May 26, 2010
Debt Collection Assistance How to File Your Answer in Court
Debt Collection Lawsuits: Overview
Anyone can sue you and claim you owe them money. Whether or not they have a valid debt or are entitled to recover money from you depends on your reaction to their lawsuit. The person or company initiating the lawsuit is called the plaintiff. A plaintiff can be a credit card company, a hospital, a bank, a student loan company, a car loan company, or any other person or company that says you did not pay money you owed. The person or company that you owe money to is called a “creditor”.
Many times, when you are sued, you may not recognize the name of the company suing you. The original creditor may have sold your debt to another business like a collections agency (generally referred to as a “third party debt collector”). That business may now have the right to initiate a lawsuit against you in court for a loan that you may have owed to someone else.
You are called the defendant, or debtor. If you are the debtor, you have the right to defend yourself in court.
If you were served with a summons that says at the top: “CONSUMER CREDIT TRANSACTION,” then you or your attorney must come to court to file an answer. The answer tells the court your defenses, or the reasons the plaintiff must not win the case.
· TIP: Please note that whatever language you use in your answer will be used against you by the plaintiff when establishing its case. In addition, if you fail to state particular affirmative defenses in your answer, you may permanently waive your defenses, and you may lose your case automatically. This is why every court in the state of New York recommends you retain a debt attorney to handle these collection lawsuits for you. The language is particularized, and often debt collectors use your lack of knowledge of the court system as a means to win, regardless of whether your debt is valid or not.
Continue reading to find out when and how you file an answer, what you can say in your answer, and what happens if you don’t answer.
When and Where to Answer
If you read the front of the summons, it should tell you the name and location of the court you are being sued in. You have either 20 or 30 days, depending on how you were served with the summons, to retain a consumer lawyer and have them draft and file an answer for you, or go to that court in person to file your own “pro se” answer.
• 20 days – if the summons was personally served on you.
• 30 days – if the summons was given to you by any other way (for example by mail, left on your door, or left for you with someone who lives in your home).
If you show up at the courthouse within the 20 to 30 day timeframe, bring a copy of the papers with you, find the clerk’s office, and inform the clerk you would like to file an answer. They will give you a blank form to fill out.
* TIP: Please note that clerks are legally prohibited from giving legal advice, and they can only provide you with minimal assistance. They can provide you with a form, but they cannot help you fill it out, or tell you what to write or where to write it.
Common Defenses (reasons the plaintiff should not win)
In your answer you need to tell the court what claims in the complaint you deny. You must also specify the reasons why the plaintiff must not win the case. This is called an “affirmative defense.” If you satisfactorily prove your defense to the court, you will win, and the debt collector will lose the case.
Below is a list of common defenses you can include in an answer. Read them to see if any of them apply to you. You can claim one or more of these defenses in your answer:
1. General Denial. You can make a general denial defense when you do not know if all the information in the complaint is true or if you think the information in the complaint is not right, or if you do not remember having a debt with the plaintiff.
2. No Service. Use this defense if you were never received a copy of the summons from the plaintiff. (if you already have a judgment against you, however, you should not answer. You should contact a debt collection lawyer to assist you in filing an “order to show cause” to vacate the judgment). You should only claim no service in your answer if you are within the 20-30 day timeframe to file an answer. If you aren’t sure, please contact a local consumer defense attorney for a free consultation. Murtha & Murtha PLLC gives free consultations via e-mail.
3. Improper Service. Use this defense when the plaintiff did not give you the summons the right way. Read about the proper way to serve a summons below.
4. I do not owe the money. Use this defense when you do not owe the money that the plaintiff is asking for.
5. I am a victim of identity theft or mistaken identity. Identity theft is when somebody steals your name and personal information and opens up credit accounts in your name pretending to be you. Mistaken identity is when you are sued for somebody else’s debts because you have similar names or identifying information.
6. Payment. Use this defense when you have paid all or part of the money that the debt collector is suing you for.
7. Incorrect Amount. Use this defense when the plaintiff sues you for the wrong amount of money in the complaint. All the amounts listed must be right, including interest, collection costs and attorneys fees. Remember, you cannot deny the entire debt, and then claim the amount is wrong. This would essentially be admitting to some of the debt.
8. No business relationship with the plaintiff. (Plaintiff lacks standing). Use this defense when the plaintiff bought your debt from the person or company that you owed money to. Because you never signed a contract with the plaintiff who bought your debt, you can ask if the plaintiff can sue you (also known as standing to sue you). The plaintiff must prove to the court that it owns your debt. To do this, the plaintiff must have a contract of sale (assignment) that says your debt has been sold.
9. (If you live in NYC): The NYC Department of Consumer Affairs shows no record of plaintiff having a license to collect debt. Use this defense when the plaintiff is a debt buyer, not the company that you originally did business with. Most debt buyers must be licensed by the New York City Department of Consumer Affairs. If the plaintiff is not licensed, that is a defense to this case. You can find out on-line at the Department of Consumer Affairs website if the plaintiff is licensed.
10. Statute of limitations. As time goes by, people and companies lose old records. So, there is a time limit for starting cases. This is called the “statute of limitations.” The statute of limitations for filing a debt collection lawsuit for a “consumer credit transaction” is 6 years, counting from the “date of the default.” The “date of the default” is about 30 days after you last made a payment. In other words, if your last payment was in December 2005, you can be sued for the money until January 2012. The statute of limitations on a store credit card (like a Macys card) is 4 years. If you made a payment at any time after you first stopped paying, the plaintiff’s time to sue you starts to run again. If the court finds that the statute of limitations has passed, you do not owe the money.
11. The debt was discharged in bankruptcy. Use this defense if you declared bankruptcy and the money that you are being sued for now was discharged as part of the bankruptcy case. If the debt was discharged in bankruptcy you do not owe the money.
12. The collateral (property) was not sold at a commercially reasonable price. Sometimes you have to give something you own to get a loan. This is called collateral. If you don’t pay your debt, the collateral is sold to pay back the money you owe. It should be sold for a “commercially reasonable” amount. Use this defense if you think your collateral was sold for less money than it was worth.
13. Unjust enrichment. Use this defense when the money in the complaint is much higher than what you think you owe. (But remember interest can make the money you owe higher than the original money that you borrowed).
14. Violation of the duty of good faith and fair dealing. You can use this defense when you think that you have tried to take care of this debt in a fair way, but the other side has not been fair or dealt honestly with you.
15. Unconscionability (the contract is unfair). Use this defense when the agreement was not fair and is very, very one-sided. “Shockingly” unfair.
16. Laches (sounds like matches). Use this defense when the creditor waited too long on purpose to bring you to court or to sell your debt to the plaintiff. This case surprised you and the delay is very bad and makes it hard for you to defend the case. The amount of delay depends on the facts of each case. If the creditor has a good reason for the delay this defense will not win.
17. Defendant is in the military. If you are in any of the military services (Army, Navy, etc.), you might not be able to pay at this time. You can ask the court to stop the case for 90 days. If you are still in active duty after 90 days, you can ask for another delay of the case.
18. Other Defense. If you have any other defense or if there is anything that you think that a judge should know about the money that you are being sued for, tell the clerk or write it in your answer.
19. Protected Income. Some money can’t be taken from you for payment of debts. If you get your money from social security, SSI, unemployment insurance, worker’s compensation, veteran’s benefits or DSS use this defense. Tell the judge where your income comes from.
20. Counterclaims. If you think that the creditor owes you money, you can tell the judge. Explain why you think you are owed money and how much is owed.
If you are not sure what to say in your answer, contact a consumer defense attorney in your area. Most of them will give you a free consultation over the phone and can help you. Remember the first TIP, if you claim the wrong affirmative defenses in your answer, you can lose your case before it even starts.
Coming Back to Court to See the Judge
After you answer, the clerk will give the case a court date for you and the plaintiff to see a judge. The court date will be soon after you answer, but not less than 5 days. The clerk will tell you the date or you will be told the date by mail. The clerk will tell the plaintiff what you said in your answer.
What Happens if You Don’t Answer
If you don’t answer the summons, the plaintiff automatically wins, and they will enter a judgment against you for the amount that you are being sued for, in addition to execution fees. The plaintiff will then most likely take steps to garnish your wages (contact your employer and arrange to have the money taken directly out of your paycheck every week until it is paid in full), or freeze your bank account and seize your money.
If you did not answer in time and you got a notice from a marshal or sheriff about a garnishment on your salary or a levy on your bank account, you should contact a debt collection attorney who may be able to vacate your default (ask the court to throw out the judgment and let you tell the court why the plaintiff must not win). It is difficult to do without the assistance of an attorney however, due to the complicated procedural legal rules regarding vacating default judgments.
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