I am being sued for $1200.00. I need to know the proper forms to respond to the summons. My only income is Social Security. The credit card was in my name only. I am married but all real property is in my husband's name only. Do I need to include his income in any statement of assets? I cannot afford to hire an attorney.
No. It is not necessary to disclose your assets or income when responding to the summons and complaint for a credit card collection lawsuit. Note that you have 30 days from the date of personal service to respond to the Summons and Complaint. In the event you absolutely cannot afford an attorney to defend you, you can represent yourself "in pro per". You would file either an Answer or a General Denial, and pay the first appearance filing fee.
The form for the Answer is (Judicial Council Form PLD-C-010):
The form for the General Denial is (Judicial Council Form PLD-050):
The filing fee depends upon the amount of the claim. If you cannot afford the first appearance filing fee, you may apply for a fee waiver. See:
An Answer to Complaint typically includes a general denial plus a number of affirmative defenses.
“An affirmative defense must be pleaded in the same manner as if the facts were set forth in a complaint. In other words, the general requirement of stating the ultimate facts applies and, where particularity in pleading is necessary in a complaint, it is equally necessary in an affirmative defense involving the issue.” (5 Witkin Cal. Proc. 4th (1997) Plead, § 1009, p. 463.)
The various affirmative defenses must be separately stated and must refer to the causes of action to which they relate in a manner by which they may be intelligently distinguished.” (Code Civ. Proc., § 431.30(g).)
Typical affirmative defenses for a collection lawsuit include:
1. The complaint fails to state facts sufficient to constitute a cause of action.
2. Plaintiff lacks standing to sue.
3. Plaintiff failed to mitigate any purported damages he/she/it may have suffered.
4. Plaintiff's claims, in whole or in part, are barred by the doctrine of laches.
5. Plaintiff's claims are barred by the equitable principle of unclean hands by virtue of Plaintiff's conduct and actions.
6. Plaintiff's claims are barred by the equitable principle of estoppel.
7. Plaintiff’s claims are barred by the statute of limitations set forth under Code of Civil Procedure sections 337(1) and 339(1).
8. If you are in bankruptcy or your debt has been discharged, they cannot pursue a claim against you.
9. If the collection agency or credit card company has done anything to violate the Fair Debt Collection Practices Act, you can raise that as an affirmative defense.
Frank W. Chen has been licensed to practice law in California since 1988. The information presented here is general in nature and is not intended, nor should be construed, as legal advice for a particular case. This Avvo.com posting does not create any attorney-client relationship with the author. For specific advice about your particular situation, please consult with your own attorney.
Debt Collection Attorney
you need to make sure you file an answer within 30 days of being served to avoid a default judgment. The court houses often times have self help centers that can provide assistance. good luck.