The Fifth (and Final) Step in a Debt Collection Lawsuit: The Trial
Part 5 in Series on Debt Collection Lawsuits
The final step of a debt collection lawsuit is the trial before a judge and jury. This post explains some of the considerations and planning that goes into the defense of a debt-collection lawsuit, and some common trial strategies that our office employs to stand up for our clients. This is applicable to credit card debts, loans, and medical debts, as well as most other types of accounts.
We previously explained the first step, service of the summons and complaint, the second step, the answer or motion to dismiss, and the third step, discovery, and the fourth step, summary judgment.
In a debt collection lawsuit, what does a trial consist of? Though most of us have a general idea of what a lawsuit is (whether for collection of a debt or otherwise), it may be helpful to start with the definition of a trial. A trial is the formal presentation and examination of evidence — testimony, documents, or other things — in a courtroom, before a judge, with a judge or jury deciding which party is entitled to prevail. In North Carolina, trial of all lawsuits is under the North Carolina Rules of Civil Procedure. In particular, trials are governed by Rules 38 through 53.
The first question in a debt collection trial is who will decide the outcome — the judge, or the jury. The jury system goes back to the Magna Carta and is one of the foundations of the Anglo-American legal system. You have the right to have a jury of your peers decide the outcome of your debt-collection case. To ensure your right to a trial by jury, your attorney must file a request for a jury trial at the beginning of the case, as required under Rule 38. If you do not make a request, then a judge will decide the outcome of the case.
There are, however, benefits to having your case decided by a judge, rather than a jury, at least in some types of debt collection cases. This is because the judge is always the one who decides what documents can be presented as evidence. Many debt-collection cases hinge solely on whether the debt collector’s documentation of its ownership of the credit card is admissible under the North Carolina Rules of Evidence. The jury’s role will be limited if only evidentiary issues (issues to be decided by the judge) need to be decided. Therefore, because of the additional time that is required to empanel a jury, it is sometimes more efficient to have a collection case tried before a judge.
A judge may be better in a debt collection case because a debt collector’s main strategy is to try to portray the consumer-defendant as a deadbeat. The collector will provide documents like account statements, affidavits, and purported assignments, which they will claim shows that they own your credit card or other debt. These documents may be insufficient to come in as evidence, but jurors might be confused about whether to consider or ignore them.
Our office argues — correctly, in our opinion — that these items are inadmissible, and that the case should be dismissed. Jurors may not understand that the evidence is inadmissible and they may make inappropriate conclusions. That’s why if the only issues are evidentiary ones, our office will often have a bench trial — a trial by judge.
Two of the most common evidentiary rules that benefit our clients are as follows. The first is the Rule of Completeness, North Carolina Rule of Evidence 106, which requires that if part of a document is offered into evidence, the full document must be available to be introduced. The purpose of this rule is to prevent someone from taking part of a document out of context. The Rule of Completeness comes up in debt collection lawsuits when debt collectors try to introduce part of a document — usually, part of a schedule of accounts, one of which they claim is yours. Collectors often do not have the full list, and sometimes do not even have your complete information. This is clearly insufficient and provides us with a basis for objecting to its introduction.
The second evidentiary rule that often applies in a debt collection case is the Best Evidence Rule, North Carolina Rule of Evidence 1002. This rule states that to prove the content of a writing, the original version of it must be produced. This applies in debt collection cases when the collector tries to prove that it has an assignment of your account without producing the actual assignment. Instead, the collectors often produce an affidavit saying something that amounts to “we swear we have an assignment somewhere, trust us.” Under the Best Evidence Rule, this fails.
There are many other arguments that our office uses against debt collectors in collection lawsuits. Each case presents a unique set of issues. Though the issues in these cases are sometimes similar, we have found that the best way to provide a vigorous defense is to use an individualized legal strategy.
The debt collector must meet the standard of proof required under the Rules of Evidence. As with most civil lawsuits, i.e., non-criminal cases, the standard is a “preponderance of the evidence.” The debt collector does not need to prove its case “beyond a reasonable doubt,” which is the standard for criminal cases. Rather, the “preponderance of the evidence” standard only requires that it be more likely than not that the credit card debt is due. Sometimes this is explained by saying that they need only to be “50% plus 1” likely to prevail.
The procedure in a trial is that the jury is empaneled, the parties each present their cases, and they then give their closing arguments, with the debt collector giving its closing argument last. The jury then considers the evidence and issues a verdict.
The verdict in a debt collection case must be unanimous, and all 12 jurors must agree. The court rules allow the lawyers to agree that a less-than-unanimous verdict is also binding, but our office rarely agrees to this.
Most debt collection lawsuits are resolved with a dismissal or a settlement, but our office handles each and every case as if it were going to go to trial. Debt collectors handle large amounts of cases and often do not want to take the time and expense of a trial. They often pay only a few cents on the dollar for the accounts they collect, so their time is better spent chasing after other consumers.
DYE CULIK PC | Consumer Protection Division is a consumer protection law firm located in Charlotte, North Carolina and Boston, Massachusetts. Our attorneys help consumers champion their rights against debt buyers and debt collectors.
SERIES ON DEBT COLLECTION LAWSUIT STEPS
FIRST STEP: Service of Summons and Complaint
