Debt collection law firms are bringing more and more suits annually. Often they institute these lawsuits through sewer service (see links below). They have done this to nearly 100,000 people in New York alone. What should you do if you a debt collection firm sues you?
You Receive a Summons and Complaint?
If you receive a summons and complaint in the mail, don't throw it away. Don't ignore it. You should file and serve (mail to the other side) an Answer. Even if you receive a summons and complaint, keep in mind that the law firm who sued you probably did not properly serve you, likely improperly filed a false affidavit with the court saying that they did serve you and likely has little or no actual evidence to support their case.
Who are These People?
The plaintiff is the one who sued you. In this case a bank or some business who says you owe a debt. The documents they will serve (send to you) to start the suit is called a complaint. A document called a summons must accompany that.
The summons will tell you the court that the lawsuit is in and that you have 20 or 30 days to respond to the complaint.
You are the defendant. You need to respond to each of the allegations in the complaint. You should either admit or deny each paragraph. If you don't answer a particular paragraph, the court will consider that you admitted to that. When a person does not answer the complaint at all, that's a default.
The plaintiff and the defendant are called the "parties." The Complaint and the Answer are called "pleadings."
What Should Go in an Answer?
The Answer has three parts. The first part is your admission or denial of the plaintiff's allegations.
The second part consists of "Affirmative Defenses." These serve as assertions you make, and which you have to prove, that are reasons that the plaintiff is wrong. Some are:
- Improper service (see below - you should go to court and ask the clerk for a copy of the affidavit of service. You will often be surprised at what someone swears to a court they did..when they didn't.)
- Statute of Limitations (they sued you too late)
- Unclean hands (they come to court with "dirty hands" and the court won't let them use the court to vindicate their bad behavior.
- Release (you settled the case for a different amount and they can't seek more)
- Improper validation (they did not establish that you owe the debt prior to bringing the lawsuit...they don't have even basic proof)
- I already paid this (be prepared to show proof of payment)
The third section is called Counterclaims. Here you basically sue the plaintiff back. While affirmative defenses act as "roadblocks" to their claims, Counterclaims are you alleging that they did something that makes them owe you money.
Probably the most common is fraud. The special thing about alleging fraud is that you have be fairly specific and demonstrate the following:
- A false statement the plaintiff made or a something they knew and did not tell you
- You relied on this statement or "non-statement"
- That it was reasonable for you to rely on it
- They they knew it was false and intended to deceive you
- That because of their statement or non-statement, you suffered monetary damages.
If you don't put these specifics, the court can erase (dismiss) your counterclaim.
A Note on Improper Service
There is a procedure that many people don't know about when you say that the plaintiff did not properly serve you. Within 60 days of making that affirmative defense, you have to make a motion (ask the court) to dismiss the case for that reason. If you don't do this, you will waive this argument.
Finally, Where do I Find All of This Information?
The Rules of the Court in New York State are in a book called the Civil Practice Law and Rules, abbreviated CPLR. It will have rules for how you write, how long you have to serve (send) or how long you have to file any pleading. It will tell you how you make motions (See Article 32) You can find the CPLR on line. I have also included a link to the investigations the Attorney General announced into these debt collection law firms and a process server who pleaded guilt to fraud. I have also included a link to the New York Courts and to the Federal Law that governs these items, the Fair Debt Collection Practices Act (FDCPA).
A Final Word
Know your rights. Don't be afraid to fight back. Remember that because they brought the lawsuit, they have to prove that you owe the debt and that you did not pay it. And remember this little secret, it is unlikely they have any documentation to back up their lawsuit anyway.
Always remember that you have right to be heard. Don't let them scare you. Don't let them tell you that you can go to prison or jail for not paying a debt. You can't.