Being sued for unpaid debt can be frightening. However, it is essential to respond when you receive a summons that informs you that you are being sued since this is part of debt settlement law. If you fail to respond, the court may issue a default judgment and you will lose the opportunity to defend yourself against your creditor’s lawsuit. (See also can you go to jail for debt).
Once a judgment is issued, your creditor may be able to seize property or garnish your wages in order to collect on your unpaid debt. However, by responding to a summons and complaint, you have the opportunity to disprove that you owe the debt or to raise a defense to the lawsuit in a debt settlement court case.
Answering A Summons
When you receive a summons, the court documents will contain a complaint that explains what you are being sued for. You must file an answer to this complaint. You should hire an attorney in the vast majority of cases in order to drat this answer. An attorney can help to ensure that you are raising all the potential defenses available to you, and can help facilitate a settlement with creditor’s in many cases that will allow you to avoid going to court.
If you do not hire a debt settlement lawyer, you can file an answer yourself by filing out the appropriate forms at the county clerks office or courthouse. You will then receive a court date, or a hearing date, and will be required to appear in court to defend yourself.
Responding to Debt Collection Litigation
When responding to a debt collection lawsuit, you can file discovery or submit a motion to compel the creditor to provide proof that you actually owe the debt. The creditor has the burden of proof in debt collection litigation, which means that the creditor must prove that they own the rights to the debt, and that you owe the money.
They can prove this by showing a signed contract, account statements, and bills. If a collector who is not the original creditor has purchased the debt, they must show an assignment of debt from the original creditor that sold them the rights to your debt.
If the creditor proves that you owe the debt and that they have the right to collect on it, then you may be able to use one of several common law defenses. The availability of these defenses varies depending on the jurisdiction and your personal situation. It is advisable to consult with an attorney before selecting a defense.
Common Law Defense to Debt Collection Litigation
You can claim improper service of the summons, if you did not receive personal service, substitute service or conspicuous or constructive service. Personal service means that an officer of the court, called a process server, actually personally gave you a copy of the lawsuit. Substitute service means they left a copy of the lawsuit papers with a responsible party, and at your home and your last known address. Conspicuous or constructive service means the summons was attached to your door and mailed to your last known address, and is only acceptable after the process server has already tried to serve you in person or via substitute service three times.
You can also claim that the statute of limitations has run out on the debt. The statute of limitations begins running, in most states, from the last time you made a payment. The exact statute of limitations for debt varies depending on the jurisdiction. In most cases, it does not reset if the debt is sold to a new collector. However, it does reset if you make a payment, which is why you should be careful about sending even a small payment to collectors who call your home.
You can claim that the debt is not really yours. This could mean claiming that identity theft occurred, or that you were only listed as an authorized user or authorized signer on a card. Unlike a cosigner, an authorized signer has not guaranteed or signed for the debt, and cannot be held legally liable.
Finally, you can either claim you already paid the debt or that the amount of the debt owed is incorrect. The creditor will have to prove that you did not pay, or that the amount is correct.
Finding Legal Help
Responding to a debt collection lawsuit is complicated. The appropriate papers have to be filed and the appropriate defenses must be filed. It is advisable to consult with an experienced attorney who can provide you with additional guidance on burden of proof issues and common law defenses to debt settlement litigation. An attorney may also be able to facilitate a settlement with your creditor’s that allows you to avoid going to court.