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Answering a Debt Collection Case


Answering: In General
When and Where to Answer
Telling the Clerk Your Answer
Answering In Writing
Defenses (reasons the plaintiff should not win)
Coming Back to Court to See the Judge
What Happens if You Don’t Answer

 

Answering: In General

Any person or company can sue you for money you owe (a debt). The person or company suing you is called the plaintiff. A plaintiff can be a credit card company, a hospital, a bank or any other person or company that says you did not pay money you owed. The person or company that you owe money to is called a creditor.

The creditor may have sold your debt to another company like a collection agency. That company may have the right to start a case against you in court.

You are called the defendant or debtor. If you are the defendant, you have the right to defend yourself in court.

If you got a summons that says at the top the words: “CONSUMER CREDIT TRANSACTION,” then you or your lawyer must come to court to answer. An answer is what you tell the court about what the plaintiff said in the complaint. The answer tells the court your defenses or reasons the plaintiff must not win the case. The answer can be told to the clerk at the courthouse in person, or can be written down and given to the clerk in writing. It may be easier for you to answer in person.

Continue reading to find out when and how you answer, what you can say in your answer, and what happens if you don’t answer. It is a good idea to get legal assistance.

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When and Where to Answer

If you have received a summons from the Civil Court, you must appear and answer before the clerk as soon as possible. You must answer even if the summons does not have an index number. You have either 20 or 30 days, depending on how you got the summons:

• 20 days - if the summons was given to you in your hand.
• 30 days - if the summons was given to you any other way (for example by mail, left on your door, or left for you with someone who lives in your home).

Find out where to go to answer in your county.

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Telling the Clerk Your Answer

To answer in person, you must come to court and speak to a clerk at the counter who will check off a Consumer Credit Transaction Answer In Person form based on what you tell him or her. The Answer in Person form has a list of defenses that may apply to you. Read below to learn more about what defenses to say in your answer.

After the clerk fills out this form, you get a copy of it. Check to make sure that your answer was written down the right way by the clerk before you leave the counter. If the answer is not right, tell the clerk. The clerk sends a copy of your answer to the plaintiff.

Bring your copy of the answer and all court papers to court when you come back to see the judge.

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Answering In Writing

Answer in writing by using a free Civil Court form, or your own form. The Civil Court form has a list of defenses that you can check off if they apply to you. Read below to learn more about what defenses to say in your answer. You can also write your own answer and give it to the clerk. If you write your own answer you must type it or write it clearly.

The written answer must be “verified” in front of a notary public or court clerk. Verified means that you are saying that your answer is true. After the answer is verified make two copies of your answer. Give the answer and one copy to the clerk. Keep the other copy for yourself. The clerk will give a copy to the plaintiff.

Bring your copy of the answer and all court papers to court when you come back to see the judge.

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Defenses (reasons the plaintiff should not win)

In your answer you need to tell the court the reason why the plaintiff must not win the case. This is called a “defense.” If you prove your defense to the court you will win and the plaintiff will lose the case.

Below is a list of defenses. Read them to see if any of them fit your case. You can use one or more of these defenses, or you can tell the court any other reason you have.

1. General Denial. You can make a general denial defense when you do not know if all the information in the complaint is true or if you think the information in the complaint is not right.

2. No Service. Use this defense if you never got a copy of the summons from the plaintiff.

3. Improper Service. Use this defense when the plaintiff did not give you the summons the right way. Read about the right way to deliver (serve) a summons.

4. I do not owe the money. Use this defense when you do not owe the money that the plaintiff is asking for.

5. I am a victim of identity theft or mistaken identity. Identity theft is when somebody steals your name and personal information and opens up credit accounts in your name pretending to be you. Mistaken identity is when you are sued for somebody else’s debts because you have similar names or identifying information.

6. Payment. Use this defense when you have paid all or part of the money that the plaintiff is suing you for.

7. Incorrect Amount. Use this defense 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 attorneys fees.

8. No business relationship with the plaintiff. (Plaintiff lacks standing). Use this defense when the plaintiff 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.

9. The NYC Department of Consumer Affairs shows no record of plaintiff having a license to collect debt. Use this defense when the plaintiff is a debt buyer, not the company that you charged money to. Most debt buyers must be licensed by the New York City Department of Consumer Affairs. If the plaintiff is not licensed, that is a defense to this case. You can find out on-line at the Department of Consumer Affairs if the plaintiff is licensed.

10. There is no debt collection license number in the complaint. Most debt buyers must be licensed by the New York City Department of Consumer Affairs and must list the license number on the complaint. Use this defense if the plaintiff did not list a license number. The court may dismiss the case or may let the plaintiff change (amend) the complaint to list the license number.

11. Statute of limitations. As time goes by, people and companies lose old records. So, there is a time limit for starting cases. This is called the "statute of limitations." The statute of limitations for filing a debt collection lawsuit for a "consumer credit transaction" is 6 years, counting from the "date of the default." The "date of the default" is about 30 days after you last made a payment. In other words, if your last payment was in December 2005, you can be sued for the money until January 2012. However, if the company you originally owed money to is based outside of New York State the statute of limitations may be less than 6 years. The statute of limitations on a store credit card (like a Macys card) is 4 years. If you made a payment at any time after you first stopped paying, the plaintiff's time to sue you starts to run again. If the court finds that the statute of limitations has passed, you do not owe the money.

12. The debt was discharged in bankruptcy. Use this defense 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.

13. The collateral (property) was not sold at a commercially reasonable price. Sometimes you have to give something you own to get a loan. This is called collateral. If you don’t pay your debt, the collateral is sold to pay back the money you owe. It should be sold for a “commercially reasonable” amount. Use this defense if you think your collateral was sold for less money than it was worth.

14. Unjust enrichment. Use this defense 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).

15. Violation of the duty of good faith and fair dealing. You can use this defense 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 dealt honestly with you.

16. Unconscionability (the contract is unfair). Use this defense when the agreement was not fair and is very, very one-sided. “Shockingly” unfair.

17. Laches (sounds like matches). Use this defense when the creditor waited too long on purpose to bring you to court or to sell your debt to the plaintiff. This case surprised you and the delay is very bad and makes it hard for you to defend the case. The amount of delay depends on the facts of each case. If the creditor has a good reason for the delay this defense will not win.

18. Defendant is in the military. If you are in any of the military services (Army, Navy, etc.), you might not be able to pay at this time. You can ask the court to stop the case for 90 days. If you are still in active duty after 90 days, you can ask for another delay of the case.

19. Other Defense. If you have any other defense or if there is anything that you think that a judge should know about the money that you are being sued for, tell the clerk or write it in your answer.

20. Protected Income. Some money can’t be taken from you for payment of debts. If you get your money from social security, SSI, unemployment insurance, worker’s compensation, veteran’s benefits or DSS use this defense. Tell the judge where your income comes from.

21. Counterclaims. If you think that the creditor owes you money, you can tell the judge. Explain why you think you are owed money and how much is owed.

If you are not sure what to say in your answer you can call the NYC Financial Justice Hotline at 212 925-4929 for help, or you can visit the Civil Court’s Help Center and speak to a court attorney.

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Coming Back to Court to See the Judge

After you answer, the clerk will give the case a court date for you and the plaintiff to see a judge. The court date will be soon after you answer, but not less than 5 days. The clerk will tell you the date or you will be told the date by mail. The clerk will tell the plaintiff what you said in your answer.

It is helpful to read tips for your day in court before your court date.

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What Happens if You Don’t Answer

If you don’t answer the summons, the plaintiff may be able to have a judgment entered against you for all or part of the money that you are being sued for. The plaintiff may also be able to garnish your pay or freeze your bank account.

If you did not answer in time and you got a notice from a marshal or sheriff about a garnishment on your salary or a levy on your bank account, you may be able to vacate your default (ask the court to throw out the judgment and let you tell the court why the plaintiff must not win). You can learn more about Vacating a Default Judgment. You can use the court's free and easy to use interactive program to make your court papers to vacate your default judgment.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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