Have You Been Sued Over A Debt?
- File an Answer. Filing an answer means responding to the lawsuit. This protects your right to a trial and allows you to make the debt collector prove in court that you owe them money. If you file an answer, you can still settle the case before trial.
- File a Different Response. If there is a fundamental legal problem with the debt collector’s lawsuit, you may want to file a demurrer or other response challenging the legal basis for the lawsuit. To do this successfully, you will need a lawyer.
- Do Not Respond. Not filing an answer means that you will lose your right to deny the claims against you in the lawsuit. This may result in a “default judgment,” which means that the court will order you to pay the debt or even allow the debt collector to take part of your wages without a trial.
- If you did not file an answer and have received notice of a default judgment against you, you can file a “Motion to Set Aside Default Judgment” to re-open the case and defend yourself. You must have a good excuse (“good cause”) for not responding to a lawsuit if you want the court to grant the motion – for example, if you never received notice or if you were in the hospital when you were supposed to respond. If you receive a notice of default judgment or a notice that your paycheck is being garnished or your bank account levied for a lawsuit you didn’t know about, seek the help of a lawyer.
- You must file an answer within 30 days of the day someone delivers the summons and complaint to you. If it has been more than 30 days, you may still be able to file an answer so long as a default has not been entered against you. To file an answer, you can fill out an Answer form (PLD-C-010) (http://www.courts.ca.gov/documen ts/pldc010.pdf).
- If the complaint is verified, which means the facts in the complaint were sworn to under penalty of perjury, you will need to go through the complaint and deny every paragraph that is false under box 3(b)(1). If you are not certain that a statement is true, list the paragraph under box 3(b)(2). Most debt collection complaints are not verified, which means you should mark box 3(a) generally denying all the allegations in the complaint and not list any paragraphs.
- Next, you should list any affirmative defenses in box 4 or list them in an attachment labeled attachment 4. For example, you can explain your debt was discharged in bankruptcy, that plaintiff is demanding more than you owe, or that plaintiff is not the legal owner of your debt. For a list of other possible affirmative defenses, see http://saclaw.org/wp-content/uploads/2015/03/ Attach4.pdf.
- Last, you must sign your answer, have it served on the opposing attorney, and file it with the Court at the courthouse identified on the summons and complaint.
- To serve the answer, ask a trusted friend or adult family member can fill out a Proof of Service by First-Class Mail – Civil form (POS-030). This person should send a copy of your answer to the opposing party as instructed on the form along with a copy of the proof of service form. Do not mail the original.
- To file the answer, you will need to bring the original and a copy of the answer and proof of service to the clerk at the courthouse identified in the summons and complaint. The clerk will keep the original and stamp your copy and return it to you for your records.
- There is a fee for filing an answer, but you may qualify for a fee waiver. You can find the waiver form at http://www.courts.ca.gov/documents/fw0 01.pdf or by asking the court clerk.
Case Management Conference (“CMC”)
- A CMC is a meeting between you, the judge, and the opposing party (usually the debt collector’s lawyer) where the judge will ask questions about the case and set a date for trial. You must attend the CMC unless the Judge issues a tentative ruling that you do not need to appear. For more information on how to check a tentative ruling, please inquire at the self-help center. Look out for the notice of your CMC in the mail after you file your answer.
- You or your lawyer must “meet and confer” with the lawyers on the other side no later than 30 days before the CMC. If you don’t have a lawyer, you may receive a call from the debt collector or debt collector’s lawyer to discuss the case. Remember that this person’s job is to try to get you to agree to pay the debt. You are not required to agree to a settlement or admit any facts to the other party when you meet and confer.
- You must file a Case Management Statement (CM-110) with the court and serve the opposing party no later than 15 days before your scheduled CMC. See above for information about preparing and filing a proof of service.
- You will need to decide if you want to select any form of Alternative Dispute Resolution (ADR), which is a way of trying to settle the case with the help of another lawyer or third party not involved in the case. There are different choices for ADR, and it is important to understand them before you agree to try any of the options. You will get a packet in the mail describing ADR options along with information about your Case Management Conference (see below). You can find more about ADR on the “Negotiation and Settlement” information sheet.
- At your CMC, you do not need to admit to anything or agree to settle. It is OK to say, “I don’t know” or “I need to talk to a lawyer” if the judge or opposing party asks you a question you are unsure about. If you have questions, ask the judge calmly and respectfully, and the judge will help you understand the process.
- Take good notes and ask questions at your CMC if you are unsure of anything. Before you leave your CMC, know what you need to do next. After your CMC, you will still be able to choose to go to trial or to try to settle the case with the debt collector.