So You Have Been Sued. How to Read a Summons and Complaint.

In the previous post, I talked about what to do if someone is trying to serve you.  Once you have been served, a clock starts ticking.  Depending on where you live, from the date of service you will have 20 days, 21 days, or 30 days to respond.  And that time period is even shorter if you find out about the service after-the-fact.

Being sued can be very unnerving.  It is also unpleasant.  But it is not life threatening.  And, how you react to being sued will go a long way towards determining how much harm, if any, the lawsuit will cause you.

Unfortunately, most people do not react to the lawsuit.  Whether out of fear of the unknown, fear of court, lack of understanding of what to do, or a misguided belief that they are “judgment-proof”, the overwhelming majority of people who are sued by debt collectors never respond.  As a result, in more than 90% of the lawsuits the debt collectors file, they win by default – without having to prove anything.  And, armed with a default judgment, a debt collector can then pursue you for years, or even decades, with the ability to garnish your wages or your bank account or have a sheriff, marshal, or constable seize your property.

It does not have to be that way.  Upon being served, the first thing you should do is read the documents that you have been given.  There should be one document called a Summons, and another called a Complaint or a Petition, depending on where you live.  There may be other documents as well, such as a Civil Case Cover Sheet or an automatic scheduling order.

Starting with the Summons, read it carefully.  While a Summons may look confusing, it should contain the following information

  • The name of the party suing you;
  • The name of the Court where you are being sued;
  • How many days you have to respond.  In most states, you will have either 20 or 30 days.  When determining the response deadline, you start counting on the day after you were served.  So, for example, if you are served on Tuesday, and have 20 days to respond, you start counting the days on Wednesday;
  • Whether or not suit has been filed.  In some states, a plaintiff, such as a debt collector, can serve a Summons and Complaint without actually filing it for a short period of time, such as 10 days.  Debt collectors who resort to this practice will usually include a request that you call them within 10 days to avoid a lawsuit as a last ditch effort to get you to speak to them.  In these states, if the lawsuit is not filed within a specific time period, the lawsuit is deemed dismissed;
  • A signature of either a Court Clerk or the attorney suing you.

If a Summons does not have all of the information above, then it is not valid.  If you are served with a defective Summons, you can move to dismiss the lawsuit for insufficient process.  How to do this is explained in more detail in the coming book Seven Secrets You Need to Know About Debt Collectors and Fighting Collection Lawsuits.

Next, read the Complaint.  Most debt collection Complaints are fairly short and have the bare minimum necessary to allege a claim.  The Complaint should identify who is suing you, what they are suing you for, why they are suing you (e.g. you did not pay), and how much they are seeking to recover from you.

After you have read the Summons and Complaint, figure out your response date.  You do not want to miss your response date.  If you miss the response date, the debt collector can move the Court for entry of a Default and then a Default Judgment for the amount sought in the Complaint.

Once you know when you have to respond, determine where to respond.  Most states organize their courts geographically and by subject matter.  Was the Complaint filed in the Court for the county where you live?  Whether a state’s courts are organized by county or district, the county where you live will usually determine the proper court.  The one exception is if the contract in question (almost all debt collection cases are contract cases) calls for lawsuits to be filed in a specific court.  This is a tactic that some lenders of last resort (payday lenders for example) use to make it even harder to challenge them in court, as the court called for in the contract may not be close to the county where you live.  If you were sued in the wrong court, you can file a motion to dismiss or transfer venue.  This too is covered in Seven Secrets You Need to Know About Debt Collectors and Fighting Collection Lawsuits.

After determining when and where to respond, you will be ready to prepare your Answer or Motion in response to the Complaint.  How to Answer a Summons and Complaint or file a Motion to Dismiss (or Demurrer) is covered in Seven Secrets You Need to Know About Debt Collectors and Fighting Collection Lawsuits and will be discussed in a future post.

Someone Is Trying to Serve Me. Now What?

One day, without warning, there is a knock on the door.  Or maybe you come home from work and there is a notice on your door or waiting for you inside.  Or you receive a certified letter.  However it happens, you realize that you are being sued and someone is trying to serve you.

Being served can be very unnerving.  There is a stranger at your door.  Maybe even someone official, like a constable, sheriff, or marshal.  Or you know that a stranger was at your door looking for you.

First, no matter how tempting it might be, do not dodge service.  While it may be a natural impulse to want to avoid a process server, it will not help you.  Once a debt collector makes the decision to sue you, avoiding service will not deter the debt collector.

Instead, if you avoid service long enough, the debt collector can go to Court and ask for an Order on Alternative Service.  And that is if the debt collector is being above board.  Some will resort to a tactic known as “sewer” service, where they will “serve” a Summons and Complaint at an address that may or may not be your current address and then tell the Court they properly served you.  Either way, the lawsuit will be deemed served, and you will not know about it.  This is perfectly fine with most debt collectors, as they are not really interested in litigating any more than you are.  What they are really after is a Default Judgment.

A Default Judgment means the debt collector wins without having to prove their case.  The amount of the Judgment is the amount alleged in the Complaint, plus costs.  And then the debt collector can begin enforcing the Judgment.  Most debt collectors enforce Default Judgments by seeking garnishments, which are court orders that permit a party to take money or property from a judgment debtor.  And the things that most debt collectors try to garnish are your bank accounts and your wages.

While it is possible to obtain relief from a Default Judgment, it is not easy.  You must give the Court a good reason to vacate, or reverse, a Default Judgment, and even then, the Court has discretion.  This will be the topic of a future column.  In any event, you are always better off avoiding a Default Judgment than trying to have one reversed.  And the first step to avoiding a Default Judgment is to not avoid service.

How to Handle Being Served

OK.  So you make the wise decision to not avoid service.  The process server is at the door and you are being served.  What do you do?

  • If asked are you [Your Name], admit it.  Your credibility is worth more than a fruitless attempt at avoiding service.  And it is never a good idea to lie to a public official if you are being served by a sheriff, constable or marshal.
  • Don’t make a scene.  Don’t refuse the documents.  And don’t throw them back at the process server.  These acts make you look foolish and have no legal significance.
  • Accept the documents and ask what they are.
  • If the process server identifies them as a Summons and a Complaint, ask him or her who is suing you, what are they suing you for, and when you need to respond.  The process server may or may not know the answers, but if they do, more information is better than no information.
  • Ask the process server for his or her name, his or her badge number if he or she is a public official or his or her employer if he or she is not a public official.  Write down all of this information as well as the time and date.
  • Do not answer any other questions.  Many times, a process server will ask you for additional information “for identification purposes.”  For example, a process server may ask you your date of birth or your place of employment.  You should not provide this information to the process server.  There is no legal requirement to do so, and it will only help the debt collector.

Ways to respond to a Summons and Complaint in a debt collection lawsuit will be addressed in future posts and the coming book, Seven Secrets You Need to Know About Debt Collectors and Fighting Debt Collection Lawsuits.

For now, remember that being sued, while unpleasant, is something that you can handle.  If you remain calm, and follow the rules of your court, you can represent yourself in court, and you can obtain a better result for yourself.  As long as you respond on time, you will have successfully taken the first step towards fighting back against the debt collector and protecting yourself.  And it is almost always better than the alternative.  If you do not respond, you will lose, and the debt collector will get a Default Judgment for the amount being claimed.  If you do respond, however, you will almost always do better, as the majority of all contested lawsuits end in a settlement – and a settlement will almost always be better than a Default Judgment.

Introduction

Debt collectors file hundreds of thousands of lawsuits against consumers like you every year.  Why?  Because studies and surveys have revealed that in more than 90% of these lawsuits, the defendant never responds and the debt collector wins by default without having to prove anything.  And with each undeserved victory, a debt collector can then hound a consumer, i.e. you, for years, or even decades – all because you did not respond, let alone fight back.

It does not have to be that way.  You can, and should, fight back.  Doing so is easier than you think.  This site and the coming book Seven Secrets You Need to Know About Debt Collectors and Fighting Debt Collection Lawsuits will show you how to stand up for yourself and fight back against debt collectors – using secrets debt collectors don’t want you to know.  Knowing these secrets does not guarantee you will win in Court.  But it does give you a chance.  And a chance is something you will never have if you do not respond and do not fight back when sued by a debt collector or creditor.

I will periodically post columns or updates on issues related to debt collection lawsuits, and I encourage you to ask questions.  My goal is to make this site, and the book, useful tools in helping you fight debt collectors, protect your income and assets, and take control of your financial future.  If you respond and show up in Court, you have a chance.  If you never respond, the debt collector will win and get a judgment against you for 100% of the amount the debt collector claims – even if it is wrong.