Being sued? In order for a creditor to sue you, they must do certain things in a certain order. If the alleged debt is based on an account of some sort, such as a credit card account, they must send you a statement of the account. They must then make a demand for payment from you in writing.
The creditor can then start a civil action against you. To do this, they must retain a debt-collection attorney who will draft and file a summons and complaint with the proper court. The summons has to say the words, “consumer credit transaction,” and the debt-collection attorney must pay an additional fee to the court for bringing this type of action. The debt-collection attorney will then hire a process server to deliver a copy of the summons and complaint to you.
If you receive a copy of a summons and complaint, you must act immediately. Do not mistakenly think that because you feel that the summons and complaint were not served properly that you do not have to answer – you do. Since the time to answer a complaint is limited by law, you should immediately retain an experienced debt-collection defense attorney to defend you. Do not try to represent yourself, as that will likely lead to a judgment being entered against you with no way to vacate it. Instead, write down the date, time and manner that you received the summons and complaint, and give that information to your debt-collection defense attorney. You must also provide your attorney with a copy of the summons and complaint, and any other papers you received related to the matter.
The first thing your debt-collection defense attorney will do, after consulting with you and reviewing all of the papers, is draft, serve and file an answer to the complaint, in which all of your available affirmative defenses will be raised. An affirmative defense is a defense, which, if successfully established, will negate, either partially or completely, the allegations of the plaintiff. Properly applying affirmative defenses is something only a knowledgeable attorney generally can do. Any affirmative defense that is not raised is considered to have been waived.
After your answer is served and filed, there will probably be some discovery. Discovery is the legal name for the exchange of documents and information about the case that the parties are entitled to, upon a proper demand. After the parties have exchanged all of the information requested of each other, there will usually be some motions made.
A motion is a written request to the court to grant a party some form of relief. The party making the request is called the movant. The most common type of motion in debt-collection cases is the motion for summary judgment. Summary judgment is a drastic remedy available only when there are no genuine issues of fact in dispute that require a trial. Essentially a party moving for summary judgment is asking the court to decide the case in his or her favor based solely on evidence and supporting affidavits. When the plaintiff makes such a motion in a debt-collection case, it is asking the court for a monetary judgment against you. When a defendant makes such a motion, he or she is asking the court to dismiss the action. If either party is successful in moving for summary judgment, then the case is over.
But if the court does not grant summary judgment to either party, then the matter will proceed to trial. In the District Courts of Nassau and Suffolk County, if the amount being sued for is $6,000 or less, then the matter must be heard by an arbitrator and not a judge. An arbitrator is an attorney appointed by the court and given the power to decide a case in a similar manner to a judge. Arbitrations are less formal than trials and usually do not occur in a courtroom, but rather in some other room of the courthouse, and each party is given an opportunity to state their case and introduce evidence. At the conclusion of the arbitration, the arbitrator will either decide the case or reserve his or her decision, which means you will have to wait to receive the arbitration report and award in the mail.
Any party who appears for an arbitration, either in person, or by an attorney, but does not like the decision of the arbitrator, can file a demand for a trial de novo, with or without a jury. A trial de novo means a new trial before a judge, who will decide the matter anew, giving no consideration to anything that happened at the arbitration. In fact, you cannot even mention the arbitration at the trial de novo. A party that does not appear for the arbitration cannot request a trial de novo.
At the trial de novo, both sides will have the opportunity to present evidence and to have witnesses testify. Attorneys cannot testify or introduce evidence on their own. Rather, they must have a suitable witness with personal knowledge of the facts of the matter to authenticate any evidence to be submitted. Both sides will also have the opportunity to testify and to cross-examine each other’s witnesses. When the trial de novo is over, the judge will either make a decision or will reserve his or her decision.
The losing party at a trial de novo can appeal to the Supreme Court, Appellate Term, provided there is a good faith basis to believe that the trial court erred in some way. The time to appeal is limited by law and must be done soon after the decision of the trial court. Most decisions are not appealed from, however, which means the decision of the trial court usually ends up being final.
If the decision is in favor of the plaintiff, the court will enter a judgment against the defendant in whatever amount the court finds is due. If the decision is in favor of the defendant, the court will dismiss the action, which means the defendant can never again be sued for the same debt. Handling a debt-collection trial is very complex and you should never attempt it on your own. To reiterate, if you are sued by a creditor, the first thing to do is retain an experienced and knowledgeable debt-collection defense attorney to represent you.Have a Question? Leave a Comment Below.