Summons and Complaint: An Explanation

Summons and Complaint: An Explanation

You’ve missed quite a few payments on your credit card, or you’ve nearly defaulted on an auto loan. You stopped paying on your student loans, or never actually started paying for that new furniture you “bought” on credit. Whatever the reason, you just got served with a Summons and Complaint.

The worst thing a debtor could do is file the notice away, toss it into a stack of papers, or simply disregard it entirely without responding. “Ignore it and it will go away” is a myth and should NOT be applied when a collection agency is suing you.

We’ve put together the basics of what a Summons and Complaint means, and what you have to do next.

It Starts With a Complaint

The creditor, or collection agency, starts a lawsuit against you by filing a complaint with the court. Also called a petition, a complaint will list you and any cosigners and explain why they’re suing you. Basically, it says why  the creditor (the plaintiff) feels that you (the defendant) owe them money. Filled with plenty of legal jargon, it will state the amounts of all debts owed plus interest, along with their lawyers’ fees and court costs.

Then, the Summons

A complaint is served along with a summons, which notifies you that you are being sued and are required to formally respond. It also includes specific dates by which to respond and when the court will hear the case.

Instead of “serving” you with a summons in person as required by most courts, a creditor will sometimes hire a professional process server or a local sheriff to do it. In order to acknowledge that you’ve received the papers, creditors can also include an additional form. If you don’t sign and return the form and the creditor can prove that you failed to do so, you may have to pay the process server fees on top of what’s already owed.

Finally, the Response or “Answer”

As called for by the summons, you have a certain number of days (usually 20 to 30) to respond with an answer. An answer is not a phone call or a penned letter. This response is an opportunity to admit or deny any allegations made against you by the plaintiff, and why you feel that you don’t have to meet the creditor’s demands. Be aware that there’s a good chance that you’ll have to pay a filing fee along with your answer.

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It’s not as simple as it sounds, though. If you can afford it, hire a lawyer to assist you in preparing a formal response by sorting out your defenses and representing you in court. But if you don’t have enough money for even more fees, arm yourself with a good legal self-help book and our tips below.

Check your state requirements prior to following our general guidelines for answering a summons. Vital information could be missed, so study up before drafting a formal response.

Answering a Summons and Complaint

General Requirements for Answers
  1. Review the summons for the number of days you have to deliver your answer, and mail it in on time. As soon as you’re served with the summons, the clock starts ticking!
  2. If you had a cosigner on the debt, they must file, pay fees on, and mail a separate formal answer to the summons.
  3. A copy of your answer should be sent to the plaintiff’s attorney(s).
  4. Can you prove that you don’t owe any or all of what the plaintiff is claiming? Copies, not originals of all receipts or statements should be attached to every copy of your response. If you truly believe that the debt isn’t owed, consider filing a counterclaim.
  5. If you need to file a counterclaim, or a claim saying that the plaintiff owes or has wronged you, contact a lawyer for more information.
How to Write an Answer

Writing an answer is tricky business—any complaints filed against you by the plaintiff that aren’t addressed or denied will be taken as true. Also, each state has its own set of regulations, down to how the document should be formatted. If not done correctly, the court could reject the answer immediately.

Luckily, some states and courts have forms you can complete online or blank forms for you to fill out.

  1. Normally, you’ll print or type the plaintiff’s name and your own on the top left of the page. On the top right, print or type the case or file number found on the summons document.
  2. Below “Comes now the defendant…” is where you put a brief summary of your answer. It’s a place where you can deny the plaintiff’s right to tack on any additional fees and explain any attempts you’ve made to settle the debt.
  3. Each allegation made by the plaintiff has to be answered. You must respond to each with one of three answers: admit, deny, or without sufficient knowledge. As a rule, you should admit to your name, address, and contact information.
  4. If the case involves credit card debt, you can admit in part that you remember opening an account with the issuer, but deny in part specific information like the balance due or account number. If you do not know and cannot prove that an allegation is true, always deny.
  5. It is appropriate to inform the creditor of any actions you plan to make in your defense. For example, passage of your state’s statute of limitations or failure to state a cause of action or that a law was actually broken.
  6. Underneath “Certificate of Service,” print or type the date that you mail the answer to the plaintiff.

Affirmative Defense: The purpose of this section is for you, the defendant, to show the plaintiff how you plan to defend yourself in court. Was there no copy of the contract included in the complaint? This is called a Statute of Frauds. Is the plaintiff not the original creditor, or who you actually borrowed money from? This is Lack of Privity. Find out what applies to your case, and protect yourself!

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Reviewing and Finalizing Your Answer

At last! You’ve finished drafting up your answer and all of the sections it entails. Remove any extra instruction sheets, and read through it. Is it complete, accurate, and completely truthful? Have you followed the courts instructions on how to format the document?

Don’t forget to sign and date the answer, in front of a Notary Public if needed. Some states require that any cosigners named on the summons also sign their name below the defendant’s name, and print his or her name, city, and state where indicated.

Include any filing fee as dictated on the summons, or as required by your county or state.

Can you simply mail in the answer, or does it need to be hand-delivered to the clerk? Contact the court clerk’s office for requirements in your county, and follow their instructions. If mailing the response is fine, be sure to get a Certificate of Mailing as evidence of the mailing date and/or a Return Receipt proving that the item was delivered on time.

Deliver the Answer to All Related Parties

Once your answer is double-checked, completed, signed and dated, you’ll need to make plenty of copies. Have at least one for your records, two to deliver to the clerk, and one for each of the plaintiff’s attorneys. With sufficient copies made and fees at the ready, make your deliveries:

  • Two copies of the answer along with the filing fee to the county clerk’s office, along with a stamped, self-addressed envelope so the clerk can return a stamped copy for your records.
  • One copy to each of the other parties’ attorneys, using regular, First Class mail.
  • Again, keep at least one copy of all the materials for your records!

File Your Answer Correctly and On Time

Without a lawyer, only 20 to 30 days to put together your response might sound intimidating. But it is important to collect your bearings, and get to work on answering the Summons and Complaint quickly. Find the deadline and court date, mark the dates on your calendar and don’t forget them.

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Whatever you do, don’t forget to file an answer and attend the hearing! The plaintiff expects you to ignore the summons and not show up. Their attorneys are often unprepared to present a case, and could ask to dismiss the case if you are actually prepared and ready. If you don’t appear in court at all, the court can assume that all of the allegations against you are true and you could lose the case without even having a hearing.

Contact the court clerk’s office with specific questions you may have, or to get any standard forms for answering a complaint. Research your state’s website for specific requirements for your response, and arm yourself with a lawyer if possible.

 

Brenda Harjala is the Community Manager for SuperMoney. Her mission is to help fight your evil debt blob and get your personal finances in tip top shape.