Observations on the Most Common MISTAKES Consumers Make When Facing a Lawsuit for Credit Card Debt
1. Consumers ignore court notices.
Never, ever ignore a notice from the court. If you suspect it’s a forgery (some FDCPA violators, also known as “junk debt buyers,” have been caught sending fake documents that look like a subpoena), call your local courthouse and request verification. A court clerk usually answers the phone and can search by case number or her name.
The creditor is counting on you not receiving or responding to the notice, which will give you a default judgment. A default judgment means they WIN and can now garnish your wages and freeze your assets. You may not even receive a judgment until a wage garnishment is set.
2. Consumers do not respond to the subpoena.
Many consumers feel guilty about their debt(s) and do not respond to the summons within the prescribed time frame. Even if your debt is valid, within SOL and you want to settle, YOU STILL NEED TO RESPOND TO THE APPOINTMENT WITH A RESPONSE within the given time frame (from the date of service) which is generally 20 to 30 days.
I have seen too many cases where the consumer settles directly with the debt collector (Plaintiff) and never responds to the court by placing that responsibility on the Plaintiff. Guess what? The plaintiff never withdraws his claim and now has a default judgment on top of the money he has already collected from the debtor.
3. The following practice of debt collectors seems to be an increasingly common (and sleazy) occurrence. The debt collector can sue a consumer in court. Rather than use the Sheriff to serve the summons, the collector will likely choose to use a special process server. (This is what happened to me!)
Consumer never receives citation due to improper service (summons left in dark place on property, with neighbor, etc.), so consumer never responds to lawsuit and debt collectors win a judgment in rebellion BUT, the debt collector sits in on the lawsuit and waits two to three years before executing you…usually by way of a surprise wage garnishment. The first thing the consumer knows about the lawsuit or judgment is when his wages are garnished. The consumer will have a hard time getting the court to vacate the judgment after two or three years. And the wage garnishment will stand.
This is another great reason to sign up for credit monitoring so you’ll know right away if something like this has happened. Also, many district courts have websites where you can look up your name, which isn’t a bad idea to do monthly if you suspect a debt collector will file a lawsuit against you.
4. When you receive a summons (if you receive the notice), immediately contact an attorney. If you cannot afford an attorney, you can file Pro Se, which means you represent yourself. But by all means, file the response within the 20 to 30 days indicated! You may qualify for legal assistance AND there are resources to help you draft your documents, see my links for references.
I recommend submitting a Notice to Appear (this tells the court that you are an active participant in the lawsuit and should be notified of all communications at a designated address).
You must submit the Response to Complaint, Affirmative Defenses document that responds to your numbered allegations with an Affirm, Deny, or Lack of Knowledge statement type to respond. In the same document, it goes on to assert defenses common to credit card debt laws, such as out of statute, fraud statute, etc.
You must also submit a Certificate of Service showing that you mailed your Answer to Plaintiff papers and filed them with the court. And, I recommend that you send a Cease and Desist Letter to the plaintiff (read my post on how to intimidate debt collectors for some great advice to use with this letter!) of contacting your employer, friends, relatives and neighbors.
You should also consider starting the “Discovery” by giving them a Document Production Request. Basically, you want to let them know that you are aware of your rights, that you are not going to turn around and accept a default and MAKE THEM PROVE THEIR CASE.
It is well known that third party debt collectors often only have an affidavit of debt to cancel. If you do not request any documentation that is sufficient for them to win or obtain a judgment. However, if you request documentation, they must provide it at a hearing. If they can’t, you win!
To learn more about fighting a credit card debt lawsuit or to purchase my fill-in-the-blank Word and PDF templates for Notice to Appear, Answer, Discovery and more, visit ihavebeenserved.info.
You have nothing to lose by fighting these predatory debt collectors and everything to gain!
