If you’ve been served with a debt collection lawsuit, the worst thing to do is stick your head in the sand and fail to file an answer to the complaint. This is EXACTLY what debt collectors who buy up old debt expect you to do, and their entire business model relies on it. In fact, I would estimate that over 98% of people served with a debt collection law suit from a company like Midland Funding, LLC or Portfolio Recovery don’t respond and allow these companies to get a default judgment on debts that they might not even owe. Remember that just because a complaint says you owe money doesn’t mean it’s true.
What is a Summons and Complaint
A Complaint is a document that the debt collector files with the court that lays out how much money they think you owe them and details why they should be entitled to a judgment against you. This is what most people think of when they think “lawsuit.” In the case of a third-party debt buyer, this will usually be a reference to a loan that was entered into with an old credit card company that sold the debt to the collection agency.
You will also receive a Summons with the Complaint. A Summons is a document that acts like a cover sheet instructing you on what you are required to do in response to the lawsuit. Of course, the language can still be very confusing for a non-lawyer, and the Summons does not tell you HOW to actually respond. It merely lets you know that you are required to do so within 30 days of receiving the complaint under Georgia law. In Georgia, the Summons will usually say something like “If you fail to do [answer], judgment by default will be taken against you for the relief demanded in the complaint.” In other words, if you fail to file an answer, the creditor will get a default judgment against you without having to prove their case.
What is an Answer
The Answer is the formal document you must file in response to the Complaint. Remember to look to the Summons to see how many days you have to answer the Complaint. When you Answer a Complaint, you MUST do two things:
- provide whether you ADMIT, DENY, OR LACK KNOWLEDGE of each allegation made by the debt buyer against you. Do not admit any statement unless you agree with it completely, and do not try to guess! If you do not know exactly how much you owe the debt collector, state that you lack the knowledge to verify the information. We’ll cover this in more detail later.
- Preferably, you should type your answer and print it out in a legible font. There may be no rule against handwriting your complaint, but it’s never a good idea.
Step 1 – Read the Complaint!
Hardly anyone reads the Complaint filed against them under the excuse that since it’s a legal document, it must be impossible to understand. That’s simply not the case with a debt collection lawsuit. While they can use legal jargon that may throw you off, the relief they are requesting is always simple: they want to be paid.
Let’s start with the caption. Here’s what a VERY BASIC lawsuit may look like. Again, this is just for illustration purposes. An actual lawsuit will (hopefully) be far more detailed. This is just to give you an idea of what to expect.
The Plaintiff is the party suing you. You are the Defendant. There can be more than one Defendant, such as if a married couple are jointly liable on a credit card or you co-signed with a friend or family member on a line of credit.
The allegations are laid out in the numbered paragraphs. Be sure to look at the “WHEREFORE” language, as this is where the debt collector is asking the court exactly how much money it wants in a judgment against you.
Step 2 – Assert your Affirmative Defenses
This is where most non-lawyers will have trouble. Affirmative defenses are defenses to the lawsuit that must be pled to be considered by the court. An affirmative defense is essentially saying that even if everything the debt collector says is true, this legal argument or defense will still allow you to defeat the debt collector’s lawsuit. For instance, if a person files a lawsuit alleging she was injured as a rsult of your negligent actions but waits more than two years to file a lawsuit, the statute of limitations has passed on that claim. The statute of limitations is the deadline a person has to file a particular type of claim, so in the above example, even if you did injure that person and everything she says is true, you would still win because the deadline to file a lawsuit against you had passed.
Statute of Limitations
You should never fail to list an affirmative defense, but the statute of limitations defense is one of the more successful defenses to be asserted. Under Georgia law, the statute of limitations on claims purchased by debt collectors is six years from the date of your last payment to the original creditor. When you allege that the statute of limitations has passed, you are telling the court that even if you do owe the plaintiff money, the time limit to file a lawsuit to collect the money has passed.
This one should be pretty obvious. You are alleging that you have already paid the debt in full, so you can’t possibly owe any more money to the creditor.
Failure to State a Claim Upon Which Relief May be Granted
This is a fairly boilerplate defense that rarely works against a debt collector. This is saying that even if all the facts alleged against you are true, there is no legal basis to collect any money. Since debt collectors are alleging that you owe them money for a loan or credit card, this rarely works.
These are just a few of the affirmative defenses to list. You can do a quick Google search for examples of more, but if you have even a colorable argument that the defense could apply in your case, you MUST assert it otherwise you may waive the defense, even if it could have meant the dismissal of the lawsuit against you.
Step 3 – Respond to the Allegations
This is, surprisingly, the easy part that everyone makes more complicated than it actually is. By responding to each allegation in the Complaint, I do not mean to actually explain why you feel you should win or what really happened if you do not agree with a fact alleged against you. You merely need to state one of four responses in numbered paragraphs that correspond to the numerical allegations against you:
- If you agree with the statement made, for instance, in paragraph 1 of the debt collector’s Complaint, you will put “Admitted” under your own paragraph 1.
- If you disagree with the statement made by the debt collector in one of the numbered paragraphs, you would put “Denied” under your corresponding paragraph.
- If you do not know or have no way of knowing the truth of the allegation, you would put that “Defendant lacks sufficient knowledge to admit or deny Plaintiff’s allegation in Paragraph X; therefore, Defendant denies the allegation.”
- If you agree with only part of the allegation in a paragraph, you would put that “Defendant admits X in paragraph X of Plaintiff’s Complaint, and denies all remaining allegations in paragraph X.”
Be careful of the responses to put to each allegation. Denying an allegation that you know to be true could cost you in the long run, as the debt collector’s attorney could seek attorneys’ fees on top of the amount claimed.
Here’s a sample Answer to the example hypothetical Complaint posted above:
Please don’t cut and paste or use the Answer above in a case pending against you. This is not meant to be a substitute for legal advice catered to your specific situation. This image of an Answer is merely a representation of what an Answer to the example Complaint posted above could look like. It’s for illustrative purposes only.
Step 4 – File and Serve the Complaint
Now that you’ve finished drafting your legally sufficient Answer, it’s time to sign, file, and serve it.
- Print out your Answer, sign it, and make two copies.
- Go to the clerk of court’s office in the court where the lawsuit was filed and file the original with the clerk and have the attendant “file-stamp” the other two copies.
- Mail one file-stamped copy, called the “Service Copy,” to the debt collector’s attorney. The law firm’s name and address should be on the front of the Summons. Use Certified Mail to serve it.
- File a “Certificate of Service” with the court swearing that you appropriately served your Answer on the debt collector. This will have the same Caption as the Answer, state “Certificate of Service” at the top, and state something similar to “I hereby certify that on the __ day of ____, 2016, I served a copy of Defendants’ Answer via U.S. mail on the following: (put name and address of debt collector’s attorney).”
- Keep one copy for your files.
- Rejoice! You just successfully answered a debt collector’s law suit and prevented them from getting a default judgment against you. At the very worst, they will have to work much harder for a judgment. Many times, however, they won’t have any supporting documentation to actually prove that your owe a debt to them.
Sometimes it may not be worth it to hire an attorney to defend against a debt collector’s lawsuit, such as when the amount demanded is less than what an attorney would charge you to defend it. But I always recommend that you take advantage of a free consultation with an attorney to at least discuss your options. There are many pitfalls and evidentiary issues that only an experienced attorney would recognize.