Wednesday, April 27, 2011

How to Respond to a Bill Collector's Lawsuit

Summons and Complaint: Notice of the Lawsuit 

When a bill collector files a lawsuit against you, the company is legally required to send you a summons and complaint package. The summons serves as official notice of the pending case while the complaint lists the collection agency's allegations against you. Basically, the complaint says "We're suing because you didn't pay your debt. Here's what you owe."

If you don't file an Answer with with court within the time frame specified in the paperwork, you're classified as a no-show. Fail to respond or show up in court and guess what? The bill collector wins the lawsuit by default. It can then pursue your assets through wage garnishment, bank levies, real estate liens and even, in some states, sending a sheriff to seize your personal property, such as jewelry and electronics.

Guess who?

Fill Out the Complaint Attached to the Summons

Before I delve too deeply into this, I have to state that every district in every state does things their own way. The basic process is the same across the board, but don't expect your summons and complaint forms to look like summons and complaint all over the country. It isn't going to happen. 

The typical complaint lists each charge the bill collector made against you with the court. Next to these charges will be one of two things or both:

1. Multiple choice options for selecting whether you agree or disagree with the debt collector's claim.

2. Blank spaces allowing you to explain whether you agree or disagree and why.

If you agree with all of the collection agency's claims, returning your Answer to the court is pretty pointless. You're getting a court judgment levied against you either way at that point. If you don't agree or if you simply want to avoid the negative consequences of a court judgment from a bill collector, you must select "disagree" when given the option. 

It is possible to answer "agree" to a certain claim from the collector yet disagree with another. Always be careful when agreeing to a collection agency's claims in the summons paperwork. Generally, if you disagree with any aspect of the debt collector's allegations its best to simply mark that you disagree with the claim. You can always explain your position at the lawsuit hearing. 

State Your Defense When Answering a Collection Summons

While merely taking the time to fill out and file an Answer with the court lowers your risk of the lawsuit going any further (more on that in a minute), it doesn't provide you with airtight protection from a collection judgment. You must have a defense to lean on in court – provided the bill collector's case ever gets that far. 

Over time, the SOL expires
Some defenses are better than others. Take the statute of limitations defense for example. In this defense, the debtor claims that whether or not he owes the debt is irrelevant because the state's statute of limitations for a debt collection lawsuit has already passed. Thus, any lawsuit the collection agency files based on that particular debt is illegal. 

Regardless of the defense you opt for, remember to include your defense with your summons. If you do not have room to write in additional information about your defense, type out a letter noting the defense you plan to use on a separate sheet of paper and attach it to the debt collector's summons and complaint. 

Answering a Summons Decreases Lawsuit Risk

When you answer a summons, it decreases the chances that you'll end up riddled with anxiety, trying to defend yourself in court against a bill collector's much more experienced attorney. The collection agency's goal, however, isn't to fight you and win – it doesn't want to fight with you at all. The company files its suit hoping that you will ignore the summons and complaint and the court will award a default judgment in the debt collector's favor. 

Because most debt collectors' accounts don't complain complete information, its exceedingly hard for a collection agency to prove in court that you legitimately owe a debt. This inability to prove your responsibility for payment often makes it difficult for the bill collector to prove its case in court. This is especially true if you've taken the time to educate yourself about what to expect in court and how to walk away a winner with your finances still intact. The New York NEDAP has information regarding what rights collection agencies and consumers have during a lawsuit and how to defend yourself. I highly recommend checking it out if you receive a summons and complaint from a debt collector. 


While some collection agencies will proceed with the lawsuit even after you file an Answer, few will do so if you state a solid defense you plan to use at the hearing. When you respond to a bill collector's lawsuit, the company knows that winning the case just became a good deal harder and will often withdraw the lawsuit in an effort to save time and money.  

Related Posts:




11 comments:

  1. thanks! this article helped a lot.

    ReplyDelete
  2. Can some explain this in plain english I just was serve with papers in broward county Florida Iam being sued by DISCOVER CARD WHAT DO I DO TO PROTECT MY SELF WHAT CAN THEY DO WHAT CAN THEY TAKE ANY ONE KNOW A GOOD LAWYER?/ AND NOT ONE OF THESE WHORE MATSERS??

    ReplyDelete
    Replies
    1. Is it actually Discover Card filing the suit?? Or a collection agency/lawyer that is filing the suit??

      First things first. You HAVE to answer the lawsuit that you got served with (typically within 30 days) Within your answer, DO NOT admit to owing the debt, answer it by saying "you are not familiar with it and you would like the collection agency to send verification/validation and a chain of ownership. (verification/validation should include statements, signed contract, and when the last payment was made). Let them know you want this info within 30 days of receipt of the certified letter. (yes!! send it certified!!) If, you don't get the info within 30 days, file a motion to dismiss with the court.

      If they DO sen you the info. Find out when the last payment was made. Open end contracts such as a credit card has a collections statute of 4 years in Florida. If you last payment was over 4 years ago, then you can have the case dismissed as it's time barred. (meaning it's out of the statute of limitations for litigation.)

      I have outlined how I beat a collection lawsuit from a lawyer a few years ago. I did not get a lawyer and represented myself.

      http://whytheaveragefamilyisindebt.blogspot.com/2012/04/average-family-debt-and-junk-debt.html

      Delete
  3. I'm being sued by Stephen Bruce & Associates in Oklahoma for a charged off Discover account. They sent me an initial collection letter, I sent them a certified debt validation letter. They responded with a letter, a copy of the signed cardholder application, and an affidavit. They then, within a week, filed a suit against me. I have not yet received the summons, but I am aware of the suit because I have been checking my local court dockets.

    Here is the thing. The signed cardholder application they sent does not have my signature. The application has my name on it, but apparently when we received it, there was a mix up and my husband actually filled it out for himself and signed it, thinking it was an offer for him. The only place where my name is written (other than what was typed when sent) is in the "Please provide additional free card for" box.

    My question is, how is that going to go over? Is that grounds for saying that they have not validated my debt because they did not provide proof that it is MINE?

    I am considering trying to settle with them, we went through some difficult financial times about four years ago. We are trying to get them all worked out and get back on track. This is the last of the problems! I'm not sure if they will negotiate with me, so I am curious as to what I can stand on if I have to go to court.

    Thanks!

    ReplyDelete
  4. I'm being sued by Stephen Bruce & Associates in Oklahoma for a charged off Discover account. They sent me an initial collection letter, I sent them a certified debt validation letter. They responded with a letter, a copy of the signed cardholder application, and an affidavit. They then, within a week, filed a suit against me. I have not yet received the summons, but I am aware of the suit because I have been checking my local court dockets.

    Here is the thing. The signed cardholder application they sent does not have my signature. The application has my name on it, but apparently when we received it, there was a mix up and my husband actually filled it out for himself and signed it, thinking it was an offer for him. The only place where my name is written (other than what was typed when sent) is in the "Please provide additional free card for" box.

    My question is, how is that going to go over? Is that grounds for saying that they have not validated my debt because they did not provide proof that it is MINE?

    I am considering trying to settle with them, we went through some difficult financial times about four years ago. We are trying to get them all worked out and get back on track. This is the last of the problems! I'm not sure if they will negotiate with me, so I am curious as to what I can stand on if I have to go to court.

    Thanks!

    ReplyDelete
  5. I am being sued by Stephen Bruce & Associates in Oklahoma for a charged off Discover account. They sent the initial letter, I sent a certified debt validation letter. They sent a copy of the signed cardholder application, copies of statements and an affidavit. Then within a week, filed suit. I have not received a summons yet but I am aware of the suit because I've been checking my local court dockets.

    Here's the thing, the signed cardholder application is not signed by me. The only place my name appears is in the "Please provided additional free card for" box. But the account is in my name and address. Does this mean that they have not supplied sufficient debt validation since they did not show anything signed by me? What would be my chances in court do you think with this defense?

    I would like to try to settle with them, but do not know if they will. I went through some financial difficulties a few years ago and I'm trying to get them all settled and back on track. I would like to avoid the embarrassment of garnishments due to a judgement.

    Any advice is greatly appreciated!

    ReplyDelete
  6. once a judgment is placed can do you have time a request to vacate the judgment due to not being served and that the statue of limitations has expired.

    ReplyDelete
  7. ӏ do not evеn κnοw hοw I еnded
    up here, but I thought this post ωas great. I dοn't know who you are but definitely you're goіng to a famоus bloggeг if yοu are nοt аlreаdу ;) Cheeгs!
    Stop by my page ; loans for bad credit

    ReplyDelete
  8. I have been sued by Stephen Bruce & Associates in Oklahoma as well. They are quite unbelievable in how aggressive and threatening they are. If I had the money to pay the debt, I would pay it. However, they continue to persist in thinking that I somehow have the money to pay it back. I am in the middle of filing for bankruptcy which they are aware of, and still are trying to take me to court for the third time.

    ReplyDelete
  9. A collection agency took my savings account. The money was unemployment and SSI survivors benifits.How do I get it back?

    ReplyDelete
  10. Bruce & Associates are tried and true scumbags. The routinely break the law and procedures with defective subpoena's, inflated charges with no validation, false testimony, break every rule of the fair credit act with harassment, lies, threats and yet they are able to get a judge to sign off on outrageous judgments and attorney fees. The OK Bar turns a blind eye if a complaint is filed. The FBI would have a field day with this group of miscreants

    ReplyDelete