Served Summons & Complaint

I was recently served civil suit papers for a old debt I cannot afford to pay.

I was recently served civil suit papers for an old unsecured debt I cannot afford to pay. What should I do?

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Bill's Answer
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Bills.com Team
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  • A summons and complaint is an official notice of a lawsuit.
  • A defendant must respond to a summons or risk default judgment.
  • Consult with a lawyer in your state if you receive a summons.

Although I will provide general information that will help you understand how to resolve this matter, I urge you to consult with an attorney in your state who has experience with consumer rights issues. I will explain more about a summons and complaint in just a moment.

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Statute of Limitations

You mentioned this concerns an "old" debt, so I will discuss a legal concept called "statute of limitations." All states have a body of statutes in their codes of law called, "Limitations of Actions," commonly referred to as the statutes of limitations. The idea behind these laws is that we as a society have decided that we don’t want old debts hanging around forever — we want people and businesses to be able to move on with their lives without worrying about being sued.

The length of time a creditor has to sue you depends on your state of residence and the type of debt. For example, many states allow longer for creditors to file suit to collect on closed-ended consumer loans than on credit card debts. Most states give credit card issuers three to four years to file suit after default, but some states allow as many as 10 years.

Check out the Bills.com Collection Laws and Statute of Limitations page to see a list of by state. If a creditor files a lawsuit after the allowed time, the court will usually throw the case out and not allow the creditor to file suit again (called dismissed with prejudice).

However, you must raise the issue of expired statute of limitations in a written response to the lawsuit, or else the court will not know that the statute of limitations has expired. The judge will not make the statute of limitations for you.

The periods vary from state to state. See the Bills.com article Which Statute of Limitations Applies to Your Situation if you have a question about which state statute of limitations the court may follow.

Remember: The clock running out on a statute of limitations does not mean a creditor may not sue you (in most states). It means if a lawsuit is filed you should have an strong defense against the lawsuit if you raise the defense.

You must take action by either going to court or hiring an attorney to do so. Also, keep in mind that the passage of the SOL does not prevent a creditor from calling you to collect on the debt; it simply provides you a defense in court if the creditor files suit.

Summons and Complaint

The civil suit papers you refer to in your question are frequently called a Summons and Complaint. The summons, which should be the first page of the documents you received from the court, should state the time period in which you have to file a response to the complaint with your local courts. If you decide that you would like to respond to the complaint, the court clerk should be able to provide you with the necessary forms.

If you do not have a statute of limitations defense, I recommend you attempt to resolve this debt with the creditor or the creditor’s attorney before they take any further collection action. If you obtain a fairly sizable portion of the balance, the creditor may be willing to settle the debt.

For example, if you can offer 40% or 50% of the outstanding balance in a lump-sum payment, the creditor may be willing to forgive the remaining balance and dismiss the court case. Contact the creditor’s attorney to discuss settlement of the debt.

If you don't have a lump sum to settle the debt, the creditor may be willing to accept monthly payments to stop further collection activity, but will probably not dismiss the case against you. The creditor will want to obtain a judgment against you just in case you do not make your scheduled monthly payments. Again, contact the creditor’s attorney to discuss possible repayment plans.

If you do not resolve this matter, the creditor will likely obtain a judgment and proceed to attempt to collect on the judgment. Depending on the state you live in, judgment execution could include wage garnishment, bank levies, and property liens, and other actions. (See Collections Advice for more information about collections.)

I encourage you to consult with an attorney to discuss the implications of a judgment against you, and what is the best course of action to resolve the account. Even if you think you have a statute of limitations defense, your best course of action is to seek representation. (See How to Answer a Summons & Complaint for general information.)

You Cannot Afford an Attorney

If you cannot afford an attorney, contact your country bar association, and ask for information on reaching the organization in your area that provides legal aid to low- and no-income people.

Make an appointment with that organization, and bring all of the documentation you have regarding the debt and the summons and complaint to that meeting. If you think you have a statute of limitations defense, mention that to the attorney or paralegal in your meeting. Make a plan of action with the attorney or paralegal, and be sure to follow through with the plan.

For more information about debt, and for debt help resources, I encourage you to visit the Bills.com debt help page.

I hope this information helps you Find. Learn & Save.

Best,

Bill

Bills.com

165 Comments

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  • LM
    Feb, 2012
    L
    Hi, I live in California and today I was served with a summons to appear on Tues 2/14 for a debt with Chase credit card. The debt defaulted on 12/2009 so the SOL has not yet expired. The debt is for $ 2168.37. Would a settlement offer for $400 be resonable? I canot afford any more since I work partime and go to school full time. Should I got to the court hearing and bring this up to the judge or I have better chances of the creditor accepting my settlement before going to court? I also plan to file for BK7 since I have several accounts on default.
    24 Votes

  • JW
    Feb, 2012
    Jennifer
    If I entered into an agreement over the phone with my original debtor for them to take monthly with drawls from my account, would this be considered an oral contract? I live in CA, and the creditor is the one that breached our contract. After a year or so, they stopped taking with drawls from my account. The debt has been sold about 3 times and now I am being sued for this debt. It was back in 2008 that the last with drawl was taken out from the original creditor.
    0 Votes

    • BA
      Feb, 2012
      Bill
      A contract you created by speaking on the telephone is considered an oral contract.
      0 Votes

  • KC
    Jan, 2012
    kellie
    I am several months delinquent on credit card payments and several accounts. I got advice from a bankruptcy lawyer, she advised me that they could do nothing in the state of North Carolina except harass you or put a judgment against you. If you are served with civil papers, if you don't show up there is nothing they can do except obtain a judgment. kcj NC
    1 Votes

    • BA
      Jan, 2012
      Bill
      In North Carolina, a judgment-creditor may levy bank or credit union accounts, and place a lien on the judgment-debtor's property. However, a North Carolina judgment-creditor may not garnish a judgment-debtor's wages, unless the judgment was domesticated from another state. See the Bills.com resource North Carolina Collection Laws to learn more.
      0 Votes

  • AW
    Dec, 2011
    Aimee
    I just want to clarify something in regards to the initial question posted on this thread. I have been diligently working to settle with the debtor in my case for the past 3 weeks. I was served a summons and complaint yesterday. According to what is written here, I can still pay them the lump sum we are working out and then installments correct? What will happen to the summons? Do I still need to answer it?
    0 Votes

    • BA
      Dec, 2011
      Bill
      The key issue here is clear communications between the parties. No two negotiations are the same. However, in the situation you described here, you and the other party are free to settle your dispute out of court before the trial. In fact, the court will encourage both of you to do so to help unclog its docket.

      It is in your best interest to negotiate a lump-sum settlement to the dispute. A lump-sum settlement is one where both parties agree to resolve, settle, or make a final agreement to end the claims against each other in exchange for one making one payment to the other. Typically, this payment is for less than the amount claimed.

      For a credit card debt, to pick one common case, the parties will agree to a settlement in exchange for a single lump-sum payment of 40-60 cents on the dollar. It would be unusual, in my experience, for the parties to agree to both a lump-sum payment followed by a series of installments. However, I hasten to add that I know nothing about your circumstances.

      When parties agree to an out-of-court settlement, one component of the contract is that the plaintiff (the creditor in this case) promises to ask the court to dismiss the case. Usually, the dismissal is conditioned on and triggered by receipt of payment.
      0 Votes

  • BZ
    Dec, 2011
    Ben
    Hello! I have a problem with two debts, one on a credit card and another on a "line of credit". The line of credit was used by the bank to pay off an overdraft resulting in a loop of fees. I lost quite a lot of money in their cycle before I closed all accounts. They were so difficult to work with about this I refuse to pay. Further complicating matters, I now live in Europe and have lived here for he past three years. So, I have very little money in us accounts for them to garnish and have no employer in the US (or file tax returns). I recently received a "warning letter" from an attorney firm threating to sue. Is this likely? Must I be legally served in person? If they receive the judgement, how long will it be in effect, etc? Thanks! Ben from Wisconsin
    0 Votes

    • BA
      Dec, 2011
      Bill
      First of all the creditor can sue you and does not to legally serve you in person. Since you are not in the US, the statute of limitations may also run for a longer period of time. See Bills.com page about statute of limitations. Since you are abroad, 'tolling' may apply and the standard limits may not be in place.

      Since you have no U.S. wages, it is very difficult for the creditor to collect. It could sue you and then domesticate the judgment in a foreign country. This is likelier if the debt is quite large and if the country in which you reside has reciprocal financial arrangements with the US. Of course, if, at any point, you have any income sources in the US, 1099 or wages, it will be much easier for a creditor to collect.

      It seems prudent to speak with an attorney where you currently reside, to hear an experienced opinion about the 'warning letter' you received, the likelihood of collections being permitted against your current income, and the requirements a creditor would need to meet in order to collect from you.
      0 Votes