Everyday Law

April 21, 2009

Five things NOT to do when served with a collection law suit

Filed under: Debt,Debt Collection,Judgment — Amy Kleinpeter @ 8:57 pm

In these tough economic times, more and more people who have always worked hard to manage their funds and pay their own way are finding it harder and harder to pay their bills.  Hard choices must be made, and sometimes that means not paying a few or even most bills.  Do that long enough and you may be hit with a collection suit.

How do you know you’ve been sued?  If things work the way they are supposed to, you will be SERVED with a summons and complaint.  That’s never a good day and a lot of thoughts will be racing through your mind.  Here is my short list of five things NOT to do when served with a collection suit.

(1)  Do not call the attorney listed on the summons and complaint.  That is the law firm who represents the OTHER SIDE.  They are not going to help you, on the contrary they have an oath to do what is best for the company SUING YOU.

(2)  Do not send a small payment to show you are an honest, well-meaning person.  This can hurt you as sometimes, lawsuits are filed after the statute of limitations has passed.  If you send a payment, in many states this restarts the time frame that a suit can be validly filed!  So do NOT do this.

(3)  Do not respond with excuses. For example, do not respond to the complaint with a court filing in which you state “I really want to pay this debt but the creditor/collector will not negotiate a plan with me, they are totally unreasonable.”  You want to pay $45 a month and the collector wants all or nothing?  Tough cookies, sista.   The collector or creditor has no duty to be reasonable, this is business not preschool where we all learn to be considerate!  I cannot think of a consumer loan contract which states that the lender must negotiate with you in the way that you choose.  Plus, you just basically admitted the debt is yours and the full amount is correct.  Don’t do that.

(4)  Do not just show up in court on the date stated without filing any paperwork.  Usually the date for the first court appearance is long after a response is due to the complaint and if no response is filed, you may show up only to find you already have a judgment against you.

(5)  Do not bury your hand in the sand and hope it all goes away.  It won’t.  The creditor or collector can get a default judgment and in some states, like California, they can begin to garnish your wages — 25%!   They can put a levy on your bank account and even a lien on your home!

OK, so what TO do?  That’s another post!  BUT — keeping it simple, get advice from an attorney who specializes in representing consumers — you can look for an attorney at http://www.naca.net or your local free legal services.  Also, there are books like those from nolo press that help you represent yourself in collection suits.

The key is to remember — this is a LAWSUIT.  If you got in a car wreck and the other driver took you to court, you wouldn’t expect the judge to award damages just based on the other driver’s statement “It’s his fault and he owes me $5000”, right?  EVIDENCE would be expected.  This is no different — make the other side prove their case before you hand over money.  I mean, if you had extra cash you would already have paid a long time ago, right?

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5 Comments »

  1. This is great info! Letters from debt collectors can be very scary. Especially when they threaten with a lawsuit.

    Comment by JenQ — April 22, 2009 @ 4:00 am | Reply

  2. Thank you for this information, I feel better prepared to handle the calls and letters from a particularly aggressive debt collector.

    Comment by LizC — April 22, 2009 @ 6:59 am | Reply

  3. Hi folks! Just to clarify — this information is directed to lawsuits, not collection letters. The biggest difference would be that it is OK to contact a collector, even if it is a law office, when you receive a letter. I’ll write a post for collection letters, heck I’ll write a BUNCH of them — later.

    Comment by Amy Kleinpeter — April 22, 2009 @ 7:52 am | Reply

  4. I like your post because people usually dont know what to do when they have a bill collector suing them. I have prepared the following corespondence for and idea of what may be asked of a bill collector:

    I need documents or information that show how I might be obligated to pay you. Do we have an agreement, maybe a contract in writing? I have never heard of your company before. What is the nature of your business? Are you a depository or lending institution? Did you provide me any services or products? If you did, please list them and be specific. What did I buy from you? Did either of us rely upon the other to perform? When did you solicit my business or do you have any records showing that I solicited your business? If I owe you money as you claim, then what is your obligation to me?

    ect…

    If you ask these types of things you will know what case the bill collector has against you.

    Comment by Freedom From Creditors — April 22, 2009 @ 8:59 am | Reply

    • Dear Freedom From Creditors,

      I would NOT suggest a letter like that after one has been sued. Honestly I am not sure why one would send that letter ever unless those were all questions someone really had.

      When I am considering client’s cases, I do not like it when the prospective client has sent formulaic type letters to creditors. I do like that idea for a new post though — thanks for the inspiration!

      Comment by Amy Kleinpeter — December 18, 2009 @ 12:18 pm | Reply


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