Being served a summons and complaint can be a very stressful experience. Chances are this is your first experience with the legal system. Undoubtedly there are a number of questions running through your mind. This post will attempt to answer those questions and explain what options you have at this point.
What is a Summons?
A summons is an official order to appear before a court, judge or magistrate because you have been named as a party in a lawsuit. See a Sample Summons & Complaint here
What is a Complaint?
A complaint is a pleading filed by a Plaintiff stating the claims they have against the Defendant as well as the action they would like the court to take. Sample Summons & Complaint
I received documents that look like they are from a court. How do I know if they are authentic?
Debt collectors often style documents to look like official court documents in order to scare debtors into paying a debt. An authentic Summons and Complaint will be two separate clearly labeled documents that include the court, the parties and the claims against you. The Summons should also include the phone number of the court clerk. If you have received papers made to resemble official court documents you should contact an attorney to discuss possible claims under the Fair Debt Collection Practices Act.
The Summons says if a complaint is not filed within ten (10) days after service the lawsuit will be deemed dismissed and I won’t have to file an answer. What does this mean?
A Plaintiff can bring a suit against a Defendant in one of two ways. One way is to file the Complaint with the court first and then serve the Summons and Complaint on the Defendant. The second way is the same process in reverse; the Plaintiff serves the Summons and Complaint on the Defendant and then files the documents with the court. Most Plaintiffs use the first method because it allows them 120 days to serve the Defendant after filing the Complaint with the court. If the Plaintiff uses the second method, they only have 10 days to file with the court after serving the Summons and Complaint on the Defendant. If the Plaintiff fails to file within the 10 days, the lawsuit is dismissed.
How do I know if the Complaint has been filed with the court?
You can contact the Clerk of the court after 14 days to see if the complaint has been filed. The phone number for the clerk should be included in the Summons.
What if there isn’t a case number on either of the documents?
If the Plaintiff has properly served and filed the Summons and Complaint the court will assign a case and docket number within 14 days.
How long do I have to respond?
Utah Rules of Civil Procedure require that a response be made within 21 days of service. The 21 days begins the day after you were served the Summons and Complaint. Weekends and holidays are included, but if day 21 is a holiday or weekend then the response will be due the following weekday.
How should I respond to the Summons & Complaint?
You have three general basic options. You can ignore the Summons and Complaint; you can contact the Plaintiff’s attorney and attempt to settle the claim; or you can defend the lawsuit. How you respond depends on the nature of the claims against you. Each of these options will be addressed individually.
What will happen if I ignore the Summons & Complaint?
This is probably your worst option. If you don’t respond to the Complaint it will be treated as if you admit to everything in the Complaint and the Plaintiff will be able to get a default judgment for the entire amount requested, whether it is accurate or not! In a debt collection case a default judgment will allow the plaintiff to begin efforts to garnish your paychecks, lien your home or repossess other personal property. Even if you believe you owe the money and will lose the case there are better options than a default. Talk to an attorney before you ignore a lawsuit.
Can I still try to settle the debt?
Yes. You or your attorney can contact the Plaintiff’s attorney to discuss possible settlement arrangements. Most debt collectors would rather settle the matter out of court, and are often more willing to negotiate than you might think. Attempting to settle is not an admission, and should not negatively affect your case should you ultimately decide to fight. It is important to remember that you still only have 21 days to respond the Complaint even if you are negotiating a settlement. It is not uncommon for debt collectors to seek a default against someone while negotiations are ongoing.
Should I defend against the lawsuit?
The simple answer is yes. Even if you believe you owe some amount, it is up to the Plaintiff to prove that you are the debtor, that the debt is accurate and that they are legally entitled to collect it. This is harder than you think and a lot of Plaintiff’s, debt buyer in particular, don’t have the evidence necessary to do so. Depending on the facts, you may have defenses strong enough to have the case dismissed or at least reduce the amount owed. Answering a complaint can be complicated and if done improperly may result in waiving certain defenses or counter-claims. Talk to an attorney before you try to file an answer on you own.
What happens after I respond to the complaint?
Answering the Complaint is only the first step in the litigation process. Generally speaking, the complaint and your response make up the pleading stage which is followed by the discovery stage. During discovery the parties gather and share the evidence they will need to prove or disprove the allegations made in the complaint. While responding to a complaint does not mean you have to litigate the lawsuit all the way to trial, it will start the clock running on a number of important deadlines. This is good time to consult an attorney if you haven’t done so already. If you’re thinking of representing yourself, be prepared to learn the Utah Rules of Civil Procedure.
Will I have to testify in court?
Probably not. Very few debt collection cases go to trial. If you represent yourself you may have to attend pre-trial conferences, but all court filings can be mailed to the court and the Plaintiff’s attorney.
Do I need an attorney?
Whether or not you need to hire an attorney depends on the nature of the case against you, the amount in controversy, your desired outcome and your willingness to devote the necessary time and energy to the lawsuit. There are situations where hiring an attorney doesn’t make sense and it is certainly possible to represent yourself pro se, but it is always a good idea to talk to an attorney before you decide to go it alone.
The Law Office of Grant D. Gilmore specializes in defending individuals against debt collection lawsuits and negotiating settlements with debt collectors and debt buyers.
Grant regularly achieves results that cover the cost of his fees. Whether you just received a Summons and Complaint, got a judgment against you or are somewhere in-between, I’m here to help. Contact me today to schedule a consultation.