Being Served With A Creditor’s Summons And Complaint
The Summons
A Summons is a written legal notice that is served along with the complaint and provides the Debtor Defendant with clear and specific instructions concerning the procedures to be followed, including how to file and within what period you must file and serve a written response. The written response is called the Answer.
If you live in a rural area, you are more likely to get help on how to proceed by visiting the county clerk’s office. Big cities are usually terribly understaffed, and the court’s clerks and administrators rarely have the time to answer questions. They are more likely to tell you to call your County Bar Association and obtain the advice of a lawyer.
Service of the Summons
Each state has laws regarding what constitutes the legal Service of a Summons and Complaint. These laws are usually construed and enforced in favor of the defendant.
The Summons and Complaint must provide the defendant with proper and sufficient “Notice” of the plaintiff’s legal claims. Some states still require a Summons and Complaint to be served on the defendant by a police officer.
The law favors Personal Service, which means the defendant is personally handed the lawsuit. Dropping the Summons and Complaint on the defendant’s doorstep is not considered lawful service in most states.
Different Ways of Getting Served
Substituted Service of Summons and Complaint
Most states allow for “substituted service,” which requires several actions before a court considers the service legally valid. These may include all or some or a combination of these obligations:
- proof of numerous service attempts by sworn declaration
- mailing the Summons and Complaint to the Debtor-Defendants last known legal address
- serving a member of the household of the Debtor-Defendant
- attaching the Summons and Complaint to the residence door
- Publishing Notice of the Summons in a newspaper of general circulation in the geographical area plaintiff is last known to have resided.
Suppose the Debtor-Defendant still does not answer the complaint within a specific time after service has been made. In that case, the Debtor-Defendant, assuming that the plaintiff has strictly complied with all state requirements of substituted service, will deem the Debtor-Defendant served and in default.
A default will allow the Plaintiff-Creditor to obtain a default judgment against the defendant and pursue garnishment and attachment remedies.
Trouble-Tip
Move Swiftly
If you are personally served with a lawsuit, see a lawyer immediately. Don’t wait. If you wait, you risk the creditor will request that the court find you in default. It requires a simple hearing to prove a defendant’s default and the default judgment amount.
Possible responses to being served with summons and complaint
In most states, once you are adequately served under the statute, you will have a specific and limited time to file and serve your written response.
In most cases, the written response is called the “Answer.” In many states, you must file your Answer thirty days from the date you were served.
Many states provide shorter time limits to respond, especially if you are sued in Small Claims Court. In either event, you will need to promptly and carefully read the Summons, which is attached to the complaint and which will specifically inform you how much time you have to formally respond to the complaint and in what manner.
It is strongly suggested that you seek legal counsel immediately. Failing to respond within the specified period stated in the Summons could result in a Default Judgment against you.
The Answer And General Denial
The Answer is the debtor’s most commonly used responsive pleading and when served on the plaintiff formally denies each and every allegation of the plaintiff’s complaint. This is called a General Denial.
The general denial usually includes a list of Affirmative Defenses, which must be asserted when you answer the complaint, or these defenses may be deemed waived.
There are other types of responsive pleadings, such as the Demurrer and Cross-Complaint, and will be discussed separately.
Affirmative Defenses In Your Answer
Affirmative Defenses should be pled in your Answer even if they don’t apply. This is a common and lawful practice in pleading since failing to assert them may result in waiving them, so they are pled to be on the safe side. Examples of affirmative defenses to the plaintiff’s allegations include but are not limited to the Statute of Limitations. Other include:
- Mistake
- Fraud
- Misrepresentation,
- Waiver-Estoppel
- Laches
- Violation of Fair Business Practices
- Breach of Warranty
- Statute of Limitations
The plaintiff must prove each affirmative defense pled by a preponderance of the evidence at the time of trial, or they will be legally stricken from the complaint by the court.
The Statute of Limitations Defense
The plaintiff must file its lawsuit against you within the period prescribed by law, and that specific period is known as the statute of limitations.
In many states, the creditor has a time limit (three years on a contract in many states) to file the lawsuit and an additional period they have to serve you with the case (usually two different years). Again, conditions differ on the time limits for filing and performing legal actions, so obtaining legal counsel on this issue is critical.
Collection Attempts On Stale Claims
Often, even if the collector knows they are legally barred from filing against you, some will not inform you of this fact and will proceed with their collection efforts by calling and writing harassing letters threatening to take legal action against you. This is ethically reprehensible.
While this is allowed in some states, newly enacted consumer laws demand that collection agencies only collect on “legally” collectible debts. In defense of this practice, collection agencies claim they are under no legal obligation to inform you that the statute has run. They claim they are under no legal obligation to tell you of the law.
Cross-Claiming Against The Collection Agency
Should you choose to fight the lawsuit, one legal action you can take that will let the collector know you are serious is to not only Answer the Complaint and allege Affirmative Defenses but also to file and serve a Cross-Complaint against the plaintiff, which will force the Plaintiff to Answer your Counter Claim.
A Cross Complaint filed and served on the Creditor-Plaintiff claims that not only are the plaintiff’s claims against the defendant false, but in truth, it is the Creditor-Plaintiff that has been wronged by the defendant and therefore is legally responsible to the Plaintiff for Damages.
When this happens, the Creditor-Plaintiff is now called the Plaintiff-Cross Defendant, and the Debtor-Defendant is now called Defendant-Cross Complainant. Think of it as a boxing match. You, the debtor, receive the first punch, and then you hit back with a punch equal to or with more force than your opponent.
This puts you in a much stronger position because now you are not only defending yourself, but you are also asserting your own set of legal claims against the Creditor-Plaintiff.
The Debtor’s Cross Complaint
It is essential to mention that legally if you assert a cross-claim, it must have legal merit. Examples of common causes of action in a Cross-Claim include:
- Breach of Contract
- Breach of Warranty
- Fraud
- Intentional Misrepresentation
- Conversion
- Tortious Interference with Contract
Now the creditor plaintiff risks not only losing their case against you and the cost of legally prosecuting their case, but it is also possible the creditor could be held liable and be forced to pay the debtors damages and even attorney fees!
Trouble-Tip
Getting Your Power Back!
A debt that is contested can have significant advantages. For example, it may be beneficial before a collection lawsuit is filed to inform the collector that your lawyer will examine your claims with an eye toward cross-claiming against the creditor. You might add that you have already consulted with a consumer lawyer, and she believes we might have a very strong case. At this point, ask the collector for their address and collection license number so you can give that to your lawyer.
Do not discuss the case. Have your lawyer handle all future communication with the collection agency.
Get Help – Consumer Lawyers
If you have questions or require additional information about your specific legal rights, we recommend you contact and consult with an online Consumer Rights Lawyer about your specific issues.
