Help – I've Been Served with a Lawsuit
A lawsuit starts when a creditor (or a company that bought the debt, called a “debt collector” or a “debt buyer”) files a collection lawsuit. After filing, they will have a process server deliver the documents to you. This is called “being served.” In some cases there are methods of “being served” that do not involve delivering the documents personally to you; it could involve the documents being mailed from the court, or left with someone at your house.
The document you've been served is called a “summons and complaint” and in small claims court should look like this. If you've been served, you have a small window of time to file a written answer – or be required to appear in court. In general civil court there will one document called a “summons” and another called the “complaint.” There are no “form” documents in general civil court as the rules are more complex and individualized there.
On the first page of the (small claims) summons you'll see if a written answer is needed or if you are required to appear in person. If you are required to appear in person and contest the lawsuit. If you fail to appear, they court could immediately enter a judgment against you. In general civil court you must always file a written answer.
One important note: the procedures are very different between small claims court (debts $10,000 and under) and general civil court (debts over $10,000). In a case in general civil court you will always be required to file a written answer. This written answer in general civil court will be due within 20 days from when you were served. This is a “hard” deadline to answer as required under state law.
What is a Written Answer
So the court has instructed you to file a written answer. What is a written answer? It's a written response that either admits or denies the factual and/or legal statements made by the person/company that sued you. This answer is very important; one misstep or incorrect answer and the creditor will get an automatic “win” and you will lose the case. Losing the case means you be subject to an immediate garnishment.
In small claims ($10,000 and under) there is a “form” answer you can use. Completing that form answer (correctly) will satisfy the court's requirement for a written answer. In a general civil (over $10,000) court there is not a “form” answer you can file. The answers in general civil court are much more complex in nature.
What if I have a Defense?
Being sued does not mean you will automatically (and eventually) lose; perhaps you have something called an “affirmative defense.” An affirmative defense is a legal defense that can “block” or “stop” the lawsuit. There are a number of affirmative defenses found in various state statutes; but a variety of them exist in something called “common law.”
A common law defense is not found written out in a statute. Rather, they are defenses to a lawsuit that are recognized as a matter of history, law, and public policy. These defenses are very important and may be able to completely eliminate your obligation to pay the debt. A free consultation with a consumer lawyer will help outline how these affirmative defenses can win your case.
Do I need a Lawyer?
Technically, no, you don't a lawyer. But there are many pitfalls and traps that result in you swiftly losing your case. It could be an incorrectly created answer, a missed deadline, failing to know about an affirmative defense you could assert, or not getting necessary documents from the creditor (called discovery).
What are the benefits of hiring a lawyer
First, you are not responsible for filing written documents with the court or appearing at court. This means no missed work and no missed deadlines.
Next, your written responses are done correctly and in compliance with the applicable state statutes. Losing your case and being garnished because you failed to fill out the paperwork correctly is a real issue; don't let this happen to you.
Third, a consumer lawyer can engage in something called written discovery. Written discovery requests are formal demands for documents, information, and/or interviews (called a deposition) from the company that sued you. This is often called “making them prove the debt” by consumers. Effective (and legally proper) written discovery is a key to making sure the creditor has followed the law. Our office always engages in immediate written discovery when defending a lawsuit.
Lastly, a consumer lawyer will be looking at all the documents and information to make sure the creditor has followed both state and federal consumer protection laws. If they have violated any of those laws, you may have a “counterclaim” against the company that sued you. Suing the creditor back certainly “turns the tables” on them. Our office regularly sues debt collectors and creditors for violating state and/or federal laws. Knowing your rights is important; you can schedule a free consultation to protect yourself from abuse.
WHAT TO EXPECT DURING AN INITIAL CONSULTATION
During an initial consultation we'll go over some of the following information
- Have you been “served” any paperwork?
- Do you have an upcoming court date?
- Do you recognize the debt collector or original creditor?
- Are they reporting to your credit report?
- What are your hopes, goals, and case expectations?
MAKING THE DEBT COLLECTOR PROVE THE DEBT
Often people tell me “I want to make this debt collector prove I actually owe the debt.” And this approach is part of what we'll do as part of the defense in a case. Did they validly buy the debt? Do they have the necessary documentation? Did they follow all the rules and regulations before suing you? These key pieces of information are gained during the “discovery” portion of the case – where we make the debt collector provide information from their records. This information can also show us if they have broken any of the collection laws – and if you can sue them back.