How To Respond to a Legal Threat
In a prior post I advised readers on how to craft a legal threat letter; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html. This post is the opposite of that: how to respond to a threat of legal action (whether in writing or verbal). There are a number of possibilities, so let’s take them one by one.
1. Keep Calm. Yes,
the threat of legal action is scary, but your response should be the result of
clear thinking, and you can’t do that if you’re in panic mode. You need time to consider your options, so if
the threat is oral (over the phone or in person) work to get some breathing
room. First make sure you understand the
nature of the threat: who is making it (get names and contact information),
what the circumstances are giving rise to the claim, what legal theory is being
threatened, and what are the time constraints for your response? Don’t spout off. A calm, mannered answer, delaying your formal
response, will work better than a rant.
If the person says you must respond “NOW!” reply that you will think
about the issue, talk to your lawyer (don’t admit you don’t have one), and get
back to him/her. Then walk away or disconnect the phone caller.
2. Debt
Collection. If the legal claim is
that you owe a debt, first of all ask yourself if it’s true that the debt is
owed and in the amount stated. If not,
dispute that. If so, can you figure a
way to pay it? In any event, you can
stop debt collection harassment by invoking the protection of a federal
statute: The Fair Debt Collection Practices Act (15 United States Code section
1601 and the sections that follow), the text of which can be found at http://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text,
and the Federal Trade Commission’s explanation of the Act is at https://www.consumer.ftc.gov/articles/0149-debt-collection. In the statute you have the right to stop
the debt collector’s future contacts by giving the debt collector a notice in writing (keep a copy) in which you
demand that further contact with you cease, and the collector must then stop
contacting you except for the purpose of initiating legal actions (such as
filing a lawsuit). Even without such a
written notice from you, the debt collector cannot harass you (and the statute
has examples of what sorts of conduct are forbidden as harassment). Violations
of the Fair Debt Collection Practices Act give you a legal cause of action
against the debt collector for your actual damages plus attorneys fees and
punitive damages (up to $1000.00) for outrageous behavior.
If you can’t pay the debt, tell the creditor that you don’t
have any money (the legal term is that you are “judgment proof” or as the old
saying goes “you can’t get blood out of turnip”). If you have the possibility of paying some of the debt, offer to pay a lesser
sum as satisfaction for the whole, mentioning that if you can’t work something
out you may have no other choice but to file a bankruptcy petition. If the creditor agrees to take a lesser sum,
send him/her a payment in full check [see Related Posts below]. Without the creditor’s express agreement, a
payment in full check will not work.
3. Are You Guilty? We all justify our actions to ourselves and
are very good at coming up with arguments as to why we’re right. Once these conclusions are fixed in our minds
it’s very, very difficult to rethink them.
But when the legal threat arrives it’s time for some
soul-searching. Ask yourself how some
objective person, say, a judge, is going to view this matter. Here is a sobering challenge: put yourself in
the position of the other side. What
does this all look like from that point of view? If this mess ends up in court what ugly facts
will come out that’ll be very damaging to your version of the matter?
What are the equities of the situation? What’s fair
and what’s not fair? Understanding the equities is important. I tell my law students that if you are filing
a law suit and you’ve got the rules of law on your side are while the equities
are all on the other, you’re in trouble. Courts tend to do what’s equitable, and they
can adjust the law as needed to reach that result if they’ve a mind to do so.
What should you do if the other side is right? You really do owe the debt. You did cause the accident. Your dog did eat their favorite child. You certainly want to avoid a lawsuit if you
possibly can because even if you win the whole experience will be a real
ordeal, and if you lose life could become a nightmare.
Apologize! An
apology, sincerely given, can work wonders.
If you’re guilty, it’s time to propose a settlement. Sit down, work things out—be the most
reasonable person on the planet. People
are often surprised and impressed by a sincere apology.
If the other side won’t settle, consider the possibility of
filing a bankruptcy petition, which automatically stops all creditor collection
activity and lets the bankruptcy court straighten things out. Threatening bankruptcy can make many
creditors more compliant. The forms
should be filed in the Federal District Court Bankruptcy Division nearest you. You’ll need a bankruptcy lawyer, and it is
usually easy to find one who can figure out some sort of fee payment plan. Ask around among people who have gone
bankrupt if they had a good experience with their attorney. The court itself might be a source of
information about which lawyers are experts at handling bankruptcy petitions,
and the bar association will have such a list.
4. Violations of other laws. I’ve written elsewhere [see Related Posts below] about fraud, federal or state consumer protection statutes that might be relevant and help you find the relevant defense. Type “consumer protection” along with your state’s name into Google and see what comes up.
5. Get a lawyer. You
wouldn’t perform your own medical operation if you were injured, you’d pay a
doctor. If you have legal trouble, it’s
time to bite the bullet and pay a good lawyer.
How do you find one? Friends might
have a recommendation, but make sure you get an expert in the particular field
of law at issue. Contact the local bar
association, which typically has a list of lawyers in various fields who are
willing to take on new clients. The
first thing to ask the lawyer is what he/she will charge. Without know this, it’s impossible to decide
whether to proceed. Don’t be shy in
asking about the fee upfront. If you can’t
afford a lawyer, call the legal aid society.
Use Google to find a legal aid office near you, and then see if your
plight will attract their attention. Or
perhaps you have a lawyer friend who could help you pro bono.
6. Dig In Your Heels. If you’re sure
that you are in the right (don’t make a
mistake as to this), but the other side is being unreasonable in pursuing a
groundless claim, tell them you have no more to say. See if they are willing to go to court to
press an unwinnable case. Many people,
faced with a flat refusal, will fume and curse you but ultimately give up. If they don’t, well then a court will have to
figure out who’s right and who’s wrong.
But doing nothing can be a powerful tactic if the other side doesn’t
have the will to proceed.
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Related Posts:
"I Threaten To Sure Apple Over an iPad Cover," April 8, 201l;
http://douglaswhaley.blogspot.com/2011/04/i-threaten-to-sue-apple-over-ipad2.html
"The Payment-In-Full Check: A Powerful Legal Maneuver," April 11, 2011;
http://douglaswhaley.blogspot.com/2011/04/payment-in-full-check-powerful-legal.html
"What Non-Lawyers Should Know About Warranties," October 11, 2011;
http://douglaswhaley.blogspot.com/2011/10/what-non-lawyers-should-know-about.html
"How To Write an Effective Legal Threat Letter," October 19, 2011; http://douglaswhaley.blogspot.com/2011/10/how-to-write-effective-legal-threat.html
“How To Win Arguments and Change Someone’s Mind,” August 5, 2012;
"Legal Terms You Should Know," September 11, 2013;
http://douglaswhaley.blogspot.com/2013/09/legal-terms-you-should-know.html
“Clicking on 'I Agree': Sticking Your Head in the Lion's Mouth?” September 27, 2014;
http://douglaswhaley.blogspot.com/2014/09/clicking-on-i-agree-sticking-your-head.html
“My Battle with
Sony To Get a Refund on a DVD Player”;
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
http://douglaswhaley.blogspot.com/2015/07/my-battle-with-sony-to-get-refund-on.html
“A Guide to the Best of My Blog,” April 29, 2013; http://douglaswhaley.blogspot.com/2013/04/a-guide-to-best-of-my-blog.html.
keeping calm is really important. though stressful, the situation isn't necessarily disastrous
ReplyDeleteIf you can’t afford a lawyer, call the legal aid society. A lawyer will do only the amount that he gets paid. Am I wrong? The first words would be clam bankruptcy not go by the law that would clear a false debt.
ReplyDeleteMy new husband wanted my equity out of my home for his new business. I understood FL was an equal state meaning when we married he acquired half of all my property. After spending the equity and taking menial work and unable to pay bills. He took a lucrative job, moved out of state and started a new life as he was single leaving me to handle the debt.
ReplyDeleteI wrote to the bank explaining I could no longer continue the payments. I suggested bankruptcy would be a future option if needed. My debt was $138,000 and I sent a letter stating my dilemma and a paid in full payment of over $54,000 to the pay off department. They acknowledged receipt via letter and cashed the check. It's been over a year during which they continued to send statements. I have received a notice of a pending foreclosure. How do I proceed? After a year can they just ignore my payment in full and keep the funds and get the court to give them my property?
You need a lawyer to handle this. I'm not authorized to practice in FL and can't give specific advice. Good luck with this.
ReplyDelete