I need to know exactly how to handle this. I am going to call the plaintiff's attorney and ask to resolve the situation. Do I do this before I answer the summons? I need to print out all the forms I will need, but I am so confused as to what exactly I need. I am going to ask for a fee waiver and I know that when I file an Answer I need to also fill out a "proof of service" but what other forms do I need to take care of this?
I have on Avvo a legal guide on how to negotiate a debt collection lawsuit. You should review the points and tips before you call to settle.
Also, I assume that this lawsuit was filed before the statute of limitations period expired, otherwise you don't owe a penny on this debt and they should not have sued you, because that violates your rights and you could counter sue. If this lawsuit is untimely, then you should contact an experienced debt collection defense attorney to represent you and protect your rights and defenses.
Is your goal to fight this because you can win, or because it will increase your settlement leverage? If, for example, you've got a meritorious defense based on the expiration of the statute of limitations, fight. If not, all you do is increase the legal fees you're obligated to pay your creditor, and allow them more time to charge you the 22% interest or whatever they you agreed to pay, as opposed to the 10% they're entitled to post-judgment.
Please see this similar Q&A and the Qs & As cited within:
Ask the lawyer for an extension of time in which to respond so you can negotiate a settlement, and make the lawyer confirm it to you in writing so they can't take your default. Threaten to file bankruptcy if they don't agree to something you can actually afford, and don't agree to anything you don't fully understand and can live with.
Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on, since each state has different laws, each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship.
The first thing you need to do if and when you get sued is file an Answer. The summons will tell you that you must “appear” by way of an Answer in 10, 20 or 30 days, “depending on the method of service.”
PLEASE CHECK THE LAW IN YOUR STATE AS YOU MAY ACTUALLY HAVE TO APPEAR IN COURT, AS IN VIRGINIA, IN ORDER TO AVOID A DEFAULT!
You need a lawyer, but if you cannot afford one right away, rather then do nothing and have a judgment entered against you, is to “appear” by filing something!
Many people think this means they have to go to Court and this is incorrect. 90% of all lawsuits end in Default Judgments because the defendant (person getting sued) did not file an Answer.
I recommend you go to the free form I have on my website. Print it out and fill it out as instructed. You must answer the numbered paragraphs on the Complaint by writing them into the appropriate lines in the Answer. The Answer will allow you to preserve your rights and will prohibit a default judgment (i.e. you did not show up) from being entered against you.
Mimic the paperwork you got when you got sued. Answer all the paragraphs of the Complaint by writing the numbers in lines 1, 2 or 3.
Almost 100% of attorneys will deny what is owed because they did not do the calculations and do not know what the basis for the number is…
When you file the Answer that is your “not guilty”. You have the right to make the person suing you (Plaintiff) prove their case, but you must also answer the complaint truthfully.
Make sure you fill in the name and address of the attorney suing you before you bring this paperwork to the Court. Mail it to the attorney suing you right away!
Check out the guide I have drafted on the Avvo profile. This will provide more detailed instructions. If it is helpful remember to indicate that and get the guide read!
Disclaimer: This answer does not constitute legal advice. I am admitted in the States of New York, New Jersey and Massachusetts only and make no attempt to opine on matters of law that are not relevant to those three States. This advice is based on general principles of law that may or may not relate to your specific situation. Facts and laws change and these possible changes will affect the advice provided here. Consult an attorney in your locale before you act on any of this advice. You should not rely on this advice alone and nothing in these communications creates an attorney client relationship. The opinions expressed herein are those of the author only and the fact that he has worked as an Assistant District Attorney; State Supreme Court Clerk; Special Assistant United States Attorney (Hawaii); Assistant Cornell University Counsel or Judge Advocate, United States Marine Corps should not be relied upon to assume that these statements reflect the policy of these organizations.
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