A debt collection lawsuit is not a death sentence, especially if you can come up with a strong defense to fight it back. Here are some points for consideration when looking for a successful defense to a collection lawsuit.
What should I do if I cannot repay a debt?
Communicating with the creditor about your ability or inability to pay is often the first step. But if the creditor is not satisfied with your initial response, it is advisable to consult with an attorney that specializes in debt collection law to avoid being served a summons and complaint by the creditor.
Does the creditor have the right to sue me?
Any creditor wishing to sue you is legally required to prove that:
- The debt is valid;
- They are legally entitled to sue you for collecting said debt.
An experienced attorney in this area of law can review your case and challenge the creditor’s right to file and pursue the lawsuit. Usually, by the time a debt collection lawsuit if filed, the debt may have been sold and re-sold, so it is important to verify the validity of the debt at the time of the trial.
What are the primary legal defenses against a collection lawsuit?
There are two defenses against a collection lawsuit: if the creditor fails to prove its case against you or if the debt is not valid, meaning you cannot be sued for this debt.
If either of these scenarios bears out, then the case gets dismissed, and you are not responsible for the repayment of the debt or any of the associated costs. In fact, you can be compensated for your attorney fees and court fees associated with your defense.
What other types of defense are there?
There are other winning defenses to collection lawsuits such as:
- Insufficient service of process
- Mistaken identity or identity theft
- Statute of limitations
- Being only an authorized user
- Disputed amount of the debt and/or payments
- Collateral is not sold at a fair market price.
What factors are not considered a defense?
It is understandable that circumstances beyond your control may have affected your ability to repay a debt to a creditor. It is important to know that when outlining a defense to a collection lawsuit, the following reasonings cannot be used as a legal defense:
- Paying late or not honoring your credit obligations
- The current inability to pay the debt
- Citing the unwillingness of the creditor to accommodate a new payment arrangement
- Putting forward a settlement offer or payment agreement.
Why did I receive a summons and a complaint?
A summons and a complaint are served upon you when a creditor files a lawsuit with the court seeking repayment for the credit extended to you and often, the repayment of any fees associated with the creditor’s attorneys, court costs, and interest that may have accrued on the debt owed.
Once the creditor files the lawsuit, a legal response is needed by you which is prepared with the assistance of an attorney. Refusing to respond could result in the court awarding the creditor with a default judgment against you.
This judgment sets in place a legal pathway to allow the creditor to take additional legal steps to secure repayment of the debt and any other costs outlined within the summons and complaint. Due to these risks, when replying to a summons or a complaint, it is best to allow a debt collection attorney to draft the response on your behalf.
Our debt collections attorneys are experts at assisting clients with their defense to these types of lawsuits. See whether any of the defenses listed here apply to your case and start your consultation with a debt collection attorney today! (More details in the link.)