Proper Service Of Summons Complaint – Possible Responses
In most states, once you are properly served, under statute, you will have a specific time period in which to file and serve your written response. In most cases, the written response is called the “Answer”. In many states, the time in which you must file your Answer is 30 days from the date you were served.
Many states provide for shorter time limits in which to respond, especially if you are being 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 and in what manner.
It is strongly suggested, upon being served, you seek legal counsel immediately. Failing to respond within the specific time period stated in the Summons could result in a Default Judgment taken against you.
The Answer And General Denial
The “Answer” is the debtors most commonly used responsive pleading. There are other types of responsive pleadings such as a Demurrer and Cross-Complaint.
The “Answer” is a formal responsive pleading which is filed and served upon the Plaintiff and which formally denies the allegations of the Complaint. This is called a General Denial and it will usually include a list of Affirmative Defenses, which must be asserted at the time you Answer the complaint or these defenses may be deemed waived at a later date.
Affirmative Defenses In You Answer
Including 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 Plaintiffs allegations include but are not limited to: Statute of Limitations, Mistake, Fraud, Misrepresentation, Waiver-Estoppel, Laches, Violation of Fair Business Practices, Breach of Warranty, and many others. The Plaintiff must prove each affirmative defense that was pled by a preponderance of the evidence, at the time of trial or they will be legally stricken from the Complaint.
More On The Statute of Limitations Defense
The Plaintiff must file its lawsuit against you within the time period prescribed by law and that specific time 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) in which to file the lawsuit and an additional period of time they have to serve you with the lawsuit (usually two additional years). Again, states differ on the time limits for filing and serving legal actions, so obtaining legal counsel on this issue is critical
Its hard to believe that even when collectors know 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 you and writing harassing letters threatening to take legal action. This is ethically reprehensible.
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 inform you of the law. While this is allowed in some states, newly enacted consumer laws are demanding that collection agencies only be allowed to collect on “legally” collectible debts.
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 to Answer the Complaint and allege Affirmative Defenses, but also 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 basically claims that not only is the Plaintiff’s claims against the Defendant false, in truth, it is the Creditor-Plaintiff that has wronged the Defendant and there 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 like a boxing match. You, the debtor takes the first hit, and then you hit back with a punch of your own equal with equal or greater force. You are not only defending yourself, you are asserting your own set of legal claims against the Creditor-Plaintiff.
Cross Complaints Are The Collection Agencies Worst Nightmare
It is important 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 are: Breach of Contract, Breach of Warranty, Fraud, Intentional Misrepresentation, Conversion, Tortious Interference with Contract – to name just a few. Now the plaintiff not only risks losing their case against you, and the cost of prosecuting their case, it is now possible they could be held liable to you and be forced to pay damages.
If you still have the Bankruptcy card to play, and you are fighting this case because you believe they will not be able to prove their claims against you, if you lose, you are still allowed to file for Bankruptcy, so just make sure you file before a final judgment is entered against you. Speak to a Bankruptcy Attorney about the legal timing in these types of situations in your state.
A debt that is contested can have major advantages. For example, it may be very useful prior to a collection lawsuit being filed to inform the collector that you will be contesting the debt with a cross-claim of your own. For example, it could be asserted that a seller sold you a defective product and after being notified of this, failed to replace or repair the product. Breach of Warranty. This will immediately lower the value of the debt from the perspective of the collector.
For most collection agencies a contested debt is very bad news. Collection agencies do not want to spending money in litigating a case they may actually lose. As far as the collection agency is concerned, suing you is not personal – it’s just business.