Served a summons, what do I do?

First, don't panic.

Second, were you properly served? In other words, did a sheriff come to your door, request ID, and ask you to sign for the paperwork? Or did this just come in the mail? Proper service varies from state to state, so you'll have to answer this on your own, but it generally involves someone physically handing you the paper and asking you to sign.

Third, check your local rules of civil procedure. Try Googling "(your municipality) rules of civil procedure". Your local rules will tell you how to format your response. My municipality goes so far as to NOT require an actual response to a small claims suit other than to send in a paper saying you plan to appear to defend yourself. For suits in higher courts, our courts put out tons of example documents that you can model your own responses after.

Fourth, some more information would be helpful. Are you being sued by a debt collector or an original creditor? Your lawsuit should say something like "Capital One c/o John Smith, Attorney at Law" or "Slimy Debt Collection LLC" as the plaintiff. You'll have to take two different paths based on whether you're being sued by the original creditor or a debt collector. I can't really help with either, as I've only been sued in small claims (and won!), and my state's small claims actually will not accept filed motions and whatnots. You appear and testify, period.

Regardless of anything else, you must respond to the lawsuit. I'm sure someone here can give you better advice on that front than I can. All I can suggest are the following points to consider as defense topics:

Is the debt outside the statute of limitations? When was the last payment made on the debt, and what state do you live in? If too much time has passed, all you have to do is assert that regardless of the validity of the debt (which you strongly disagree with), the matter is time-barred and thus the lawsuit should be decided in your favor.

Do you owe the debt? Naturally, things are a lot easier if you don't. If you do owe the debt, you'll need to attack the debt collector's ability to collect and his ability to prove that you owe the debt. Burden of proof is on the plaintiff; he must reasonably prove to the court that you owe the original creditor $xxxx.xx. His proof must exceed your defenses (for example, if they spelled your name wrong (as happened to me), point that out as an example of sloppy recordkeeping on the part of the original creditor, and suggest to the court that the plaintiff's evidence is hearsay at best and unreliable at worst.

Have you already paid the debt? If they say you owe $1500, and you already settled the matter for $600 with a different debt collector, your defense is "satisfaction and accord". You've already paid the settlement they agreed to; they are not permitted to come back and demand more.

See if your state has a searchable online index of court cases. I've found a lot of valuable information in my state's appeals decisions, all of which are available online for free. It certainly can't hurt your case to be able to point out "Your honor, I would suggest to the court that Johnson v Smith, decided in appeal in 1998, parallels this suit's circumstances. The appeals court found that Junk Debt Collectors Inc did not have sufficient proof of a debt, and reversed the lower court's decision, ultimately awarding the case to the defendant."

 

Ok, it sounds like you were probably properly served. Is this the first time you've ever heard from Asset Acceptance? If so, your husband will want to get a dispute letter off ASAP. Something simple like this, sent via certified mail w/ signature receipt required:

Now, since you've already been sued, this letter is at best a speed bump. What it will do is preserve your rights under Federal Law, and open the door to getting money for violations from them. It should cost you about $5 to send the letter, but you only have 30 days from their first date of contact to send it. If this isn't the first time Asset Acceptance has contacted you, then forget about the letter.

But none of this takes care of the lawsuit. You still have to respond. I'm hoping (hinting) for someone with more legal experience to speak up on this. About all I can offer is to point out that if you don't respond, you are positively guaranteed to lose. If you do respond, you at least have a fighting chance. Debt collectors frequently fail to show for court dates, and frankly, $2500 is not big fish to a debt collector.

 

So you are in small claims court. You don't need to go to google to find the rules of procedure in your court. Go to oscn.net, click on legal research tab then look for rules of procedure there. I googled for the lawyers and found out they are located in Oklahoma City. Then I did a search for Oklahoma Court Records system and found OSCN.NET. The rest is simple
If you give me the last 4 numbers of the case I can tell you much more.
Not to worry about whether you got served or not. You obviously did.
The court rules will tell you nothing at all about how to formulate your response. Too bad you are in small claims court because you can't use any form of discovery. The following quote from sparq is absolutely untrue.

Your response, whatever it might be, will be exactly the same regardless of who is suing you.

That is all absolutely true but the statute of limitations depends on what you are being sued for. It could be 3 years or 5 years.

That's pretty poor thinking and advice indeed. First of all, the plaintiff does have the ability to collect and the court does have jurisdiction to hear the case. Challenge either of those two things and you are going to have an angry judge staring down at you. One who is sure to rule against you without further ado. The plaintiff has alleged that you owe the debt and all you can do is attempt to prove that you don't for whatever reason. If you can rebut successfully then the burden of proof falls back on the plaintiff but if you can't rebut successfully then its all over for you. Sparq did correctly say that the plaintiff's proof must exceed your defenses and that is all I have said above. The hard part is going to be getting your defenses to exceed the plaintiff's proof. If I had your problem I would most likely use a sworn conditional denial of debt. That has to be notarized, of course. If the plaintiff has no sworn affidavit or personal testimony of any kind before the court then at least theoretically speaking yours has to win. Of course, the judge will probably do all that s/he can to get you to confess that you owe the debt. Judges will use every trick in the book to help their plaintiff so you have to learn how to avoid their traps and how to turn them against the judge. In other words, you will have to learn how to object to the judge trying to help the plaintiff get the judgment. Again, to make matters worse, the judge will be likely to overrule any objections you might make and so you will need to learn what to do about that. There are ways to make judges back off. One thing is that you should not go to court without a court reporter under any circumstances. Ask the clerk of the court for a court reporter before the trial date. That will cost you about $20 or so.

That will give you a major advantage and will be an absolute necessity if you decide to appeal and have the grounds to do so.

That's also totally incorrect. Satisfaction and accord doesn't exist. Sparq turned it around. It is called the Doctrine of accord and satisfaction. Check it out on Wikipedia.com and learn what that is all about. The one thing you can count on is that you will probably lose in small claims court no matter what you do or say. The only way to win is to escalate the case to federal court for FDCPA violations. If you need this much help with this SC case then you are going to have to learn a whole lot to take it to federal. The big difference is that in federal court you won't meet any judges face to face and you would have the upper hand because you would be the plaintiff, not the defendant.

 

If the plaintiff's attorney is not barred in the state, he most certainly does not have the ability to collect through court action. If the state requires debt collectors to be licensed, and the attorney meets the definition of a debt collector but is not licensed, he does not have the ability to collect through court action. I never said anything about jurisdiction. I suggested attacking his ability to prove that you owe the debt. As in, the debt collector may have enough "proof" to validate the debt, but not enough proof to hold up in court.

I disagree with this. You can also prove that the plaintiff's evidence is insufficient. Perhaps you can raise the question of accuracy of the original creditor's paperwork. I've received validation paperwork containing a botched address (that doesn't even exist in my state) and my name mis-spelled; if the OC has two major mistakes on my address alone, what does that say about their ability to maintain accurate financial records?

You can prove that the matter is time-barred. Then the matter of whether or not the debt is owed is irrelevant. Perhaps you do owe it, but they can't sue you in court for it.

You can prove that the plaintiff failed to follow the rules of civil procedure. I wouldn't recommend this to the OP or a first-time litigant, but in my own courtroom observations I have seen plenty of motions and objections regarding the other party presenting improperly-formed paperwork.

There are lots of ways to handle this; I would not simply try to disprove the debt, especially when no legal defense may exist for the debt itself. Rather, the focus may have to be on the legal action itself.

Again, I disagree. What I said is exactly what "accord & satisfaction" represents.

For example, if a debt collector agrees on a settlement of $500 for an alleged debt of $1500, and the debtor pays that settlement within the agreed-upon time, then that matter is closed (at least for the purposes of litigation). The debt collector can not come back in a year and sue for the remaining $1000, because it's no longer actionable. If the debtor keeps the paperwork for the settlement and has sufficient proof of payment, that's a tough defense to beat.

While I don't think sending people to Wikipedia for legal advice is necessarily the best route, the entry you linked agrees with me on this one.

Wow, and here I am trying to build the OP's confidence so she can at least go in for a fighting chance.

I think a lot of debtors are terrified of the legal process, when they really shouldn't be. Those who don't show up for court probably do so because they assume they're just going to lose. They figure the debt collector will be there with a team of high-priced lawyers, and there's no way they can learn the ropes in enough time to fend them off.

In my opinion, that's a mentality we need to work on breaking. I think we can all agree that it's better to go to court, even if you have a 90% chance of losing, then to not go and have a 100% chance of losing.

None of us know exactly what the OP's percentages are, because we haven't seen the paperwork, we don't know the jurisdiction, and we don't know what the debt collector has. So absent that information, my best advice is to fight. Go in with everything you've got, even if it's weak. Remain respectful in court, don't lie, and you'll be no worse off than if you did nothing at all.

Now, I do agree with your statement about FDCPA violations. If she can pin the debt collector down for one or two, she can use that in her favor. So far it looks like the only thing that she *could* use would be collection without validation, but we don't have enough information to say for sure. For a $2500 debt, one violation would be enough to get the CA's attention.

 

I think a debt validation letter is a good idea, but remember that it's not an answer to the summons. And yes, you do need more information about this alleged debt (remember to keep referring to the debt as alleged; admit nothing in your correspondence to the debt collector).

Your validation letter should, IMHO, be short and sweet. There are others who feel differently, but all you need to do is say "I am disputing this alleged debt. Please validate this debt and provide supporting documentation to the address above.". You can find many "example letters" that are filled with threats, legal citations, and paragraph after paragraph after paragraph of nonsense. Don't use these. Send your letter via certified mail with a signature receipt requested (about $5).

I'm not positive, so let's assume it will not stop the 35 days. There are two reasons why I don't think it will:

1) Is this the first you've ever heard from the debt collector? A validation letter really only has teeth if it's sent within 30 days of the debt collector's first contact with you. If this lawsuit is their first contact, then yes, absolutely send it off immediately. If not -- if you've received collection letters and/or phone calls from them previously -- then it won't do as much good.
2) In a perfect world where the sky is made of cotton candy and everybody gets a free puppy, the debt collector can not continue collection activity against you once they receive your dispute letter (assuming the letter is sent within 30 days of first contact). However, since the lawsuit was already filed, they may or may not be obligated to withdraw or suspend the suit. I simply don't know; I haven't dealt with that situation personally. Plus, the fact that the debt is in dispute is not necessarily a valid defense, because the violation of a federal law is beyond the jurisdiction of your local court; the small claims judge isn't likely to forcibly issue a continuance.

So I think your safest bet is to assume that the 35-day clock is going to keep running.

Regarding the dispute letter, there's no telling how long it will take them to respond. Could be a few days, could be a decade. There is no time limit for them, only that 30-day window for you.

So this does present a challenge to your defense. You'll need to go through discovery to get copies of whatever supporting documentation they have. Fortunately, for you, it can also be a benefit. At this moment, your truthful answer (never lie) to just about any interrogatory they send you is that you lack sufficient information to answer.

Once it gets to filing paperwork is where any "helpful" advice I have runs out. Our small claims court not only does not require paperwork, they simply won't permit it. So my experience is in going before the judge and successfully arguing my case.

 

From what I have read on this board (keep in mind I am new to this forum), cap1sucks gives great advice, however, I have issue with a few things he posted.

"Judges will use every trick in the book to help their plaintiff so you have to learn how to avoid their traps and how to turn them against the judge. In other words, you will have to learn how to object to the judge trying to help the plaintiff get the judgment. Again, to make matters worse, the judge will be likely to overrule any objections you might make and so you will need to learn what to do about that. There are ways to make judges back off."

I do not know where you are getting this information from. To suggest that a judge would conduct themselves in this manner is to suggest the judge is no longer acting as a judge. If a judge acted in the manner you suggested, they would be removed from the bench.

Please see uscourts.gov/guide/vol2/ch1.html JUDICIARY POLICIES AND PROCEDURES: CODES OF CONDUCT. Just read the headings of the titles to dispute the quoted information. This deals with federal judges but I am sure the same rules though not verbatim, will govern state judges as well. I can't imagine that small claims courts would stray too far from this as well.

"The only way to win is to escalate the case to federal court for FDCPA violations."

This is correct to an extent. This would be called "removal" (not escalate) and it could be allowed if the issue involves a "federal question" which FDCPA is. Keep in mind that FDCPA has to be part of the case for this to happen. Only the defendant in the case can do this and removal is governed by 28 U.S.C. § 1441. Finally, the federal court has discretion on whether to grant removal or not.

"The big difference is that in federal court you won't meet any judges face to face and you would have the upper hand because you would be the plaintiff, not the defendant."

No face to face with a judge in Federal Court? Who presides over the court then? Of course there is a judge that you will appear in front of. Keep in mind that the rules in Federal Court are pretty strict (FRCP) and to go to Federal Court without representation is an invitation to lose. If you are going to go through the process of appearing in Federal Court, don't do it pro se, get representation. The plaintiff usually has the higher burden of proof, and if you factor in an impartial judge, neither side has the "upper hand."

I am not an attorney and please don't constitute my suggestions as legal advice. If you are really concerned, please talk to an attorney as they will know better than all of us the laws and procedures you need to follow.

Good luck to you!

 

If you google Love, Beal and Nixon you will find that they are located in Oklahoma and are barred in Oklahoma. You can also verify that using the Oklahoma Bar Assoc. web site.

Do some more checking and you will find that Oklahoma has no requirement that debt collectors be licensed. Neither does Kansas and many other states.

The statistics show that they are absolutely correct in assuming they can't win in local courts. The truth is that the plaintiff debt collector wins almost every time.

I totally agree but building false confidence is not the way to get the job done. The only way to accomplish that is to teach them the rules of procedure and rules of evidence then how to catch the lawyers and the debt collectors breaking the law and how to take them to federal court and win. That is the only way that has a chance of success.

Let's not delude her into thinking that she can change the outcome by trying to complain about FDCPA violations. The court isn't going to pay any attention to that. You can rest well assured that a law firm as large as Love, Beal and Nixon have heard it all many times and won't have any trouble dealing with it.

 

Not really. Your sworn conditional denial is supposed to take care of that. The plaintiff don't have to prove that the Statute of limitations has expired. If you plead that then you will have to prove your point. That may not be easy to do. Just prepare your conditional denial and your demand for validation and file the denial but not the demand for validation. Follow Sparq's recommendations on how to write that. No use of me repeating what he has said about that.

No, it won't.

Do them both at the same time. Trust me on that.

No. Only file your response.

Oh yes it is. Scroll down a bit further and look for the link to non ocis system courts. Click on that link and you will see how to find all the rest of the counties in the system.

 

I didn't suggest. I said that is exactly what happens in courtrooms all across America. I've seen it happen many times over locally and I've heard people from all across the country tell the same stories verbatim and worse. In some cases people have been removed from the courtroom in cuffs for even trying to present a defense in which they claimed that the plaintiff had been less than truthful. I happen to know of one judge who was removed from the bench and prosecuted for waving a pistol at defendants in court.

Then you need to learn the facts. Go spend some time in various courts. You will soon enough find out for yourself.

I've never advocated trying to get a case removed to federal court. File a separate case and become the plaintiff so that the two cases actually have nothing to do with each other.

Of course there is a judge but everything will be handled on the internet through Pacer or through the mails, even by telephonic appearance. Only in the unlikely event that the parties cannot reach an agreement during the Rule 26(f) meetings would a case ever actually go to trial. Nobody wants to go to trial because of the escalated costs and the likelihood that the final settlement amounts would be less if it went to trial than can be had through settlement.

Your statements show that you know very little about the federal court system and how it operates in consumer affairs type cases.

That's also not necessarily true. The truth is that pro se litigants usually do so much research before they ever think of going to federal court that they are much better prepared than most attorneys. I've talked to many people who have been there and done that, most of them multiple times and most have sought the help of attorneys at one time or another but can't find an attorney willing to take the case for the simple reason that the attorney quickly ascertains that the potential client knows far more about the law and the procedures than they do. Successful pro se litigants don't just jump up and go file a case. They usually study for months on end before doing that and usually wait until the very last minute to actually file their first case. After that, it is easy for them and they can prepare the second case in a matter of a few hours. Every case gets easier and easier once they get past the first one.

 

Are you really sure that you read and understood 1441 completely? Let's take a look at it and see what you have to say.

Look at the part that I bolded and underlined and see if you think that federal courts have original jurisdiction over debt collection cases. If they don't then how do you think that a civil debt collection case in a state court can be removed to federal court?

Any violation of federal law would be a totally separate thing and would have nothing to do with the civil debt collection case itself. Even if the case could be remanded there would still be separate jurisdictional issues that would have to be cited and proven as well. Even if the plaintiff properly addresses all of the jurisdictional issues required the court will automatically examine the jurisdictional issues and render it's own decision and written opinion stating that it either has jurisdiction or it does not. If the plaintiff fails to properly address the jurisdictional issues the judge can toss the case.

1441 alone is not sufficient to establish the jurisdiction of the courts. If 1441 were the only controlling statute the plaintiff quoted the judge would toss the case in a heartbeat because the plaintiff failed to establish his causes of action. The plaintiff would also have to bring in the matter of diversity if that applied and would also have to specifically quote the federal statute(s) under which his causes of action fall. Even that is not enough to properly get the job done. He must prepare and present his table of authority and his memorandum of law.for each argument he wishes to bring forth. If he fails to do that the judge will quickly demand that he do so.

While small claims and other district court cases are easy to prepare and present that is definitely not so in federal courts. But to say that a person needs an attorney because they know how to do all this stuff and a pro se can't hope to learn how to do it better than an attorney is simply wrong.

 

They don't have to either withdraw or suspend. They just aren't supposed to do anything further with the case until they have provided the documentation. See Fields v. Wilburlawfirm (7th cir. Ct. of App.) and read the decision of Judge Kenneth Minh to see what is required of them to comply with demand for validation.

Absolutely correct.

Correct again.

Correct again.

Can't do that in Oklahoma small claims courts.

They can't do that in small claims courts either.

So it is the same where you live. I think it is in most states.

 

We're going to have to agree to disagree on this point. The picture you paint of small claims court is one of a sneering judge towering over a cowering defendant who will be jailed for contempt of court if s/he so much as squeaks out even the slightest mistake. Maybe that's not the picture you intended to paint, or maybe that's how things really work where you live, but that's not the case everywhere.

In reality, from my own first-hand experience of sitting in on court sessions, things just don't work that way. If a judge had me handcuffed because I presented a legitimate defense in a respectful manner in compliance with the rules of court, I'd appeal my case and file a grievance against that judge for improper conduct. On the other hand, a litigant who yells out ala Judge Judy "But the plaintiff is a liar, your honor!" ... that guy is going to be fun to watch for the five minutes he's permitted in court.

I believe -- and my posts will continue to reflect this -- that the best course of action is to encourage people to appear in court. Let them know their rights. Encourage them to sit in on other civil trials in their area so they can see how the process works (in fact, this is great advice for anyone, anytime). Show them how to handle some of the most common tactics of debt collectors in court. Brace them with what to expect when the debt collector's attorney objects or presents bad evidence.

But to tell someone -- especially a newbie -- that they don't stand a chance at winning, that they should assume they're going to lose, that the judge will overrule their objections, and that their only chance at winning is to escalate the matter to federal court ... That does no good at all. That's a reader who's now more likely to simply roll over and accept that "generous" 90% settlement offer. To say nothing of those lurking.

We're here to help. Let's not bemoan the system and tell them they don't have a chance, because that simply isn't true. They already know they could lose; otherwise they wouldn't be here asking for help. And I think enough people are scared of the legal system as it is; let's help them learn that it is nothing more than a tool that they can use themselves.

I never said that. In fact, I explicitly said the opposite.

 

I'm wondering what, exactly, they're asking for when they ask for her response. I just dug out my last Civil Complaint, and ours is worded as:

"IF you intend to enter a defense to this complaint, you should notify this office immediately at the above telephone number. You must appear at the hearing and present your defense. Unless you do, judgement may be entered against you by default." This is accompanied by a nearly-identical form, but which is meant to be mailed back. It says "Check this box and return to this office no less than fifteen (15) days prior to the hearing date listed if you intend to enter a defense."

So ours is very clear in stating that no response is needed other than a phone call saying "Yep, I'm defending." Stircrazy, does your say what they're looking for in a response?

 

Her hubby is in small claims court and they often use such forms as you describe. Of course, I have no idea whether that court uses any kind of standardized form or not. I know that Calif., Colo, NY and KY do use such forms. The first three I mentioned have what is called a simplified court system which actually works out to be simplified for the plaintiff and a nightmare for the defendant who wishes to defend. Some other states also use standardized forms but I don't know all of them that do.

I seriously doubt that Carter County Oklahoma has any such special forms. Providing them would cost extra money and small counties usually don't have the funding to implement such things. Even if such forms were provided I tend to think that it would be a good idea just to submit your response at the same time. Those kinds of forms are aimed at giving the defendants a false sense of security and the idea that appearing is no big deal and they don't have much to worry about but the real truth is that they don't want pro se litigants upsetting their apple cart and taking up the courts time when the outcome is a foregone conclusion to start with. Another thing that pro se litigants can be certain of is that although their case might be called at 9:00 A.M. or 1:00 P.M. they will probably have to wait until all the rest of the cases have been heard and the courtroom is cleared before they will be called to the bench.

Most of the time the courts are packed with lawyers waiting for their cases to be called. When it is the judge will run through all their cases for that day and grant judgments on all of them before the next lawyer is called. I've seen judges run through 10 or 20 or more cases brought by one single lawyer dispensed with in about 10 minutes or less. The judge calls the case, the lawyer says present, the judge calls the name of the plaintiff, waits about 5 to 10 seconds and pronounces judgment in favor of the lawyer then calls for the next case. I saw one judge run through about 400 cases in one morning and still have plenty of time to hear the one or two pro se litigants left and still be out of the courtroom and on his way to lunch by 11:00 or so. It is nothing more than a well oiled rubber stamp process.

 

We know quite well what the plaintiff's attorney wants as a response. That doesn't count. (lol)

You keep mentioning the word {office} and that causes me to wonder whether what you have might actually be from the attorney rather than from the court itself.

I can answer that one for you. I've seen several from Oklahoma over the years but none from her county. Nevertheless, hers would be very similar. Sometimes they say that the defendant must file a response and some will say the defendant must answer the summons and complaint. It just depends on the county. Either way it is the same thing. The attorney (in whatever state or jurisdiction) expects an answer addressing each and every allegation separately. He expects that some of the allegations will be admitted and some will be denied and some maybe answered with an explanation of why the defendant defaulted. Then the attorney is free to rip the response to shreds piece by piece and easily win the case.
What he isn't expecting is a sworn graduated denial which forces the plaintiff to prove each and every element of his claim.
The attorney won't be too surprised to also get a validation letter demanding that a number of silly questions be answered. He will most likely be very surprised if the valdation letter is short, sweet, to the point and don't contain any idle threats about what the defendant will do if the lawyer don't comply. i presume that many lawyers enjoy getting the long winded type so that it can be waved around in court and ridiculed in front the judge.
The lawyer may not even be too surprised if he also gets a set of discovery tools demanding responses to interrogatories, and production of documents. What does surprise them a bit is to only get a demand for admissions and nothing else. Lawyers routinely send out all three at the same time but never only a demand for admissions until.........
after he responds to those and then gets a demand for production of documents based on his responses to the demand for admissions. Still no interrogatories. If the responses to the first two are sufficient there is no need for interrogatories.