Sunday, August 22, 2010

What Consumers Can Do When Sued on a Debt

Below is an article I wrote for the Ohio State Bar Association's "Law You Can Use Column".  Many people think that if they get sued on a debt, there's not anything they can do.  Many times they have questions.  Here are some answers.

Q.: I received a summons from a court on a debt. What can I do?

A. It is important to file an Answer to the complaint. To respond to a lawsuit in Ohio state courts, you or your attorney must do so in writing within 28 days of being served, or ask the court for additional time to respond. If you dispute the amount, or if you’ve never heard of the company that is suing you, you may want to consult an attorney. If your debts are overwhelming, and you won’t be able to pay them off in the future, you should find out whether bankruptcy is an option for you. On the other hand, if you know you owe the creditor the amount demanded, and you can afford it, you may want to consider working out a payment plan. If you do, make sure you get any agreement in writing.

Q.: I owed a credit card company money, but now a different company is suing me. How do I know the second company really bought my credit card account?

A.: A number of businesses buy large numbers of older accounts, like credit card debt, for a few cents on the dollar, then attempt to collect it. If a debt buyer sues you, it must prove that it owns the account and that you opened an account. You must follow the court process to force the plaintiff to prove its case. The debt buyer also must provide evidence of the credit terms as well as evidence that you owe the amount claimed due. This sounds easy, but often these debt buyer companies do not have enough evidence to prove their claims in court.

Q.: I do owe the money, but just can’t afford to pay anything now. What will happen to me?

A.: If the company suing you proves their case, a judgment may be entered against you (meaning that the court determines you must pay). Up to 25 percent of your wages may be garnished in Ohio, and the creditor may take money from your bank accounts, unless your bank account contains only exempt funds. Examples of exemptions are Social Security money, student loans and certain other government benefits. Exempt funds will be garnished, however, unless you inform the court and the plaintiff, in writing, that the money in the account is exempt. If the creditor cannot prove its case, the creditor will not get a judgment against you, and will not be able to garnish your wages or bank accounts. You cannot be put in jail for simply owing money.

Q.: I have a dispute with the business that is suing me. How does that affect the lawsuit against me?

A.: If you have a claim against the company suing you, you can bring a counter-claim. In some cases, if you do not bring a counter-claim in response to being sued, you will not be able to bring your claim later. A counter-claim is basically a lawsuit against the creditor, but the creditor’s claim and your counter-claim will be decided by the court in the same case. Examples of counter-claims include claims against a debt buyer for unfair or deceptive methods of debt collection, claims against car dealers for deceptive sales practices, and violations of other consumer protection laws. A company that buys accounts may also be responsible for claims you have against the original business from whom it bought the account.

Q.: I think I need a lawyer, but I can’t afford one. What can I do?

A.: Some attorneys may represent you in your debt case for a flat fee. Some consumer protection laws may force the business to pay your attorney fees if you win. If you have a claim against the company suing you for a violation of certain consumer protection laws, an attorney may represent you without pre-payment of the fees, and attempt to collect your attorney fee from the business. Call your local bar association for a referral. If you make under a certain income, you may qualify for representation by a legal aid organization.

Greg Reichenbach

No comments:

Post a Comment