Served Summons and Complaint

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READER QUESTION

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

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Bills.com Resident Expert
Feb 02, 2012
BILL'S ANSWER

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.

The hyperlink I just mentioned has more information about statutes of limitations and a list of limitations 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. Although the periods vary from state to state, I believe that there is only one (Ohio) that is longer than 10 years.

Remember: The passing of the SOL does not mean that a creditor cannot sue you. It means if a lawsuit is filed you should have an absolute defense against the lawsuit if you raise the defense. That means 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 an absolute 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 cannot access 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 creditorÂ’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.

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

Comments (164)


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Jennifer W.
Concord, CA  |  February 02, 2012
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.
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Bills.com
February 03, 2012
A contract you created by speaking on the telephone is considered an oral contract.
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Kellie C.
Arden, NC  |  January 24, 2012
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
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Bills.com
January 24, 2012
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.
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Aimee W.
December 15, 2011
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?
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Bills.com
December 15, 2011
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.
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Ben Z.
December 02, 2011
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
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Bills.com
December 03, 2011
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.
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JOHN M.
Flushing, NY  |  November 10, 2011
Sorry let me word it correctly..How much time does a lawyer have after consumer answers summons before a trial can be heard. Can I ask for a dismissal due to the lawyer stalling and not bringing to trial. Consumer credit
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Bills.com
November 10, 2011
State civil procedure rules create a timed sequence of events that must occur according to a calendar created by the state legislature. Each state legislature created their own civil procedure rules, as did the US Congress for federal matters. I would not serve you well if I tried to condense your state's civil procedure rules, which typically take a full semester to study in law school, into a paragraph or two.

Consult with a lawyer in your state who has civil litigation experience. He or she will help guide you though the litigation process.
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JOHN F.
Flushing, NY  |  November 09, 2011
After answering a consumer credit summons how long can the party hold me up before a trial or court date. Is there a limit of time. It has been over 30 days since answering summons but no movement on case.
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Bills.com
November 09, 2011
I do not know what you mean when you say, "hold me up before a trial or court date." Consult with a lawyer in your state who has civil litigation experience to learn more about the rules of civil procedure relevant to where you are in the lifecycle of your case.
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Jim T.
Pima, AZ  |  October 15, 2011
I was told I am receiving a summons from a South Carolina court and being sued by a debt collection agency for property we sold 9 1/2 years ago. Court records show the case, debt collector will not give me any information on the case. After two weeks summons has not arrived. Arizona lawyer said they cannot help. I am mid 70's and have trouble traveling. What should I do at this point.
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Bills.com
October 15, 2011
You wrote, "Court records show the case..." I assume a court Web site you accessed reports a case was filed. Your best option is to call a lawyer in the county in which the case is filed, and ask him or her to represent you.
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Rhonda C.
Pickens, MS  |  September 29, 2011
I had a credit card back in 2004 for the amount of $300.00 and now today my employee gave me papers about being garnished for an amount of $1,279.00 I never did receive the papers to report to court. I want to know if can i be garnished for a 7-year-old credit card debt in Mississippi because i didn't receive any summons papers.
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Bills.com
September 29, 2011
Civil procedure rules are designed to make a law suits fair for both sides. One cornerstone of civil procedure law is the idea that both sides should give each other and the court fair and complete notices of what they are doing. If one side does not give the other adequate notices, the court can dismiss the case if no decision has been made. If the defendant was never given any notice of the case, then the court can vacate the decision.

You did not receive a notice of the lawsuit filed against you, or the hearing where a judge decided on your case. It is fair to say the law firm representing the plaintiff (the creditor) did not give you adequate notice of the hearing in your state court. The question becomes, what do you do about it?

Consult with a lawyer who has civil litigation or consumer law experience. If you cannot afford a lawyer, call your county bar association and ask for the names of the organizations in your area that provide no-cost legal services to people with no or low income. Make an appointment with that organization, and bring all of the documents you have regarding the debt and the wage garnishment to your meeting. The lawyer you meet will advise you accordingly.
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