So you’ve heard a knock at the door from your friendly neighborhood mailman. He asks you to sign for a piece of certified mail. You sign and open the envelope to find the friendly greeting of a Summons, which reads: You are Being Sued!
Chances are excellent that the Complaint stapled to the Summons is only one page long. It likely contains five or six short paragraphs (called “counts”) which allege you have a credit card/charge account with a Company (likely Discover Bank or Midland Funding LLC). Or it may be from a health care provider like an emergency room or chiropractor/MRI facility etc, alleging you owe money for prior health care services.
So what do you do?
The single WORST thing you can do is to ignore it. Collection firms such as Pressler and Pressler are hoping that they don’t hear from you, because if you fail to file an Answer to the complaint within 35 days, they will obtain a default judgment against you for the full amount of the debt they allege you owe in the Complaint. Once they have a default judgment, they can take steps such as levying your checking/savings account, putting liens on real estate/automobiles, garnishing your wages, and other very unpleasant actions.
So what exactly is an “Answer?”
An “Answer” is a formal legal pleading in which you either admit or deny the allegations set forth in the numbered paragraphs (called “counts”) of the Complaint. Sometimes the allegations in the Complaint are difficult to admit or deny, which is why attorneys often draft “legalese” responses such as “Defendant lacks sufficient knowledge and/or information to answer the allegations of Paragraph 2, therefore plaintiff neither admits nor denies the allegations of Paragraph 2, but instead leaves plaintiff to its proofs.”
Clients often come to me after they have filed (or attempted to file) their own Answers to a collection complaint. Common mistakes I’ve seen include:
1. Failing to put the case caption (i.e, the text box that contains the names of the Plaintiff and the defendant, such as:
Midland Funding LLC, as assignee of Ripoff Credit Cards, Inc vs. John Doe, Defendant.
2. Failing to put the docket number on the Answer (in most collection cases it will being with the letters “DC”, which is a court code/prefix for Special Civil Part cases in NJ). The Docket Number appears on the upper right-hand side of the Complaint which you were served. The last two digits of the Docket Number indiciate the year in which the Complaint was filed. A typical docket number for a case filed in 2013 will have a format such as “DC-0008943-13”.
3. Failing to admit or deny the allegations of the complaint in succinct, concise, numbered paragraphs that correspond to the Counts of the Complaint.
4. Failing to sign your Answer.
5. Failing to include a list of affirmative defenses in your Answer. “Affirmative Defenses” are available defenses which you may forfeit the right to later assert (even if such defenses are exist & are applicable to your case) if not pled early in your case, preferably within your Answer itself.
6. Clients often draft their Answer in the form of a handwritten letter, which usually rambles about the general injustice of the case, asserts various conspiracy theories, and may even include “attachments” such as old credit card bills, copies of the U.S. Constitution, etc. Understand that as a pro se litigant (i.e, one not represented by a lawyer), you are still held to the same court rules and standards as licensed attorneys in defending your case. The Court will not accept or acknowledge paperwork and pleadings that grossly fail to conform or comply with Court rules, or are not served in a timely manner.
7. Often times clients serve their Answer only on the court, or only on the law firm who sued them. Both the Court and your adversary (the firm suing you) must receive copies of your Answer within 35 days of the summons date, or else you will be in default. Any copy filed with the Court must also contain a sworn Certification that you served a copy of the Answer on your adversary. The best practice is to serve your Answer on both the Court and your adversary as soon as possible, by BOTH regular and certified mail, return receipt requested. Make sure to keep the green certified mail return postcards in a safe place once you receive same back, so that you have ironclad proof of service.
PART II- “What happens after I Answer?”
Usually in Special Civil Part, the Court will mail a small beige postcard out within a week or two of receiving your Answer. The postcard will inform you of your trial date & time, and usually the name of the judge and the courtroom number where your trial will take place.
Shortly after receiving your Answer, typically your adversary (the law firm which sued you) will contact you via a letter or phone call and offer to settle your case before trial, often via a payment plan arrangement. They may even offer to settle your case for LESS than the amount demanded in the Complaint.
If you decline these offers and instead demand a trial, you’ll next receive in the mail a set of written interrogatories. This will be a list of several difficult to answer, compound questions. Some of the questions may be worded in awkward ways, or you may no longer have the documents needed to answer them (such as old credit card agreements, old bills/bank statements, etc). You also need to be VERY careful in answering interrogatories, as your answers become evidence which can be used against you at trial. You have 30 days to answer the interrogatories.
If you ignore or fail altogether to answer the Interrogatories, the plaintiff will file a motion to compel you to answer, or else your Answer may be stricken, and you may ultimately lose the case and be liable for the amount sued for.
NOTE: Many clients don’t realize that interrogatories work both ways, meaning that YOU as a defendant can also serve interrogatories which the Plaintiff is compelled to answer. Problem is, you need to know not only which questions to ask, but also how to draft/phrase questions in a way that is best calculated to help your case.
If you do answer the plaintiff’s Interrogatories properly and in a timely fashion, the plaintiff may respond by:
1.) Stating that your answers were evasive or non-responsive; or
2.) Filing a “Motion for Summary Judgment.”
A Motion for Summary Judgement is a pleading which sets forth the key facts of the plaintiff’s case, and asks the Court to simply grant them their entire judgement prior to trial based on their motion papers, as “no material facts are in dispute” and they are thus entitled to judgment as a matter of law. Opposing a Motion for Summary Judgment can be tricky and difficult, and explaining all of the factors and arguments that can be pled in opposing their motion is well beyond the scope of this blog post. Summary judgement motions must be opposed in writing. Typically, a written opposition is filed with the Court and a copy sent to your adversary, and on the motion date the court then hears oral argument, where you can advocate your case in person. But again, you’ll never “get your day in court” if you do not oppose the Summary Judgment motion in writing and serve your opposition papers in the timeframe mandated by the Court rules.
DO I REALLY NEED A LAWYER?
Surfing the Internet, I’ve seen many, many posts from different blogs and forums about how to defend NJ Special Civil Part cases on one’s own without a lawyer. Although there are some “victory lap” stories where a non-attorney was able to beat a debt collection suit, the majority of these stories/posts are from people who have lost their case and go online to “vent” about the unfairness of the justice system, tout various conspiracy theories, and complain about their wage garnishment or empty bank account, etc. Sadly, these folks have learned a VERY expensive lesson. Remember, the debt collection attorneys do this for a living, and are skilled at exploiting the law and court rules to their advantage.
I often wonder how many of these angry, disappointed folks would have had a vastly different result had they hired their own collections defense attorney EARLY in the process, preferably within a few days of getting served with the Complaint? How many of these cases could I have easily won? How many could I have negotiated the amount owed down to peanuts? How many of them had valid Fair Debt Collections Practices Act violations against the collector, where THEY could have been awarded damages from the collector instead of vice-versa?
My office has had outstanding success at aggressively defending collections lawsuits in NJ Special Civil Part. In many cases we have won the case outright, forcing the collector to walk away empty-handed. We have also negotiated the debt amounts down significantly, sometimes as low as 20 cents on the dollar. Understand that debt collections is a “volume business,” and for every case the collectors have to fight, there are 100 “easy pickins” cases where the defendant never files an Answer and the collector gets a default and then simply executes a bank account levy or garnishment. Most collectors would rather not waste time and resources fighting a collection case on the merits, especially if an experienced collections defense attorney (like myself) is making the process long, difficult, time-consuming, and miserable for them.
Don’t be “easy pickins” for the collection lawyers -call us TODAY at 908-782-5313. Our rates for collection defense assistance start at just $375. When you consider that we could save you thousands off your case, it’s foolish to “go it alone.” Call us today!
NOTHING IN THIS POST CONSTITUTES LEGAL ADVICE. ALSO, BE ADVISED THAT CONTACTING OUR FIRM THROUGH THE “CONTACT US” FEATURE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.