Defending Against a Debt Collection Lawsuit in Michigan
The following are some basic tips for defending against a debt-collection lawsuit. These are only the basics. In many instances, persons being sued have valid counterclaims against the debt collector. You should consult with a consumer protection lawyer to find out what they are.
Accepting/Avoiding ServiceWhen people are being sued on a debt, their first instinct is often to avoid service, either in person or by registered mail. While there may be some strategic advantage in delaying being served, such as having extra time to find a lawyer, if you avoid service too long, the collection attorney will ask the court to allow alternate service. This means the plaintiff could serve you by attaching the complaint to your front door. Whatever you do, make sure you receive a copy of the complaint and all attached documents. If you throw the documents away or never pick them up, you or your attorney may not be able to respond to it in a timely manner.
File an AnswerOnce you have been served, take note of how many days you have from the time of service to file a response. In Michigan, a defendant generally has 21 days to file an answer if s/he was served in person and 28 days if service was by another method, such as mail or having the summons and complaint posted to one's door. Do not fail to file an answer! If you do, a default will be entered against you. When filing an answer, you must respond to each numbered paragraph in the complaint. Although there is no set form for doing so, you may use this online form as a guide for helping you answer, but remember that any paragraph of the complaint you either affirm or fail to respond to will be taken as true by the court. You can find the form here: http://courts.mi.gov/administration/scao/forms/courtforms/mc03.pdf
Affirmative Defenses and CounterclaimsWhen filing your answer, you should list any and all potential affirmative defenses you wish to raise. Some of these are technical and case-specific. However, some standard ones in a debt-collection suit include: plaintiff has lack of standing; statute of limitations has expired on the debt; the plaintiff fails to state a claim upon which relief may be granted; and wrong jurisdiction/venue. Moreover, depending on the behavior of the debt collection attorney or the debt collector/creditor they represent, you may have a series of counterclaims against them under the Fair Debt Collection Practices Act, Telephone Consumer Protection Act, and the Fair Credit Reporting Act. You should consult with an experienced attorney to find out more about your defenses and counterclaims.
Now What?After you file your answer, you will receive a scheduling order from the court. Michigan courts vary regarding the specificity of their scheduling orders and some leave it to the parties to work out with minimal judicial oversight. While filing an answer will sometimes dissuade a debt collection attorney from proceeding any further, many will quickly try and take advantage of unrepresented individuals by filing a motion for summary disposition (MSD). A MSD, if successful, will bring a swift end to the case and you will be liable for the monetary amount the plaintiff is seeking plus statutory interest, attorney fees, and court costs. If a collection attorney does not withdraw their suit after you file an answer, you should contact a consumer protection attorney immediately to discuss your options.