When a Debt Collector Sues You
If you are sued over a debt, you can defend your case. The steps you take depend upon what court you are being sued in. If you are being sued for less than $5,000, then your case will be in Small Claims Court; if over $5,000, then you will be in County Court, and claims over $15,000 are in Circuit Court.
WHAT ARE YOUR RIGHTS?
You have rights in the debt collection process under the Fair Debt Collections Practices Act FDCP) and the Florida Consumer Collection Protection Act (FCCP). Debts covered under these laws are types of consumer debt, such as auto loans, medical bills, and credit card bills.
WHAT DO YOU NEED TO DO?
When a company or a person sues you to try to collect money that you owe to them, RESPOND.
The number one mistake consumers make is failure to respond by answering the complaint that the collecting party filed in court. If you don’t respond, you are giving up the opportunity to try to defend yourself. This allows the person or company that you owe, also known as the creditor, to automatically win their lawsuit. It is called win “by default”. If this occurs, a default judgment will be entered against you. A default judgment is a court decision against you. You want to avoid this.
In your response to the lawsuit, do not automatically admin that you owe the money that the creditor says you do. This is called Admitting Liability, which means saying it’s your fault – saying you are liable to pay the debt.
Force the creditor to prove the debt and prove that it is you who is responsible for repaying the debt.
If the person or company to whom you owe the debt files a lawsuit against you, they are legally required they show proof that they have the right to file this lawsuit.
In a lawsuit for debt collection, the creditor, or the debt collector, is called the Plaintiff – the person or company suing you. You are known as the Defendant (you are defending yourself).
The Plaintiff must prove to the court that you owe the debt. They must provide proof of the amount you owe, a credit agreement signed by you and other related documents. If the Plaintiff cannot provide this documentation, then it may not legally be able to file a lawsuit against you. Judges often dismiss debt lawsuits because of this.
The Plaintiff must prove the amount that you owe. One way to defend yourself is to force them to provide this proof.
The Plaintiff must file its lawsuit within a certain time frame after you stop paying on the debt. This specific time frame is called the Statute of Limitations. If the debt is based on a contract you signed, the time frame to file the lawsuit is five years. If you did not sign a contract, then the time frame is four years.
Creditors and debt collectors must follow certain rules under the law. If they violate these rules, you may be able to sue them.
Attend the pre-trial (a session in court). This date is provided in the paperwork when you first receive the court documents.
At the pre-trial, you can deny the debt if it is not owed. However, if you ask the Plaintiff for documentation during the pre-trial or in writing, the judge is likely to support your request. You also can ask the court to allow you to request Discovery, which is the process of submitting written questions that the other side must answer.
After the pre-trial, write a list of your questions and/or documents you want from the Plaintiff. Some of the things you can request:
- A full account history
- Copies of any documents you have signed which show that they own the account and that you owe money.
The Plaintiff has 30 days to respond. If they cannot answer the questions or provide the documents, then you should ask the judge to dismiss the case.
The Plaintiff may have questions for you as well (called a Complaint). If you don’t respond to the Plaintiff’s Complaint, a judge will consider your silence as an admission of responsibility for the debt.
When the Plaintiff files a Complaint with the court, you should file an official Answer to this Complaint with the Clerk of Court.
- The Answer must be filed within 20 days of receiving the Complaint.
- In the Answer, you should deny the Complaint and list the reasons why you are denying that you owe money.
- Always file the original Answer at the clerk’s office, and mail a copy to the Plaintiff or the Plaintiff’s attorney.
- If you need more time, you can request it by filing with the court a Motion for Extension of Time.
After filing the Answer at the clerk’s office, move forward with Discovery requests from the Plaintiff. If the Plaintiff does not have the answers or paperwork you requested, then you can ask the judge to dismiss the case.
WHAT TO CONSIDER BEFORE TAKING ACTION.
If you are unable or unwilling to defend your case in court, you can attempt to settle the payment outside of court. It is possible that the debt collector who sued you does not want to endure a lawsuit process and may negotiate with you instead.
If you chose to try to settle the debt payment with your creditor outside of court, offer periodic payments or lump sums in amounts less than what you can afford. Find a lawyer to help you in these negotiations if you can.
If you owe a debt that you cannot pay, and you are experiencing other financial distress, bankruptcy might be an option to consider. When you file for bankruptcy, all attempts to collect the money you owe must stop while filing for bankruptcy is handled.