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Exceptional Legal Representation Throughout
Long Island and New York, Since 1993.
CALL FOR A FREE CONSULTATION
Exceptional Legal Representation Throughout
Long Island and New York, Since 1993.
Debt Collection Defense Lawyer for Lawsuits Started by Creditors – Brooklyn and Queens
Defending Debt Collection in Court – Debtor litigation defense enables a defendant to utilize legal procedures and the court system to contest the alleged debt and assert their legal rights.
Many clients of The Law Office of Ronald D. Weiss, P.C. face the possibility of litigation or collection activities from creditors due to debts they are unable to pay or disputes over the existence, amount, or obligation of the debt. In such cases, one option for a creditor involved in contested litigation, especially when large sums are at stake, is to prepare a defense. Our firm can assist clients in responding to the lawsuit’s summons and complaint, which must be done within 20 to 30 days of service. This response is just one of many documents typically filed as part of a lawsuit defense. Further filings may include responses to motions for summary judgment or, if appropriate, a motion to dismiss.
By defending the legal action, the client can raise any defenses they have regarding how the lawsuit was initiated. Litigation defense also extends the duration of the case and keeps the client and our firm informed of its progress. In some instances, clients may have a strong defense that could lead to the dismissal of the lawsuit. Our office’s defenses address issues such as improper service, the validity and relevance of loan documentation, the clarity of the loan terms, and the appropriateness of the credit card fee schedule, interest rate, and loan amount.
To assist with potential defenses, our firm may engage in discovery demands to gather documents and information surrounding the alleged debt. Clients can challenge the way the collection action was initiated or how the debt was extended.
In addition to debt collection defense, we also handle foreclosure defense, which is a specific type of lawsuit defense. For more information on how we can assist with foreclosure defense, click [here].
Litigation defense is a key strategy used by our office to challenge allegations of financial obligations and to buy our clients more time or leverage when negotiating with creditors. Our firm routinely defends clients in court on various matters such as credit card debt, taxes, real estate, student loans, business debt, medical debt, personal guarantees, personal injury, and more.
For a free appointment to discuss your litigation defense options in more detail, please contact us.
Legal issues related to debts and financial obligations that remain unsettled or unresolved can be addressed through arbitration, mediation, or litigation. Litigation is the most common and adversarial method of dispute resolution. In litigation, both parties attempt to convince the fact finder (judge or jury) that their position should prevail based on the evidence, relevant agreements (such as contracts or leases), and applicable laws. Civil procedure and court rules govern the process.
In uncontested cases, the defendant defaults, and a default judgment is issued more quickly. In contested cases, the process moves more slowly, and neither party knows the final outcome until the fact finder delivers a decision. As a result, litigation often pressures the parties to settle, especially when there is substantial work, time, and money invested in the case. The urgency to settle is higher when the dispute involves a smaller amount of money. If a lawsuit is not resolved, the following steps are typically taken:
Pleadings
The plaintiff must serve the defendant with a “summons and complaint,” which outlines the alleged damages and the plaintiff’s causes of action. Service can be done personally or through “nail and mail” (affixing the summons to the door). The defendant has 20 to 30 days to respond with an “answer,” which includes denials and defenses. The defendant may also file a counterclaim, prompting the plaintiff to provide a response, called a “reply to counterclaims.” If the defendant believes the allegations, even if accurate, do not establish a cause of action, they may move for dismissal in addition to responding to the complaint.
Conferences
Most courts encourage reconciliation before proceedings begin to foster resolution and possible settlement. During conferences, the court assesses each party’s position, whether they understand the opposing views, and whether they are willing to make concessions. Voluntary settlements are preferred, as they benefit both parties and are often more effective.
Discovery
Discovery is the process of obtaining documents and information from the opposing party or other relevant sources. Types of discovery include:
A) Demands for Documents (such as records, invoices, bank statements, and tax returns)
B) Interrogatories (questions seeking pertinent information)
C) Depositions (legal questioning of parties or witnesses)
D) Bill of Particulars (clarification of the claims).
If the parties cannot agree on discovery, a motion to compel may be filed by the party who believes the other side is withholding material, or by the party seeking to halt unnecessary discovery.
Motion Practice
If both parties agree on most facts but differ in interpretation, the case moves to the motion practice phase. A motion for summary judgment may be filed if the defendant responds, or a motion for default judgment may be filed if the defendant does not respond. In a summary judgment motion, the plaintiff argues they should prevail even if the defendant’s defense is included. In a default judgment motion, the plaintiff argues that the defendant’s failure to respond should result in a judgment in their favor. Other motions may involve requests to reverse or reconsider decisions, stay proceedings until an appeal, or seek a new trial.
Trial and/or Evidentiary Hearing
If there are disputes over facts, the court must resolve them through a trial or evidentiary hearing. Evidentiary hearings are less common and focus on specific factual issues, such as jurisdiction or process service. A trial is typically more complex, addressing multiple issues in the case.
Order to Show Cause
An Order to Show Cause is an expedited motion filed with minimal notice to address urgent issues, such as halting garnishments, bank seizures, foreclosure sales, or evictions, while the court makes a decision.
Decision / Order
This is the court’s ruling on the case, typically issued as a short form order, with a longer decision providing further explanation.
Appeal
A litigant may appeal an adverse decision, whether interlocutory or final. An appeal must be filed within 30 days of the notice of entry for a decision. The appellant notifies the court and opposing parties by serving a notice of appeal. Within six months, the appellant must submit a detailed memorandum brief explaining the appeal’s grounds.
Our legal practice emphasizes litigation defense as a key tool in helping our clients achieve debt relief. Clients can use litigation defense to challenge various types of collection actions. The goal is to cast doubt on and dispute the creditor’s fundamental assumptions, particularly their claim to the right to collect the debt. We challenge aspects such as the terms of the agreement, who breached the agreement first, interim invoices, other transactions, the underlying debt arrangements, and the methods used to collect the debt.
The typical objective of litigation defense is to reach a negotiated settlement that benefits our client. In some cases, however, a creditor’s mistake may present an opportunity for a lawsuit based on consumer law violations or another strategic advantage, such as a dismissal.
A defendant’s strategy may focus more on procedural issues rather than the substance of the case (e.g., issues related to service, notice, or documentation). Another approach involves denying most or all of the charges, forcing the plaintiff to prove each and every claim. By requiring the plaintiff to establish every element of their case, the defendant buys time and gains leverage, often surprising creditors who may not anticipate resistance to their collection efforts.
The advantage of litigation defense is that it can catch creditors off guard. However, the downside is that for smaller disputes with lower stakes, long-term litigation may not be feasible due to the time, costs, and burdens associated with the process.
While we typically side with defendants, as we often represent consumers, small business owners, or individuals, there are situations where we may take the plaintiff’s side. Ultimately, our focus is on practicing substantive law—defending consumer rights and providing solutions for individuals and small business owners who seek to assert their rights at a reasonable cost.
When necessary, we can file lawsuits, which are often related to consumer credit issues, though there are other situations where we need to take the lead in initiating legal action to resolve a dispute for our client. In the debt collection process, there are often loopholes or weaknesses in the creditor’s approach that may present an opportunity for us to win if the case is taken to court.
In such cases, we draft the summons and complaint, arrange for its service, and file affidavits of service with the court. If a settlement cannot be reached through negotiation, we proceed with litigating the case in court with the aim of securing a favorable outcome for our client.
When a corporation and its individual owner are sued together, several of these consumer defenses may apply to the owner personally. We frequently get asked to defend our clients’ rights in commercial disputes.
Credit card debt is one of the most common debts for which consumers file for Chapter 7 bankruptcy relief. However, there are many instances where bankruptcy is not the desired or feasible option for a debtor. In such cases, debt negotiation is often the next best option. Yet, negotiations are not always successful on their own, and sometimes it helps to contest the debt in order to gain leverage and buy time during negotiations.
In some situations, the debtor may believe that the debt is inaccurate, not owed at all, or improperly calculated. Many credit card lawsuits are based on procedural and technical flaws that undermine the purpose of the collection attempt. When there is no substantive dispute, the primary objective for the defendant is to challenge the creditor’s ability to collect the debt.
Common technical issues include failure to properly serve the defendant with the legal documents, such as personal, substitute, or “nail and mail” service at their home, or violations of the statute of limitations (e.g., when the collection action is filed more than six years after default). Other issues involve requesting to see the original signed credit card contract and disputing the validity of the signed documents and receipts.
More serious issues can arise in cases involving fraud or identity theft, where the defendant may not be aware of the charges or the debt incurred by an unknown entity, especially in cases involving phone or online payments. Another strategy could involve challenging the interest or penalty calculations on the debt.
If the creditor’s collection action appears abusive or unfounded, an effective tactic is not only to defend the action but also to counterclaim, particularly if there are violations of federal and state debt collection laws, such as the Fair Debt Collection Practices Act.
This approach is especially useful in cases involving larger credit card debts, as the litigation process can be time-consuming and costly. For smaller credit card debts, however, combining debt negotiation with litigation can help keep expenses reasonable. Since many defendants are unaware that they have a legal defense option, creditors often do not expect legal resistance for credit card debt cases, regardless of the amount owed. In the right circumstances and with the proper facts, credit card debt litigation can be a successful strategy.
Tax obligations, particularly income tax debt, are typically not addressed through litigation initially. Most taxpayers attempt to negotiate settlements or payment plans with tax authorities such as the Internal Revenue Service (IRS) or the New York State Department of Taxation and Finance (NYS). However, litigation can be a strategic alternative that forces the taxing authorities to reassess their stance, especially when the case is well-organized by legal representation.
The first step in resolving tax debt is ensuring that the relevant tax years are filed. If not, tax transcripts must be obtained to support the filing of the tax returns, as this is always preferable to leaving returns unfiled. Once the returns are prepared and submitted to the tax authorities, the case typically begins to move forward. However, if the tax authorities do not accept the figures, or if other issues arise, litigation may be necessary, which can take place in various courts:
U.S. Bankruptcy Court – The Bankruptcy Court offers a debtor-friendly jurisdiction and broad authority to address tax matters. Taxpayers can delay payment without penalties while the case is under litigation. The Bankruptcy Court can rule on liability, amounts owed, and collection tactics, and it can also consider defenses like innocent spouse or officer defenses. Most clients dealing with tax debt also have other outstanding debts, and the Bankruptcy Court allows tax remedies in all tax cases, including Chapter 7, 11, and 13 filings.
U.S. Tax Court – The U.S. Tax Court allows taxpayers to delay payment until a court decision is made. The Tax Court is specifically focused on tax cases and is empowered to review a variety of tax-related issues, such as IRS liability, collection tactics, notice compliance, and the IRS’s rejection of compromise offers. This court also has significant authority in examining tax cases.
U.S. District Court – The U.S. District Court serves as an appellate court for bankruptcy decisions and hears initial disputes across the legal system. It may be more sympathetic to taxpayers in cases involving smaller debts, especially when the tax bill has been paid or is reasonably small. However, this court is typically reserved for larger corporate cases and is less commonly used for individual tax disputes.
Because tax authorities have the power to act as prosecutor, judge, and jury when collecting debt, it’s essential to bring significant disputes to court. There are several matters that may need to be decided by a third party, such as:
Tax debt litigation can be a complex process, but it offers a pathway to resolving disagreements with taxing authorities and finding potential solutions for taxpayers struggling with tax obligations.
Landlord-tenant litigation is aimed at determining which party violated the terms of the lease or contract, and which party was at fault. This type of litigation often involves both tenants and small landlords, who are particularly vulnerable to financial disruptions. For tenants, issues like job loss, divorce, or other financial setbacks may make litigation the only way to survive, while smaller landlords may face financially burdensome situations that can only be resolved through litigation.
For tenants with non-rental disputes, the best approach is often to identify the landlord’s faults, maintain communication, and file a lawsuit if necessary. Since landlords typically draft the lease agreements, they often prohibit tenants from making deductions or self-help repairs, considering these actions as lease violations. When a tenant files a lawsuit, they usually aim to prove that the landlord has violated the lease or the law and present themselves as the victim. If successful, the tenant may owe money, receive credit, or even “free” rent, depending on the case and the landlord’s promises.
However, in most cases, tenants are defending against claims, typically involving back rent. Tenants must vigorously challenge the landlord’s claims by filing a RESPONSE to the landlord’s PETITION, contesting the default and any other procedural issues. Tenants may also challenge the service of the petition, failure to provide proper notices, or inadequate conditions, such as poor safety, insufficient utilities, necessary repairs not being made, or nuisances that impair the property’s habitability.
In the case of Co-op residents, landlord-tenant litigation is more intense due to the added complexity of residents’ ongoing rights to occupy their units. Conflicts with co-op boards are frequent because of their shifting policies, which make it unpredictable how rules will be enforced. Disagreements often escalate as the co-op board assesses the legal costs of the dispute, worsening the situation.
For landlords, it is crucial to document problems and issue notices for various issues, including rent arrears, smoking, pets, noise, or illegal activities. Notices serve several purposes: they document incidents, show that tenants were given a chance to correct the issue, and demonstrate fairness in the process. If a tenant continues to violate the lease, landlords must serve pre-eviction notices, which vary in duration (30, 60, or 90 days), depending on how long the tenant has been at the property. If the necessary notices are served, landlords can begin eviction proceedings. However, eviction cases in New York State are currently affected by an eviction moratorium, which, unless extended, ends on August 31, 2021. Evictions can only proceed if the tenant poses a risk to others or is a nuisance to the community.
Landlord-tenant litigation can be complex, but it is often necessary for resolving disputes and ensuring that both parties uphold their rights and responsibilities.
Foreclosure Defense involves challenging a lawsuit filed by a mortgage holder to prevent the foreclosure of real estate after a mortgage loan defaults. To avoid the mortgage holder obtaining a default judgment, the defendant or borrower must raise a valid defense. This defense provides leverage and additional time for the borrower to explore alternative options to stop the foreclosure process.
Several factors and issues may be raised during foreclosure defense, including:
(new page required) – The majority of the information on this website now pertains to medical debt negotiation; however, we intend to discuss medical debt litigation here. Sections should be cross-referenced.
Who has medical debt? (family member logging in? if not covered, insured? patient without a signature, and if they did, were they able to provide consent?inadequate services, lack of sophisticated knowledge,
Credit Repair Litigation (New Page Needed) – The majority of the information on this website now pertains to medical debt negotiation; however, we intend to discuss medical debt litigation here. Sections should be cross-referenced.
Consultation/intake appointment. Choose a plan of action to address the client’s problems. We also choose a lawsuit strategy when we decide on a litigation course of action.
Our office is highly knowledgeable in bankruptcy, modification, negotiation, and litigation. We combine these areas of expertise to offer a range of options, giving us leverage to help you resolve your debt. If we win the case, we can use the outcome to settle the debt. While reaching a satisfactory conclusion is often possible through settlement, we always have the option to file a lawsuit if needed. If you’re unsatisfied with the result, we can also file an appeal and request that the OSC reevaluate, vacate, or renew the order. Our diverse and powerful strategies make it less likely that creditors will be unwilling to offer their best possible deals.
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