One of the most common complaints people sued by debt collectors have is that the debt collection law firm has tricked them into staying away from court on the day your case is called (the date on the summons). The way this comes about is that the defendant (person being sued) receives the summons and petition relatively few days before the date on the summons to appear to answer the petition. The defendant panics because the set date is extremely inconvenient: trial dates are always for weekdays, usually 9 or 9:30 in the morning, so they inevitably conflict with work. Or they panic because they don’t have the resources to fight the lawsuit no matter what day is set for court.
They trick you into staying away from court
So, the defendant calls the debt collection law firm and asks to speak to the attorney who is suing them. The attorney won’t talk to them (usually), so the defendant is forced to talk to some employee, actually a skilled collection agent. The law firm then plays a “good cop, bad cop” routine, where the person speaking to the defendant takes a message and agrees to respond to the defendant in the attorney’s words. Or they flatly refuse to agree to change the court date.
They say they will, however, agree to a “settlement” that makes going to court “unnecessary.” Then they create an agreement and send it to the defendant, or they don’t. But if the defendant believes that going to court is unnecessary and does not go, then the debt collector “calls for default” (asks the court to give them a default judgment) and proceeds to the collection process.
I have heard this story repeated too many times to doubt that it happens often. If it has happened to you, it can probably be undone. And if the debt collector is trying to scam you right now, he can give you the opportunity he needs to extinguish his debt forever.
if it has already happened
If the debt collector has already deceived you in this way and obtained a default judgment, you should know that the law does not “favor” default judgments. This means that they are leaning against allowing them to stand up if you make a decent argument against them. There is a trick to bypassing the defaults that is a bit too detailed for the purposes of this article, but if you move quickly and do the right thing, it will almost certainly happen.
If you claim that the debt collector tricked you into defaulting, or tried to trick you into defaulting, you are alleging that it has engaged in “unfair” debt collection practices. Unfair debt collection practices violate the Fair Debt Collection Practices Act and could form the basis of a counterclaim.
If they’re trying to rip you off now
If they’re trying to persuade you now that you don’t need to go to court, and if you’re in a state where it’s legal to record phone calls without telling the other party (most states allow it) (Google “[your state] and wiretapping” to find out what the law is in your state), then record your efforts, and then go to court. When the court first says your name, hesitate long enough to see if the debt collector calls for default. If they do, it could be an attractive counterclaim that could force the collector to drop the lawsuit against you, but don’t forget to answer “here” so the court doesn’t find you in default.
Do what you do
However, whatever you do, don’t let the debt collector fool you with this trick. You can’t trust them when they suggest that you don’t have to go to court unless you have a signed agreement. Not all are liars, of course. Some are trustworthy. But how do you know which is which? As a general rule, you must get it in writing to trust it.