So You’ve Been Sued, and You Answered. What Next?

Following up on this post (In the event of a lawsuit, please head for the nearest lawyer), I thought I would talk a little bit about what to do after you are sued and after you answer the debt collection complaint. (If none of that made sense to you, go ahead and find yourself a consumer attorney.

More on combating debt collection lawsuits after the jump.

First, I want to point out that this is not advice. There are very good consumer attorneys available (see above) to address your needs in your particular case. What follows is highly generalized information. It may or may not apply to your case. Every case is different, and what works in one case may be a horrible decision in another case. Consult a lawyer or do your own research.

Okay, so you got sued. Either a process server left a summons and complaint at your house, on the porch, or maybe in a nearby bush. You can respond by (1) moving to dismiss (if the process server left the summons and complaint in a nearby bush), or (2) with an answer. See your state’s rules of civil procedure for what constitutes a valid answer.

If you weren’t served properly, you still may want to answer and go ahead and litigate the case. It is relatively easy for the debt collector to serve you properly the next time around, leaving you right where you were. I usually go ahead and litigate the case if it’s just an issue of improper service, but my client has actual notice. The exception is if the debt collector has already started garnishing, in which case I may move to dismiss. It depends heavily on the particular facts of the particular case, and partly on the clients needs and wishes.

After answering comes a period known as discovery. There are probably other things you have to do during this period that have to do with scheduling, but those depend on your jurisdiction and on the court in which you find yourself. If it is a typical district court case, discovery comes next. This is a process by which the parties can find out more about the claims and defenses presented by each side.

A debt collector can only collect on the debt if they prove two main things: (1) they actually own the debt, and (2) you actually owe it.

In order to prove they actually own the debt, a debt collector needs to follow the debt from the creditor through any other debt collection agencies that have owned the debt. This can be difficult. I usually direct my discovery requests to this question, to determine whether the debt collector actually has the evidence they need.

In order to prove you owe the debt, the debt collector needs to show that there was some activity on the account giving rise to the debt within the statute of limitations, and that you are the actual person who incurred the debt. Same deal here. I try to find out as much as I can about the debt and the person who owes it.

One thing is very important. Debt collectors often file lawsuits without this proof. It usually costs them money to get evidence of the debt from the original creditor (if the debt collector bought the debt), so few bother. This means that, technically, many debt collection lawsuits are filed without the evidence necessary to prove the case. If this applies to your case, you can use this to try to get the case dismissed.

So you answered, you sent discovery requests, and you didn’t get evidence proving you owe the debt. What next? Move to dismiss. Stay tuned, and maybe I will talk about that, as well.