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.