Responding To A Debt Collection Summons
About
About Responding To A Debt Collection Summons
If you have unsettled debt, debt collectors may file a lawsuit against you to collect the debt. You will be served with formal court papers. Responding to a debt collection summons is a crucial matter that requires immediate attention. When served with a debt collection summons, promptly acknowledge it, noting the response date to avoid automatic judgment. If you do not respond, the court can issue a default judgment against you, which generally favors the debt collector. A default judgment can lead to wage garnishments, asset seizure, and a negative impact on your credit score.
What You Need To Know
To make sure that the summons is real and not a scam, you can call the court that is mentioned in the paper and ask them to confirm if they have a case filed against you. This way, you can check if the case is officially registered with the court.
Also, make sure to find out if the company that is taking you to court actually has the right to get the money from you. Sometimes, companies claim to own a debt that they don't really own. They should either be the original company that you owed money to or a company that was officially given the right to collect the debt. This is an important step to ensure that you're not being targeted by a scam or a mistake. Always verify that the right company is asking for the payment, to avoid any unnecessary problems or frauds.
To make sure that the amount you're being asked to pay is correct and that the collection agency asking for the money has the right to do so, you can ask them to show proof of the debt. This process is called "debt validation." Send a debt validation letter: Before you officially respond, you can send a debt validation letter asking the collector to prove the debt is yours and that they are authorized to collect it.
In this process, you formally ask the collection agency to provide you with detailed information about the money they say you owe. You can ask for things like detailed statements showing all the transactions related to the debt, including any payments you've already made. You can also ask for documents that prove that they have the legal right to collect the money from you; they should be able to show that they own the debt or have been assigned the debt legally.
By requesting debt validation, you are essentially asking the agency to prove that you owe the amount they claim and that they are the correct party to collect it. Doing this not only helps you understand the debt better but also ensures that you are protected from paying money to a company that doesn't actually have a claim to it. It's a step you can take to protect yourself and ensure everything is in order before potentially going to court or making any payments.
Responding to a debt collection summons promptly is crucial. In Louisiana, you generally have 21 days to respond to a summons once you've been served. However, it is always a good practice to check the specific deadline mentioned in your summons documentation, as it may vary depending on various factors, including the court handling your case.
To respond within the stipulated timeframe, you would typically file an "answer" to the summons, where you can state your defenses or any objections you may have regarding the debt.
Given the severity of the implications, it's highly recommended to address the summons swiftly and not to ignore it. If you find yourself needing more time to prepare your response, you might consider reaching out to a legal advisor to discuss the possibility of requesting an extension from the court.
If you don't respond to a debt collection lawsuit, the court may enter a default judgment against you. A default judgment means that the plaintiff automatically wins the case and can obtain a judgment for the full amount of the debt, plus interest, fees, and costs. The plaintiff can then use various legal methods to collect the judgment, such as wage garnishment, bank account levy, or property lien. A default judgment can have serious consequences for your credit score and financial stability, and can even lead to bankruptcy in some cases. Therefore, it is important to respond to a debt collection lawsuit in a timely and appropriate manner, even if you dispute the debt or have financial difficulties.
When you are involved in a debt collection lawsuit in Louisiana, there are several potential outcomes that you may encounter, depending on various factors including the evidence presented by both parties, your defense strategy, and the judge’s decision. Here are the possible outcomes:
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Settlement
- Before Trial: You and the creditor might reach a settlement agreement before the trial, where you agree to pay a negotiated amount, which could be less than the amount claimed.
- During Trial: Even during the trial, there is a possibility to negotiate a settlement before the judge makes a decision.
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Dismissal of the Case
- With Prejudice: The court might dismiss the case "with prejudice," meaning the creditor cannot bring the same case against you again.
- Without Prejudice: Conversely, if the case is dismissed "without prejudice," the creditor has the opportunity to correct their mistakes and potentially file the lawsuit again in the future.
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Judgment in Favor of the Creditor
- Full Amount: The court may rule in favor of the creditor, requiring you to pay the full amount claimed by the creditor, possibly along with the court fees and interest.
- Partial Amount: The court might decide that you owe a part, not all, of the amount claimed.
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Consent Judgment
- Agreement to Avoid Trial: You might agree to a consent judgment to avoid going to trial. This means agreeing to pay a specified amount to settle the case, potentially with favorable payment terms.
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Judgment in Your Favor
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No Liability: If the court rules in your favor, it means you are not liable for the debt, and the case ends there, with no obligation for you to pay anything.
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A Request for Admission of Fact is a legal document that is often served along with a debt collection lawsuit. It is a set of statements or facts that the plaintiff believes to be true and is asking the defendant to admit or deny. The purpose of the Request for Admission of Fact is to narrow the issues in dispute and to streamline the litigation process by eliminating the need to prove certain facts at trial. The defendant must respond to each statement in the Request for Admission of Fact by either admitting, denying, or objecting to the statement. If the defendant fails to respond to the Request for Admission of Fact within the specified time period, the court may deem the statements to be admitted. It is important to carefully review and respond to any Request for Admission of Fact in a timely and accurate manner, as it can have significant implications for the outcome of the case.
To respond to a Request for Admission of Fact, you should carefully review each statement and determine whether you admit, deny, or object to it. Your response should be in writing and should be served on the plaintiff within the time period specified by the court rules or by the plaintiff's attorney.
Here are some tips for responding to a Request for Admission of Fact:
- Admit or deny each statement: For each statement in the Request for Admission of Fact, you should clearly state whether you admit or deny the statement. If you admit the statement, it will be deemed to be true for the purposes of the lawsuit. If you deny the statement, the plaintiff will have to prove it at trial.
- Be specific: Your response should be specific and should address each statement in the Request for Admission of Fact. If you are unable to admit or deny a statement because you lack sufficient knowledge or information, you should state that in your response.
- Object if necessary: If you believe that a statement in the Request for Admission of Fact is improper or irrelevant, you may object to it. Your objection should be specific and should state the grounds for the objection.
- Be timely: It is important to respond to the Request for Admission of Fact within the time period specified by the court rules or by the plaintiff's attorney. Failure to respond in a timely manner may result in the statements being deemed admitted.
Gather all relevant documentation such as payment records, communication records with the creditor, and any other information that might demonstrate errors in the amount claimed or other defenses you may have. You're building a case to show either that you've met your obligations, or there are errors in the claim against you, or you have other defenses that relieve you of the liability. You should consider gathering:
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Payment Records
- Bank Statements: Secure copies of your bank statements that showcase any payments you've made towards the debt.
- Receipts: If you have any receipts of payments, gather those as they can be proof of payment.
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Communication Records
- Emails: If you've communicated with the creditor via email, ensure to have copies of all those correspondences.
- Letters: Any physical letters exchanged between you and the creditor should be documented.
- Phone Records: In case there have been phone conversations, try to note down the dates and the gist of what was discussed.
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Agreement or Contract
- Original Agreement: It's beneficial to have a copy of the original agreement or contract that outlines the terms of the debt.
- Amended Agreements: If there have been any changes to the original agreement, you should have documentation of those as well.
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Errors or Discrepancies
- Incorrect Amounts: If you find discrepancies in the amount claimed, gather information that supports your case.
- Statute of Limitations: Check if the debt is past the statute of limitations for collection in your jurisdiction, as this could potentially be a defense.
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Other Relevant Information
- Hardship Circumstances: If you had hardships like medical issues or unemployment that affected your ability to pay, having documents to prove these circumstances can be useful.
- Credit Report: Obtaining a copy of your credit report could provide a comprehensive view of your debt history and any potential errors.
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Legal Assistance
- Legal Correspondences: If you've sought legal advice or assistance, maintain a record of those correspondences too.
Costs might include court fees, attorney fees, and potentially, if you lose, the repayment of the debt along with any additional fines or fees. Here's a detailed look at what these might include:
- Court Fees
- Filing Fees: There are not fees to pay to respond to the summons.
- Miscellaneous Fees: There could be other smaller fees for services such as notarization of documents or issuing subpoenas for witnesses if necessary
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Legal Representation
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Attorney Fees: If you decide to hire a lawyer to help you navigate the process and represent you, you will incur legal fees. The cost can vary significantly depending on the complexity of your case and the attorney’s experience and expertise.
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Documentation and Evidence Gathering
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Copy Costs: Gathering all necessary documentation might involve costs, including obtaining official copies of bank statements, contracts, or other pertinent records.
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Postal Costs: If you need to mail documents or communications during this process, you’ll incur postal costs.
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At the hearing, both parties (you and the collection agency/creditor) will be given an opportunity to present their case. The creditor will present first, outlining why they believe you owe the debt.
After the creditor presents their case, it will be your turn to present your defense. You can question the creditor's evidence, present your own evidence, and make legal arguments.
The judge might ask questions to either party to clarify any issues or to get more information.
After hearing both sides, the judge will make a decision. This might happen immediately, or the judge might take some time to consider the evidence and then issue a judgment at a later date.
If the judge rules in your favor, the case will be dismissed. If the judge rules in favor of the creditor, a judgment will be entered against you, which could lead to wage garnishment or other collection methods.
You will receive an official document outlining the judge’s decision.
The length of time it takes to resolve a debt collection lawsuit can vary depending on several factors, such as the complexity of the case, the court's schedule, and the parties' willingness to negotiate or settle. In general, a debt collection lawsuit can take several months to a year or more to resolve, depending on whether the case goes to trial or is settled out of court. If the case goes to trial, it may take several months to schedule a trial date, and the trial itself may last several days or weeks. If the case is settled out of court, it may take several weeks or months to negotiate a settlement agreement and obtain court approval. It is important to note that the longer a debt collection lawsuit goes on, the more expensive it can become, as legal fees and court costs can add up quickly. Therefore, it is generally advisable to try to resolve a debt collection lawsuit as quickly and efficiently as possible, while still protecting your legal rights and financial interests.
How To Respond To A Debt Collection Summons
How To Respond To A Debt Collection Summons
If you receive a debt collection summons, it is important to take immediate action. Make sure that you gather any documents related to the debt, including contracts, payment records, etc. Keep a record of all and previous communication with the creditor or debt collector.
At any point before you go to court you can work out a settlement agreement with the debt collector.
When first getting a summons, carefully review the summons and complaint to understand the nature of the debt, the amount owed, and the original creditor or debt collector.
You should also take note of the "response date" by which you must reply to the summons to avoid automatic judgment against you. Usually, you have 21 days from the date you get the summons to respond in Louisiana.
It is advisable to seek legal advice, gather any evidence that supports your case, and draft a detailed response addressing each claim and possibly presenting defenses or counterclaims.
Steps To Responding To A Debt Collection Summons
Carefully read the summons to understand what is being demanded, the amount owed, and the deadline to respond.
Ensure that the lawsuit is valid by verifying the details of the court and the creditor as stated in the summons.
Check the response deadline: The summons will indicate the number of days you have to respond. Usually, it is 21 days from the receipt of the summons in Louisiana.
Respond promptly to the summons: Failing to respond may result in a default judgment being passed against you.
Prepare an "Answer" to the lawsuit, responding to each claim made by the creditor point-by-point. Begin your response by answering the allegations the creditors made against you in the Complaint document. Louisiana permits three ways to answer this section, admit, deny, or deny for lack of knowledge.
The following section in the lawsuit entails listing your affirmative defenses. These reasons can help your defense if the creditor wants to proceed to court. These reasons challenge the Plaintiff's right to bring the case against you and explain why the Plaintiff shouldn't win the case. There are many affirmative defenses so read all of them to see if any apply. You will have to prove the affirmative defense at trial. Include any legal defenses you may have, such as disputes about the debt amount, statute of limitations, etc.
In the answer, you can include any counterclaim if there is one, which is a legal claim you have against the plaintiff. If the debt collector has violated any laws such as the Fair Debt Collection Practices Act (FDCPA), you might have grounds to counter-sue. The primary goal of the FDCPA is to protect consumers from abusive, deceptive, and unfair debt collection practices. Understanding your rights under the FDCPA and taking action if your rights have been violated can not only potentially help you defend against a debt collection lawsuit but also hold abusive debt collectors accountable for their actions.
You can offer to resolve the case by making an agreement with the other side, rather than having the judge decide. You can include an "Offer To Pay" section in your Answer where you can tell the Plaintiff if you would like to try to settle the case by creating a payment plan or paying a specific amount.
The Request for Relief in the Answer is where you state what you want the court to order to end the case.
The Certificate of Service is where you tell the court how you delivered a copy of the Answer to the Plaintiff.
After you prepare your answer, make 2 copies. File your response with the appropriate court before the deadline indicated in the summons. If the Defendant does not file an Answer within 21 days of receiving the Plaintiff's complaint, the Plaintiff can ask the court to enter a default judgment that would finish the case without the Defendant's participation.
File in the court location where the plaintiff filed the Complaint, which is stated in the Summons.
Ensure the plaintiff (the creditor or debt collector) is served with a copy of your response. Send a copy of the answer to the attorney representing the creditor or the creditor itself if no attorney is involved.
Even after a lawsuit is filed, it may be possible to negotiate a settlement with the creditor. The parties can reach a settlement without having a trial. The parties can offer a judgment for the purpose of settling all claims between them at any time more than twenty (20) days before the time specified for the trial of the matter. This can be done between the parties or with the help of a third party such as a mediator or a settlement judge.
You can make a settlement offer to start negotiations. Once you know how much you can afford to pay, and how much the creditor might accept, send your first settlement offer. This will most likely kick-start the negotiation process. You might have to go through a few rounds of offers and counteroffers before reaching an agreement.
If you reach a settlement agreement, get it in writing to protect yourself legally.
How do I negotiate with creditors?
First, send a Debt Settlement Letter via mail or email requesting them to take a lowered percentage of the original debt. They may counter the offer, and you can accept the counter offer, or send another offer. It is not unusual for debt settlements to go through several rounds of negotiations. Just remember not to exceed what you can afford to pay. Most creditors will accept a reasonable offer to avoid going to court.
If your case goes to court, prepare your defense with all necessary documents and evidence. Bring your records and documents that you want the court to consider so you can refer to them.
Usually, if the case doesn't settle right away, you will receive an order from the court giving a date for a pre-trial conference. Then, the case may get set for trial on another date.
Arrive on time for your hearing or trial. Be present at all court dates, representing yourself or through an attorney.
Before you leave the courtroom, make sure you understand what happens next. Do you need to come back for another court hearing? Do you need to prepare any written documents to file? Do you need to take other steps or actions? Will the Judge send an order by mail? Politely ask questions if you do not understand what will happen next.
A court case ends with the judge's written decision as to who won. After the court issues the final documents, the parties will likely need to take actions set out in the paperwork. In the case of collecting a debt, the court may order one party to pay the other either a lump sum or a specific amount of money according to a payment plan. If the court orders someone to pay the other money, the judge will usually issue a judgment, which is necessary to collect the money if the person does not voluntarily pay.
In many instances, the debtor is willing to pay but simply needs more time. If both parties agree, they can sign an agreement to make installment payments to pay off the judgment.
If the debtor cannot pay all at once or cannot work out a payment plan, the creditor may begin the process of collecting the money owed by garnishment or taking funds from the debtor's paycheck, PFD, or bank account.
If you reach a settlement before any court judgment, adhere to the terms agreed upon.
Check your credit report: After resolving the lawsuit, monitor your credit report to ensure the matter is accurately reflected in your credit history.
Dispute inaccuracies: If there are inaccuracies in the report, dispute them promptly with the credit bureaus.
Consider appeal options: If unsatisfied with the court’s judgment, consult an attorney to explore options for appealing the decision.
Common Legal Defenses
Common Legal Defenses In A Debt Collection Case
Under Louisiana law, a defense is a good reason that shows why the person suing you (the plaintiff) should not win the case. You need to share your defenses when you reply to the court papers you got (the summons and complaint) or when you ask the Court to cancel a default judgment. Then, during the court hearing, you have to prove your defenses are true.
If you manage to prove your defenses are true, then the judge will decide in your favor, and the plaintiff will lose.
Below, you will find some common defenses people use in debt collection cases in Louisiana. You should carefully read each one to figure out which ones relate to your situation. Remember, while some of the defenses might fit your case, others might not. You also have the freedom to use other defenses that are not mentioned below.
To make sure you have the best chance in court, tell the Court about all the defenses you plan to use. Every case is unique, so different defenses might work for different cases.
Common Defenses
This defense is used when the plaintiff sues you for the wrong amount of money in the complaint. All the amounts listed must be right, including interest, collection costs, and attorney fees. If you can prove you paid the whole debt or that the creditor told you that you did not owe any more money, you could win the case. If you can provide that you paid part of the debt, or that there was a mistake about the amount of money you owe, you will not win the case, but it might mean you owe the Plaintiff less money.
If you want to ask the Plaintiff for a detailed accounting of how the total amount was calculated, you may request that through a court process called discovery.
This defense is used when the money in the complaint is much higher than what you think you owe. (But remember interest can make the money you owe higher than the original money that you borrowed).
This defense is used when you think that you have tried to take care of this debt in a fair way, but the other side has not been fair or was not honest with you.
This defense is used when you have already paid all or part of the money that the plaintiff is suing you for. If the debt is paid off, you should not have to pay it again. Whether this is a full or partial defense to the lawsuit depends on how much of the debt you have paid.
Identity theft is when somebody steals your name and personal information and opens up credit accounts in your name pretending to be you. You are not responsible for debts that a thief made in your name. Mistaken identity is when you are sued for somebody else’s debts because you have similar names or identifying information. This defense is used when your identity was stolen, or if this is someone else’s debt.
This applies when the credit card associated with the debt is in another person’s name and that person gave you permission to use their credit card. If you were only an authorized user but never agreed to be responsible for paying the card then you cannot be held responsible for the credit card debt.
This defense is used when you don't know who the plaintiff is and how the plaintiff got to own your debt. The plaintiff may have bought your debt from the person or company that you owed money to. Because you never signed a contract with the plaintiff who bought your debt, you can ask if the plaintiff can sue you (also known as standing to sue you). The plaintiff must prove to the court that it owns your debt. To do this, the plaintiff must have a contract of sale (assignment) that says your debt has been sold.
This defense is used if you declared bankruptcy and the money that you are being sued for now was discharged as part of the bankruptcy case. If the debt was discharged in bankruptcy you do not owe the money.
As time goes by, people and companies lose old records and people do not remember details as well. Because of this, there is a time limit for starting cases. This is called the "statute of limitations". There is a time limit for starting a debt collection case during which a person or company is limited for starting a debt collection case.
In Louisiana, there is a statute of limitations on debt collection. This means that creditors cannot pursue debts over a certain number of years. For example, credit card companies in Louisiana have three (3) years to collect unpaid debts. After that, they can no longer take legal action to get money from you.
If you or someone else already had a court case that addressed the debt listed in this case, you cannot be sued again for that same debt.
Other Issues To Consider
Other Issues To Consider
Here are the additional factors to think about when responding to a debt collection summons.
Other Issues To Consider
if you are on active duty in the military and receive a debt collection summons in Louisiana, there are federal and state laws designed to protect your rights and provide certain relief. Here are some important things you should consider:
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Servicemembers Civil Relief Act (SCRA):
- The SCRA is a federal law that provides various protections for individuals on active duty in the U.S. military. One such protection is the ability to request a "stay" or delay in certain legal proceedings, including civil litigation related to debt collection.
- If a judgment is entered against you without your knowledge while you're on active duty, or within 60 days after ending active duty, you may be able to reopen that judgment under the SCRA, provided you can show your military service materially affected your ability to defend yourself.
- The interest rate on pre-service debts can be capped at 6% during the period of active duty.
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Notify the Court and Collector:
- If you receive a debt collection summons, it's important to respond. You should notify the court and the collector of your active duty status and provide them with a copy of your military orders. You might also consider asking for a stay or delay in the proceedings under the SCRA.
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Consult with a JAG Officer:
- The Judge Advocate General (JAG) Corps provides free legal advice to service members. If you receive a summons or are facing other legal issues, it would be beneficial to consult with a JAG officer who can provide guidance tailored to your specific situation.
A debt collection lawsuit can have a significant impact on your credit score, affecting your ability to secure loans, mortgages, or other forms of credit in the future. Here is how it can influence your credit score:
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Pre-Lawsuit Activity
- Delinquent Account: Even before a lawsuit is filed, having a delinquent account (an account with overdue payments) noted on your credit report can significantly reduce your credit score.
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After the Lawsuit is Filed
- Public Records: In the past, civil judgments used to appear on credit reports. However, as of 2017, all three major credit bureaus (Equifax, Experian, and TransUnion) removed civil judgment data from credit reports. Though the lawsuit itself may not appear on your credit report, the underlying debt and any related collection accounts will typically be reported, affecting your score negatively.
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Judgment
- Increased Severity: If the lawsuit results in a judgment against you, it can exacerbate the negative impact on your credit score because the debt is legally validated.
- Collection Actions: After a judgment, the creditor may undertake collection actions, such as garnishing your wages or levying your bank account, which won't directly appear on your credit report but can affect your financial stability and indirectly influence your credit score over time.
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Settlement
- Settled Status: If you settle the debt, either before or after the lawsuit, it will typically appear on your credit report as “settled,” which is still a negative mark, albeit potentially less damaging than an unpaid judgment.
If the court decides that you have to pay the money back, the person or company you owe money to (the creditor) can ask your employer to take a part of your salary before you get it. This process is called "wage garnishment."
Besides taking a part of your salary, they can also take money directly from your bank account, a process known as "bank garnishment" or "levying a bank account." In both cases, this means that they can take the money you owe them directly from your earnings or savings, without needing to ask you to pay it back each time. It's important to know that there are certain rules and limits to this; they can't take all your money, and you should still have enough left to live on. It's a legal way for them to get back the money you owe them, as decided by the court.
Yes, you may be able to appeal a judgment in a debt collection lawsuit if you believe that the judgment was entered in error or that your rights were violated during the legal process.
In general, you will need to file a notice of appeal within a certain time period after the judgment is entered, and you may need to post a bond or pay a filing fee. You will also need to prepare and file a brief that explains your legal arguments and cites relevant case law and statutes.
The appeals process can be complex and time-consuming, and it is generally advisable to seek the assistance of an attorney who is experienced in appellate law.