In this article we’re going to talk about filing a response to the lawsuit. We have some videos we’ll show you on Answering and defending yourself. We’re going to talk a little bit about your choices of how you defend yourself, and I want to give you some “caveats” to consider.
Then we’ll get to the Answer so you can see how that’s done. Our point here is to “orient” you to the lawsuit so that you have a basic idea what to do. Our materials are designed to help you through the lawsuit and let you represent yourself the whole way if you choose.
In our next article we’ll move on to the other phases of the program
As we’ve discussed in other videos, if you’ve been served with a lawsuit, you have only four basic choices. If you’re here, we’re assuming you’ve decided to fight one way or another, and if your second decision was to hire a lawyer, you should let him or her guide you in making the other decisions. We’re going to assume, for purposes of this series of messages, that you have decided to represent yourself – or that you want to learn more for yourself even though you’re getting a lawyer. That’s always a good idea.
If you are going to do this, you will have to decide whether to attack the court’s jurisdiction over you or not. If there was something fishy about the way you got served, our materials can help you with a motion to quash service, but that is beyond the scope of this informational series. We don’t have a specific product for just this motion because it is highly fact-specific and depends heavily upon state laws of civil procedure – and because it is just a first step in a litigation defense. If you need help attempting to quash a lawsuit, you will also need help in defending it the rest of the way. You will need the Debt Defense System.
Most people actually do not need to concern themselves with motions to quash – most process servers get the job done right, and so your next decision is whether to attack the suit through a motion to dismiss or to file an Answer.
Here’s a brief video on Motions to Dismiss.
Motions to dismiss are filed for a variety of legal reasons, and again they are too fact specific, and depend too much on your own state’s laws, for us to be able to demonstrate here how you would do such a motion in your case if you think there is one. The Debt Defense System materials do help with that, and we would just suggest that you check your rules of civil procedure to see if you need to be filing a motion to dismiss before answering.
What we’re going to do today is show you how to file an Answer and Counterclaim. The Answer is pretty generic and will probably be easily applicable to your situation. The counterclaim may or may not apply – it would depend on whether you are being sued by a debt collector, and if so what, if anything, it has done wrong. So you should definitely not just cut and paste the counterclaim part of this message. The Debt Defense System will help you look at debt collector behaviors that might have violated the Fair Debt Collection Practices Act (FDCPA) and file a counterclaim if you have one.
Deciding to represent yourself is not quite a one-way decision. That is, it is possible to find a lawyer,
sometimes, if you start representing yourself, but it can be very difficult. Many lawyers will not touch
a case where the client filed anything. And many will charge you the same, or even more, than they would have if you had never filed anything. That’s because if you file something, the lawyer has to spend time reviewing that to see whether you’ve made any damaging admissions and what, if any, response the other side has made.
So if you’re thinking that you will represent yourself for a while to save money and then turn it over to a lawyer, you should consider that carefully – getting a lawyer to come in at the last moment is hard and not necessarily a good idea anyway. And may be more expensive than hiring one in the first place.
If you think you need a lawyer and can afford one, get one now – that’s my advice.
On the other hand, you can do this – and if you think you need to do any of it, better to plan to go all
the way if necessary. Most cases don’t go to trial, but if yours does, we will have you ready for it. As a pro se defendant you do have certain advantages going for you, and if you are willing to work at it a little bit, you can do this as well as most lawyers would do it.
Even if you have a lawyer or plan to get one, our materials could still be for you. It is a reality of legal life that lawyers charge for their time – and if yours is not charging you for his or her time, they’re either preferring to keep the chat down to a minimum or are spending less time on your case. Either of those could be unsatisfying. An educated client is a good thing.
Okay – so what is an Answer? It is your formal reply to the lawsuit. If you’re being sued, the debt collector is saying you owe money and, at least in general, why.
Your Answer is basically going to deny that. You’ll see a sample answer below. Notice how brief it is, in the first place. Doing an Answer is easy. Notice that there’s no hifalutin talk, nothing fancy. They say you owe money. You say you don’t. The point of the Petition and Answer is to establish what will be the main points of dispute of the lawsuit.
Notice also that the sentences or paragraphs are numbered. Those numbers correspond to specific paragraphs (called “allegations”) in the debt collector’s suit.
You won’t argue over your name and address or residence in most cases, but you will dispute the debt collector’s ownership of the debt, the amount, and the claim that you owe anything. And anything else that makes sense to object. The hurdle here should be very low. You will likely dispute almost everything.
You don’t swear to your Answer, and you aren’t required to admit anything. You are setting out the factual points you want to make the other side prove.
IN THE ASSOCIATE CIRCUIT COURT
OF THE COUNTY OF XXXXX
STATE OF XXXX
DEBT COLLECTOR COMPANY, LLC,
ASSIGNEE OF CC COMPANY (Mastercard),
JOHN Q. PUBLIC,
ANSWER AND COUNTERCLAIM
COMES NOW defendant, Joe Consumer, and states for his Answer as follows:
ANSWER COUNT I
1. Defendant is without knowledge of the corporate organization of plaintiff and accordingly denies. Defendant denies that any cause of action has accrued in favor of defendant.
ANSWER COUNT II
1. Defendant incorporates by reference each response to allegations of Count I as if fully set forth herein.
AFFIRMATIVE DEFENSES TO COUNTS I AND II
1. Plaintiff is barred from bringing this action by the doctrine of unclean hands in that it has misused the judicial process as an improper collection device.
2. Plaintiff is seeking a debt that never was incurred, or was incurred by fraud, all in violation of the Your State Merchandising Practices Act and therefore should take nothing from this lawsuit.
3. The debt upon which Plaintiff is seeking to collect is beyond the statute of limitations in that it was incurred on May 6, 1922 and was defaulted with no further payments as of May 31, 1997.
Wherefore, Defendant prays that plaintiff’s cause of action be dismissed with prejudice at plaintiff’s costs, and that plaintiff be sent forth without remedy, and for such other, and further, relief as this court deems proper in all the circumstances.
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