Most debt collection suits in the U.S. end in default judgments. That’s a judgment entered against the alleged debtor because they either didn’t file an answer to the complaint or didn’t show up in court. This is bad news, partly because many of those cases could have been won. If you’re sued by a creditor, debt collector, or debt buyer, the worst thing you can usually do is ignore the lawsuit. This article will provide guidance on how to deal with a debt collection lawsuit.
The most common reason people lose debt collection lawsuits is simply that they don’t show up. Most debt collection suits in the U.S. end in default judgments. That’s a judgment entered against the alleged debtor because they either didn’t file an answer to the complaint or didn’t show up in court. This is bad news, partly because many of those cases could have been won.
If you’re sued by a creditor, debt collector, or debt buyer, the worst thing you can usually do is ignore the lawsuit. This article will provide guidance on how to deal with a debt collection lawsuit.
Filing An Answer
A debt collection lawsuit starts when a creditor or debt collector files a complaint with the court. But you’ll probably find out about a lawsuit if/when you’re served with a summons and a copy of a complaint. That’s your cue to take action, and time is limited. A summons should tell you how long you have to file an answer. The rules concerning filing are a bit different from state to state.
When An Answer Is Required
In most states, you aren’t required to file an answer if the case against you is filed in small claims court. Instead, you may be automatically granted a date to appear in court. Even when an answer isn’t required, you might be required to file a written appearance within a specific time period. Be sure to read the documents you are served with carefully. It’s important to comply with all requirements.
What Happens If You Don’t File An Answer
If an answer is required but you don’t file one, the creditor or debt collector can ask the court for a default judgment. Since you didn’t tell the court that anything in the complaint was wrong, the judge can enter a judgment as if everything the debt collector claimed was true. Once a judgment is entered, the creditor is allowed to:
Ask the judge to order you to come to court and provide information about your income, bank accounts, and other property. If you are ordered to appear and don’t show up, you can be held in contempt of court and arrested.
Request a wage garnishment order that will require your employer to take money out of your paycheck and send it to the court to pay the creditor.
Seize funds in your bank account or other assets, or put a lien on your property.
The judgment will likely appear on your credit report as a negative mark against you. It might also hurt your credit score. Clearly, a default judgment is something to be avoided. Fortunately, you can avoid it by simply filing an answer within the time allowed.
How To File An Answer
The complaint you are served contains the creditor or debt collector’s claims. These claims are typically numbered. In your answer, you will tell the court that you either admit to or deny each claim in the complaint. Some claims will include basic information that is accurate. For instance, one numbered claim will likely include your name and where you live. If that information appears in numbered paragraph 3 and is correct, you can write “Numbered paragraph 3 is admitted” in your answer.
Other claims may appear not to be true. For example, numbered paragraph 7 says that you took out a loan from ABC Bank in November of 2019. But you’ve never heard of ABC Bank, so you would deny numbered paragraph 7. You may also deny claims because the details seem incorrect.
Imagine, for example, that a debt buyer sues you for unpaid credit card debt. One claim in the complaint is that there is an outstanding balance on the account of $7,684.38. But, the last statement you remember receiving from the credit card company was for $4,520. You would deny that item because, to your knowledge, you don’t owe the amount claimed.
You must respond to each numbered claim. You won’t always have the information necessary to admit or deny a claim. For instance, a debt buyer’s complaint might include a claim saying that the original creditor transferred the account to them on a specific date. Of course, you don’t know whether that transaction actually happened, let alone on that specific date.
In this situation, you can write that you don’t have the information necessary to admit or deny the claim. You don’t want to admit something you don’t know to be true because it can keep you from raising the issue in court later.
Your answer should also include any defenses that you have to the claim. And, you’ll add any counterclaims you may have against the debt collector. These are discussed in greater detail in a later section. When you’re done writing your answer, review it carefully. Then, sign your answer and file it with the court clerk’s office within the time frame shown on the summons you’ve received.
How To Serve A Copy On The Plaintiff
The plaintiff must be served with a copy of anything you file in the case. When you file your answer, bring two extra copies and ask the clerk to file stamp them. Keep one for yourself and send the other one to the plaintiff by certified mail right away. The plaintiff is the person or company who sued you. If the complaint was filed by an attorney on behalf of the plaintiff, send the plaintiff’s copy to the attorney at the address on the complaint.
Most people who skip answering a debt collection complaint or who don’t show up in court are missing an important opportunity. Many debt collection cases can be won. Cases are won when the plaintiff doesn’t have the necessary evidence to prove its case and/or the defendant can successfully raise one of many possible defenses.
The Plaintiff Has The Burden Of Proof
The burden of proof is one of the most powerful tools a defendant has in a debt collection case. In every state, the plaintiff must prove each claim in the complaint. In civil court, the standard of proof is typically “preponderance of the evidence.” This means the plaintiff must prove that their claims are more likely true than not.
If the defendant doesn’t answer or show up, courts often take the debt collector at its word and don’t require this kind of proof. When you file an answer and show up in court, you can push the debt collector to prove its case or fail to prove its case.
For instance, the debt collector will have to prove:
That it has the right to collect on the debt
That the account is yours
That the debt hasn’t been paid
The exact amount remaining due on the debt
That your contract provides for any fees, collection costs, or interest that have been added
Debt collectors are used to plaintiffs not showing up or not knowing how to defend themselves. Because of this, they often don’t even bring the necessary documentation to court. When the plaintiff is a debt buyer, they might not even have access to those records.
Even if the debt collector presents evidence, you might be able to call that evidence into question with your own records. For example, the debt collector might submit a record of payments. But, you might have records that prove you made payments that aren’t included on that record. That might call the reliability of the whole record into question.
So, it’s often possible to win a debt collection lawsuit before you raise any defenses. That’s especially true if the plaintiff is a debt buyer. If the plaintiff can’t prove its case, there’s nothing to defend against.
Identity Theft Or Mistaken Identity
The plaintiff must prove that you opened the account. Courts typically accept a copy of an application or contract as sufficient evidence on this point. In part, that’s because defendants rarely fight back. If you’ve been the victim of identity theft, know that your credit report has been mixed with someone else’s or that the account isn’t yours, bring whatever evidence you have to court with you. If you’re the wrong defendant, the case can’t move forward.
Affirmative defenses are defenses you can assert even if you actually owe the money. Some common defenses include:
The case was filed outside the statute of limitations.
Every state puts a time limit on filing a debt collection case. Depending on state law, the statute of limitations for debt collection cases may be as little as three years or as long as 10 years or more. Whatever the limit, it’s a hard cutoff. If the case is filed too late, it can be dismissed.
The plaintiff doesn’t have the right to sue.
If the plaintiff is a third party (like a debt buyer), they have to prove that they have the legal right to sue you. If they don’t have paperwork to prove that the debt was transferred to them, the judge may reschedule the hearing to allow them to gather the evidence, or the case may be dismissed.
But even if the case is dismissed, the plaintiff may sue again if they find the necessary evidence. So, this may be a good time to offer a substantially reduced payment in full settlement of the debt. Settling will save the debt collector time, court costs, and uncertainty. So, a settlement can be a win-win.
The debt was discharged in bankruptcy.
Ideally, the debt will have been listed in your bankruptcy schedules. If so, you will be able to show the court that the debt was discharged. But, that isn’t always necessary.
If you got your discharge in a Chapter 7 case and you already owed the debt when you filed, you’re probably covered. If there were no assets to be distributed to creditors, the debt was likely discharged even if you didn’t list it specifically. If there were assets to make a partial payment to creditors, the debt probably wasn’t discharged unless it was listed. The same is true if you received your discharge in a Chapter 13 bankruptcy case.
Counterclaims may include any legal claim you have against the plaintiff that arises out of the same circumstances. Some of the most common and powerful counterclaims in debt collection suits are claims for violation of the Fair Debt Collection Practices Act (FDCPA).
The law applies only to consumer debt. Generally, the FDCPA applies only to third-party collectors like debt collection agencies and debt buyers. But, the law may be applied to an original creditor if they disguise their name to make it look like you are receiving communications from a debt collection agency.
Some of the most common FDCPA violations include:
Calling repeatedly to harass you
Continuing to call you at work, knowing that your employer doesn’t allow it
Using obscene or abusive language
Calling outside of reasonable hours
Threatening actions that they can’t actually take
Pretending to be an attorney, law enforcement, or government representative
In addition to possible money damages, the FDCPA provides for attorney’s fees. That means that if the debt collector is found to have violated the FDCPA, they can be ordered to pay your lawyer. Debt collectors know that, so an FDCPA claim can give you negotiating power.
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When To Hire An Attorney
It’s always smart to take advantage of a free consultation with an attorney. They can help ensure that you have the information you need to take the next steps. That legal advice can be valuable, whether you decide to hire an attorney or proceed on your own.
It’s often helpful to work with an attorney if:
The amount of money at issue is large
You’ll need information from the creditor or debt buyer to win your case
You have an FDCPA or other consumer-protection counterclaim
What If You Lose?
If the creditor or debt collector wins a judgment against you, that isn’t necessarily the end of the road. Pursuing collection of a court judgment through wage garnishment and other tactics can be time-consuming and expensive. The plaintiff may still be willing to settle with you for a lesser amount. Or, they might accept monthly payments to avoid that process.
Is your debt large? Do you have a lot of other debt? Are you otherwise struggling financially? If so, you may want to consider bankruptcy. A Chapter 7 bankruptcy discharge can eliminate debt, even after a judgment has been entered.
Many debt collection cases that could be won are lost because the defendant doesn’t answer the complaint or doesn’t show up in court. In some cases, avoiding judgment can be as simple as showing up and demanding that the plaintiff prove it owns the debt. Other defenses can help you win the case or encourage the plaintiff to settle for significantly less than they’ve sued for. Here’s the bottom line: If you’ve been sued by a debt collector, you owe it to yourself to fight back.