Thursday, November 15, 2007

How to Answer a Lawsuit for Debt Collection

How to Answer a Lawsuit for Debt Collection
Introduction
This publication is a summary of law contained in Codes, Statutes and Court Cases. For those
who want to do further research we have included some citations-that is the place were the
information summarized can be found.
This packet should help you if you have been served with a lawsuit in a debt collection case, and
if you want to prevent garnishment of your income and assets or a lien against your property.
THIS PACKET IS NOT A SUBSTITUE FOR ACTUAL REPRESENTATION BY A
LAWYER. YOU SHOULD ALWAYS TRY TO CONSULT OR HIRE A LAWYER BEFORE
ANSWERING PAPERS. This packet should be used with the Debtors' Rights in a Lawsuit
publication, available at www.washingtonlawhelp.org or from Northwest Justice Project by
calling 1-888-201-1014 or 1-888-201-9737 (TTY).
Basic Questions & Answers
Should I answer the Complaint?
Yes, if you believe that you do not owe part or all of the amounts claimed.
Do I have to answer the Complaint?
No, if you agree that you owe the amount claimed or do not wish to dispute the claim.
What happens if I do not answer the Complaint?
The plaintiff will win automatically. The plaintiff will get a judgment for the amount of money
the plaintiff asks for in the complaint. Even if the plaintiff wins, there are limits on what the
plaintiff can do to collect. See our publication Debtors' Rights in a Lawsuit for details.
Can I be sued for an unpaid bill even if I have offered to make small payments on
my bill or even if I have told the plaintiff I would make full payments as soon as I
could?
Yes. However, most creditors would rather not have to spend money on lawsuits and will enter
into agreements for you to pay installments. If you can't make a payment, you should contact the
creditor right away and explain what happened. If they don't hear from you, they may assume
you don't intend to pay and will file a lawsuit. If they win, the costs of that suit will be added to
the amount you owe. The creditor does not have to accept anything less than what you owe.
Can I be sued for money even if I cannot afford to pay the debt?
Yes. It is not a defense that you cannot afford to pay the debt.
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Why should I file a declaration declaring my exempt assets and income?
This exemptions declaration lets your creditors know that you have income and/or assets that are
protected from being garnished or taken. It also lets them know that if they attempt to garnish or
lien these things, you can sue them under the Fair Debt Collection Practices Act (FDCPA). Be
sure to include a copy of your bank statement and any other statements showing your sources of
income, but black-out or cover-up your account number and your social security number on that
those statements first. Also, if your spouse has income from a non-exempt resource, like wages,
your spouse should open her or his own account and deposit the non-exempt funds there. That
account will be at risk of garnishment if your spouse is named in the complaint.
What are a Summons and Complaint?
When any lawsuit is started, the person starting it must prepare a statement, telling the judge
what the problem is and what he or she wants. That statement is called the Complaint, and the
person starting the lawsuit is called the plaintiff. If the lawsuit is against you, you are the
defendant. A copy of the Complaint must be delivered to you so that you will know about the
lawsuit. You will also receive a Summons, which tells you that you have a right to disagree with
the Complaint in writing. It also tells you the amount of time you have to answer the Complaint,
and where to deliver your Answer.
If you do not tell the court in writing that you disagree with the statements in the Complaint, the
judge will assume that you agree with it and will usually give the plaintiff what he or she asks
for. In other words, the plaintiff wins by default, since you have not answered. If a Default
Judgment is entered in the court records against you, you will not necessarily be notified if you
have not answered. Once a judgment is entered against you, the plaintiff may be able to use that
judgment to take money from your bank account or paycheck, or to take some of your property
to pay the judgment. Therefore, it is very important that you file a written response within the
time limit given by your Summons (usually twenty days; read your Summons carefully for the
deadline).
You may respond by delivering either a Notice of Appearance or an Answer to the person who
signed the Summons and Complaint. A Notice of Appearance merely states that you have
appeared in the lawsuit. By delivering a Notice of Appearance, you will prevent the court from
entering a default judgment against you without a court hearing. A Notice of Appearance does
not explain your position in the lawsuit. This will be done when you file your Answer. You
should use the form Notice of Appearance which is attached. You should try to do both the
Notice of Appearance and the Answer at the same time. If you can't, it is very important that you
at least do the Notice of Appearance because if it is delivered and filed before the plaintiff goes
to court, he or she must inform you of all further court hearings. A sample Notice of Appearance
and a Notice of Appearance form are attached. You should plan on delivering and filing your
Answer before you go to court. You can use the attached Answer form to fill in the necessary
information. To fill it out, follow the directions below.
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What is an Answer?
The Answer is your written response to the statements in the Complaint. You are called the
defendant.
In your Answer, you do not have to tell the entire story or make legal arguments. You do need to
state whether you agree or disagree with each statement in the complaint. Your answer should be
typed, but if you cannot have it typed, you can neatly hand write it, using print (not cursive
writing).
Your Answer does need to be clear and readable, and it must say whether you agree or disagree
with some or all of the statements in the Complaint, or whether you do not know if the
statements in the Complaint are true or not. Your answer also must be on 8 1/2 by 11 inch paper
(the size of this page).
By filing an Answer in time, you keep your right to argue about this matter in court and to be
notified of further proceedings.
Many people who have been served with lawsuits feel embarrassed or guilty about being in debt
or being in an accident. Sometimes they just want it all to be over with, or they feel they should
be punished and want the judge to punish them. Even if you feel you are at fault, there is
nothing wrong with filing an answer, and it does not mean that you are trying to avoid
your legitimate debts. You may disagree with the amount of money the plaintiff asked for in the
Complaint. You may also want to answer to preserve your right to be notified of further hearings.
If you do not file an Answer, you may lose your chance to say how much you think you should
pay. However, you should know that filing an Answer may increase the court costs and attorney
fees that you may owe if you lose the case.
You will need a total of one original and two copies of your Answer. The original will be filed
with the court, one copy will go to the plaintiff and you will keep a copy. See the section below
called "What To Do With The Answer" for the details on how this is done.
What is a Declaration of Exempt Income and Assets?
It is a sworn statement that lets creditors know they can’t garnish certain kinds of your income
and assets.
How do I fill out the Answer?
A. The Caption
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There is no need to bring income and assets that are over the exemption limit to your creditor’s attention. However,
once your creditors find out about your assets and income that can be garnished or liened, they may do so anyway.
Also, if you have you income that exceeds the exempt amount, the excess can be garnished. Likewise, no matter
what your property is worth, even if the creditor is not able to repossess it, they can still put a lien on it for the
amount you owe.
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Look at your Summons and Complaint. You will notice that they have a heading that gives
information about the case. This heading is called the "caption." All court papers, including the
Summons, the Complaint, and your Answer, are called "pleadings." All pleadings use this same
kind of caption.
The caption looks something like this:
IN THE ___________________ COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF _______________________
(YOUR OPPONENT’S NAME),
No. ________
Plaintiff,
ANSWER
vs.
(YOUR NAME),
Defendant.
•
The top line gives the name of the court, the state, and the county. For instance: "District
Court of Washington for Pierce County" or "In the Superior Court of the State of
Washington In and for the County of Pierce."
•
The left side lists the names of the Plaintiff and Defendant.
•
The right side lists the number that has been assigned to this case by the court clerk (so
that they can keep it filed correctly) and the title of that particular pleading.
NOTE: If the papers you received do not have a file number, that may mean that the
plaintiff decided to deliver (or serve) the papers to you before filing them with the court.
The law allows this, and you are still bound by the time limit listed in your Summons.
However, if this is the case, you may not need to file your Answer with the court yet.
You will still have to deliver a copy to the plaintiff's lawyer (or the plaintiff if s/he has no
lawyer). Read your Summons carefully. It should tell you what to do.
When you write or type your Answer (this packet has a blank form for you to use), fill in the
caption at the top of the page. You may copy the necessary information from your Summons and
Complaint. Copy the names of the plaintiff and defendant just as they are on the Summons
and Complaint, even if they spelled your name wrong or called you or your spouse "John Doe."
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When you finish the heading for your Answer, it should look like the example above, but with
the blanks properly filled in.
B. Admissions/Denials
After you complete the caption, use the middle of the page to give your answers to the statements
in the Complaint. Usually, the paragraphs in the Complaint will be numbered. You may list the
numbers and say one of three things about each paragraph of the complaint:
1. You admit that it is a true statement (for instance, that you live in Pierce County or that
you are not a member of the Armed Forces). Admit the statement only if you agree with
every part of it. Otherwise, deny the statement.
2. You deny that it is a true statement (for instance, that you owe a specific amount of
money to the person named).
3. You write that you do not know whether the statement is true or not (for instance, the
collection agency who is suing you is licensed and bonded. You might assume that they
are, but you do not have any evidence; you have never seen their license).
Read your Complaint carefully and make sure you briefly answer all the statements in it.
If you totally disagree with everything in the Complaint, you can simply write a single sentence
saying you deny each and every allegation in the Complaint. However, you should not deny
things that you know are true.
C. Defenses
You may also have technical or legal defenses to the Complaint, such as an argument that the
statute of limitations has run. Actions to collect debts, like all actions, have a time limit called the
"statute of limitations," which usually begins once the creditor has a right to sue you (for
example, once you miss a payment). Once that time limit has passed, the person can no longer
collect the money from you, and the action will be dismissed. For more information on the
Statute of Limitations, call us or check the Revised Code of Washington (RCW). The reference
department at your local library should be able to help you find the right section of the RCW
using the index. You may also argue as an affirmative defense that you do not owe the money.
Even if you did buy the item for which the plaintiff is suing, you might not owe the money if the
item was defective and you returned it or attempted to return it.
You could lose some "Affirmative Defenses" if you file an Answer without stating them.
Affirmative Defenses are also listed in Rule 8(c) of the Civil Rules For Superior Court, available
at your local law library.
D. Counterclaims
In some situations, you may have claims which you want to make against the plaintiff. These
claims must be stated in your Answer if they arise out of the same transaction or occurrence that
the plaintiff is suing about. For example, if you are being sued by the seller for a debt for
purchase of an appliance that was defective and injured you, any claim you wish to make against
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the seller/plaintiff must be stated in your answer. Or, if the plaintiff violated Fair Debt Collection
rules (see the Debtors' Rights - Collection Agencies publication), you may have a damage claim
against the plaintiff. For more information on counterclaims, consult a lawyer or the court rules.
E. Exempt Income
If your income is exempt from garnishment, then you may wish to include a paragraph in your
answer making the plaintiff aware of that fact. For example, if your only income is Social
Security, which is exempt from garnishment by federal law, then you might write in your answer
the following: "My income consists only of Social Security." While this is not a defense to the
underlying lawsuit, it does provide the plaintiff with knowledge that your only income is exempt
from garnishment. If you lose the lawsuit and the plaintiff subsequently garnishes your bank
account containing exempt funds, then you may have a cause of action against the plaintiff.
F. The Signature and Your Address
On the last page, put the date you sign your name. Below that, sign your name with your legal
signature (the one you use for checks). Just below your signature, print or type your name so it
will be easily readable. Finally, put your address below that. Now your Answer is complete. You
need to be able to receive delivery by mail and by hand at this address, so do not use a P.O. Box.
It is important that you use an address where you know you will definitely receive your mail.
Notices of hearings will be mailed to that address, and if you fail to appear because you didn't get
the notice, a judgment may be entered against you by default.
How do I fill out the Declaration of Exempt Income and Assets?
Refer back to the “Parts of the Answer” section of this publication to understand how to fill
out the first page of the declaration.
Section 4 of the declaration simply requires that you check every box that applies to types of
income you receive. For example, if you are receiving SSI, you would place a check in the
second box under section 4.
Section 5 of the declaration simply requires you do the same thing for assets/property that
you own. For example, if you own a private library worth $1,000, you would place a check in
the fourth box under section 5.
In the last part of the declaration, you must give your signature and the date. By signing the
declaration, you are guaranteeing that all the information you provided in it is true. If you fill
out any part of the declaration untruthfully, you may be prosecuted for perjury, which is a
class B felony. Furthermore, if you are prosecuted for committing perjury on this declaration,
this will be considered a fraud, then it is unlikely that you will be able to discharge the debt
underlying this lawsuit in bankruptcy. It is also important to remember that creditors are very
good at finding out what assets and income you have, so it is absolutely necessary that you be
totally honest in this declaration.
Finally, remember to attach a copy of your social security statement and your bank statement.
Make sure that you have covered-up the social security number itself and the bank account
number itself.
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What do I do with the Answer, Notice of Appearance and Declaration of Exempt
Income and Assets?
A. Delivery
Make at least two copies of your Answer and Notice of Appearance. Deliver one copy of each of
these documents to the lawyer for the plaintiff. The lawyer's name and address should be printed
on the lower right-hand side of the Summons and Complaint. If the plaintiff doesn't have a
lawyer and is representing himself, deliver a copy of the documents to the plaintiff. If you do not
want to deliver them yourself, have a reliable friend do it for you. You must deliver a copy of
your Answer or Notice of Appearance on or before the date stated in the Summons. Because it is
important for your Answer and Notice of Appearance to be delivered on time, it is best to deliver
a copy of each document personally to the plaintiff's lawyer. The papers may be left with a
secretary or receptionist. If you are delivering the papers to the lawyer's office, ask the
receptionist to stamp the original and copy of each document with a "copy received" stamp
showing the date received.
Getting your original and copy of the Answer and Notice of Appearance stamped by the
receptionist will prove that these documents were delivered by the deadline stated in the
Summons. If you decide to mail these documents to the plaintiff's lawyer, be sure to allow
enough time for the mail to be delivered by the deadline (at least three days). It is not enough for
the Answer and Notice of Appearance to be postmarked on or before the deadline. It must be
received by the deadline stated in the Summons. Also, if you mail the Answer, you should
consider sending one Answer by regular mail and one by certified mail, return receipt requested.
Hand-delivery is best because you can have the lawyer's office stamp the original and your copy
which shows that your Answer was delivered on time.
If you mail the Notice of Appearance and/or the Answer the court needs to know this was done.
You do this by completing a Certificate of Service and attaching it to the original of the
document that was mailed. A sample Certificate of Service and a Certificate of Service form you
may use are attached. Be sure to make extra copies of the form before you use it. Make sure you
identify what kind of legal paper the Certificate of Service refers to (i.e. Answer, Notice of
Appearance, etc.) and strike out the type of delivery that does not apply (i.e. if you mailed it,
strike out the words "hand-delivered").
B. Filing
When the plaintiff pays the filing fee and files the Complaint with the court, the court assigns a
case number. That number will usually be stamped or typed on the upper right-hand side of the
Summons and Complaint. The court will not have any record of the case and will not be able to
give you any information about the case until the case has been filed. If there is a case number on
your Summons and Complaint, then you should write in the number on your Answer and Notice
of Appearance and file the original(s) with the Court Clerk. File the original Answer and Notice
of Appearance after you deliver a copy to the plaintiff's attorney and obtain proof of service (the
"copy received" stamp), but before the deadline stated in the Summons. At the time you file the
original Answer and Notice of Appearance you should stamp your personal copies with the
Clerk's stamp showing the date the originals were filed.
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If the Summons and Complaint which you received do not have a case number on them, then the
Clerk will not have a record of your case and you will not be able to file the original of your
Answer and Notice of Appearance. You must still follow the regular procedure for delivering a
copy of your Answer to the plaintiff's lawyer, even if the case has not been filed. However, if
there is no case number, keep your original Answer and Notice of Appearance until you are
notified that the case has been filed and has been assigned a case number. When you receive the
case number, follow the procedure for filing the original documents described above.
REMEMBER to make sure that you file your Answer within the time limit listed in your
Summons (usually twenty days). Do not take a chance with that time limit! Once you have
timely filed your Answer and served the plaintiff's lawyer, you should be given notice of any
hearings. Do not miss these hearings. IF YOU HAVE ALREADY MISSED YOUR TIME
LIMIT, FILE AN ANSWER ANYWAY. A late Answer may be better than no Answer at all.
If you are too late, and a judgment has been entered against you, you should contact a lawyer
immediately.
This publication provides general information concerning your rights and responsibilities. It is not intended
as a substitute for specific legal advice. This information is current as of the date of its printing, May 2007.
© 2007 Northwest Justice Project — 1-888-201-1014, TTY 1-888-201-9737
(Permission for copying and distribution granted the Alliance for Equal Justice and to individuals for non-
commercial purposes only.)
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SAMPLE FORM - DO NOT FILE
DISTRICT COURT OF WASHINGTON
COUNTY OF CLARK
123ABC COLLECTIONS,
Plaintiff,
v.
JOHN DOE,
Defendant.
No. 07-0000-01
ANSWER, AFFIRMATIVE
DEFENSES,COUNTERCLAIMS
I. ANSWER
Defendant(s) answer the complaint as follows:
1. Admit the statements contained in paragraph numbers 1 and 2 except for the
following statements:
_______________________________________________________
2. Deny the statements contained in paragraph numbers 3 and 4, except for the
following statements:
_______________________________________________________
3. Lack knowledge about the truth and therefore deny the statements contained in
paragraphs numbers 5, 6 and 7.
II. AFFIRMATIVE DEFENSES
Defendant(s) other defenses are: Plaintiff’s claim is barred by the statute of limitations.
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III. COUNTERCLAIMS
Plaintiff owes defendant $__________ because: not applicable.
Defendant(s) request that this lawsuit be dismissed and that a judgment be entered
against the plaintiff(s) for any counter-claims, costs, or attorney fees.
DATED this _21__ day of __February_____________, 2007.
John Doe
John Doe, Defendant
Name:
John Doe
Address:
111 Cherry Lane
Long, WA 98600
Phone No.: (206) 555-1212
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