Receiving a Summons and Complaint for a debt collection lawsuit can be a scary or stressful event. Don’t fret it. A few simple steps are all you need to defend yourself and slow down the collection process. It can be confusing to figure out how to respond to a debt collection lawsuit but here are a few steps to help. If after reading through these steps you still need help contact a debt collection litigation 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.
How to Respond to Debt Collection Lawsuit
- Answer the allegations
Your first step in filing an 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.
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 you should not lose your case. Assert all affirmative defenses 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. The list is not complete however. Other defenses may apply. Do your own research or hire an attorney. Be sure to assert the correct affirmative defenses applicable to your lawsuit. And be sure to include the important ones like the statute of limitations if applicable. Failing to include an affirmative defense waives the defense and that can kill your case altogether.
- 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. Some counterclaims are permissive. In that case, they do not have to be raised in your Answer. However, if you don’t include a compulsory counterclaim it is waived so check with a lawyer before deciding whether to assert counterclaims when you respond to 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.
- File your Answer with the court
Once you completed the Answer file it with the court. In most courts you will have to file the Answer with the clerk in person. Some courts will accept your Answer by email or mail so call the court first.
- Serve the plaintiff with a copy of your Answer
Even though you filed your Answer with the 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 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 and explaining why more time is needed. It is usually quite easy to get a two week extension to file your Answer.
Negotiating Settlement of the Debt
In some situations you may want or need to negotiate repayment of the debt. Call the plaintiff’s lawyer and ask for an offer. You can also make your own offer. Start at around 50% of the original amount owed and go up from there as needed. You can also include other conditions 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.
Motion to Dismiss
In some cases it may be appropriate to file a Motion to Dismiss. You must file the motion prior to filing an Answer and before the deadline to respond expires. You must also have grounds to dismiss. That means the case is so lacking in facts against you that it simply cannot stand.
In most cases a Motion to Dismiss will fail. Even when these motions succeed the court will likely dismiss the case without prejudice so the debt collection agency can just refile the case at their leisure. Sometimes the Motion to Dismiss fails but because it alerted the collection attorney to the flaws in his case, it hurts your position. Again, contact an attorney to help you decide whether to file a Motion to Dismiss.
In some cases bankruptcy is an option to explore. This is a nuclear option however so it is not appropriate in most cases. Bankruptcy is used to deal with all of your debt when it has become unmanageable. That typically arises when medical emergencies 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. Call an attorney if you think bankruptcy might to right for your situation however. It is a good option in some cases.
It is not easy to respond to a debt collection lawsuit. You have multiple options and several tricks and traps to avoid. Normally it is best to contact an experienced debt litigation attorney before trying to handle the lawsuit on your own. 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. That way you only pay them from the proceeds from your case.