Help! I'm being Sued
Last Updated: Sept 29, 2009
With many collection agencies and JDBs turning to the legal system to collect, more and more people are talking to me about lawsuits over debts. This article will cover the best way to handle the situation if you find yourself with a summons. This article covers lawsuits dealing with DEBT ONLY.
Please Note: I AM NOT A LAWYER. If you are facing court, it's ALWAYS a good idea to hire an attorney or get some legal assistance. Depending on your area and circumstances, in come cases, you can get free help. If you cannot afford it, though, take heart. Lot of people have handled their cases pro per (in other words, without a lawyer.) 1. If you've been served with a lawsuit, the time to send a debt validation letter is OVER.
People always think that sending a debt validation letter to the law firm/collection agency/junk debt buyer will somehow stop the court case or serve as a proper answer to the summons. IT DOES NOT. At this point, your priority should be writing your answer to the court addressing each point in the complaint. If you don't do this, you automatically lose the case. Your time to answer the complaint is limited, usually 20-30 days from the day you are served. DON'T waste this precious time it on debt validation.
2. What you will receive with your summons. In your summons packet, you will receive paperwork:
- Telling you when your court date is
- Some kind of certification that you were served (meaning it goes over how you were notified of the lawsuit: in person, by mail, etc.)
- Instructions for answering the complaint or a form to fill out.
- Any evidence the company is submitting. There could be documents such as affidavits from the collection agency. There might also be documents from the original creditor, although this is extremely rare.
- A list of allegations, which constitutes the complaint. The paper may or may not be titled "Complaint". Next we will go over the steps to identify the complaint in the paperwork. There will ALWAYS be a complaint in your paperwork. Please look for it.
3. Complaint format
If you are still having trouble finding the complaint, this next information may help. Most complaints follow the following format:
Complaint number #XXXXXXX
Collection Attorney Plaintiff vs. YOU Defendant
Allegation 1: <Gives plaintiff's name, address>
Allegation 2: <Gives your name and address>
Allegation 3: Typically, this next allegation will say something like "Defendant obtained a credit card from Credit card Company X"
Allegation 4: Typically, this next allegation will say something like "Defendant used the credit card to obtain goods and services using the card"
Allegation 5: Typically, this next allegation will say something like "Defendant racked up charges totally $XX and then refused to pay"
4. Answer the complaint by the due date. This is the most important thing you can do when you receive a summons.
Once you've identified the paperwork which constitutes the complaint, you must answer it. You merely reply by stating whether or not you agree with the statements in the complaint and why. Don't hide your head in the sand, you have NOTHING to lose by answering the complaint, even if you don't do it exactly right. You must do it quickly, you only have 20-30 days (depending on your court) to answer the complaint. If you do NOTHING, you automatically lose and the collection agency has a judgment against you.
You MUST answer the complaint. It will cost you nothing to answer, and it's pretty easy to do. If you do nothing, you AUTOMATICALLY LOSE. By answering, you have a good chance of winning. Really. 5. Answering the Complaint Correctly
You can write your answer on a plain piece of paper, or type them up on your computer. No fancy or legal format is necessary. As long as your answer is clear, it will be fine. In some court systems, they provide written forms for you to fill out. You can use them and attach a more detailed answer. A sample answer is posted at the bottom of this page.
In the above complaint example
Your answer to Allegation number 1 can be:
In your answer, you would admit allegation 1, that the plaintiff is who they say they are.
Your answer to Allegation number 2 can be:
You would also admit allegation 2: that you (the defendant) are who they say you are.
Your answer to Allegation number 3 can be:
We are assuming that allegation 3, that you opened a credit card account with them, has been backed up by zero evidence. For instance, some lawsuits are filed by Junk Debt Buyers acting as collection agencies who don't even list the account number of the original credit card. They don't have any statements from the credit card companies, nothing. They've provided no proof so you, as a result, have no idea what they are talking about. The same holds true for allegations 4 and 5.
Admit. I did have an account with Bank X, but I have been presented no evidence that this is the same account as the debt alleged in this complaint.
-or-
Deny. Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account."
Your answer to Allegation number 4 can be:
Denied: This request calls for admission of matter defendant has denied and thus it is improper.
-or-
Objection: Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account."
Your answer to Allegation number 5 can be:
Deny. This request calls for admission of matter defendant has denied and thus it is improper.
6. Affirmative Defenses
Affirmative defenses are legal reasons why the complaint should be thrown out. Some of the best affirmative defenses are:
- Failed to state the basis of the lawsuit: They did not cite an actual state law which was violated.
- Debt is time-barred: The statute of limitations has passed.
- Statute of frauds: No contract exists as proof.
- Failure of Consideration: No exchange of money or goods occurred between the plaintiff and the defendant.
- Lack of Privity: No relationship exists between the collection agency and you. You never signed a contract or agreement with the collection agency, remember?
You can list these affirmative defenses at the bottom of your answer, after the specific responses to the allegations.
7. File Your Answer
You will need to send a copy of your answer to the courts and the lawyer listed in the complaint. Make sure you send them within the time allowed and send them registered mail! As another option for selected states, here is a service where you can submit your court filing online.
A sample answer is posted at the bottom of this page.
8. Counter suits, Requests for Discovery
In some courts, you need to file any counter-suit along with your answer. In addition, if you intend to ask for Discovery (request disclosure of information and documents from the plaintiff), you may need to send it along with your answer. Every court's rules are different, you need to look this up. Which brings us to the next item.
9. Look up your courts rules of procedure.
Most courts have online instructions and information. Take the time to read it. You will at least need to know the timetable of your case.
10. Evidence included in the summons/complaint.
Most often you will be presented with exhibits (documentation which serves as evidence) in the case file, such as credit card agreements and affidavits of debt. Usually you can object to this evidence and get it thrown out of the case based on hearsay. If you are successful getting this evidence thrown out (struck from the records), the plaintiff will have no evidence against you. If they have no evidence, they cannot win.
11. Tips for Filing Your Answer.
Many courts will let you handle everything via the U.S. Mail. There is no need to take time off of work to personally file your answer. Send everything certified mail, return receipt requested; one copy to the court, one copy to the lawyer representing the Plaintiff.
Another good idea: include a self-addressed stamped envelope and one extra copy with your answer to the court. In some cases, if you made a mistake in your answer, they will let you know immediately. If nothing else, they will send you a an endorsed-filed copy of the filing so you know it was entered. One of our readers received a hand written note from the clerk asking my reader to call so the clerk could help correct the filing.
If you find yourself the target of a lawsuit and feel like you need someone to explain the process to you, call now and make an appointment to speak to a counselor.
Testimonial That This Advice Works!
I want to say THANK YOU!!!!! I was recently (11/06/08) sued by a Debt Collection agency and taken to my
local District Judge for an old credit card account of just under $2500. This account was originally opened in the early 90s and I last made a payment to a collections dept. in 2002. Well, a junk debt buyer bought it and have been harassing me since 2004. I received a summons in the mail to appear in court, which I promptly replied that I would defend since referencing your creditinfocenter website.
I not only built a case using the SOL argument and re-aging, but embarrassed the counselor that showed up against me by asking for signatures, original documents, account histories, etc. He showed up with GENERIC documents w/ no signatures and I won the case!!!!
Thank you SOOOOO much. The best part was when the counselor stopped me after the judge left and said how impressed he was with my preparedness and that no one usually knows about those items!! Thanks so much.
Thanks again!
M. (Pittsburgh, PA)
Case law.
- Merely transmitting an account to a debtor does not establish an account stated. See Roehrdanz v. Schlink, 368 N.W.2d 409 (Minn. App. 1985).
- An account stated is an agreement between persons having business relations. See Lampert Lumber Co. v. Ram Const., 413 N.W.2d 878, 882 (Minn. App. 1987).
- For an account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance." Carpenter Contractors of Am., Inc. v. Fastener Corp. of Am., Inc., 611 So.2d 564 (Fla. 4th DCA 1992).
A Sample Answer. PLEASE DO NOT JUST CUT AND PASTE THIS - Every complaint is different. One size DOES NOT fit all. If you merely cut and paste, you WILL LOSE.
Complaint number #XXXXXXX
Collection Attorney Plaintiff vs. YOU Defendant
Defendant's Answer to Complaint
Allegation 1: Admit
Allegation 2: Admit
Allegation 3: Denied: Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account."
Allegation 4: Denied: This request calls for admission of matter defendant has denied and thus it is improper.
Allegation 5: Denied: This request calls for admission of matter defendant has denied and thus it is improper.
FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.
AS AND FOR AFFIRMATIVE DEFENSES
1. Plaintiff fails to state a cause of action against the defendant.
2. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.
3. The action is barred by the Statute of Frauds.
4. The action is barred by the Statute of Limitations.
5. The court would unjustly enrich the plaintiff by granting the relief sought herein.
6. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.
WHEREFORE, the defendant asks the Court for judgment:
a. dismissing the complaint herein with prejudice.
Not really sure who the real plaintiff is? Read this!
Do you have a question you feel we haven't answered?
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