A few months ago, my father was contacted by a collections attorney in my state. I recommended that he immediately send them a validation letter with return receipt requested, but he foolishly ignored my advice. Fast forward to now, and he received a certified letter from the local Magisterial District Court (Small Claims) notifying him that he is the Defendant in a Civil Action. Lo and behold, the Plaintiff is the same legal firm who sent him the original dunning letter and is acting on behalf of Midland Funding LLC (JDB). Attached to the complaint was a sworn affidavit by one Ashley Hoffman. The court has already been notified that he intends to defend against the suit, and in turn the court has notified counsel for the Plaintiff of this as well therefore nullifying the affidavit of Ms. Hoffman (sworn affidavits are inadmissable in MDC if the Defendant notifies the court of their intent to defend). Ideally, their counsel would withdraw all charges against my father since they now cannot rely upon a sworn statement of account. Barring that, and if counsel doesn't request that Ms. Hoffman testify as a witness for the Plaintiff, should we submit a request to the MDC to subpoena her? Or should we sit back and wait for the trial date? I understand that move would be a double edged sword, but I know what questions to ask her during cross examination to establish her incompetence to testify about the alleged debt and throw their whole case into doubt.
In my experience -- and hopefully someone will correct me if I'm wrong -- small claims courts generally don't allow any kind of "lawyering by mail". You show up, give your testimony, and wait for a decision. In other words, you bring the facts, and the judge brings the law. There is no discovery, there are no subpoenas, there are no motions. If I found myself in your situation, I imagine I'd go to court armed with every defense known to man. Look up your state's SOL, and raise that if possible. Argue that the collector's billing statements are hearsay (since the attorney has no first-hand knowledge of your account) and thus inadmissible. The attorney may argue back "business records exemption", but that doesn't really apply (the records were created for the purpose of litigation). Your local courthouse may have a "legal self-help" section -- review your rules of civil procedure for small claims, and see if the plaintiff did anything wrong by the RCP. Basically, you need to convince the judge that there's a better than 50/50 chance that the information the plaintiff is presenting is unreliable. You don't need to prove this beyond any shadow of doubt, just show that it is likely. Answer all questions truthfully and completely. Do not lie. Remain respectful and composed at all times; the plaintiff will likely try to fluster you. Remember that court is NOTHING like what you see on Judge Judy or Law & Order.
Sparq, Thanks for replying. You're correct that in a typical "Small Claims Court" scenario, things like discovery are nonexistant, but I would also like to point out that in a Magisterial District Court, all parties have the right to submit a written request to subpoena a witness and compel them to attend and testify at the hearing. The request must clearly state the name and address of the witness (or witnesses) being subpoenaed and be submitted at least seven days before the trial. However, you've helped me to realize a very good point: Why do the work for the attorney? If counsel wishes to proceed without a witness for the Plaintiff then any documentary evidence is indeed "hearsay" and they don't stand a chance. I sincerely doubt the attorney would be that foolish, though. The most likely outcome will either be that the attorney actually shows up with the original affiant or withdraws the charges due to lack of evidence. You also make a very good point about the rule of "preponderance of the evidence," but I am already aware of it. Rest assured, I will stay composed and civil. If the Plaintiff's attorney behaves in a disrespectful manner, then I will be sure to recommend sanctions before the close of the trial.
Incidentally... When the Plaintiff's attorney starts sending settlement offers, is it evidence of the JDB's magnanimity, a sign of desperation brought on by fear of the judge dismissing the case, or perhaps a mix of both?
They won't have much better to do once they get a judgment, therefore why not start now? Obviously if they can garnish, they'll go there, but if they think that's hard or impossible, why not start settling now? One problem with small claims courts are that they are set up to avoid a lot of what you might want to do, make motions, discover the other side's shenanigans, delay until you can learn enough to respond properly, etc. Often it's in and out in a few minutes without the multiple hearings that would otherwise happen and give you a chance to get your legal feet wet. Appeals might also be more limited than in a more rule oriented court. Dumb Bob would look into all of that were he in your shoes.
This is true, especially if the defendant is unable to satisfy the judgment in a timely manner due to meager finances. One of the nice things about Pennsylvania is that your wages can only be garnished for child support, back taxes, student loans and I believe back rent as well. In this particular case, were my father to have a judgment placed against him, I'm not entirely sure how it would be enforced due to the fact that a good portion of my father's income comes from Social Security and his pension. I asked that question more so because the terms of the settlement they sent are rather "curious" to say the least. They ask for concessions which I don't think an attorney would normally ask for had they possessed a mountain of evidence and had a decisive witness to corroborate it all. More specifically, it can be summed up as: "We'll agree to these terms if you admit right here and now that this debt is yours and put it in writing so that we now have conclusive evidence to hold over your head in court." It just seems fishy to say the least. Well put. Time is of the essence and there's really no room for error. I have some familiarity with how PA's legal system works, though I'm admittedly a novice when it comes to this. I do have an understanding of what to expect in court, what's expected of me as an authorized representative, what factors play a part in how the judge makes his ruling, and so on. I have a sensible "battle plan" laid out, and if I fail at least I'm mentally and emotionally prepared for it because, as you've so eloquently stated before: "It's better to lose well than lose badly." Long story short, I'm glad I've a good enough head on my shoulders to realize this isn't The People's Court. I'm still going to continue educating myself in the interim, but I'm also thankful that I'm armed with enough knowledge to at least not make a complete fool of myself even in a more "informal" setting like Magisterial District Court.
In the last few weeks, I've learned more about the civil complaint process, Pennsylvania's rules of civil procedure and evidence, and the tools available to a collections attorney with a judgment in hand than I've ever wanted to know. Just the knowledge of how a collections attorney can make a debtor's life a living hell is sobering enough. Still, while I am admittedly nervous and a little scared since courtrooms take me out of my "comfort zone," I am at least prepared to keep the Plaintiff's attorney and their witness honest without making the mistake of turning the trial into a mockery (and subsequently pissing off the magistrate). I've already mentally prepared myself for the possibility of the magistrate issuing a judgment and my father being forced to pay it off on a court-mandated payment schedule. But you know what? It's better to deal with the Commonwealth of Pennsylvania than a sleazebag attorney working on the behalf of a morally bankrupt collections agency. Were I in my father's shoes, I would relish the opportunity to defy the CA to the very end and make my payments to the State instead of giving some greedy corporation and their flunkie counsel the dignity of knowing they "won." Oh, I'll pay you back all right, but it'll be on MY terms and under the protection of Pennsylvania's legal system. Regardless of whether you owe the money or not, whether you feel guilty or not, or whether you can afford to pay or not, these entities aren't in business to show compassion or help you. They don't care if you've lost your job, had your mortgage payments skyrocket, had your car get totalled, or any other kind of extenuating circumstance. They care about one thing and one thing only: Making you pay no matter what it takes, so long as they can get away with it within the framework of the law. Anyway, sorry for the long rambling post. I'll just be glad when this trial is done and over with. It's causing me enough anxiety and stress as it is.
I thought I would post an update on the "continuing saga." I've learned a lot about the litigation process and what to expect in court. I've learned that CA's don't always send inexperienced rent-a-lawyers or that their counsel is necessarily malicious. The judge was very fair and I liked the fact he was personable yet concise. He was also quick to remind me, albeit politely, that I was not an attorney and therefore could not interject on my father's behalf. I seem to have misinterpreted the purpose of an "authorization of representative." That, or the process wasn't quite handled correctly... Either way, that opened the door for disaster because the very reason I wanted to help my father in the first place is that he has a tendency to say the wrong things at the worst possible times. Without me to interject I was essentially relegated to the status of a "witness" and he was essentially on his own. Not to worry, I thought. I explained to him that if he had even the slightest doubts that it was his debt, to neither confirm nor deny that it was his. It would've been in his best interests because while there WAS a bill of assignment for the account (take note: CA's seem to be more careful to dot their "i's" and cross their "t's"), the collection of statements was fishy at best. There was no corroborating evidence to show it was my father's account other than a name and an address. There were no purchases listed and an inconsistent string of payments which, interestingly, were not corroborated by copies of checks, money orders, etc. There was no witness testimony to authenticate them. It could very well have been his debt, but everything just seemed "off"... What does he go and do? He admits that the debt was his. Never mind whether or not it seems fishy. Never mind the fact that it's the judge who decides whether the facts are as stated. Nothing is more stupid than confessing to something you're not 100% sure about. Then he proceeded to get cocky. Nothing leaves a bad impression more than admitting to something that you may not have any liability for, and then demonstrating that you fail to comprehend the gravity of the situation you've now just put yourself in. Needless to say, I was infuriated and dared not speak another word. So, in a sense, I'm grateful for being given the opportunity to gain valuable experience and knowledge, angry because my efforts were for naught and apparently unappreciated, and sad because I sacrificed time that I can't give back to my girlfriend and her son, my employer, and myself. In light of the events, I can't exactly say the experience was worth the price I paid for it. I'm not discouraged, but I feel foolish. In closing, this shows that things are not always as black and white as they seem.
More people need to attend civil proceedings. Even if they only go once, it's every person's civic duty to at least observe our legal system in action. I sit in on about two or three court sessions every month, and it's a very enlightening experience. I'm sorry it didn't work out for you, but at least you tried.
Indeed, and I gained a wealth of knowledge and insight as well. In fact, since you've been through this same process yourself (or, at least, it seems like you were from your previous posts), I wondered if I could ask you some questions. Not so much for "legal advice" but rather the purpose of educating myself. Thank you again for offering your knowledge and suggestions, by the way. They were definitely helpful.
