Receiving a Summons and Complaint for a debt collection lawsuit or other court case can be a scary or stressful event. Don’t fret it. A few simple steps are all you need to answer the lawsuit to defend yourself and slow down the collection process or even stop a collection agency in its tracks. It can be confusing to figure out how to answer a debt collection lawsuit but here are a few steps to help.
If after reading through these 5 steps you still need help, contact a debt collection defense attorney. Many will provide a free case review or consultation and they may be able to find collection abuses to turn the tables on the debt collection agency.
5 Steps for How to Answer a Lawsuit for Debt Collection
- Answer the allegations
Your first step in filing an original answer to a debt collection lawsuit is to respond to each allegation in the Complaint. Start by creating numbered paragraphs that mirror the numbering in the Complaint. In each numbered paragraph you state briefly whether you admit each allegation, deny each allegation, or don’t know whether each allegation is true or not. A sample form is available for download.
We highly recommend you hire a lawyer to help you draft an Answer rather than using that form or any other template answer to the debt collection lawsuit, however. It is never a good idea to use a form answer to debt collection lawsuits. Save your money and get a real lawyer instead. Even the most experienced lawyers are often less expensive than the amounts of money using a legal template will cost you in the end.
Be sure not to leave any allegations unanswered. Deny everything you can honestly deny. Do not try to explain why you can’t pay the debt if that is an issue. The allegations are your focus. Each one is either true, false, or you don’t know the answer.
- Assert affirmative defenses
Affirmative defenses are reasons why you should not have to pay the debt collector. Assert all affirmative defenses in your lawsuit that might apply. But do not go crazy. Most debt collection lawsuits do not need more than a few affirmative defenses.
Rule 8 of the Utah Rules of Civil Procedure provides a list of affirmative defenses you can use to win your debt collection lawsuit. It includes, accord and satisfaction, arbitration and award, assumption of risk, comparative fault, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. That list is not complete however. Other defenses might apply.
Do your own research or hire an attorney. The district court or even small claims courts can be scary places but you don’t have to handle credit card lawsuits alone. An experienced attorney knows the correct way to assure you assert the correct affirmative defenses applicable to your individual case. And be sure to include the important ones like the statute of limitations if applicable. Failing to include an affirmative defense waives the defense. That can kill your case altogether and will cost you money.
- Include compulsory counterclaims
If you have any claims against the plaintiff that arise out of the same transaction as the debt you must assert the claims and the facts supporting those claims in your Answer to the lawsuit. Some counterclaims are permissive. In that case, they do not have to be raised in your original Answer. However, some counterclaims are compulsory and if you don’t include a compulsory counterclaim it is waived so check with a lawyer before deciding whether to assert counterclaims when you answer a debt collection lawsuit.
One word of caution is appropriate here. Never file counterclaims under the Fair Debt Collection Practices Act (FDCPA) in the debt collection lawsuit. It is better to assert FDCPA counterclaims in the federal courts as a stand-alone lawsuit. Get a lawyer before even considering including a counterclaim for violating the FDCPA. These claims can be worth a lot of money so don’t blow it by trying to handle an FDCPA counterclaim without hiring an experienced debt collection litigation attorney.
- File your Answer with the court
Once you completed your original Answer file it with the court clerk. In most courts you will have to file the original Answer with the court clerk in person. Some courts will accept your Answer by email or mail so call the court clerk first.
- Serve the plaintiff with a copy of your Answer
Even though you filed your Answer with the district court or small claims court you are still required to serve the plaintiff with a copy. In most cases that can be done by mailing a copy to their attorney. But, if your Answer contains counterclaims it will need to be served by a process server, constable, or sheriff. Again, check with the court clerk or your own attorney to verify whether mailing the Answer is sufficient.
Timing Your Debt Collection Lawsuit Answer
Timing when you respond to a debt collection lawsuit is an important consideration. Most courts allow around twenty days to file your Answer. But you can ask for more time if needed. Start by calling the plaintiff’s attorney to ask for more time. If he won’t grant an extension, file a request with the court asking for more time. Simply explain why you need more time and you should be good. It is usually quite easy to get a two week extension to file your Answer.
How to Settle Debt Collection Lawsuits
You might be wondering if you can settle a collection lawsuit or how to settle a debt collection lawsuit on your own. In some situations debt settlement might be a good choice. Debt settlement negotiations start by calling the plaintiff’s lawyer and asking for an offer to fully resolve the debt. You can also make your own settlement offer. Start at around 50% of the original amount owed and go up from there as needed. You can be bold and start 30% of the amount owed too. That is probably lower than the collection agency will accept to settle but its worth trying. You can also include other conditions in the debt settlement negotiations such as making monthly payments or requiring deletion of the credit reporting information.
Some collection attorneys are horrible people that won’t negotiate even a little while others are far more reasonable. Still, you won’t know what the debt collection agency will accept until you try. Be sure not to take out any new debt when negotiating or after settling the lawsuit. You don’t want to put yourself back in the same situation of owing money you can’t repay.
Sending a Debt Validation Letter
You may also want to request debt validation as part of your settlement negotiation. Requesting debt validation is fairly easy to do and can be a great way to determine whether the debt buyer or collection agency has sufficient evidence to prove its case.
This is one area where a debt validation letter template can help stop the debt collector. If you use a sample debt validation letter template be sure to change the template as needed to accommodate your own request for validation of the debt.
Don’t rely too much on the debt validation letter templates however. A request to validate the debt is not a magic bullet or secret to stopping the debt collectors as others would have you believe. A good letter requesting debt validation is just one of many tools you can use to gather information helpful to defending your collection lawsuit.
How to Remove Negative Credit Reporting
It is sometimes helpful to request a deletion of negative credit reporting when negotiating debt settlement of your lawsuit. Many debt collection agencies won’t remove the negative credit reporting but it shouldn’t hurt to ask. Many will help with the deletion if it gets the case settled and they get paid.
Even if you don’t negotiate to remove negative credit reporting you should still dispute the negative credit reporting with the credit bureaus after the debt is settled and fully paid. Indeed, check your credit reports about two months after the final payment to see if the debt is reporting a zero balance. If the collection agency fails to update or remove negative credit reporting so it is no longer accurate you might have a lawsuit under the Fair Credit Reporting Act.
How to Get a Debt Collection Lawsuit Dismissed
For many people it may be appropriate to file a Motion to Dismiss the collection lawsuit instead of filing an Answer or drafting some other response to a debt collection lawsuit. You must file the motion prior to filing an Answer and before the deadline to respond expires. Get an attorney or call the clerk of the district court or small claims court where your case is filed to assure you do this correctly. You must also have grounds to dismiss. That means the legal theories submitted by the plaintiff or the facts against you are so lacking that the claims simply cannot stand.
In most cases a Motion to Dismiss will fail but they are still a great option for many cases. If you fail to file a motion to dismiss in a timely manner you will waive some of your rights and could be found liable for a debt you don’t actually owe. Again, a good debt collection defense attorney will know whether a motion to dismiss the collection lawsuit is appropriate.
Here are a few examples of the types of Motions to Dismiss you might use to answer your debt collection lawsuit
Lack of Jurisdiction
The court must have jurisdiction over both the subject matter of the case and the parties. In most debt collection cases this will not be an issue. It arises primarily when the defendant resides outside of Utah and originated the debt outside of Utah. Even then the court may still have jurisdiction to hear the case depending on the terms of the agreement.
Another way jurisdiction can arise is when a debt collector files a debt collection claim in the Utah small claims court. Under Utah law that is prohibited. The small claims courts do not have subject matter jurisdiction over any claims the collection agency received by assignment.
Venue refers to the specific area where the court with power to hear the case sits. Generally this will be the county or district in which you live or where the debt was originated. If a debt collector files a lawsuit against you in an inconvenient venue, that may be grounds for dismissal or a motion to change venue. Filing a lawsuit against you in an inconvenient or improper venue also potentially violates the Fair Debt Collection Practices Act. Call an attorney if the debt collector files a collection lawsuit against you in an area where you don’t live and did not sign the agreement.
Some cases are subject to mandatory arbitration. Debt collectors often ignore the requirement to arbitrate the cases. Generally this is good for the consumer as arbitration is unfair and expensive. arbitration is rarely in the best interest of a consumer. Nonetheless, forcing a debt collector into arbitration might help get the case dismissed in some limited circumstances.
Defects in the Complaint
Finding defects in the face of the complaint is the best way to dismiss a debt collection lawsuit. This usually occurs when the collection agency fails to properly allege sufficient facts to put you on notice of its claims. Other times the debt collectors make false statements of fact or leave out important facts. Either way, the collection agency must set forth enough information in the complaint to justify a ruling against you. If it doesn’t, dismissal might be appropriate.
Cases are often dismissed when the debt collection agency is not licensed to collect debt. This is a rare circumstance but does apply Occasionally. Unlicensed debt collection agencies are not legally entitled to sue consumers.
Another grounds for dismissing the complaint is when the assignment of the debt is invalid. Again, this is quite rare but certainly worth exploring when strategizing how to answer a collection lawsuit.
Lack of Standing
Parties may not pursue claims in court unless they have standing to assert those claims. This is a constitutional requirement.
There are three elements to determine whether or not a party has standing in a case. The first element is for the party to have suffered an injury in fact. If they suffered no damages they have no standing. The second element is causation. That means the injuries at issue must be the result of the actions taken by the other party. The final element to determine standing is redressability. That means the court must have the ability to compensate the injured party for the damages caused by the other party.
In collection cases, the issue of standing normally arises when a debt collector does not have a valid assignment of the debt or when it is not licensed to collect debt. In those cases the collection agency does not have standing.
Even when these motions succeed the court will likely dismiss the case without prejudice. The debt collection agency or debt buyer can then just refile the case at their leisure. Sometimes the Motion to Dismiss fails but alerts the collection attorney to the flaws in his case which hurts your position. This is yet another reason why it is so important to contact an attorney to help you decide whether to file a Motion to Dismiss.
In some cases bankruptcy is an good option. You can file for Chapter 7 bankruptcy or a Chapter 13 bankruptcy depending on your financial situation. This is a nuclear option however so it is not appropriate in most cases. Bankruptcy deals with all of your debt when it has become unmanageable. That typically arises when medical emergencies or other debts cut into already fragile resources.
If you are only dealing with one or two debt collection lawsuits for low amounts, bankruptcy is likely a bad option. In most cases, filing a motion to dismiss or an Answer alleging the correct affirmative defenses is your best option. Combining these techniques with a Fair Debt Collection Practices Act lawsuit can be even more powerful. Call an attorney if you think bankruptcy might to right for your situation however. It is a good option in some cases and each debt lawsuit is unique.
It is not easy to answer a debt collection lawsuit or win a debt collection lawsuit after you answer. You have multiple options and several tricks and traps to avoid. Usually you want to avoid a default judgment. This is especially true when the default judgment occurs because you made an easily avoidable mistake. Still, these 5 steps will put you on the right track.
Normally, the correct way to respond to a lawsuit from a collection agency, credit card company, or debt buyer is to contact an experienced debt collection lawsuit defense lawyer. Trying to handle the lawsuit on your own can be problematic. Even if you can’t afford an attorney you should call one. Some attorneys offer free consultations while others might help in other ways. If any collection abuses have occurred they can take your case on a contingency basis and get money for you. That way you only pay them from the proceeds from your case. It is your legal right to defend yourself from lawsuits over unpaid bills or other creditor debt claims. Exercise those rights by fighting back.