There is an old saying that a tomato can sue a cucumber for being in a salad. It's a litigious society. If you've ignored dunning letters from collection agencies because the debt isn't yours or has already been paid, don't be surprised to find yourself summoned to court. The collection agency works on the assumption that the majority of debtors sued won't respond and the collection agency is awarded a default judgement. While you could represent yourself, your best bet is to hire an attorney to represent you.
Serving the Summons
The official court document is called a summons and does exactly that summons you to court, although "demands your response" would probably be a better term. The summons is accompanied by the complaint which states the name of the collection agency as plaintiff, the basis for the suit and the amount of the debt. There may also be documentation attached such as copies of credit card statements, affidavits, or a credit card agreement, but there doesn't have to be.
How the suit is served depends on the state where you reside. The process server usually has to personally serve the person named in the suit, the defendant. However, the summons may also be served to an adult living on the premise, by mail or publication in the newspaper.
Unless you want the collection agency to be awarded a default judgment, you must respond to the summons. Even if you know the debt isn't yours, or you have proof it's been paid, you must respond. Calling the agency and arguing with them won't get you anywhere. Some collection agencies will imply that they accept your word that the debt isn't yours and proceed with the lawsuit anyway. Your response must be within the allotted time -- from 20 to 30 days depending on the state. It must be in the correct format.
The collection agency will most likely send you a list of documents it wants you to provide. It will also send a list of statements and ask you to admit or deny each statement. If you don't respond and specifically deny each statement, the agency will move, or ask the court, to accept the statements as admitted. You have the same option to ask the agency to send you proof that the agency owns the account and that you owe the money.
Motion for Summary Judgment
The collection agency may motion the court for summary judgment. This means that there are no conflicts that a jury or judge has to decide. You must respond with specific statements of why there are conflicts that warrant a trial. In other words, there are outstanding issues a judge or jury must decide at trial. If you don't file an opposition to the motion for summary judgment, it will be granted.
Order to Appear and Answer
The worst case scenario is that you've lost, and the collection agency has received a judgement. An order to appear and answer, or proceedings supplement, can then be issued by the court. The purpose is to find out from you what assets you have and where the assets are located so the collection agency can collect the judgement. If you ignore this order, you could be declared in contempt of court and have a warrant issued for your arrest.
- Santa Monica Mirror: http://www.smmirror.com/articles/Business/Debt-Management Strategies What To-Do When A Collection Agency Sues
- Federal Trade Commision: Debt Collection FAQs
- Rreuters: Why You Should Always Contest a Credit Card Lawsuit
- New York Times: Why People Hate the Banks
- Indiana Justice: Proceeding Supplemental
Katie Jensen's first book was published in 2000. Since then she has written additional books as well as screenplays, website content and e-books. Rosehill holds a Master of Business Administration from Arizona State University. Her articles specialize in business and personal finance. Her passion includes cooking, eating and writing about food.