By: Robert J. Nahoum
You’ve come home to find legal papers taped to your door. A closer look reveals that the legal papers are a debt collection summons and complaint – you are being sued you for an old debt. A summons and complaint in a debt collection lawsuit should be answered and never ignored. Here are five things to consider when answering a debt collection summons and complaint in a debt collection lawsuit
1. Should I Hire An Attorney?
Whether or not to hire an attorney to defend you in a debt collection lawsuit first depends on whether you can afford an attorney. Debt defense attorneys generally charge either by the hour or based on flat upfront fees. If you can’t afford an attorney, seek out pro-bono and legal aid opportunities.
If you can afford an attorney, you must consider whether hiring one is worth it. It often happens that the amount sought in a debt collection lawsuit is roughly the same as what it would cost to hire an attorney to defend you. In that case, if you hired the attorney you might well spend twice what the debt collector was trying to collect.
Other times, the amount sued for is more significant. In that case, hiring an attorney will likely yield a more favorable result. Attorneys know how the courts work, they know they law and they know how to protect you.
2. How Was I Served with the Summons and Complaint?
Before a court can render a judgment, it must first acquire PERSONAL JURISDICTION over you. Personal jurisdiction is obtained by serving you with the summons and complaint; but, you must be properly served. Here are the ways you can be served:
- Personal Service – delivering a copy of the summons and complaint to you personally;
- Suitable Age and Discretion Service – delivering a copy of the summons and complaint to someone in your home of “suitable age and discretion” (someone competent enough to pass the papers on to you);
- Nail and Mail – After at least two failed attempts at personal or suitable age and discretion service, the process server may post a copy of the summons and complaint to the door and mail a copy to your last known address.
If you were not properly served, you MUST appear in the case and assert lack of personal jurisdiction as a defense and grounds for dismissal.
As a practical matter, faulty service may only be a temporary fix to your problems. You can bet that if the case is dismissed, the debt collector will be back at it trying to make proper service.
3. Do I Have Any Defenses?
Your written “Answer” is your formal response to the allegations made by the debt collector in the complaint. This is your opportunity to admit or deny the allegations made. Equally as important, this is the opportunity for you to tell the debt collector and the court what your defenses are.
While it is always the debt collector’s burden to prove that the consumer is responsible for the debt, it is the consumer’s burden to show what is called an “affirmative defense”. If you fail to include and affirmative defense in your answer it is deemed waived. An important and common example of an affirmative defense is that the debt collector’s claim is barred because it is too old and therefore beyond the statute of limitations.
4. Should I Try to Settle?
While there are no hard and fast rules on if and for how much to settle a debt collection lawsuit, it is always important to consider the whole picture and make an informed decision. Keep in mind, the debt collection attorney works for the debt collector, not for you. Take what he or she says with a grain of salt and consider what’s best for you.
5. What Expectations Should I Have?
While debt collection lawsuits follow a common path, it is important recognize that no two cases are the same. Your facts are your facts and you should treat it that way. However, the debt collector won’t see it that way. To the debt collector, you are no more than a than an entry on a spreadsheet, you are data, you are just one of the hundreds or thousands of cases they are trying to collect. For this reason, don’t expect any significant personal attention.
If you are defending yourself, a debt collection lawsuit will require you to go to court. For this reason, you should expect to miss work. Cases are often adjourned or rescheduled time and time again so you might expect to go to court multiple times. You should consider this when deciding whether to hire an attorney and whether to settle your case.
You can expect chaos in the courtroom. In the busier courts like the Civil Court of the City of New York, there are often more than 150 cases on the calendar. There is a lot of activity in the court room. Lawyers are calling out, conversations are going on, conferences are happening with court personnel and court clerks are calling cases. Try not to be intimidated by all the activity. Stay calm, keep your head about you and everything will be fine.
You can expect the debt collector to try and push you into a settlement. Settling is often a good result, just be sure the settlement is fare and something you can keep up with.