Defending yourself in court against debt collectors can be scary and complicated. But it doesn’t have to be hard. Follow a few easy steps and you can answer a civil summons for a credit card debt, medical bill, or other similar collection with confidence.
How to answer a summons for debt collection
The first step in defending yourself in court against debt collectors is to carefully review the summons. The summons will tell you how long you have to answer the complaint and what court the case has been filed in.
Calendar Your Due Date for Answering the Debt Collection Lawsuit
Put the due date for your answer on your calendar right away. If you miss the deadline to file an answer the court will usually enter a default judgment against you. The debt collector will then normally seek to garnish your wages or bank account. In some cases, the collection agency will even try to take your assets. It is critical that you don’t miss your deadline to file the answer.
Failing to respond to a Summons and Complaint can lead to:
- Losing the entire case
- Default judgment being entered against you
- Your wages or bank accounts being garnished
- Attorney’s fees, interest, collection fees, and court costs added to the debt
Look for Defects in Service of Process
Rule 4 of the Utah Rules of Civil Procedure governs service of process. Rule 4 also applies to service of process in the Utah small claims courts. Review the Rule to look for any defects in service of process.
For example, if the process server just dropped off the paperwork but didn’t actually give it to anyone that is not proper service of process. If the papers were given to a small child without the capacity to understand the importance of delivering the summons to you, service might also be improper. You do not have to be personally served with most legal papers but if someone else was served on your behalf, that service must occur where you normally reside. Debt collectors cannot serve you at an old address by giving the court papers to the new tenant or resident.
Fortunately, if service of process did not occur properly you can file a motion to dismiss. This is a constitutional requirement. You cannot be held liable for a judgment you had no reasonable opportunity to defend.
How to answer the debt collection lawsuit
Answering the allegations against you is often the most important step in defending yourself in court against debt collectors. Cases can be won or lost depending on the answers you give.
Answer the Allegations
Start your Answer by carefully reviewing the allegations. Check everything. Verify the amounts the debt collector claims is owed, the dates of purchases, and other details. You must challenge any incorrect allegations by denying them.
I cannot stress this enough. Deny any and all allegations that are not 100% true. This makes the debt collector prove its case. If you admit to any allegations you are removing the burden of proof from the debt collector. Only admit what you must. Deny everything else.
If you don’t know whether you can honestly deny an allegation then you can answer that you do not know whether it is true or not. Use caution, however. You want to include a statement that because you don’t know the answer you still deny the allegation. A sample answer to give in this situation is provided below.
Affirmative Defenses
Affirmative defenses are reasons why you should win against the debt collector or credit card company. Asserting affirmative defenses is tricky however. You must assert all of your affirmative defenses in your Answer to the Complaint or you waive them.
Rule 8 of the Utah Rules of Civil Procedure provides a starting point for what affirmative defenses you should consider raising. Common examples of affirmative defenses applicable in debt collection lawsuits are:
- Statute of Limitations
- Accord and Satisfaction
- Lack of Standing
- Release
- Estoppel
- Mistaken Identity
- Credit Fraud
- Identity Theft
- Improper Venue
- Lack of Subject Matter Jurisdiction
- Statute of Frauds
- The debt is fully paid or settled
- The debt is discharged in bankruptcy
This is only a partial list of examples of affirmative defenses available. Keep in mind there are other affirmative defenses you may need to raise. Read our other article below to get more information about seven typical affirmative defenses that apply in debt collection lawsuits.
Assert Compulsory Counterclaims
Counterclaims are claims that you assert as the defendant claiming the plaintiff owes you money with regard to the same transaction or occurrence they are pursuing against you. Some counterclaims are compulsory while others are discretionary. If your counterclaim is compulsory you must raise it in your Answer or you could be waiving your legal rights.
Generally, counterclaims are compulsory when they arise out of the same transaction or occurrence as the lawsuit. Examples of counterclaims to defend your debt collection lawsuit include; offset, fraud, deceptive sales practices, breach of warranty, breach of contract, and other similar claims.
Counterclaims are complicated. You bear the burden of proving your counterclaims and have to marshal the evidence properly and understand the legal elements of each claim to win. That is one of many reasons why you should consult with an attorney before filing an Answer. You don’t want to be sanctioned by the court for filing counterclaims without merit.
Caution: If you have any claims under the Fair Debt Collection Practices Act (FDCPA) do not assert them as counterclaims in the collection lawsuit. Get a lawyer experienced in FDCPA lawsuits! They work on a contingency basis and quickly turn the tables on abusive debt collectors. FDCPA violations are not something you can handle on your own. Even other attorneys get hung up on these claims so don’t think a family law, personal injury, or bankruptcy attorney can handle claims under the Fair Debt Collection Practices Act properly. Unless they handle FDCPA cases regularly they will either low-ball the damages in your case or lose it altogether.
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Fair Debt Collection Practices Act Violations
Debt collectors frequently violate the Fair Debt Collection Practices Act. When they do, use it to your advantage but not as a counterclaim in the debt collection lawsuit. FDCPA claims belong in the federal courts. State courts are simply not competent or reliable enough to understand the complicated issues that arise in FDCPA cases.
Here are some examples of FDCPA violations you should be looking for:
- Debt collectors calling at unusual or inconvenient times or places
- Debt collection calls at work if the collection agency knows they are prohibited by your employer
- Threats of violence or harm
- Obscene, racist, profane, or abusive language
- Lies about the themselves, the debt, the collection agency, or other important issues
- Suing you in an inconvenient forum
- Suing you where you don’t live and didn’t sign for the debt
- Collecting fees or costs you did not agree to pay
- Collecting other amounts that are not allowed by law
This list is not exhaustive. Many more abuses and collection practices violate the FDCPA. These listed violations are also more complicated to prove that it first appears. Each one has specific elements that must be satisfied to prevail. Consult an experienced FDCPA litigation attorney to help you review possible FDCPA violations before trying to answer your debt collection lawsuit.
Fair Credit Reporting Act Violations
Debt collectors sometimes violate the Fair Credit Reporting Act (FCRA) when suing consumers. Like FDCPA counterclaims, FCRA counterclaims should never be raised in the debt collection lawsuit. Violations of the FCRA belong in the federal courts.
Examples, of Fair Credit Reporting Act violations include:
- Reporting an incorrect balance
- Reporting an account as open when it is not
- Double-reporting the same account twice or more
- Failing to correct inaccurate information
- Failing to report the account as disputed if it is disputed
Like FDCPA violations, FCRA violations are complicated and require experience to pursue in court. Talk to a professional before attempting to include FCRA violations as counterclaims or defenses to a debt collection lawsuit.
Never file counterclaims under the Fair Debt Collection Practices Act (FDCPA) or Fair Credit Reporting Act (FCRA) in a debt collection lawsuit. Never!
Consider Filing a Motion to Dismiss
Sometimes you should try to dismiss the case before filing an answer to the summons and complaint. Motions to dismiss are effective in cases where the collection agency has failed to allege sufficient facts to put you on notice of its claims. Dismissal can also occur if the court lacks jurisdiction over you or the subject matter of the case.
Don’t just assume everything the debt collector alleges is true. If there are defects in the complaint a motion to dismiss can be a powerful tool to defending yourself in court against debt collectors.
How to File Your Answer
“Filing” your answer means to give documents to the court. You can file your answer by mail, in person, or by using an online court filing system if your court has one. In Utah, consumers defending themselves in court against debt collectors can use the MyCase online court filing system. Other states and other courts may have similar systems so call the clerk or check online to verify if your state has an online court filing system.
Where to File Your Answer
If you are representing yourself, how you file will depend where your case is located. If you are being sued by a debt collector your case is almost certainly going to be filed in the district court. This is because debt collectors are strictly prohibited from filing or prosecuting any claims in the small claims courts. If your case is in the small claims court or justice court, you are probably being sued by the original creditor rather than a debt collector.
If you are being sued in the small claims court by a debt collector call us immediately! You could have a valuable claim against it for violating the Fair Debt Collection Practices Act (FDCPA) and Utah law.
Verify the Filing
Remember, your debt collection lawsuit Answer is not filed until the court actually receives it. Therefore, you should be certain the court stamps your answer when you file it. We recommend using the court’s online system like Utah’s MyCase system if it has one. Always call the court clerk to follow up. Whether you filed the answer by mail, filed the answer in person, or filed the answer online you want to be sure it is properly filed.
Don’t forget, you must also serve the plaintiff with a copy of your answer to comply with the Rules of Civil Procedure. Normally, it is sufficient to simple mail or email a copy to the opposing attorney. Double check with the court if you have any questions about serving the plaintiff’s attorney correctly.
Example Answers to Debt Collection Lawsuit Allegations
Here are some example answers to debt collection lawsuit allegations. These are real allegations from real cases with the details changed to protect client confidentiality.
Example #1
Allegation: Defendant(s) is a resident of Salt Lake County, State of Utah.
Response: Admit.
Note: You can and should admit any allegations that are 100% true. If there is any ambiguity or confusion however, deny they allegation. Never admit something that is unclear.
Example #2
Allegation: Defendant(s) being in default, demand for payment has been made but Defendant(s) still owes to Plaintiff the sum of $2,340.40 plus interest at ten percent (10%) from the 23th day of September, 2019, the date of the last account transaction.
Response: Denied.
Note: The reason for denying this allegation is because the consumer believes the balance, interest, or dates stated are not correct. You do not have to simply accept the debt collector’s allegations as true. They have the burden of proof. Make them provide the evidence needed to prove this information is accurate. Indeed, if the debt collector is seeking amounts they are not entitled to collect, they are violating the FDCPA and you now have a case against them.
Example #3
Allegation: That said chose in action was assigned to Knight Adjustment Bureau by written assignment on 10-08-19.
Response: Defendant lacks sufficient information to admit or deny the
allegations of paragraph 5 and therefore it is denied.
Note: If you don’t have sufficient information to admit or deny an allegation tell the court you don’t know. Then, as a precaution you deny the allegation. That assures it cannot be used against you in court.
You can see the proper answers are admit, deny, or lacks sufficient information to either admit or deny. It is that simple. Just be sure to be accurate. Also, at the end of your answer section, put in a catchall provision that states, “Defendant denies all other allegations not expressly admitted herein.” That prevents mistakes from happening that can cause an admission you didn’t mean to make.
What is your best option when defending yourself in court against debt collectors?
Defending yourself in court against debt collectors doesn’t have to be stressful or time-consuming. There are several ways to properly defend yourself in court and answer a debt collection lawsuit. To be sure, templates and example answers are available but they are no substitute for true legal advice. This is especially true when so many consumer protection lawyers will help for free or low cost. Almost all true consumer protection attorneys offer a free consultation or case review where you can get help. Some even offer free or low cost coaching to help in defending yourself in court against debt collectors.