Login
Password

Forgot your password?

How To Defend Yourself In Indiana Small Claims Court Against Collection Agencies: The Indiana Pro Se Guide

By Edited May 23, 2015 0 0

gold card (37297)

 

If you received a summons from a collections law firm for a debt you may or may not owe, first, DO NOT PANIC. This is the latest tactic of the collection agencies to collect on alleged debts. Second, DO NOT IGNORE the summons because it will not go away. Being sued can be a traumatic experience, especially for those who are not familiar with the court system.

 

Often, consumers do not answer the summons because they are afraid, because they do not know how or because they do not have money to hire a lawyer. That is exactly what the collection firms are counting on. They want an easy win by default judgment. If they get a default judgment because you did nothing to defend yourself, they can garnish your wages, put a lien against your property and garnish your bank account. Do not let this happen to you. Defending yourself in small claims court against collection agencies in Indiana is possible. So take control of your emotional and financial well-being and fight back!


Things You Will Need

Computer

Printer

Summons

Library access

Step 1

Answer the summons. Look on the back of the summons, it should detail the steps you should take in order to answer the summons. Answer the summons before the deadline or they will ask for a summary judgment against you. Write a letter to the courthouse requesting a continuance and the reason for your request if you cannot make the court date set for you. Always call the courthouse and speak with a clerk if you have any questions.

Step 2

Search the Internet for 1Cfree legal consultation. 1D It is sometimes best to get an attorney to deal with these situations, as state and federal laws can get tricky. You can also inadvertently admit guilt without meaning to by answering questions the wrong way. Depending on the amount of your credit card case, you may be able to pay a small amount just to get legal consultation. In the vast majority of cases, people cannot afford attorneys, but you can handle it on your own or 1Cpro-se. 1D

Step 3

Go down to the courthouse, search for winning cases preferably with the same lawyer and the same creditor, and copy them. Use them as a guide in how you defend your case. Most likely, the lawyer or defendant who won the case cited in detail state-specific laws necessary to force a win on his behalf. Use them to your advantage.

Step 4

File a motion to dismiss the case with prejudice if either of these situations is present:

1) The alleged debt is past the statute of limitations, which for Indiana is 6 years. This means that they cannot legally pursue this alleged debt in court. They have to dismiss the case since it is a FDCPA violation. You may have to prove this when you ask for discovery, if you do not already have proof of when the last payment was made on the alleged debt.

2) File a motion to dismiss the case with prejudice in accordance with trial rule 9.2 if a "written instrument" was not attached to the summons. Visit the court and check your case file to see if a copy of the written instrument is in your files. A written instrument is a signed contract, or your credit card agreement. Read trial rule 9.2 about what the court considers a "written instrument". Without this, they do not have a case against you. Many unsuspecting people do not realize this. Do a search for "Indiana trial rule 9.2. It states the following:

Rule 9.2. Pleading and proof of written instruments:

ü When instrument or copy, or an Affidavit of Debt must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record. When any pleading allowed by these rules is founded on an account, an Affidavit of Debt, in a form substantially similar to that, which is provided in Appendix A-2 to these rules, shall be attached.

Step 5

Put your file together. Keep a copy of everything you send to the court and anything pertaining to your case in neatly marked file folders. Prepare your case well, and defend yourself against those who are trying to bring you to financial ruin.

Step 6

Admit nothing! This is not your case to prove, it is their case to prove against you. Let them produce the evidence to prove that you own the alleged debt and alleged amount. Google 1Chow to answer a summons 1D, to get help in the step-by-step answering process in Indiana, if your case has not already been dismissed from doing step 4. Also, do a Google search for 1Cdebtorboards: sue your creditors and win. 1D It is also a great place to go for help when handling your case pro se. There are many people going through the same thing you are going through in Indiana and all over the United States; they will help you.

Step 7

Elect arbitration. Read over your credit card agreement very carefully and make sure the arbitration terms are acceptable to you. Arbitration is a private forum, rather than the public forum of a courtroom. The majority of times, the credit card agreement states that the creditor will pay for arbitration costs or that both sides are responsible for their own costs, either of those is ok for you. Never elect arbitration, if you are responsible for any of the arbitration fees. Many creditors will negotiate a settlement or leave you alone once you elect arbitration.

To elect arbitration, you send a notice electing arbitration to the creditor 19s attorney AND the courthouse. Keep record of everything. Once you elect arbitration, neither side can pursue the case in court-the case must be dismissed for improper venue OR the court must stay the case pending the outcome of the federal arbitration case. Arbitration can get complicated but it is a very useful way to get creditors to start treating you like a human being and listen to you. Always refer to Indian Code IC 34-57-2, when requesting a motion to stay the local court case, which states:

Chapter 2. Arbitration: Uniform Arbitration Act

Sec. 1. (a) A written agreement to submit to arbitration is valid, and enforceable, an existing controversy or a controversy thereafter arising is valid and enforceable, except upon such grounds as exist at law or in equity for the revocation of any contract. If the parties to such an agreement stipulate in writing, the agreement may be enforced by designated third persons, who shall in such instances have the same rights as a party under this chapter. This chapter also applies to arbitration agreement between employers and employees or between their respective representatives (unless otherwise provided in the agreement).

The arbitration forums have become much more consumer friendly, so it is possible you may be treated fairer and with more respect through the arbitration forums. 1CJAMS 1D is one arbitration forum that most credit card companies seem to use.

Once you 1Celect 1D arbitration, you do not have to 1Cinitiate 1D it. The judge will make a decision on whether you initiate, the creditor initiates or if both sides get to decide who initiates. If the judge orders you to initiate, then ask for a fee waiver to wave the fee. Read your credit card agreement carefully, in the arbitration section. Many times, the creditor stipulates that they will pay for the fee or help you with your portion of it.

Very important: You can either ask for discovery and go forward with the case in local court or you can compel arbitration-remove the case from the lower court and send it to one of the Federal Arbitration Forums like Judicial Arbitration and Mediation Services Company (JAMS) or American Arbitration Association(AAA). You cannot do both. In many courts, if you do anything in your case other than ask for the 1Cwritten instrument 1D, you waive your right to arbitration. So be very careful and plan your game plan before you begin your strategy.

You have time between the time you receive the summons and your first court day. So plan, plan and plan some more.

Step 8

Show up to all of your court dates, if the case makes it that far. Many times after you ask for discovery, they will drop the case. The 1Chow to answer a summons 1D website will show you how to ask for discovery, as well as answer affirmations and denials. Make sure you have all your information with you, which includes everything you received from the opposing attorney and the court.

Step 9

Have faith in yourself. They are people just like you. They are going to do everything in their power for their client, do the same thing for yourself.

A little about arbitration companies from Wikipedia

1CIn the United States, the American Arbitration Association handles about a fourth of the business arbitration in the country. Judgments in arbitrations arising from contractual arbitration agreements are ultimately enforceable in United States Federal Court because of the Federal Arbitration Act. Trade associations handle the vast majority of such disputes. The Council of Better Business Bureaus operates arbitration programs for consumers and encourages businesses to precommit to arbitration of consumer complaints. Major private courts include Judicial Arbitration and Mediation Services Company, Civicourt, and Judicate 1D



Tips & Warnings

Always answer the summons, even if the credit card does not belong to you. If you do not answer it, that is a quick default judgement against you.

Alway try to get qualified legal advice in all of your legal disputes.

Do your research of similar court cases in your local court house.

READ THE CREDIT CARD AGREEMENT. I cannot stress this enough.

Read and understand your court rules!

Advertisement

Comments

Add a new comment - No HTML
You must be logged in and verified to post a comment. Please log in or sign up to comment.

Explore InfoBarrel

Auto Business & Money Entertainment Environment Health History Home & Garden InfoBarrel University Lifestyle Sports Technology Travel & Places
© Copyright 2008 - 2016 by Hinzie Media Inc. Terms of Service Privacy Policy XML Sitemap

Follow IB Business & Money