Not paying your credit card debt could leave you subject to legal action from the credit card company or a third-party collector. When a creditor sues you, it must provide you with a summons and complaint giving you the details of the suit and the opportunity to respond with a defense. If you have an affirmative defense, you acknowledge that you left your credit card debt unpaid, but assert that circumstances render the creditor unable to collect the debt through legal force. You must include your affirmative defense in your answer to the creditor's summons.
Read the complaint the creditor lodged against you with the court. The complaint is attached to the court summons and notes how much the creditor claims you owe.
Type out a heading for your answer. The heading should include the name of the court hearing the case, the plaintiff's name, your name and the case number.
Type out your answer. Note whether you agree or disagree with the issues noted in the complaint. For example, if you owe the debt but disagree with the amount your creditor claims you owe, include this fact in your answer.
Note any affirmative defenses you plan to use in court at the bottom of your answer. Print and sign your answer.
Make two copies of the answer.
Go to the courthouse and request a "Notice of Appearance" form from the clerk. The Notice of Appearance notifies the court that you intend to appear in court and defend yourself against the debt collection lawsuit.
Fill out the Notice of Appearance form. Include your name, the plaintiff's name, the case number and the date.
File the completed Notice of Appearance form to the courthouse along with your completed answer. This establishes your right to appear at the hearing and present your affirmative defense to the judge.
Send a copy of the answer noting your affirmative defense to the plaintiff. Keep the final copy for your own records.
Tips & Warnings
- Collection agencies file lawsuits hoping that debtors will not file an answer. Should this occur, the judge grants the creditor a default judgment allowing it to recover the debt by force. A collection agency would prefer not to fight a debtor in court. Filing an answer with the court---especially one that includes an affirmative defense---will sometimes result in the plaintiff dropping its case against you.
- You do not need an attorney to fight a debt collection lawsuit, but a licensed attorney can answer any questions you may have about claiming an affirmative defense and filing an answer to the summons.
- If you do not file an answer or a Notice of Appearance with the court, the judge will award your creditor a default judgment. Your creditor can use a default judgment to place a lien against your house and car, levy your bank accounts and garnish your wages.
- You must file your answer within a certain time frame. If you do not, the court does not have to allow you to claim your affirmative defense. This length of time you have to file your answer and claim an affirmative defense varies depending on your state. The court summons you received will note how long you have to respond to the creditor's complaint.
- Minnesota Judicial Branch: Filing a Summons and Complaint;
- JurisDictionary: Affirmative Defenses; Dr. Frederick D. Graves; 2009
- LawHelp: How to Answer a Lawsuit For Debt Collection; 2011
- Massachusetts Court System: Notice of Appearance; May, 2011
- Lawyers.com: Creditors' Legal Rights; William Fisher; 2010