So you have received a summons and complaint for a debt you owe to somebody. Here are the steps you will need to perform in order to respond to the summons. First of all, notice that I said "response" and not "answer". There is a distinct difference between the two. First of all, an answer (which is what both the court and the plaintiff's attorney expect) requires you to have a defense or a denial for each point in the plaintiff's complaint. If you are going to defend at all rather than just ignoring it and getting a default judgment against you then they want you to have a denial or a response to each point in the complaint. There are other ways to respond in some cases however. You might have a defense based on statute of limitations so the first thing you might want to do is check out http://www.lawdog.com to see what the statute of limitations is for your state. In most states, the proper time is based on that for written contracts but some states have a specific length of time set for credit card debt.
If you have a SOL defense then you might want to file a motion to dismiss but you will most likely have to prove to the court that the debt is indeed beyond the statute of limitations. Your best proof is cancelled checks showing the last date you paid the bank. Sometimes the plaintiff will tell you when the statute of limitations started voluntarily and sometimes you will have to use discovery to get at the truth of that matter. If you can't prove it then don't plead it.
If you do file a motion to dismiss then you will also have to prepare a notice of hearing which you will have to take to the judge's office and have the judge's secretary set a hearing date on your motion. You will have to present a copy of your motion to the secretary as well for the judge's inspection. Then it will have to be filed with the clerk of the court. Sometimes they want it to be filed first before it is presented to the judge. Since different jurisdictions do it different ways you will have to ask the clerk of the court which way you need to do it.
If you don't have a possible SOL defense then you might want to consider using a sworn statement of denial. Those must be sworn before a notary public and take the form of an affidavit. A sworn statement of denial is an acceptable response even if the Plaintiff's attorney doesn't want to admit it. Sometimes they will get so dumb they will try for a default judgment based on the theory that you did not file a proper response with the court.
The next step is to prepare a certificate of mailing. Those are very easy to prepare. You will only need one copy to mail to the plaintiff's attorney. Don't attempt to file your certificate of mailing as a separate document because the clerks don't want them cluttering up the files.
If the summons and complaint are the first contact the attorney has had with you then you will also want to prepare a good validation letter. Validation letters should always be as short and concise as possible. Validation letters that quote a bunch of laws or demand answers to numerous questions are not acceptable as there is no requirement under the law that all those silly questions be answered. There is also no requirement that the lawyer ever respond to your demand for validation but he cannot legally proceed with any continued collection activity until he does.
You might also want to prepare and send a good set of about 30 or 40 demands for admissions along with your other paperwork but discovery documents are also never filed with the court unless they are part of a pleading or motion. Most attorneys will send demand for interrogatories, admissions and production of documents all at the same time but I tend to think that is not such a good idea. I tend to think that sending only the demand for admissions first and then wait for the responses to come back before demanding production of documents and maybe finally demand for interrogatories lastly, each spaced out by approximately 30 days. There are definite reasons why I like to do it that way. Each state has rules of civil procedure that must be followed.
Most states allow 30 days for each type of discovery but you will need to check your state and local court rules of procedure to determine what those time limits are. Some attorneys like to send their demands at the same time the summons is served on the defendant but some states don't allow that. Some states rules of civil procedure say that discovery may not begin until the defendant has responded to the summons and complaint.
If the Plaintiff's attorney sends discovery demands at the same time the summons is served the defendant needs to check rules of procedure to see whether that is allowed or not. If it is not allowed then the defendant should not respond to the plaintiff's discovery demands at all but rather should send his own instead at the same time he sends his/her response to the complaint.
If defendants have reason to suspect that they might be sued for some debt or other it is wise for them to check their public record at the courthouse daily if they can do so on line or if not then at least once a week by going to the county clerk's office in person. I recommend that as soon as it is determined that a suit has been filed a defendant not wait to be served before preparing their defense and getting everything filed. That way they get the jump on the plaintiff in sending out their demand for admissions. The benefit of doing that is the fact that if the plaintiff has not responded within the time limit mandated by rules of procedure the defendant can move forward with motions to deem admitted. If the attorney does respond in time, the rules of procedure should once again be consulted to see if the responses are all allowed by the rules. If not then motion to deem admitted is once again appropriate. If all seems in order at that point then one can send demand for admissions based on the responses received from the plaintiff's attorney. In the event that the plaintiff claims to have certain documents in it's possession when it responded to the demand for admissions the defendant can then demand that those documents be copied and presented to the defendant for inspection. If that is denied then the next move is to file a subpoena deuces tecum to require production of those documents. I feel that with those tools available there is usually little need for interrogatories to be submitted.
Another thing that defendants need to watch out for is whether or not the plaintiff includes any affidavits with their complaint. If so these documents should be carefully examined for false statements. Most affidavits submitted with debt collection lawsuits contain false and misleading information and therefore can become powerful weapons to use against the plaintiff who may not provide any false or misleading information to consumers by federal and some state laws. Learning to spot false and misleading information takes experience and careful analysis. The notary public is always the first key to determining whether or not an affidavit contains false and misleading information. From there it often takes a fair amount of investigative work to get the final answers.
Another thing to remember is that most documents filed with the court or sent to the defendant must contain a statement that the document is from a debt collector and any information obtained will be used for that purpose. If the summons and complaint does not have that warning then the attorney has 5 days within which he must have a second letter in the defendant's hands containing that statement. Failure to comply is a violation of federal law.
Debtors should understand that almost no matter what they do in local courts the court will issue a judgment in favor of the plaintiff. While many defendants want to believe that the reason they got beat was that the court is biased and crooked but that isn't the case at all. The reason they get beaten in court is that there is one and only one issue before the court and that is whether or not the defendant owes the debt. If the defendant does legally owe the debt then there can be only one outcome and that is judgment in favor of the plaintiff.
But debtors should also consider the fact that in the process of collecting the debt either the plaintiff or the attorney will most likely commit one or more violations of either state or federal law or both. The purpose of fighting an obviously losing battle is to gather a good list of violations and sue the pants off the lawyer and if possible the plaintiff as well. Such lawsuits should normally be brought in federal court. One of the huge advantages of doing so is first of all the defendant (now the plaintiff) will not have to actually appear in court since it is all done over the internet or by phone or by U.S. Mail. Another advantage is that the plaintiff has the same advantage in federal court that the debt collector had in local court. The only question before the court is whether or not the defendant violated the law and if the plaintiff can prove his case he will win.
Another advantage of learning the law is that the debtor does not have to hire a lawyer to do any of it. This stuff isn't rocket science and anybody with normal intelligence can learn to do it if he has the proper help from someone who has the knowledge and experience to teach them how to do it all.
I have that knowledge and the experience of working with thousands of debtors over the years and I know how to win. None of my students have ever lost in federal court. I don't charge an arm and a leg to teach people how to do this stuff. I only charge $400 and once you have become a student you will always be a student of mine no matter how many cases you might have. I'll always be available to help you even on evenings, weekends and holidays. I'll walk you through the process as many times as need be until you know exactly how to proceed.
All you need to do to get started is to deposit the $400 to my bank account and you are good to go. In order to get my bank account and routing numbers you will have to call me.
My name (which you will need for the deposit) is:
Billie Bauer (but my friends and students call me Bill, not Billie. Debt collectors and other sleazy types call me Billie. LOL)
My address is 3620 So Parkview Ave.
Oklahoma City, Oklahoma, 73119.
My phone number is (405) 237-2174
or (405) 227-9423.
You can call me any time and I'll be glad to talk to you whether you ever become a student or not.
Oh, you say you can't afford that? Well, if you can't afford that then how will you afford to get your bank account frozen and the funds seized? How can you afford to get your paycheck reduced by 25% by garnishment if you can't afford $400 to keep it from happening to you?
If you can't afford me then how can you afford to take a chance of getting your vehicle(s) seized and sold at public auction? If you can't afford $400 then how can you afford a visit from the sheriff who can come to your door and haul off all your goodies to sell at public auction?
Before you tell yourself you can't afford me ask yourself the above questions. If you decide you can't afford all the bad things that will happen to you if you don't do something fast then I'll be expecting your call.
In the meantime, have a nice day and a better one tomorrow.
Bill Bauer
And if you still feel that you can't afford it then it must be time for you to start doing something about getting your income up so you can afford it. If you are willing to do just a little bit of very easy online work then this might be for you.
