Consumer Law Resource Center - Debt Collection Defenses

Defenses

This section is based on content from the National Consumer Law Center, will teach you some of the best ways to defend yourself against debt collectors.

Terms You Should Know

  • Plaintiff: The debt collector.
  • Defendant: You.
  • Summons: The official document telling you that a lawsuit has been filed against you. It also tells you the deadline to respond.
  • Complaint: The document that the plaintiff uses to begin the case. It tells the court why they are suing you.
  • Answer: The document you send to respond to the Complaint and present your defenses.
  • Judgment: The Court’s final decision. If you do not respond to the lawsuit, the collector will get a “default judgment” against you.
  • Garnish: “To take.” Garnishment is a legal process that allows collectors to take money out of your wages or bank account if they have a judgment against you. 

FACING a Lawsuit

Always Respond to Court Papers! If you don't, you automatically lose. No ifs, ands or buts.

Collectors often try to trap you into admitting information that will help them win. They will write a long list of statements about the debt and about you. You will have a certain amount of time to respond.

Many of these statements may be false, but if you do not tell the Court that they are false, it is legally the same as admitting that they are true. If you do not respond within the time allowed, the court will not require the collector to prove anything and the collector will win by default. Remember: Do not miss the deadline!

The statements will be in the Complaint and sometimes in a document called a “Request for Admissions.” You must read each statement carefully and do one of the following:

  • Admit that it is true.
  • Deny it.
  • Deny part of it, explaining which part.
  • Say that you do not have knowledge of whether it is true or false.

GO TO: Representing Yourself in Court - Pro Se Answer

You should write your response to each statement in your Answer to the Complaint, or in a response to the Request for Admissions.

Defenses to Lawsuits

Again: If you ignore a court case, you will lose. This is called a “default judgment.” But if you respond, you may have very strong defenses.

You should try your best to find an attorney to help you with the lawsuit. (Find a private attorney by location/specialty at this link.) Even if you can’t find an attorney, you can still defend yourself. You should list and explain all of your defenses in your Answer to the Complaint, after responding to the collector’s statements. Don’t miss the deadline!

Creditor Error
If you’ve actually paid the debt, you should not have to pay the same debt twice. But sometimes collectors don’t have certain information, or just ignore it. Tell the Court if:

  • You have already paid the debt.
  • You made an agreement that the debt would be settled or cancelled if you paid part of it.
  • You went through a bankruptcy and the debt was discharged.
  • You have been sued before about the same debt.

Also, collectors often try to collect from the wrong person: You may be a victim of identity theft, the debt may belong to someone with a similar name, or the collector may be trying to get you to pay a family member’s debt or a business account that isn’t your responsibility. If you are not the right person, the court should dismiss the case. 

Other Defenses & Issues
Even if the debt is yours, the amount they’re demanding you to pay may be more than you actually owe. The collector cannot sue you for attorney fees, late charges or interest unless you agreed to pay such charges when you borrowed the money (for example, in the fine print of your credit card agreement).

Ask the court to make the collector show the contract that authorizes those charges. If the collector cannot show that, they cannot collect any amounts beyond your account balance. You should also check the amount and tell the court if it does not agree with your records. The collector may not have credited all your payments.

An attorney will be able to help you raise these and other, more complicated defenses to debt collection.

Sued by A Company You’ve Never Heard of?
Many collection lawsuits are brought by companies called “debt buyers.” Debt Buyers pay money to other companies for the right to collect money owed to those companies. For example, you might owe $3,000 on a store credit card. After a while, the store may decide to sell the debt to a Debt Buyer for a few hundred dollars, instead of trying to collect it. Then the Debt Buyer will try to collect from you.

If the company suing you is not the company you think you owe money to, deny any statement in the Complaint that says the collector purchased the debt or has the right to collect it. That way, the collector will have to prove to the court that they really own the debt, in order to sue you. 

More Consumer Resources

 

 Consumer Law Resource Center Home Page