THE JOYS OF DEFENDING DEBTORS, Part I

Michael Sean Quinn*

Until recently I had never defended a debtor and hadn’t done bankruptcy work in many years, though I have done a couple of collection cases, I confess, connected to law firms. (I have consistently advised that these are usually a bad idea.)

Nevertheless, I have recently become involved in this side of the profession and have takes up a couple of these cases–small ones, I grant you. Part of what I have done is to become involved in negotiating with creditors. Uniformly the collectors with whom I have had dialogues are civil. I wonder if in our day and time the snarling collections soldier has become a myth. Then again, maybe it’s different by social class, race, sex, or ethnicity. I don’t know enough to comment. 

Of course many collection soldiers these days have very thick south Asian accents and this can be a real problem. 

At the same time, they have scripts which they insist upon following rigidly. For example, in one case, I asked the “new creditor,” i.e., the assignee of the “old creditor,” the original creditor, the exact nature of their company, its precise location, the location of the person on the phone, the state of incorporation of the company seeking information, and some other things.  That makes me uncomfortable. 

In addition, I have been asked to provide bank account numbers to the creditor. I have told them that my clients (or I, on their behalf) would provide them with money, but they insisted on having the right to withdraw from their accounts, in given amounts and on certain days, they say. I have my doubts about this.  Since I am green about this, maybe I’m wrong, these responses (or lack of them) strike me as something other than they appear to be. 

Also, some of the lawyers who represent debtors tell me that much of this work for them–smaller collections cases–depends on the creditor getting a default judgment and then seeking to enforce the judgment. If the creditor does not get a default judgment, it quits the field, and the case eventually evaporates for lack of prosecution.  Not enough money at stake to fool around with–that’s the attitude of many creditors, especially those that have become creditors by purchasing notes. 

This is not always true. If there is more than a three digit debt, there may be an army of paralegals who can crank out hundreds of storm pleading, discovery, and motions for summary judgment. The actual lawyer does almost nothing (or up to very little), case by case, except to show up for hearings. 

(Interestingly, it looks like law firms hire non-lawyers to try and settle pending cases. I have been wondering if that is not the unauthorized practice of law.)

So what should be done by or for the debtor if s/he (“he”) gets sued and served. Clear, he needs to avoid default judgment; and a creditor’s seeking default judgment  can come in Texas pretty quickly after the Monday following the 20th day after service. 

The debtor himself does not really need a lawyer to respond to the Petition filed by the creditor, i.e., the Plaintiff. He can just file an Original Answer saying, more or less, “I deny all of he Petition.”–More about this in a minute. 

(Still, having one is often a good idea, and sometimes not having one can lead to disaster. Lawyers have been hated, or at least detested, from time immemorial, but they are actual crucial to society and mostly not that bad.) 

If the lawsuit goes much further, the debtor will need a lawyer, whether he likes it or not. The game’s first half is to get rid of the case; the second half is to avoid bankruptcy (whether the debtor goes in himself or gets pushed into it), garnishment, foreclosure, “theft by creditor,” and so forth. A lawyer can help with all that. 

In any case, the debtor (who will be designated the Defendant) should answer the Petition.  This is done, as a rule, by simply filing an answer.  This is done by means of sending in to the court a “Defendant’s Original Answer,” or something of the sort. Virtually any title will suffice, so long as the court clerk will take it.  Forms are easily found on the “Net.” 

By the way, if a debtor to go forward for himself, he will be said to be proceeding “pro se,” meaning “for himself.” In most Texas districts, pleadings filed by lawyer must be filed electronically, meaning–more or less–over some digital or cyber route.  Usually this does snot apply to pro se litigants. 

After an answer is filed, the debtor-defendant should almost certainly not proceed pro se but should hire a lawyer.  There’s lots of them around who will take the business from the “less wealthy” for lower fees.  Quite frequently, matters can be settled by L at that time or even by the debtor, but if it goes forward with formal discovery and a motion of summary judgment the debtor needs a lawyer, or a paralegal supervised by a lawyer. 

Many debtors are well advised to find a kind of “Debtor Defense Factory.” Small to small-ish debts are not that complicated to handle. If there is a team of paralegals who visit with the lawyer on a routine basis, that will likely be enough, so long as the team knows what it is doing. Bigger debts are a more complicated story. 

Never pay any fee to the paralegal. Pay it only to the lawyer. Get a receipt if you pay in cash. And check the Bar computer index to see if the person who says or implies he’s a lawyer actually is.  

*Michael Sean Quinn
Quinn and Quinn

1300 West Lynn Suite 208

Austin, TX 78703

Office Phone: 512-296-2594

Cell:512-656-0503

Fax: 512-344-9466

Email: mquinn@msqlaw.com
Dashed off and so neither proofed nor proven.