The First Step in a Debt Collection Lawsuit: Service of a Summons and Complaint
Have you been sued by a debt collector? Are you unsure what to do? This post is the first in a series about debt collection lawsuits. In this post will be explained the first stage of a collection lawsuit, the debt collector’s Complaint filed against you in court. The Complaint is served on you along with the Summons, which begins the deadline for you to respond — or else potentially be liable for the full debt. Read on to find out more.
Filing of Complaint
Every lawsuit begins with the filing by the plaintiff of a Complaint. The plaintiff, after all, is simply the term for the person who initiates the lawsuit. In virtually every debt collection case the plaintiff will be the debt collector, debt buyer, or creditor.
Some of the largest debt buyers and debt collectors operating in North Carolina are Unifund and Unifund CCR Partners, Portfolio Recovery Associates, LVNV Funding, Midland Funding and Midland Credit Management, Encore Capital, the Sherman Financial Group, and Resurgent Capital Services.
Under the court rules, called the North Carolina Rules of Civil Procedure, a debt collector’s Complaint must give “a short and plain statement of the claim” which shows that the collector is entitled to relief.” This is required under Rule 8. In debt collection cases this is typically nonpayment of the account at issue.
The Complaint will also state the identities and addresses of both parties, will explain why the particular county court has jurisdiction, and may state when the card was opened and when the alleged default occurred. Rule 8 also requires debt collectors to make a “demand for judgment for the relief to which he deems himself entitled,” which means they must state much money is being demanded.
The Complaint of a debt collector is almost always formatted so that each factual allegation is contained in a separate numbered paragraph. This is required under Rule 10. If a debt collector — or anyone else — files a lawsuit without separating each statement, then the case could be dismissed or the collector could have to refile. There is no specific court form that debt collectors are required to use for the Complaint because the requirements are all stated in Rule 10.
Unlike other types of cases, there are additional documents a type of debt collector called a “debt buyer” must file and serve you with along with the Complaint. (A debt buyer is a company that does not lend money or issue credit, and whose sole business is to purchase portfolios of defaulted accounts in order to collect on them, usually by suing them.) North Carolina has a law called the Prohibited Practices by Collection Agencies Act, G.S. § 58–70–150. It states that a debt buyer must attach: (1) a copy of the contract signed by the consumer, or if there is no contract, copies of documents generated when the card was used; and (2) a copy of all assignments of the debt showing every creditor, debt collector, or debt buyer who ever owned the account. If the debt buyer fails to attach these documents then the lawsuit can be dismissed. These requirements are not applicable to an original creditor who files the lawsuit.
A Summons is also sent to the court by the collector when the Complaint is filed. The Summons is a short document that tells you who is suing you, the case number, and the court in which the case was filed. Importantly, it also says that you have 30 calendar days to respond to the Complaint. The North Carolina state court system has a specific Summons form that is required.
The Summons and Complaint are taken by your county sheriff and delivered to you, which starts the clock ticking on the 30-day deadline. The sheriff’s delivering of the Summons and Complaint is called “service of process.” The sheriff will fill out the Summons with the date and location where you were served, and will send the Summons back to the court. North Carolina also permits service of process to be effected by certified mail, though this is rarely used in consumer debt collection cases.
People are often think that for service to be valid they must be personally handed the Summons and Complaint. This may be true in some states, but not in North Carolina. Under Rule 4 of the North Carolina Rules of Civil Procedure, the sheriff may either serve you personally or leave a copy of it “with some person of suitable age and discretion then residing therein.” Basically, the sheriff can leave the Summons and Complaint at your home with anyone who seems competent to accept it.
You then have 30 days to file a response to the collector’s Complaint. If you fail to do so, the collector may be able to have a judgment entered against you. When you do not respond, you will have little or no additional opportunity to contest the debt. This is why most debt collection lawsuits against most consumers are successful — successful from the debt collector’s point of view, at least. Over 90% of consumers simply do not respond to the Complaint at all, resulting in a judgment by default.
A debt collector’s judgment by default is equally valid as a judgment after a decision on the merits. Once a collector obtains a judgment against you then, subject to certain restrictions, they are permitted to sell real estate you own, attach your bank accounts, or seize other property you own in order to have it auctioned off to pay the debt. These are drastic consequences that will affect your ability to pay your mortgage or rent, buy groceries, or otherwise provide for your family.
There are many reasons consumers fail to respond to debt collection lawsuits. The consumer might not have an attorney, or might be confused about what to do, or, sometimes, might just be sticking his or her head in sand. None of these matter to the court or to the judge assigned to oversee your case — if you fail to respond to the collector’s lawsuit, you will lose.
The next post in this series will be about your response to the debt collector’s Complaint. There are two options when you respond: an Answer, or a Motion to Dismiss, both of which are filed pursuant to Rule 12. Keep reading to find out how you can deny the debt collector’s Complaint or even try to have the case against you dismissed.
DYE CULIK PC | Consumer Protection Division is a Boston, MA and Charlotte, NC consumer financial protection law firm. For over a decade our attorneys have been helping consumers and small businesses with issues related to debt, credit, and debt collection. For more on this series, see The Second Step in a Debt Collection Lawsuit.
SERIES ON DEBT COLLECTION LAWSUIT STEPS
Originally published at https://www.culiklaw-nc.com on June 29, 2020.