If you have yet to begin filing bankruptcy you may choose to answer the complaint. A summons can certainly lead to more drastic legal actions when not handled properly. You have a certain amount of time to answer the summons and if you fail to answer it could result in a default judgment.
Written by Attorney John Coble.
Updated August 26, 2020
A creditor has sued you to collect a debt. What do you do now? Read on to learn more about how to deal with a debt-related lawsuit.
Defaulting on A Debt
If you don't pay your bills, your creditors will put negative notations on your credit history. These entries will be reflected on your credit report and may result in a dip in your credit score. Creditors will also charge late fees to your account and sometimes raise the interest rates on your account. To make matters worse, they will make collection calls and send threatening letters. They will almost certainly continue to pursue the debt until it is paid.
If the original creditor, such as a credit card company, isn't able to collect the debt, they may turn it over to a collection agency. Collection agencies are third parties that are assigned to collect the debt. Another type of collection agency is a debt-buyer. Debt buyers purchase the debt from the original creditor. They usually pay pennies on the dollar to purchase outstanding debt. It's unfortunately not as uncommon as you would think for these companies to try to collect debt that has been time-barred by a statute of limitations.
Fair Debt Collection Practices Act
Debt buying companies are treated just like collection agencies for purposes of the Fair Debt Collection Practices Act (FDCPA). Debt-buying companies often hire another collection agency to collect for them just as original creditors do. Collection agencies will continuously call you and send you letters in an attempt to collect a debt.
The FDCPA puts limitations on these collection agencies. For example, collection agencies can't call you before 8:00 AM or after 9:00 PM. These debt collectors may not harass you or anyone else either over the phone or by any other method of communication. The FDCPA prohibits a debt collector from contacting you if you're represented by an attorney. If you write a letter to the debt collector telling them not to call you, and they call anyway, they have violated the FDCPA. It should be noted that the FDCPA usually doesn't apply to an original creditor, such as a credit card company.
Any third-party debt collector that contacts you in an attempt to collect a debt must provide you with certain information. They must tell you the name of the creditor, the amount owed, and that you can dispute the debt. They must tell you that you can request the name and address of the original creditor if different from the current creditor. Any debt collector must provide you with a written statement of rights you have under the FDCPA. They must provide this statement within five days of the first time they contacted you. You can sue a collection agency if they fail to follow the requirements of the FDCPA. If they sue you, you can file a counterclaim regarding any violations of the FDCPA. Practically speaking, this means that you can use their FDCPA violations as a defense against any claim they may file seeking repayment of your debt.
If you choose to dispute the debt within 30 days of receiving this letter, the debt collector must stop contacting you until they have verified the debt. If your written response is sent more than 30 days after receiving this letter, the debt collector can continue to contact you, but will still have to verify the debt.
I Am Being Sued – Now What?
If you continue to ignore the debt, a law firm for the debt collector or a law firm for the original creditor can sue you. You will know that you’re being sued if you are served with a court summons and a complaint. Most state laws require that your copy of the complaint make clear that you're being sued.
Answering the Complaint
You must "answer" the complaint or the creditor will get a default judgment against you. An "answer" is a legal pleading you must file with the court. The answer is where you raise your defenses for the first time. Many states have answer forms available for you to fill out when drafting your formal answer to a complaint. At least one state has a multiple choice question that allows debtors to raise a defense defense. The choices are as simple as A) I owe the amount, B) I may owe them something, but not the amount they say I owe, and C) I owe nothing. In such a case, if you choose B or C, the case will be set for trial.
You can find these answer forms at your county courthouse. Some states have these forms available online. Other states require that an answer form be served with the complaint. If you have to go to the courthouse, you will need to go to the court clerk's office to obtain an answer form. The court clerk can give you a form, but they can't give legal advice. For this reason, it's not a good idea to go to the clerk's office and say, "I've been sued. What do I do now?" It would be better to show the clerk your lawsuit complaint and tell them that you need an answer form.
The clerk will be able to look at the complaint and know which court-level for which you need the form. For example, your state may have a different form for small-claims court, district court, circuit court, or superior court. Where your case will be heard will depend on the amount contested in the lawsuit. Some of the courts with higher minimum amounts may not have simple answer forms. This may be a hint that for these more financially significant cases, you’ll need to hire a lawyer to represent you.
You must file your answer with the clerk's office and mail a copy of your answer to the creditor or debt collector (they are the plaintiff). Your answer must be filed and mailed within the time allowed, as shown on the complaint. You’ll also want to mail a copy to the law firm representing the creditor or debt collector; they’re called the plaintiff’s attorney. Filing your answer late could result in a default judgment being entered against you. If you're having a difficult time filing your answer, contact an attorney or legal aid for help.
In your answer, you need to include any affirmative defenses that you want the court to consider when evaluating your case. An affirmative defense is a claim that reduces or eliminates the creditor’s claim against you. Affirmative defenses might include a claim that collection of the debt is time-barred by the statute of limitations or that a collection agency has violated the FDCPA.
Statutes of limitations are time limits that forbid legal action to collect a debt after a certain amount of time has expired. Statutes of limitations vary across different states. It can be tricky to determine when the statute of limitations begins to run. Does the time begin to run from the date of the last missed payment? Does the time begin to run from the date the creditor last attempted to collect the debt from you? Just as the length of time varies by state law, the starting date may also vary with state law. You’ll want to do some research to determine whether your creditor’s claim may be barred by your state’s consumer debt-related statute of limitations.
Other affirmative defenses could include fraud by the creditor or identity theft. If you have been the victim of identity theft, you need to request a fraud packet from the creditor. It would be ideal if you requested this packet before the creditor sues you.
Negotiating a Settlement
You may be able to negotiate a settlement with the creditor that's suing you. Many times, the mere fact that you have answered their complaint will get the attention of the creditor's attorney and they will reach out and offer a repayment plan. If you can afford the repayment plan, this may be a good way of preventing a judgment. Usually, a stipulation of the settlement is filed with the court. In some states, these settlement agreements may contain a "confession of judgment." The confession of judgment allows for a judgment without further legal action should you miss a payment on your payment plan.
If you lose in court or fail to answer a complaint, a judgment will be entered against you. Once a judgment has been entered, the creditor has several ways to collect on the judgment. For example, the creditor can garnish your wages. Your employer will receive a notice from the court to take money from your paycheck. If the employer doesn't take the money, the employer can be held liable for the amount due. Paychecks aren't the only assets they can garnish. If you have your own business, they can garnish your accounts receivable. However, creditors can't garnish your Social Security check. Only the government can garnish a Social Security check.
Besides garnishments, creditors sometimes use bank account levies to collect on their judgments. In such cases, the money is taken right out of your bank account. To make matters worse, the bank will usually charge a fee to you for having to take the money from your account. Understand, they can't take Social Security money from your account. If you have money from Social Security in the same account with other money, you'll need to prove what part of the account is from Social Security. For this reason, it's wise to have your Social Security check direct deposited into a separate account from any other money you have. By doing so, you will have one account that will remain untouchable by creditors.
Another way a creditor can collect on a judgment is to put a lien on everything you own. They do this by recording the judgment in your county's records office. When such a lien is in place, you won’t be able to sell assets, such as a car or house, before you clear the lien. Technically, the creditor could also use a sheriff's sale to have your things sold to pay your debt. Creditors rarely sell personal property secured by a lien, but it is a possibility.
Note that with wage garnishments, federal law prohibits more than 25% of your paycheck from being taken. An exception to this rule exists when the IRS is the creditor. Low-income wage earners may have a maximum percentage allowed to be taken that's less than 25%. You can also use state property exemptions when dealing with levies and liens. These vary widely by state law. Personal property exemptions can be especially effective with bank account levies.
If you're sued and you have debt problems, your best choice may be to file for bankruptcy. The automatic stay of §362 of the Bankruptcy Code stops all collection activity the minute your bankruptcy is filed. If the debt is discharged in bankruptcy, the creditor will no longer be able to use the courts to collect the debt.
In fact, if a debt is discharged in bankruptcy, the creditor will no longer be able to demand payment of that debt ever again. If bankruptcy is your best option, it's important to file before a creditor obtains a judgment in a debt collection lawsuit. If possible, you’ll want to file before the creditor gets a chance to record the judgment. Once a creditor records a judgment, it attaches to any nonexempt equity you have in any property you own. This is called a judgment lien. If you have any nonexempt equity, a judgment becomes a secured debt. Had you filed before the judgment was recorded, it would have been an unsecured debt. In Chapter 7 bankruptcies most unsecured debts are eliminated through what's known as a discharge. Secured debts aren't discharged in a Chapter 7 bankruptcy.
If you answer a lawsuit against you, you can defend yourself or settle with the creditor. If a debt collector sues you and has violated the FDCPA, you can counterclaim against that debt collector. One thing you can't do is ignore the lawsuit. Answering a debt lawsuit can get complicated, but you need to take this step to avoid a default judgment.
If you choose to file for bankruptcy as part of a debt management strategy, the timing of the filing of your bankruptcy can be very important. Filing before a judgment is entered prevents the judgment from ever being entered. For simple straight forward Chapter 7 bankruptcy cases, you can file your own bankruptcy. Upsolve provides you with a free tool to help you file. For more complicated cases, it’s often a good investment to hire an experienced bankruptcy attorney in your area.