Do It Yourself Debt Defense – Defending Creditor Lawsuits
Step 1: Do It Yourself Debt Defense Michigan
This guide provides general information for Michiganders who are facing debt collection lawsuits in the Michigan State civil courts. It does not apply to courts outside the state of Michigan. It is not a substitute for obtaining legal advice in your individual case.
Can a creditor sue me if I owe them money?
Yes. In fact, these days it is quite common for creditors to file lawsuits to collect debts. In Michigan, the creditor should file the lawsuit in the county where you reside. If they have already obtained a judgment against you then all post judgment proceeding will take place in the county court where the judgment was entered. That’s even the case if you have moved to another county or state.
It is illegal for the creditor to file a collection lawsuit against you in a county other than where you live even if you incurred the debt in one county but subsequently moved to another county before creditor filed the collection lawsuit. See 11 USC § 1692 i(a)(2) Filing any legal action in a location other than where contract signed or where consumer resides violated the FDCPA.
What is a debt buyer?
A “debt buyer” is a company concentrates in buying and collecting old debts for pennies on the dollar. Your creditor might sell your debt obligation to a debt buyer and enjoy a great tax benefit to boot. The debt buyer will then try to collect the debt from you. This practice is legal. Debts are often bought and sold more than once.
Can a debt buyer sue me for one of my old debts?
Yes. If your creditor has sold your debt to a debt buyer, the debt buyer can sue you to collect the debt. This practice is legal.
If a creditor or debt buyer sues me, should I hire a lawyer?
In an perfect world, every consumer in a debt collection lawsuit would be represented by a lawyer. However, most low income Michiganders who have been sued over a debt will be unable to obtain free legal representation. The exception to this is when the creditor or debt collector (or debt buyer) violates state or federal collection laws. Unfortunately, hiring a private attorney can often cost almost as much, if not more than, the debt itself. Realistically, most low income Michiganders have no choice but to represent themselves in court.
Do not ignore a debt collection lawsuit because you cannot hire a lawyer. Hundreds of Michigan consumers defend themselves in debt collection cases every day, and many do so successfully. Fortunately, a debt collection case is relatively simple and straightforward as compared to other kinds of legal cases. Debt collection attorneys often bank on the fact that unrepresented defendants do not know their rights.
You can fight back by educating yourself about your case and any defenses to which you may be entitled!
Read the information in these pages to familiarize yourself with the court process and the issues you will face as a pro se defendant (“pro se” means “without a lawyer”). If possible, consult with Rex Anderson PC or another law firm or attorney to obtain advice about potential defenses in your specific case. A little information can go a long way.
Who is a plaintiff?
A plaintiff is the party who files the lawsuit. If a creditor or debt buyer files a lawsuit against you, the creditor or debt buyer is the plaintiff.
Who is a defendant?
A defendant is the party who is sued by the plaintiff. If a creditor or debt buyer files a lawsuit against you, you are the defendant.
What is a summons?
A summons is your official notification that you have been sued. It tells you how and where to appear in order to defend the case. It is usually accompanied by a complaint.
What is a complaint?
A complaint sets for the reasons why you have been sued. It contains alleged facts and legal claims that are the basis for the lawsuit. In debt collection cases, the complaint is often very short and may provide very little information.
What is an answer?
An answer is an official written response to a complaint. In your answer, you should write all the defenses that you want to raise in the case.
What is a counter-claim?
A counter-claim is a claim that you have against the plaintiff. The plaintiff may owe you money, or the plaintiff may have violated your rights or caused you some other kind of harm for which you want to recover money damages. You always have the right to file a counter-claim against the plaintiff along with your answer. In many cases, it is better to win your state court collection case and then file a lawsuit in federal court for violations of the Federal Fair Debt Collection Practice Act (FDCPA).
What do I do if I receive a summons and complaint?
DO NOT IGNORE IT. You should always respond to a summons and complaint. The correct way to respond is to go to the clerk’s office at the address provided on the summons and tell the clerk that you want to file an answer. The clerk will give you an answer form and can help you to complete it. For more detailed assistance filing your answer, contact Rex Anderson PC at 810 653-3300.
Is there a time limit for filing an answer?
Yes. If you were served with the summons and complaint in person, you must file your answer within 21 DAYS. “In person” means that a process server came to your home or place of business and gave the papers to you personally.
What if the time for filing my answer has already expired?
You should try to file an answer anyway. As long as there is no judgment against you, the court will usually accept a late answer.
What should I write in my answer?
Your answer should contain all the defenses that you want to raise in your case. For more information, see Common Defenses to Creditor Lawsuits or call Rex Anderson PC at 810 653-3300.
If you are rushed for time and do not know what to write, just write to the court that you’re not sure you owe the debt or at least how much the collector says you owe. You can always amend your answer later. However, if you want to raise a defense of improper service, you have to do it in your first answer, or you will not be able to raise it later.
What will happen if I ignore the summons?
If you ignore the summons, the plaintiff will almost certainly ask the court to award a judgment against you. This kind of judgment is called a “default judgment.” A default judgment usually awards the plaintiff everything that it asked for in the complaint, plus interest and court costs. The judgment will appear on your credit report, and it can stay there for up to ten years if not satisfied and it can be extended another ten years just before the first ten years expires.
The judgment will allow the plaintiff to try to collect money from you by freezing your bank account seizing your tax refunds or garnishing your wages. You can avoid a default judgment by filing an answer and appearing in court.
What happens after I file my answer?
After you file an answer, the court will notify you of your first court date. Your first court date within a couple months after you file your answer, depending on where you live and which court you are in. It is very important that you attend this court date. If you fail to attend the court date, the court will allow the plaintiff to take a default judgment against you.
What is the “burden of proof”?
The ‘burden of proof” is the obligation to provide evidence in support of a legal claim.
Who has the burden of proof in a debt collection case?
The plaintiff — the creditor or debt buyer — ALWAYS has the burden of proof in a debt collection case. This means that the plaintiff has to come up with evidence to prove to the court that (1) the plaintiff has the right to sue you (i.e. owns the debt and has standing to sue); (2) the debt is yours; and (3) you owe the exact amount of money that the plaintiff claims you owe. You do not have to prove that you do NOT owe the money. Rather, the plaintiff has to prove that you DO owe the money.
Know Your Rights!
As a defendant in a court case, you always have the right to “put the plaintiff to its proof.” That means that you SHOULD insist that the plaintiff come up with actual evidence to prove that you owe a debt. Don’t be intimidated by the plaintiff’s lawyer or the court personnel. Remember you should always be truthful in court but you do not have to admit that the plaintiff’s allegations are correct especially if you don’t have any evidence or old statements which connect you with the account number which the plaintiff claims to be yours.
Plus, many collectors add illegal interest charges and fees that they cannot justify or prove. This is especially true where the debt buyer cannot produce a fee application or contract or amended contracts which specifically show what the terms of the credit extension were.
What kind of evidence does the plaintiff need to show to meet its burden of proof?
If you admit that the plaintiff’s allegations are correct, then the plaintiff can rely on your admission to win the case. But if you challenge the plaintiff’s right to sue you, the existence of the debt, or the amount of the debt, and terms of the loan then the plaintiff must provide the following evidence to the court:
Proof that the plaintiff has the right to sue you. In the case of a debt buyer, the debt buyer must prove that it owns your debt by showing the court the contract of sale. This contract is called an “assignment.” The assignment must mention your debt specifically. If your debt has been bought and sold multiple times, the debt buyer must present a chain of assignments that goes all the way back to your original creditor.
Proof that the debt is yours. Usually, this means an original contract with your signature.
Proof that the amount demanded in the lawsuit is correct. Usually, this means a complete set of bills or account statements. In the case of a credit card, the plaintiff also has to prove that each and every charge on the card was authorized.
All of this proof must admitted into evidence or made part of the record, or else it is considered “hearsay,” which not admissible in court. If the plaintiff fails to meet its burden of proof by coming up with admissible evidence of your debt, the court should dismiss the case.
How can the burden of proof help me get a better outcome in my case?
The plaintiff has to show a lot of evidence in order to meet its burden of proof. This evidence is often difficult or expensive for the plaintiff to produce. If your debt is old, or if it has been bought and sold multiple times, evidence of your debt may not exist at all. It is almost always much easier and less expensive for the plaintiff to negotiate a settlement with you than to come up with all the evidence needed to meet the burden of proof. That is why the plaintiff will nearly always want you to agree to a settlement.
If you believe you do not owe the debt, then never agree to a settlement. Insist on your defenses and make the plaintiff prove its case. If you have a good defense, you have a good chance of winning the case.
If you would prefer to negotiate a settlement, use your knowledge of all the documents which the plaintiff need to produce to get a settlement that works for you.
If you can’t afford to make a settlement agreement, or if your income is exempt from debt collection, you should put the plaintiff to its proof. There is a good chance that the plaintiff will be unable to meet its burden, and hopefully the case will be dismissed.
Remember: If you do not appear in court, you will automatically lose. Showing up is more than half the battle!