Friday, August 9, 2013

Pro Se Defendants often court Defeat and Default Judgment, if not Disaster, by doing nothing or making things worse


Stasis & Default:  Not doing things that need to be done.

Debt suit defendants typically know little or nothing about the rules of procedure and thus suffer the adverse consequences for not hiring a lawyer (or not being able to afford one) to explain matter to them, or do what needs to be done on their behalf. As a result, debt collection attorney’s “win” a lot of cases simply because the case is not contested at all, or because the defendant makes a serious error that relieves the plaintiff from proving its case.   

Failure to file an answer

It does not take much to prevent a default judgment. All that is required is the filing of an answer, and the courts are very lenient when it comes to judging whether a piece of paper qualifies as an answer. Even a letter to the judge may do, although the rules that require a copy be sent to the opposing party’s attorney would still apply (and would likely be ignored).

Many defendants, however, do not only fail to hire a lawyer, but fail to take any action at all, thus inviting what in most cases is highly predictable, a default judgment. --> Default Judgment Signed, Now what? --> The challenges of appealing a judgment in collection suit without a lawyer


Same for requests for admissions. Doing nothing has grave consequences. Not answering them will result in deemed admissions by default. A defendant may not want to believe that they are due within 30 or 50 days as stated on the paperwork. That's understandable. After all, it's the attorney that’s suing them that says so; -- the same attorney that also may have stated that “all information obtained will be used for debt collection purposes” or something to that effect.  But the defendant’s distrust or wariness about providing information does not suspend the operation of the deemed admissions rule. It does not matter that the defendant took the FDCPA (mini-miranda) warning seriously and refused to provide the information that was requested. It's a trap for the unwary, and collection attorney deliberately set it because the want the defendants to fall into it.   
Unnecessary judicial admissions thanks to well-meant SOB-STORY NARRATIVES in pleadings 

Some unrepresented litigants may feel a need or urge to respond, and do so in writing. Some use it as an occasion to wail and vent. Bemoan their dire conditions and protest that they would have been paying if only they had the money. And that's understandable, but often meets with no sympathy. 

The harsh reality is that collection attorneys don't care. They have heard it all, and if it bothered them inflicting yet more misery on people already down on their luck, they wouldn't be doing it. Or not for long. Many judges don't care either. Debtors are just names and numbers. And dollar figures on judgments. To be processed. The more efficiently, the better. It will make the statistics look good. Attorneys have the upper hand because they are in court on a regular basis and interact with the staff. Not only are they lawyers, they know the ropes. How things are handled in a particular court.

Most defendants don’t know that under the Texas pleading rules they can answer with a general denial and then wait and see if the creditor files a motion for summary judgment or takes some other action. Instead they volunteer information that is superfluous under the pleading rules, and may amount to judicial admissions that can be used against them later. 

Luckily, the Texas Rules of Procedure are very liberal with respect to amendments. If a pro se litigant were to have filed an inappropriate answer but retains a lawyer before a dispositive motion is filed and heard, or the case goes to trial, the error can be fixed by filing an amended answer. Even if the deadline for amendment set by the seven-day rule or a docket control order has passed, a newly-retained attorney can file a motion for leave to amend the pleadings, which the court will probably grant. 

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