Getting served with a debt collection lawsuit is one of the more upsetting things that can happen to you. When a process server hands a summons and complaint to you (or to someone you live with who can accept service), it means a debt collector is dragging you into the legal system.
And while getting served with a debt collection lawsuit is not fun, it is not the end of the world. In fact, that summons and complaint—legal process—provides rights to both parties to the case. Which means as a defendant in a debt collection lawsuit, you now have access to tools to defend yourself.
Let’s take a look at the first few parts of a lawsuit to try to dispel the fear and misunderstanding.
Getting served just means that you have been given notice of a lawsuit, in this case by a debt collector. You are served if you are handed a copy of the summons and complaint or if a summons and complaint is given to someone “of suitable age and discretion” at your home. In general, that means someone else who lives at your house and is old enough to accept service. So if you are visiting Aunt Martha and a debt collector hands her a summons and complaint for you, it does not count as service on you. Neither does it if a debt collector serves your two-year old.
The summons and complaint—process in legal jargon—are a statement of the claims against you and a notice of the lawsuit. In Minnesota, at least, the lawsuit starts whether or not it is filed with the court. This is critical: it means there may not be a court file number. And if you call the court, the court may tell you it has no record of the case.
But that does not mean the lawsuit is fake. In Minnesota, the creditor has up to a year from the date of service to file with the court.
Either way: you must answer the complaint. If you do not answer the complaint, the creditor can pursue a default judgment after the 20-day response period expires. That means you can essentially lose the case before it begins. You will not have a court date and you will not have an opportunity to talk to a judge. If you fail to respond, you can lose your case before it starts.
It bears repeating: if you have been served with a debt collection lawsuit, answer the complaint!
Answering the Debt Collection Complaint
An answer is a formal legal document. A civil lawsuit is not a criminal lawsuit. It does not start with a court date; the only date is the due date for serving a response (called an answer). You have 20 days to serve an answer to the complaint. Serve, in this case, means mailing your written answer to the opposing party’s attorney and executing an affidavit of service after you do.
In an answer, you must respond to each allegation (usually numbered paragraphs) in the complaint. But it is not quite that simple. For each allegation, you generally have three options:
- You can admit the allegation. If you admit something, that means it is no longer in dispute—it is 100% accurate.
- You can deny the allegation. This means you have some information that disproves the allegation.
- You can essentially say “I don’t know” in legalese. For most of the allegations in a debt collection lawsuit, this is the response you will give.
The biggest mistake consumers usually make is admitting to things that they could not possibly know are true. For example, the complaint probably has an allegation like this:
Plaintiff purchased Defendant’s account from ORIGINAL CREDITOR and Defendant know owes Plaintiff $5,000.
It is highly unlikely that a consumer could conclusively admit that a new (and previously unknown) company purchased their account from the original creditor.
Here’s another example, if you don’t know what your account number was you cannot admit that you owe on an account with a specified number. Instead, you have to state that you don’t know, and deny it. However, if you still have your credit card or statements and they show the same account number, you may have to admit it.
Also be careful if you see more than one allegation in a sentence or paragraph. This allegation, for example:
Defendant owes Plaintiff $1,400 on a Providian credit card, account number 1234 2345 3456 4567.
That contains several allegations: (1) Defendant owes Plaintiff $1,400; (2) for a Providian credit card; (3) with the specified account number. You can probably find some more allegations in there, as well.
This is why having an attorney can be very helpful.
What to Do Next
A lawsuit is like a game of ping pong. Or tennis. There is a constant volley back and forth. The plaintiff serves the summons and complaint, then the defendant must answer. Either party may start the next step by filing the lawsuit or serving discovery, to which the other party must respond. And so on.
Answering a lawsuit does not end the lawsuit. It just moves it to the next step. If you decide to represent yourself, you must stay on top of your lawsuit. If at any point you don’t know what to do next, you should probably hire a lawyer.
Most consumers can handle the early stages of a lawsuit, but if they are not handled well they can make it impossible to prevail later on. When it comes to the later steps of a lawsuit, it can be very difficult to explain how to do it yourself, but if you spend some time reading the rules and the law, you might be able to be your own “closer.”
The best course is to hire a consumer rights lawyer. If you don’t think you can afford one, call one anyway. You may be surprised. Many lawyers can help you with unbundled services, for example, where you pay only for the help you need.
Originally published 2009-08-04. Last updated 2017-01-19.