Being sued by a debt collector is scary, especially for those of you facing your first lawsuit. Go through these steps as you formulate a response.
First, DON’T PANIC! Realize that you’ll have ample time to respond. In South Carolina, you have 30 days from the date you’re served to answer the complaint. That’s plenty of time to chart a course of action in most cases.
Second, READ THE COMPLAINT. Sure, I get it, legal documents are often impenetrable. But most of the collection complaint will written in plain English. It won’t be all that long, either.
Do you recognize the plaintiff? That’s the person or company bringing the lawsuit asking the court for a judgment against you. If you’re sued by North Dakota General Hospital, for example, and you’ve never been to North Dakota, there’s a good chance they’ve got the wrong person. Most of the time, however, you’ll recognize the plaintiff. You already know you’ve defaulted on the debt, and the lawsuit won’t be a surprise.
If you don’t recognize the plaintiff, does the complaint explain how the plaintiff has a right to sue you? Did the original creditor sell the debt to the plaintiff? If so, the complaint will explain how a company like Debt Lovers Portfolio Recovery, LLC (yes, I made up that name) obtained the debt and the corresponding right to sue.
Third, check the amount the plaintiff seeks in damages. How much (it’s at the end of the complaint) are they asking the court to award in a judgment against you. Does that amount seem about right? If you thought you owed them $5,000 and now they are asking for $10,000, that should be a clue that you have problem.
Fourth, make sure you keep track of the deadline for filing your response–called an “answer” with the court. You must file it with the court and serve it on the plaintiff. You must also file a document called a “certificate of service” showing that you served the plaintiff.
Fifth, be mindful of the statute of limitations. In South Carolina, it’s three years from default. S.C. Code Ann. § 15-3-530. If you defaulted (stopped making payments) four years ago, for example, you have what’s called an “affirmative defense.” An affirmative defense means that even if every allegation in the plaintiff’s complaint is true, you are legally entitled to win the lawsuit. In this example, it’s because the statute of limitations has expired.
A couple of additional important things to note: (1) you can restart the statute of limitations by making a payment, and (2) you can restart it by acknowledging the debt in writing. See S.C. Code Ann. § 15-3-120. This underscores the need to seek legal counsel when responding to a collection complaint.
Sixth, does the complaint allege things like fraud, breach of fiduciary duty, false representation, false financial statement, or other similar allegations? If so, that could cause problems if you decide to address the problem with a bankruptcy filing. It also means you should immediately seek help from a lawyer familiar with these issues.
Seventh, is this part of a bigger problem with your finances? Put simply, is this the tip of the iceberg? Again (do I sound like a broken record?), this is yet another sign that you should get financial help. Getting sued over a $2,500 defaulted credit card is one thing; getting sued over a $2,500 defaulted credit card when there are $50,000 of other debts you can’t pay is another thing. If this suit is the tip of the iceberg, you need to sit down with a bankruptcy attorney to explore all your options.
The most important thing to remember is that doing nothing is not a valid option. Don’t bury your head in the sand. If you do nothing, a default judgment will enter for the amount the plaintiff sought in damages. As I tell my clients, it’s like when losing the softball game because you didn’t show for the game. You have only 30 days to come up with a plan, so take action immediately.