The law in Arizona as it applies to cases brought by junk debt buyers like Portfolio Recovery Associates is somewhat in flux. This has resulted in rulings from the various courts that can be all over the place. Often the end result of your case will largely be influenced by the judge you get assigned and whether your case is in justice court or superior court.
However, as I have tried these cases over the years there are other – more indirect ways – to win your case against Portfolio Recovery Associates or any of the other debt buyers.
#1 – Show Up on Time: I have won more cases that I will likely admit by just showing up to court hearings on time – particularly in the justice court. Throughout the timeline of your junk debt buyer lawsuit there will be various hearings that you will be required to attend. Often if a party does not appear at one of these hearings the court can either enter judgment or dismiss the case.
The attorneys who represent debt buyers have a lot of cases (they file thousands of them per month in Arizona). Almost all of the law firms that handle these cases are comprised of a handful of lawyers and a bunch of paralegals. This keeps them busy and many times they either don’t show up or show up late to a hearing. If you are standing there at trial or a pre-trial conference and the attorney for Portfolio Recovery isn’t there ask the judge to dismiss the case with prejudice (meaning it can’t be refiled).
The courts are busy and if a party doesn’t show most judges won’t hesitate to throw a case out.
**Take Note** this works the other way as well. If you don’t show up or are late to court you could end up with a judgment against you before you ever have a chance to put up a defense.
#2 – Object to their Witnesses Appearing Telephonically at Trial: When Portfolio Recovery Associates or any other debt buyer goes to trial they will need to have a witness to introduce their various documents into evidence. These witnesses are always associated with the junk debt buyer if not directly employed by them.
They usually don’t live in Arizona either. And the debt buyers certainly don’t want to fly them out for your one hour trial. So their solution is to ask the court to allow their witness to appear over the telephone. Arizona law requires that witnesses appear personally at trial to give testimony, however it gives judges wiggle room to grant a motion to have them appear telephoncially.
Object to this motion. There are all kinds of reasons: it makes it hard to review documents with a witness who is on the phone; you can’t see the body language of the witness; you can’t insure the integrity of the trial because you don’t really know what the witness may be looking at, etc.
The key here is to fight it. If you can get a judge to deny the debt buyer’s request to have their witness appear over the phone the case is over. I handle these cases day in and day out and have only had 1 trial where the debt buyer flew a witness in (for a case where there was $30,000+ at stake).
If they court denies their motion, you win. They can’t proceed with a witness.
#3 – Ask for Mediation or a Settlement Conference: If you can settle your case for a low-ball amount I still count that as a win. Often when people get wrapped up in the litigation process they forget that you can still “win” your case by getting out of it for a small amount (or at least smaller than what Portfolio Recovery is seeking).
In Arizona there is only one court in the Phoenix area that requires mediation in all cases (McDowell Mountain Justice Court). Mediation (sometimes called a settlement conference in the superior court) is where the court assigns an independent third party (the Mediator) to get with the parties and see if there is some middle ground that can be reached.
Many times the attorney for the junk debt buyer will come in with no real expectation that the case will settle. A good way to catch them off guard a bit is to come in ready to settle – offer 10% of what they are suing you for. If you can pay it you might be surprised how many times a junk debt buyer will bite on this kind of offer.
It is important to remember that dealing with the junk debt buyer directly (as you did before the lawsuit) and dealing with the attorney for the junk debt are two different things. The attorney is looking to get another case off his/her desk and may be willing to settle the case for much less than the junk debt buyer would.
If you can get out of your case for a 10%-15% settlement you should take it. That is a good deal, and it is low enough to more than offset the risk you encounter anytime you go to trial. Remember, trial is an all or nothing proposition. If you win at at trial you pay nothing. If you lose, you pay everything and now the debt collector is armed with a judgment that they can use to garnish wages, levy bank accounts, and lien property.
One other quick note on mediation, if the attorney for the junk debt buyer doesn’t show up or if they show up and a representative from the junk debt buyer isn’t with them you can ask the mediator to default the junk debt buyer and ask the court to dismiss the case. On more than one occasion I have had the McDowell Mountain Justice Court dismiss a case because the attorney and a representative from the junk debt buyer didn’t show up to mediation.
Sometimes they will try and get around this by filing a motion to permit the junk debt buyer representative to appear over the phone – object to this – if you have to be there so do they (not just their attorney).
My point – there is more than one way to win these cases. Don’t get discouraged because court rulings are all over the place. This is one instance where participating in the process and simply showing up can pay big dividends in the end.
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John Skiba, Esq.
We offer a free consultation to discuss your debt problem and help you put together a game plan to eliminate your debt once and for all. Give us a call at (480) 420-4028