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Do Not Defend Yourself in a Debt Collection Lawsuit
You have been served. Here is what to do in the first 48 hours, and why representing yourself in a debt collection lawsuit is usually the most expensive choice you can make.
What should I do when I get served?
Three things, in order.
Do not react. Process servers show up at home and at work. Take the papers, say nothing, and let them leave. Making a scene does not help your case, and nothing you say to the server helps either.
Read the whole complaint. Not just the first page. The plaintiff may have the wrong person, the wrong amount, or claims you did not expect. Scan every page, including the exhibits and the affidavit of service, because the defenses are often in the paperwork.
Call a lawyer before you do anything else. Do not file anything with the court, do not call the plaintiff’s lawyer, and do not contact the creditor. What you say and sign can be used against you.
Who files debt lawsuits in the DC region?
Credit card issuers, debt buyers, online lenders and landlords, mostly.
If you stop paying American Express, Discover or Capital One and they think you can pay, they sue. Debt buyers like Midland Credit Management and Portfolio Recovery Associates sue on accounts they bought from the banks. Online business lenders write their contracts so the case lands in Arlington General District Court no matter where you live, and landlords sue for the balance of a broken lease.
Every one of those plaintiffs has a lawyer. The question is whether you will.
Why do self-represented defendants lose?
Because the rules are the same for everyone, and the plaintiff’s lawyer knows them.
A Virginia legal aid study of general district court cases found that most civil cases involve at least one unrepresented party, and that represented parties win at substantially higher rates than unrepresented ones, on both sides of the case. Nothing about that is unique to Virginia.
The reasons are practical. A self-represented defendant misses a filing deadline and takes a default, or answers but never demands proof of the debt, or admits the debt on the record at the first hearing, or accepts the first settlement offer without knowing the plaintiff would have taken half.
Being right is not enough. You have to prove it under the court’s rules, on the court’s schedule.
What does a lawyer actually do in a debt case?
Four things that move the outcome.
Meets the deadlines. In DC you have 21 days to answer; in Maryland district court, 15 days to file a notice of intention to defend; in Virginia, a return date on the warrant. A missed deadline is a judgment.
Makes the plaintiff prove it. Debt buyers file boilerplate complaints and often cannot produce the chain of assignment or the account records. A lawyer asks for them, and plaintiffs that cannot deliver dismiss or settle.
Raises defenses you would not see. Statute of limitations, wrong party, miscalculated interest, FDCPA counterclaims.
Negotiates from knowledge. Knowing what a particular plaintiff accepts is what turns a full-balance demand into a discounted settlement. Here is how settlement works once you have been sued.
Is there ever a case I should handle myself?
If the amount is small enough that paying it costs less than a consultation, pay it and be done.
For anything else, the plaintiff did not spend money on a lawsuit over an amount it considers trivial. If it is worth suing over, it is worth defending properly.
What if I owe the debt and cannot pay it?
Then the lawsuit is a symptom. One judgment, garnished at up to 25 percent of your take-home pay, is bad enough. Several at once is unmanageable.
If this suit is one of several debts you cannot pay, a bankruptcy filing stops every one of them the day it is filed, including the garnishment that would follow a judgment. That is a conversation to have before the judgment, not after.
What should I do right now?
Do not freak out, and do not file anything. Find the response deadline on the papers and call me at (202) 448-5136 before it passes.
I represent defendants in debt collection cases in DC Superior Court and the Virginia general district courts of Arlington, Alexandria and Fairfax. The consultation is free.
Don’t walk into court alone.
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