss is denied and the case proceeds just as it was filed in your complaint.

The first option -- dismissed completely -- is rare. If you are filing a case (through your lawyers) then you and your lawyers should be confident the case is a valid case with valid facts alleged. This should be rare and I can't remember one our cases being dismissed this way in federal court.

The second option -- partial dismissal -- means that the case is still alive but maybe a particular claim is dismissed. Different judges view certain laws differently and so one judge may allow a particular claim to go forward but another judge takes the opposite approach. Normally if this happens -- a partial dismissal -- the dismissed claims are not the main claims but instead pretty minor ones.

The third option -- motion to dismiss is denied -- is the most common experience. If you have good facts alleged, and the law is valid, then the case should proceed.

Assuming the case is not dismissed completely, then the next step is for the defendant to answer the complaint (lawsuit) which we'll talk about in our next article.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 10, 2016

"Is it legal for a debt collector to sue on old debt?"

One question that may come to mind when you're dealing with a debt collector may be, "Is it legal for this debt collector to sue me on my old debt?"

It is legal to sue on old debt.

However, there are circumstances where it is illegal for debt collectors to sue you.

Let's think about this:

Is it legal to sue someone after a car wreck?

Yes.

It's legal to sue; however, if you sue someone who wasn't in the car wreck, or you the insurance company pays you but you turn around and sue the person who ran the red light, etc.

That is illegal.

If the debt collector sues you under the wrong county, then there's a problem.

If they sue you for more than you owe, then it would be illegal for them to sue you.

If they sue you for a debt you don't owe, then it's illegal for them to sue you.

If they sue you on a debt that they don't own, then they will be in trouble.

If they sue you after the statute of limitations has expired, then the debt collectors are in trouble.

Just because certain circumstances are illegal doesn't mean that the case is thrown out. Sometimes this happens.

Other times it simply means that you can turn around and sue them in Federal Court under the FDCPA, or Fair Debt Collection Practices Act.

It is legal for debt collectors to sue on old debt.

However, you need to make sure that they have the right to sue you.

Because it could be that maybe you owe Capital One, but Portfolio Recovery Associates or Midland Funding comes along and says that you owe them.

But you don't owe them, because let's say they don't own the debt. (Having defended literally hundreds of Alabama consumers sued by these guys, I'm very confident in saying at least in my cases they haven't owned the debt).

Or maybe they're suing you with no intention of proving their case in hopes that you will get a default judgment.

If a debt collector has threatened to sue you, or has already sued you, get in touch with us.

We will gladly go over your 5 options, and help you decide which of those options would be best for your situation.

We only represent people in Alabama so if you live in Alabama and have questions, give us a call at 1-205-879-2447, or you can fill out a contact form.

I will forward to speaking with you.

Have a great day!

-John G. Watts

June 9, 2016

Consumer protection lawsuits in federal court: part 4 -- choice of defendant now that it has been served

Once a defendant is served in a federal consumer protection lawsuit, the defendant has 21 days to choose what to do next: nothing, file a motion to dismiss the lawsuit or complaint, or file an answer to the lawsuit.

Let's look at these options in more detail now and in the next couple of articles in this series.

Doing nothing will mean the defendant will have a default judgment entered against it by the federal court.
If the defendant doesn't respond to the lawsuit but instead does nothing, then you can ask the court to enter a default judgment against the defendant. This means the defendant loses the lawsuit.

"Default" simply means not showing up -- not taking any action. If we don't pay our mortgage note, we will be in default. If a team doesn't show up to the Super Bowl, it loses by default.

"Judgment" means the court has made a ruling that the defendant has lost the case. There will be a dollar amount of the judgment.

Once you have a default judgment, you can start to "execute" on that judgment to collect the money owed to you. You can put liens on property of the defendant. Garnish bank accounts. Seize assets, etc.

Because this is so serious, most defendants will not default. Or if they do, they will quickly ask the court to "undo" the default judgment so they can defend themselves in the case.

So this is a lousy option for the defendant but I supposed we can say it is one option they can choose. While not too common, the defendant can choose to file a motion to dismiss -- let's look at this next....

Filing a motion to dismiss within 21 days of being served is an attempt by the defendant to get rid of all or part of the case right now.
A "motion" is simply a request made to the court. We normally do these in writing.

"Dismiss" means to get rid of all or part of the case.

So a "motion to dismiss" is where the defendant asks the court to look at the complaint (the initial document in the lawsuit) and to throw it out of court. Either the entire lawsuit or part of it.

The basic reason for doing this is the defendant feels that either the either you have not put enough allegations of facts in the complaint or that the law simply is against you and there is no way you can win your case.

Obviously you will disagree as you (and us as your lawyers) believe you have alleged enough facts to give the court the basis of the lawsuit. And we feel the law is not against us.

The judge will give both sides time to make written arguments and occasionally will have the lawyers make oral argument.

Then the judge rules on whether any part of the complaint will be dismissed. If the entire case is dismissed, then that ends the lawsuit. If part of the case is dismissed, the rest of the case proceeds to the next phase which is the defendant answers the lawsuit.

We'll talk about motions to dismiss in more detail in our next article but for now let's look at the most common approach which is to file an answer to your complaint within 21 days of being served....

Filing an answer within 21 days means the complaint has been responded to and the case moves to the next phase of having a meeting of the lawyers to pick out the schedule and deadlines for the case.
The basic idea of answering a lawsuit (complaint) is to respond to each paragraph of your lawsuit and to put in their affirmative defenses which simply means the excuses the defendant uses for why it should win the lawsuit even though it may have violated the law. One example is a statute of limitation defense which is saying you took too long to file the lawsuit.

So there is no surprise, almost always the defendant basically denies everything and says it did nothing wrong and you are 100% at fault for what happened.

After an answer is filed, the next phase is picking the deadlines and schedule in the case but first let's talk in our next article about the motion to dismiss in more detail.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 7, 2016

Consumer protection lawsuits in federal court: part 3 -- defendant is served with your lawsuit

Being served in a federal consumer protection lawsuit means that the defendant has been handed the Complaint which starts the clock running on the defendant to respond to the lawsuit.

In our last blog post we talked about the actual Complaint which starts the lawsuit.

Now we'll talk about what it means for the defendant to be served with the Complaint.

Being served is the trigger or the start of the time for the defendant to respond to the lawsuit.
Without the defendant being served, nothing good can happen. The reason is that every person or company has a constitutional right to be "served" with a lawsuit or the court has no power to enter a judgment against a defendant. The reason is the defendant needs to know what the lawsuit is about and actually be served with it. Given an opportunity to defend itself against the Complaint.

So being served is the first critical step in the federal court lawsuit journey.

A corporation is typically served by certified mail sent to its registered agent for service.
While a corporation can be "personally served" the more common way is to receive a copy of the Complaint and other required documents by certified mail.

We know where to send the certified mail because in Alabama (and virtually every other state) the defendant must tell us who is the "registered agent for service". We find this information on the Secretary of State website for each state, including Alabama.

A registered agent for service is a person or company the defendant selects to receive all of the filed lawsuits -- it is done this way for convenience and efficiency.
It could be someone internal in the company but most commonly for the companies we sue, it is an outside corporation whose sole purpose is to act as the agent for service. The reasons for hiring a company include convenience and efficiency in dealing with lawsuits.

Convenience as no matter when a lawsuit comes in, the registered agent will be there to receive it. If a defendant designates, for example, its receptionist, what happens if he or she is out? Quits? Or if the lawsuit is served during a crazy busy time of the year? Easier to have it go to a company whose "only job" is receiving lawsuits for many companies across the nation.

Efficiency in that these companies -- registered agents for service -- get "served" every single day. So they understand the process -- scan in the lawsuit, note the date and time of service, send to the actual defendant, etc. Rather than a defendant having to train its own employees on how to deal with lawsuits that are served, it can have a "professional" handle it so the Complaint doesn't get misplaced, lost, thrown away, etc.

Once the registered agent receives the Complaint, it will pass it along to the defendant.
Whatever the procedure or internal rules are, the registered agent will then send the lawsuit to the defendant. Normally this is by email/scanned, but may also be by fax and regular mail. There may be calls made to the general counsel's office of the defendant to let them know that the lawsuit has been served.

The next step is for the defendant to respond to the lawsuit -- either in an answer or a motion to dismiss -- within the time limits allowed. Or it can ignore the lawsuit and suffer the consequences.
Basically a defendant has three choices once served:

1. Do nothing
2. Answer the lawsuit
3. File a motion to dismiss

Typically the defendant has 21 days to answer or file a motion to dismiss from the date served. If the 21st day falls on a holiday or weekend, the deadline rolls forward to the next day. We'll talk about these options a defendant has after being served starting in our next article.

Hope you are enjoying our series on consumer protection lawsuits in federal court.

Give us a call at 205-879-2447 if you have any questions and we'll be glad to help you any way we can.

Thanks!

John Watts

June 6, 2016

Consumer protection lawsuits in federal court: part 2 -- the lawsuit or complaint

The Complaint is filed which starts the consumer protection lawsuit against the abusive defendant. Let's look at this step and see exactly what happens as we continue our series on consumer protection lawsuits in federal court.

We'll be specifically talking about in Alabama as that is where we are licensed to bring cases. We'll also use an example of a lawsuit against Portfolio Recovery Associates.

The complaint is the start of the lawsuit -- it is the document that is filed that triggers the federal case being opened.

Complaint is the specific name but sometimes it is also called the statement of claim. So you will normally see the document itself called "Complaint" or "Plaintiff's Complaint".

The complaint identifies the parties to the lawsuit. The one filing the lawsuit is the "Plaintiff" and the company or person sued is called the "Defendant". In our example, the defendant is Portfolio Recovery Associates, a debt collector based out of Virginia.

The complaint explains what laws the lawsuit is based on. This might be Alabama state law or the Fair Debt Collection Practices Act (FDCPA), the Fair Credit Reporting Act (FCRA), the Telephone Consumer Protection Act (TCPA), Real Estate Settlement Procedures Act (RESPA), etc. In our example, the lawsuit is based on Alabama state law and also the federal FDCPA, which applies specifically to debt collectors.

The complaint will lay out the facts that justify filing the lawsuit. Typically dates are provided. Locations of events. Some context so that a federal judge reading the lawsuit -- and the defendant reading the lawsuit -- can tell what in the world the lawsuit is based on and why the defendant is being sued.

Our example might include the following:

**The debt was allegedly in default when Portfolio Recovery Associates (PRA) obtained the debt.

**PRA is a company that collects on defaulted debt.

**The debt was actually paid off in a settlement with Capital One on April 12, 2014.

**PRA began collecting on the debt on May 28, 2016.

**PRA called Plaintiff's neighbor on May 30, 2016,

**PRA had no right to call Plaintiff's neighbor as PRA had Plaintiff's contact information.

**PRA then credit reported on June 1, 2016, that Plaintiff owed PRA $5,000.

**This is false as no debt is owed as it was paid off before it ever allegedly got into PRA's hands.

You get the idea -- you paint the picture of what has happened and why the lawsuit has been filed.

The complaint will tell the court and the defendant what it is the Plaintiff wants out of the lawsuit. In some situations, this might be to undo a wrongful foreclosure, clear false credit reporting, etc. But normally it is to award money damages.

Money damages include "statutory damages" -- even when Plaintiff has not been hurt. They also include "compensatory or actual damages" -- to compensate Plaintiff for economic loss or emotional distress damages. And finally "punitive damages" -- to punish the defendant for breaking the law and to discourage the defendant or anyone similar to the defendant from breaking the law in the same or similar way.

Finally there can be other items the Plaintiff can receive -- attorney fees, costs of the lawsuit, etc.

So in our example the lawsuit against PRA will ask for all these damages, usually in the amount over $75,000, and will also ask for attorney fees as well as any other relief that the Plaintiff is entitled to receive.

The lawsuit -- the complaint -- will also let the court know if a jury demand has been made. The Plaintiff normally has the right to ask for a jury trial but this is not a requirement. If a jury trial is not requested then the case will decided by a judge acting as the jury. (The defendant can request a jury trial also even if the Plaintiff did not). Normally any case we file we ask for a jury trial -- sometimes this is known as a "jury demand".

Finally, the complaint will tell the court where and how to serve the defendant with the lawsuit. This can be by certified mail or by sheriff or by what is known as a private process server who literally takes the complaint and serves or gives it to the defendant. In our example, we normally serve PRA at what is known as a "registered agent" -- a company that is set up to receive complaints against PRA.

Once the defendant is served, then the clock starts running on the defendant to answer or respond to the lawsuit.

If you live in Alabama and have any questions -- give us a call at 205-879-2447.

Thanks for reading this!

John Watts