Getting served with a 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 “of suitable age and discretion” who answers your door, they are dragging you into the legal system.
But really, it is not as bad as all that. Let’s take a look at the first few parts of a lawsuit to try to dispel the fear and misunderstanding.
Service
Getting “served” just means that you have been given notice of the lawsuit. 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.
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 important: YOU MUST ANSWER THE COMPLAINT.
Answering the complaint
An answer is a formal, legal document (PDF). A civil lawsuit is not a criminal lawsuit. There is no court date, yet; there is just a due date. You have 20 days to serve an answer to the complaint. Serving, in this case, means mailing the answer to the opposing party’s attorney. You also must fill out an affidavit of service when you do this.
In an answer, you must respond to each allegation (usually numbered paragraphs) in the complaint. Be careful not to admit anything that you do not know for a fact to be true. For example, in a debt collection case, if you do not 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 do not 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 this.
Also be careful if you see more than one allegation in one sentence or paragraph. For example, the allegation “Defendant owes Plaintiff $1,400 on a Providian credit card, account number 1234 2345 3456 4567″ 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. Or volleyball. Or whatever. There is a constant volley back and forth. The plaintiff serves the summons and complaint, then the defendant must serve the answer. Either party may start the next step by filing the lawsuit or serving discovery, which the other party must answer. 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 you do not know what to do next, you should probably hire a lawyer.
Most anyone 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 handle them yourself, but if you spend some time reading the rules and the law, you might be able to be your own “closer.”
(photo: JasonRogersFooDogGiraffeBee)
If you are in Minnesota, contact The Glover Law Firm, LLC, for a free case evaluation. In any other state, you can find a consumer rights lawyer using the National Association of Consumer Advocates lawyer database.
{ 1 trackback }
{ 30 comments… read them below or add one }
This provides me a great insight to the process. I was once served with a notice. My next step was to get my butt in gear and I just paid the full amount without attempting to negotiate. It was a real wake up call for me at the time as I was younger and dumber. I did not want to get involved in the legal aspect of it all as I did not know how to fight back.
I wish I had found this blog last June. I live in Minnesota and didn’t understand the MN pocket-fiilng rules and have been subject to three default judgments because I thought I would just get my day in court. I’ve now got two of the three paid off – but it hurt to be garnished they way Gurstel, Staloch & Chargo does things. I was getting more fees and overdrafts in my bank account than they were getting in the garnishment.
Whereas I don’t condone being a stupid kid and not paying your bills – there’s a lot of things I’ve learned here about the MN collection law in just 20 mins this morning.
Oh, if you’re a kid reading this (kid is anyone under 25, fwiw), do two things to make your life easier:
1) Pay your bills now. When they’re due. It’s going to be easier not eating at McDonald’s this week, than longing for the boat you want in 10 years.
2) Admit it when you don’t know something. In my case, I should have ponied up for a lawyer – it would have been cheaper in the long run.
Thank you for good information. I have a credit judgement against me. My income is judgement proof because it is SS & Pension. I would like to know how debt collectors get bank account info. I would like to be able to use my checking acct,but am afraid to do so incase they try to take money from it. It is being handled by Gurtsel Law firm, every 6 months they send me a form requesting proof of SS payments. I do comply,but do I have to? Thank You I live in Minnesota
Hi Shirley: We do not give personal advice over the internet. If you want advice on your situation and you are in Minnesota, sign up for a 30-minute consultation.
Can you recommend someone on in the Tampa area?
Thanks
Nat
Head over to the NACA lawyer database. You can find a number of consumer rights attorneys there.
This may sound stupid but what kind of lawyer do I need when served by a debt collector?
See the comment above yours. You need a consumer rights lawyer with experience in debt collection. Start by checking the lawyer database at the National Association of Consumer Advocates.
I had a lady call about a civil suit but she would not disclose the creditor information on what the dept was for. She also hung up on me when I asked for a copy of the civil suit. Are there alot of scams of folks saying that they are collecting dept and have a civil suit but they actually don’t???…I don’t have perfect credit but I am contact with all of my creditors…
I have heard that there are some scam collectors out there, but if there is a lawsuit against you, you (or someone at your house) must have been served with the summons and complaint.
In some states, there may be a lawsuit going on even if the court has nothing on file, so you may have difficulty finding out for sure.
Your best bet is to contact a consumer rights lawyer as soon as possible.
Sam, How long does the plantiff(debt collector) have to actually file and get a court case number after they serve the summons on the defendant? I was served and gave them an answer within the time frame and it has been quite a while. Havnt heard anything. I think I will serve them by us mail Interragatories for them to anwser. Thanks in advance.
In Minnesota, there is no limit. Other states have different rules.
There is still a lawsuit going on against you. If you want to bring your case to a close, you should contact a consumer rights lawyer in your state.
Sam,
I have a judgement against me from Gurstel in MN on a Capital One credit card. When they served me (on the sabbath, which is unlawful in MN) to try to get a summary judgement, I requested debt validation and sent a response to the complaint. I never received the debt validation and – even though I sent in my response – they ignored my answer to complaint and filed (and received) a summary judgement. They obviously never told the court about my response.
The problem is, I have had pretty much every difficult thing possible happen to me lately (besides having a son who has Cerebral Palsy and is Autistic, I have been laid off and had to take a job at a significantly lower pay rate). On paper, my wife and I make too much money for a public defender. In reality, with 4 kids, an upside down mortgage, an upside down car loan and student loans – we hardly can make ends meet. I have no idea where to turn or if anyone does any types of pro-bono works in Minnesota. The total amount of the debt (with atty fees and interest) is only $3,000, but it is enough that if garnished we will lose everything. I have tried contacting them to work out a payment plan, but they are unwilling to and are downright abusive.
I just today received papers from Gurstel asking about my bank accounts, car, house, job etc. I think they are planning to garnish me.
I have no idea where to turn for help (and probably couldn’t even afford it if I could find it!)
What do I do?
~Jeremy
You can sign up for a consultation with me or another consumer lawyer in Minnesota. I could help you understand your options, although once you have a judgment against you, they are limited.
In your position, it might be worth speaking to a bankruptcy counselor to see if you qualify.
I have had bill collectors and attorneys calling me sinc 2003 regarding a loan in another person’s name, but my social security number. The other person’s social security numb had 2 transpositions when input to the bank’s system, hence the calls to me. I thought I had this settled in 2006 when I provided the other person’s social security number to the collection firm and proved I did not know the person they were looking for. Now I am being harrassed by the firm of Mann Bracken, LLC. When I called Mann Bracken and offered to help them find the person they were looking for, they became rude and hung up on me because I was not related to the person. What else can I do?
@Jerry: It sounds like you need to seek help from a consumer rights lawyer. The lawyer database at the National Association of Consumer Advocates is a great place to start. Most consumer lawyers should be willing to represent you on a contingent fee basis when it comes to stopping debt collection harassment.
I would like to suggest one more possible denial to be done in an answer to a summons. If you have no reason to know that you owe money to the named plaintiff, then be sure to deny that you owe that party anything whatsoever.
If you do owe money to someone, you have no particular reason to know that some unknown party that comes along and claims you owe it to them, is the real assignee of the debt. You could find out if the original creditor sold or placed the debt with the plaintiff by asking them. If you cannot get the OC to provide that information, then it would be up to the plaintiff to prove this by presenting the appropriate documentation. Do not accept (and challenge it if they try to present this to the court) an affidavit if the person making the statement is an employee of the plaintiff or its law firm.
The FDCPA requires debt collectors to “validate” debts. However, the specifics of what is required for “validation” is really nothing more than requiring them to IDENTIFY the debt. It does not require them to verify that the debt is valid, or even show to you that they are the legitimate assignee of a debt. You could ask them to go beyond the FDCPA requirement, but to date I’ve not heard of any debt collector that will do so.
There is a scam going around. It may be conducted by people who have acted, or are acting, in roles of a debt collector. Or it may be conducted by scammers who pretend to be debt collectors. By some means (such as retention of data about past accounts, or by data theft from collectors that do not perform proper data security) these scammers get data about your account. They try to collect. Because the account looks familiar, you may pay them on it. It did not really get applied to your debt and that is the scam.
But this scam is apparently going a step further. This is probably don’t only by very shady lawyers who have worked in debt collection and know the system. They get info about debts, such as “debt portfolio prospectus”. Then they file a lawsuit on all these debts, despite not being an assignee of the debts. Any lawsuit that is challenged, they move to dismiss and strike it from their list. Any lawsuit they get a default judgment for, they mark those for purchase to make it legal. The debt seller most likely does not know the debt buyer secured a default judgment, which would increase the value of the debt.
This is why (among other reasons) it is important for everyone to always provide a denial answer, including a demand for a hearing, for any lawsuit.
In MN, can an LLC bank account be taken for personal debt?
Possibly. It will depend on the facts of your situation, and you should talk to a lawyer to find out for sure.
If a debt collector wins in court in Mn and gets a judgement is your homestead automatically protected or do you have to file an exemption in court? Thanks
My 80 year old grandmother has been repeatedly getting calls from a debt collection agency for amounts she never incurred (in the ’60s no less). She now has a lawyer, and has informed the agency in writing to stop calling her. What gets me is that they have her social security number – how did they find it, and should I advise her to do anything such as flagging her bank accts, etc?
Carolyn, those are great questions, and you should advise your grandmother to ask them of her lawyer!
Do debt collectors like Frederick Hanna & Assoc actualy own the debt they get from Bank of America, or are they considered 3rd party debt collectors? How often do debt collectors win in court when you ask if they own the debt?
I believe Hanna is a third-party collector. For me, the chance of winning depends on whether the debt has been sold or not. If it has, the chance of beating the debt buyer goes up considerably.
Why is it so hard if third-party debt collector by the debt, that they don’t get the proper paperwork to be the new owner?
Collecting debts and buying debts are very different business ventures. I think you would have to ask a debt collector why they are not interested in buying the debts they collect.
I requested a validation notice from 3rd party debt collector (via certified)…they had a law office in my state sent me the same debt letter…I also requested a validation of debt (via certified) from them…it’s been three months and no reply form either the DC or Law Office…should I sent them anything else, or just wait for a reply or summons?
Tom, you are best off contacting a consumer rights lawyer in your area.
Messerli served Summons on me some time ago, I responded w/Answer and discovery. They responded with generic to no info at all really. Today I got a Garnishment Exemption Notice from them (which I can satisfy) but they’ve never filed the matter in Court and have no judgement. So, they can just waltz in and grab the $$ out of one’s account? Clearly its in my interests to reply by certified mail given M&Ks crappy record and ethics, but really, how in the world is it legal to privately prosecute a court matter? I know, I know, MN pocket service and all but this has grown to nearly racketeering levels. The legislature needs to address this.
Lesley, something sounds amiss. As I have said repeatedly on this blog, talk to a consumer rights lawyer in your state.