SUMMONS AND COMPLAINT
All debt collection lawsuits begin when the plaintiff (the party doing the suing) files a summons and complaint with the court. While these are actually two documents, they are routinely referred to collectively.
The summons is the legal document which tells the defendant (the party being sued) that he or she has been sued, that he or she must appear in court to defend the lawsuit and the time in which to do so. Delivery of the summons (called service of process) is how the court obtains jurisdiction over the defendant enabling the court to bind the defendant to its orders and judgments.
The complaint is the legal document in which the plaintiff makes out its claim against the defendant. Usually in numerated paragraphs, the complaint makes allegations of fact and wrongdoing against the defendant. To be sufficient, the complaint must make out a recognizable claim of wrongdoing and violation of law by the defendant as well as a claim of damages suffered by the plaintiff.
In the debt collection context, the complaint usually alleges that there was a relationship between the plaintiff and defendant in which the plaintiff (or its predecessor in interest in the case of a debt buyer) extended credit to defendant for which the defendant has failed to pay.
To avoid a default, the defendant must file a written “answer” to the complaint. The answer is the defendant’s formal response to the allegations made in the complaint. This is the defendant’s opportunity to admit or deny the allegations made. Equally as important, this is the opportunity for the defendant to formally state his or her defenses.
While it is always the plaintiff’s burden to prove the defendant’s liability, it is the defendant’s burden to show what are called “affirmative defenses”. If a defendant fails to include an affirmative defense in his or her answer, it is deemed waived. An important and common example of an affirmative defense is that the plaintiff’s claim is barred because it is too old and therefore beyond the statute of limitations.
If you have questions, concerns, or legal needs regarding a summons and complaint, we urge you to contact The Law Offices of Robert J. Nahoum, P.C. today by calling 845-232-0202.