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. 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.”
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,” where you pay only for the help you need.
(photo: http://www.flickr.com/photos/restlessglobetrotter/1414298385/)
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I was threatened by Smith Dean and Associates out of Florida that I would be arrested if I did not pay a debt owed to a Pay Day loan company within the hour. She said that she would have me picked up. This is because the ach for the debt was returned by my bank. Can they do that? I filed a complaint with the AG.
I was served with a Summons for a credit cart debt. I’m not sure how to file an answer to I went about contacting an attorney. Their office told me that if I owe the debt then there is nothing they can help me with. That the best thing to do is to not file an answer and let it go to Judgment because either way I was going to have to pay it. Everywhere I check online it say to file an answer. I don’t know what to do.
The lawyer who told you that doesn’t know what he or she is doing. Try looking for a consumer rights lawyer in our directory, or if you can’t find one there, try the lawyer directory at the National Association of Consumer Advocates.
I am from Washington state, but am confident you will be able to answer my questions. I received a Summons and Complaint notice from Zwicker & Associates. The document was hand delivered but it was not in a sealed/dated envelope and I was not asked to sign anything. I received it on the 21st but the date on the document is on the 10th. How do they monitor the time lapse if I did not sign any papers and there is not an official record of when I received it? Like many of the others mine does is not officially filed with the court yet and I am doing as much research as possible before sending my Answer and Certification of Service.
Here it goes:
1) If the debt collection agency/firm bought the debt how do you find out? If the original creditor is listed as the plaintiff does that mean they still own the debt?
2) The summons only lists the last four digits of the account number. Since this debt is a couple years old and there is no way of possibly knowing that the previous digits match the account I held does that mean this is more than likely an empty threat?
If not, then does this lack of information serve as good grounds to answer with “Lack of knowledge about the truth and therefore deny . . . ”
A lot of questions, I know. I want to be as clear as possible prior to sending my Answer though.
thx.
Like many legal questions, the answer to both your questions is it depends. For example, many debt collection agencies or firms do not buy debts, but some do. It takes someone who knows the collection agency you are dealing with to know whether they are likely to have bought the debt. Further, I believe some states may let collectors sue in their own names even if they have not bought the debt, so the name listed on the complaint may not be helpful.
Likewise, I’m not sure you can draw conclusions about the emptiness (or non-emptiness) of the threat based on the last four digits of the account number. I will say that if you were personally served with a summons and complaint, it is not a threat; you have been sued.
Because all of this depends on (1) the specific facts in your case and (2) the law in Washington, you really should discuss your case with a Washington consumer rights attorney as soon as possible. That is the only way to make sure you get the right answers.
I am being sued for credit card debt. Contacted lawyers to file an answer, but unfortunately am not able to afford it. One of the lawyers suggested I file for bankruptcy because of other debt that I have. Instead I tried to contact the Creditor’s lawyer and tried to settle the debt. He seemed friendly and agreed to mail a stipulation agreement. I offered to go to the office and sign in person, as it’s very close to where I live but he saiid he would just mail. The 30 days to file an answer is almost over and I was wondering if I should still file an answer to avoid a judgement against me. I don’t know if the lawyer is tricking me to wait until the time is up since he didn’t allow me to sign the agreement in person. Thoughts?
If you have been served you must answer or a default against you can result.
If you can’t afford to hire a lawyer, try contacting legal aid in your state. They may be able to help you file an answer, just in case.
I have recived a summons via mailbox, and one posted to my door reguarding a debt to bofa. There was hand written on the documents saying that I was served “via certified mail” is this still legal in Arizona? I have never gotten personally served the summons. I had sent a letter to Fredricks and Hanna last year in May asking them to prove this debt was mine etc, I never did hear anything back from them, and now Gurstel Chargo is leaving papers on my door and in mailing me this. I just need some help before the 20 days is here. ( I got my papers on July 31,2011) Even though in the paper work it states april and july 1st. Please help any information that could help me end this headache.
Thank you.
Whether or not it was properly served, you should talk to a consumer lawyer about your options. Don’t assume you can’t afford a lawyer until you call. You can also try Legal Aid, if you can’t find a private attorney to help you.
GREAT ADVICE SAM….”never assume you cannot afford a lawyer” This may be long, so edit where ya see fit to Sam! Any lawyer worth anything will give you a first “consultation”… “on the house”. My case is similar to many that I have read here….was getting calls at my place of business (FDCPA strike one)…I told them not to call again, they kept calling, (strike 2).
The next call I get, I requested them to send me a DUNNING letter, hung up the phone, called a local FDCPA lawyer, we sat and talked for like 2 hours. The outcome of which was to hold tight and record any further communications. Heres where it gets interesting…..I get the dunning letter, but no further communications from that certain “law firm”….EVER AGAIN!!!
I did arrive home this past Friday to see that I missed the summons server, the next day theres a knock on the door, I sign the paper, he hands me mine, we shoot the bull for a few, he leaves, I open it up and its from a totally new “law firm”…”well this isn’t cool, wheres my dunning letter?”, I thought. So I have an appointment for this Wednesday with my lawyer, the funny thing all these “law firms” are representing the same plantiff … Cach LLC (B of A), and so far, all these “firms” are in violation to some degree.
ALL OF US, are upon hard times these days, I had a mother sick with cancer who recently passed, a NASTY child custody case that cost me thousands (But was worth it), and my company is holding on for dear life, I mean taking a $1,000 a week paycut hurts to my very core! Most of us on here have LOTS to lose, a home, car and other assets……if you dont fight back, these vultures will TRY to take it all!
This may sound bad, BUT….keep smiling and think of it as a chess match, if you’ve been served, you know what ya gotta do…..research all you can and for petes sake call an attorney. Seeing as the first firm so blatantly violated FDPCA guidlines, I think we are gonna file a federal suit (roughly $350) , this MAY or MAY not effect the current summons, seeing as it representing the same Platiff..I dunno….hence where the attorney comes into play!!
In closing, LOOK over everything you receive with a fine tooth comb, on my summons, there was an affidavit from a custodian of records from…..you guessed it…not the original creditor, but the Junk Debt buyer…..also little subtleties…LIKE no original account number, things like that! I may be wrong, but the less they show you, the more is in your favor on court day!
DON’T BE EMBARRASSED about your situation, heck our own country almost just defaulted on its debt, its no surprise to me that TONS of Americans are doing the same, if not worse….I know I may have!!!
Keep your chins up guys, it beats the other option!!!! Once more…..answer your summons…..lawyer…Lawyer…Lawyer! These scumbag firms can be sued for $$$ granted you act within 1 year of violations!!
I am in no way shape or form a lawyer….Just fed up!!!!! Be good Guys!!!!
I have played the debt validation game with a law firm trying to collect a credit card debt. I sent them a debt validation letter and over 2 months letter they sent a copy of a statement. Is this enough for validation that I owe them? I said in the letter that they had to respond in 30 days and they didn’t. Does that hold any teeth? Also, in their summons they said I did not respond to their debt validation but I did and have proof. Plus, my letter said only contact in writing but they called me at my home and cell phone several times.
I consulted a Lawyer and I don’t think he knows what he is doing. He asked me if I owed and I said yes, to the original creditor but he just feels I am stuck paying and tried to settle for less on my behalf
Any advice?
If a lawyer’s only question is whether you owe the debt, find another lawyer. That lawyer probably doesn’t have a grasp of the issues in a case like yours.
I got a court summons on a 1200.00 hospital bill from when my son was ill. I asked for and recieved proof of debt (I knew I owed the money), however, since this is kind of like “contract law”, can I ask for the original hospital’s conditions for admissions form that has my signature and states that I must pay for the services rendered? How can the debt collector prove I owed the money in the first place if they don’t have a copy of my original contract?
fyi, if you don’t answer the door and take the summons they will just publish your ‘dirt’ in the paper and call you served- probably better to answer the door, i have found.
Any effort to dodge service should be made only after consulting with a lawyer. Otherwise, as you point out, a determined plaintiff will usually complete service one way or another, in the end.
I had a heart attack. I told all the medical personnel that I had no insurance and I attempted to discuss financials but they told me to not worry, that they would first take care of me, then we would discuss money “on the back side”. I was surprised to here this phrase twice that evening from two different doctors at two hospitals! Anyway, the clerical people told me not to worry because they would help me apply for our state’s Medicaid. Well, I don’t qualify for the Medicaid and my husband and I are on a very limited income, i.e. his Social Security Disability.
Well, in the process of discussing the bills with the various entities involved, I was offered the possibility of “financial aid” in the form of grants, discounts, etc. and I had to fill out applications that included virtually everything about my finances. Now, I wonder – even though above my signature on the forms it says that I am giving this information to apply for financial aid, can they decide not to give me financial aid and instead pass the information to a collection agency? I hope this is general enough question that it’s answer helps others as well. Thank you for this site!
Whether they can share the information will depend on a number of regulations, but it will probably depend most on whether the bill collector is the same entity offering the financial aid. If so, it will have the information if it needs to collect.
Instead of spending time on this site trying to get everyone to hire you, why don’t you actually help some of the people. Many of the questions (legal specifics on whether served properly) would take you seconds to answer. Yes it is state specific but even at that it would take you next to nothing to answer. Most of the people are on this site because they cannot afford a lawyer. For thos that can they will heed your advice and hire you or another attorney. Pimping yourself out every time you most is dispicable and makes you just as bad as the slimy collectors are. How about some honest to goodness human help? In honor of New Years maybe this is where you should start on your resolutions. Its not always about money. These lawsuits can mean the difference of someone losing their homes, etc. In comparison if you would take 10 minutes a day to post actual help you could actually save some of these people real heartache. (afterall you are alraedy on here posting anyway). Pro bono anyone?
I don’t handle these lawsuits anymore, so I’m not trying to get everyone to hire me. I write this blog because I care about consumer issues. I hope one day to make some money from advertising, but right now, the ads I do run don’t even pay my hosting costs.
The reason I don’t answer is because I can’t. It’s probably not so easy for a non-lawyer to appreciate, but it’s impossible to give competent legal advice based on a brief comment on a blog. Differences in the facts that may seem small or inconsequential to the person asking the question may make a big difference to the kind of advice I would offer. I can’t tell you how many times I’ve been on the phone or in a meeting with a consumer when they bring up something they didn’t think was important, and my response has been “oh, well that changes everything!” And different states really do have very different laws. It’s not only impossible to answer a question about another state’s law, it’s probably illegal for me to try. That’s what lawyer licensing is all about.
In general, it’s also just a terrible idea to ask for legal advice on a public blog like this one. There is no confidentiality or attorney-client privilege when you put your information out in public. If you want pro bono help, it’s best to consult a Legal Aid lawyer in your state.
Thanks to Mr. Glover, people are more informed than they were before he began writing. Free, useful information isn’t enough, you want him to commit malpractice to give out free legal advice too? Are you going to donate your money to him getting a malpractice attorney when he’s sued?
Maybe your New Year’s resolution can involve being more grateful for what you have, instead of crying over what you don’t.
I have a lawsuit against me from a hospital bill that was turned over to collections. I had set up a payment arrangement with them. I have been sending 10 dollars a month. I missed a payment that was due Dec. 30th 2011, and sent in a payment Jan. 13th, 2012, called them and found out about the lawsuit. Can this be done? If so, what can I do? I can’t really afford a lawyer, but I’m going to talk with one on Jan.16th. I am the responsible party on the medical bills and not my husband . Is there a way that I can file bankruptcy on medical bills only?
A Debt Collector seems to have bought my bad debt from a bank and I have just received a Summons. Can your SSDI checks be garnished by the court to pay for a bad debt won by this Plaintiff in Civil Court?
Anything can be garnished, whether or not the money is exempt or not. You may be able to get the funds back through the exemption process or in some other way, but first, it will be taken away, then you can try to get it back.
However, if you only have a summons (and complaint, I assume), you are at the beginning of the lawsuit. The next step is answering the complaint, which means the ball is in your court. Talk to a consumer lawyer or look for help from a local legal aid office immediately.
Just a quick heads up for anyone with debt and their only income is Social Security. As indicated by the Social Security website (official) creditors are prohibited from garnishing any income coming from state assistance. It could be Social Security, it can be welfare, etc. There are some companies that CAN garnish these but only in certain situations. If you are having bank accounts garnished, you can try getting your direct deposit changed over to a prepaid card offered by Social Security, where funds are automatically loaded onto the card each pay period.
While this may be true, that doesn’t mean debt collectors cannot garnish your bank accounts. It just means that after your funds are garnished/frozen, you can ask the court to give them back to you.
In other words, it’s still a giant pain in the ass to deal with.
I once got a credit card back in 2008-09, and never used it. now i am being called and told i owe $1600 to collection guys. Do I really owe them money? I never used the card.
It’s probably worth sending a debt validation letter to try to get more information. I can think of several possible explanations, from an accounting software glitch to identity theft to charges you forgot about.
Hello, I know debt collectors can garnish your wages…but can they get to your other assets, like a house? My mother had some medical bills about 5k that got sent to a debt collection agency. She doesn’t have a job and her social security begins in a few months. Can they go after her husband or their home? Also, are they likely to sue over a debt that small? Thank you for your time.
Possibly. You’ll want to talk to a lawyer in your state to find out, as laws on garnishment and levy can vary a lot from one place to another.
I live in CO. My wife and I are in the process of filing bankruptcy and retained an attorney a couple months ago to help with it. After we paid and retained him, we began notifying our creditors (all credit cards and their collection agencies) of the pending bankruptcy and the attorney’s contact info. We have all paperwork needed now submitted to him, and will be meeting this week to actually file the BK petition. But, my wife was served with a summons last week from another attorney representing one of the collection agencies, with court date or response due by this Wed. morning. She called that attorney’s office a couple days ago to notify them of the pending BK and our attorney’s info, but is that enough to stop them from pursuing the lawsuit for now? Do they have to cease their lawsuit sice we’ve already retained a lawyer? Or does she still have to submit a formal answer to the summons and explain that way that we are filing bankruptcy? To file an answer it will cost us $100 and money’s extremely tight now. Thanks!
Since you (or your wife) already have a lawyer, this is a great question to ask him or her, not the internet.
I was served on a debt I owe from a medical condition. Is there anyway to just pay the debt and not have to pursue any further legal issues? I do not want to rack up legal bills on top of the debt if there is no reason to.
You can always just pay the debt. Just call up the attorney who signed the complaint and ask for their best deal.
If you want to negotiate a payment arrangement, though, I’d work with a lawyer. Debt collectors usually structure payment plans in such a way that they can go ahead and continue the lawsuit whether or not you are paying as agreed.
Got something from Gurstel Chargo attorney’s at law yesterday and they’re threatening to freeze my checking account as garnishment. What the hell do they expect me to live on? The whole thing reeks fishy. I checked the BBB website, and they aren’t accredited and have had 20 complaints filed against them.
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