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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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Highlights

  • 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.

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

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178 Comments

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  • SV
    Nov, 2018
    Sergio

    Greetings, I received a letter yesterday regarding Memorandum of Writ Wage Garnishment on an old credit card debt from 2007. It showed on my reports for 7 years then it stated it was charged off after 7 years and it was removed from my credit reports, 11 years later I received a letter from the Law Firm or Debt Collector stating that I still owe $4,500 and that there is a judgement against me but when I look at my reports I see no judgement and I have no idea when the judgement was placed. I see in the letter a Las Vegas Court Case Number but no court date, I also was never served nor received a court summons. Is there anything I can do? I also contacted an attorney but they stated that their fees would far exceed they amount owed and they adviced just to contact the law firm that is suing me to style the debt. Any advice would be much appreciated

    0 Votes

    • 35x35
      Nov, 2018
      Daniel

      I will share some thoughts about your detailed question, with the understanding that I am not an attorney and I am no giving you legal advice.

      This matter involves what constitutes proper service and the statute of limitations (SOL) on debt for the claim. Each of these are complicated issues, and the rules vary from state to state, so my comments are of a general nature.

      Ins some states, if you were not properly served (and this isn't necessarily clear; the fact that you didn’t receive the summons doesn't necessarily mean you weren't properly served) you could seek to have the judgment set aside. If the SOL had passed when the first suit was brought, this could bring you relief. But moving to set aside the judgment and then defending a new suit on SOL grounds will almost surely be time-consuming and expensive, as you were told by the attorney that advised contacting the law firm and coming to some a arrangement to settle the debt.

      You could take the step on your own of going to the Clerk's Office at the Court in Las Vegas with the file number and finding out the date of the suit and when the judgment was ordered.

      The SOL on debt in Nevada is six years, at its maximum, and could be four years for credit card debt (you can read at the link above about the different SOL time limits applied in Nevada).  If the suit was filed after the SOL had run out, speak with another lawyer and present that fact to them to get a second opinion.

      Lastly, the fact that the debt no longer appears on your credit report is a separate matter from whether or not you owe the debt. 

      0 Votes

  • KR
    Sep, 2018
    Kaey

    Do I have to be served by registered mail if creditor sues in California?

    0 Votes

    • 35x35
      Sep, 2018
      Daniel

      I will share my opinion with you, as long as you don't consider it legal advice, as only lawyers can give legal advice.

      No, service need not be done in California only by registered mail. Service can be done in person, for example.  Even when done by mail, I see nothing that mandates service by registered mail on this authoritative page from the California Courts about service by mail.

      0 Votes

  • AG
    Dec, 2014
    anne

    I need help with this too! Thanks for sharing this information.

    0 Votes

  • MQ
    Jun, 2014
    mike
    Saylorsburg, PA
    I was contacted today 6/9/14 about an unpaid verizon phone bill that is over 8 years old. I was told if i do not pay i will be served with a court summons. This bill was disputed by phone when originally received. I have not received any bill or phone calls about this in over 8 years. The bill is from NY and i now live in pa. I believe the statute of limitations has run out in both ny (6 years) and pa (4 years. Am i being scammed? Should i be worried?
    0 Votes

    • BA
      Jun, 2014
      Bill
      It sounds like a scam to me. Given the facts you listed, I would not pay a penny, were I in your shoes. Validate the debt, if you receive any written notice to pay. Answer any court summons you receive. If you are sued, argue the SOL as your defense. My guess is that they will not sue you, but were trying to intimidate you into paying.
      0 Votes

  • AK
    May, 2014
    anna
    Greensboro, NC
    I received a summons and complaint today here in NC and the court date has already passed. The summons was mailed to my old address and forwarded to me at my new address. It was mailed from the office of the plaintiff to me. What can I do now? I am sure a judgement was awarded to the plaintiff because I wasn't there but how could I be when I didn't get served? I have the envelope showing the forwarding information and shows where it was mailed from. Can they garnish my wages? The amount right now is $655 before any court costs. What do you recommend?
    0 Votes

    • BA
      May, 2014
      Bill
      Save that envelope!

      Consult with a lawyer who has civil litigation or consumer law experience. Ask him or her about filing a motion to dismiss based on a defective service of process.

      You mentioned North Carolina. If you cannot afford a lawyer, contact Legal Aid of North Carolina, Law Help NC or another North Carolina pro bono program to find no-cost legal assistance.

      You asked about wage garnishment. Read the Bills.com article North Carolina Collection Laws to learn your rights and liabilities.
      0 Votes

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