legal format to respond to court summons?

Question

i have to file a written answer to a court summons tomorrow morn. to avoid a default judgement. i dont know what to write or how to write it. We're being sued by credit coll. agency for old credit card debt. We cant pay it.

Answer 1

You need to follow your states rules of civil procedure (RCP) when writing up your answer.
Unless your county/state has a form that you can use, you will have to know how your answer should look/read - body of answer, spacing, margins, etc., etc.

You can find your RCP in the following links

http://www.findlaw.com/10fedgov/judicial/district_courts.html
http://www.megalawserve.com/states.php

You might also go to www.creditboards.com/forums and do some reading in how to write up your answer.

Be sure to check the collecting SOL for your state. If you are out of SOL make sure you include an affirmative defense of SOL in your answer. You will have to include the state SOL statutes, which you can find links to from creditboards.

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edited to add

The poster below me made a statement that since it's going to court there is a lot of doc's - which is generally untrue.
"Most of the time" the collector has nothing much but an affidavit of debt. Which generally consists of one of the "collectors employees" (affiant) claiming that the debt is valid.
The affiant generally works for the collector and not the original creditor. And has no personal knowledge of the original creditors files, how the original creditors records were prepared and maintained, no proof of any alleged transactions between the Defendant and the original creditor, etc., etc., etc.

If you are out of the collecting SOL it is up to you to claim it.
If the collector is reporting inaccurately on your credit reports and you can prove that you were denied credit, charged a higher interest rate, etc., if the collector violated your rights in any correspondence, then you can probably file counter claims against them.

In some cases the counters add up to more than the debt. In those cases the collector "may" offer a deal to drop their case if a person drops their counters. In other cases the counters may not be more than the debt but, if the judge agrees to them, they would go towards the amount owed should a judgment be entered, or the collector "may" try to make a deal before it ends up before the judge.

Answer 2

Good answers here.

As echo mentioned, every state has different rules, and those can even change from court to court. Small claims is very informal, while the higher courts require very strict adherence to the rules.

This is why it's important to give a bit more details (like the state you are in) when asking here....;)

Generally, just a simple form letter will do. Below is a sample of an answer used in one state court....fairly basic stuff.

How you answer this is important. Did you request that the collection agent validate the debt? Did they send you anything to prove you owe this debt? Did they send you proof that they have the legal obligation to collect it? Is the amount accurate or did they load it up with lots of collection fees?

If this is a large amount you will not want to admit to owing it. Just state that you do dispute the debt/amount and do not have sufficient documentation to be able to give an answer. Take a look at http://www.creditboards.com and get some ideas from this message forum. Lots of good stuff here.

Be prepared.....If you owe this debt and they come prepared with the documentation to prove it, you will most likely have a judgment against you. Note that in many states the judge does have the ability to order installment payments, so come prepared with some proof of you income and expenses, and request that they be ordered in an amount you can afford.

And of this debt is more the 4 years old, for gosh sakes take Echo's advice and research what the Statute of Limitations is for your state. In order to use this for a defense, you must present this in your answer.

Answer 3

Even if you show up, with an explanation, you're going to get a judgment filed against you. Unless there was fraud against you, then as long as you signed up for the credit, but failed to pay, the creditor gets to record against you. Inability to pay will not sway the judge.

All the judge is doing is determining whether you did sign up for the credit, did or did not pay and how much, and what is still owed. Obviously since it has gone to court, there's a lot of documentation on this already. The judge does not have to do much, other than ensure the creditor is not making a false claim, and then the judge has no choice but to enter the judgment. Your only possible way to get a judgment in your favor (the case dismissed) in a case like this is to prove that you did not sign up for the credit in the first place, or that you already paid it off.

You may have one possible way to avoid this by convincing the creditor that you will pay and also sign a confession of judgment. If the creditor agrees, I warn you that you must adhere to the terms you agree to in the confession. If you fail to make the payments, boom - the confession gets filed with just one quick look by a judge, and immediately has full effect.

If you have ignored the creditor to this point, they may choose to not accept a confession promise, they don't have to, and just get their filing now.

I've seen a judge force acceptance of a confession of judgment on a creditor when there was truly extenuating circumstances that had gotten the matter to court, and there was a clear benefit to the debtor by permitting the delay, with no evident further erosion of rights to the creditor. But this is rare.

Answer 4

Above all,show up in court! You don't want a default judgement.

They have a lawyer, you need one too. After all, you are entitled to representation too! It's likely the court won't have time to hold a hearing for you and the judge will schedule a trial for a later date. Contact www.naca.net for a lawyer in your area to represent you. However, the point is moot if you don't show up in court to request a hearing for a later date!

I have a blog at the link below that may be of help. Good luck!.

Answer 5

state you cant pay but try a offer a solution like a lower payment or a date when you can start payimg