How to answer a lawsuit from creditor? That?s a common question many debtors have when they?re suddenly faced with a complaint and summons. First, determine whether you?re being sued in small claims court or regular civil court. Small claims court has more relaxed rules and procedures than civil court and each division has its own Rules of Civil Procedure. For example, the state of Florida has a document titled ?Florida Rules of Civil Procedure? which apply to all civil actions in the circuit courts and county courts. Small claims court has a document titled ?Florida Small Claims Rules?; the rules apply to civil actions in the county courts in which the amount does not exceed $5,000 exclusive of costs, interest and attorneys? fees. We?ll be referencing the ?Florida Rules of Civil Procedure?, unless otherwise stated. To recap, determine what court you?re being sued in and then get the Rules of Civil Procedure that govern that court. You may also discover that the court created a pamphlet that summarizes the Rules of Civil Procedure for the court; for example, the state of Kansas has a pamphlet titled ?Small Claims Court? ? What is it? How do I use it?
A side note; few people will have the intellect to acquire the knowledge of an experienced collection attorney by reading law books and pamphlets; however, the knowledge you gain from reading law books will hamper the creditor?s attorney from taking the short route in ending litigation as soon as possible. For example, a collection law firm website states that a Summary Judgment is an important tool to ending litigation earlier; Summary Judgment also exposes the debtor?s defenses before trial. The law firm has also identified five pressure points during the litigation process, when the debtor is more willing to strike a settlement and guess what ? filing a Summary Judgment is one of those pressure points. The law firm states that a Summary Judgment is another headache for the ?pro se? debtor in terms of time and costly for the debtor who is represented by an attorney; the attorney has to put in time to answer the Summary Judgment. Furthermore, certain rules and procedures that must be followed for a Summary Judgment; if you fail to follow the rules, fail to dispute affidavits and/or carefully draft your answers to interrogatories, admissions and depositions then you may inadvertently put yourself into a position for the court to grant the creditor a Summary Judgment. The law firm states that few Summary Judgments are actually granted; hence, we can speculate that debtors who have no clue about what?s going on during the legal process are losing lawsuits due to Summary Judgments. Those debtors that took the time to learn about the rules and procedures pertaining to Summary Judgments may easily dodge the knock-out punch thrown by the collection attorney.
The ?Florida Rules of Civil Procedure? does not tell you what to write as your Answer; however, it does tell you how you must answer the complaint and plaintiff?s pleadings. The plaintiff?s pleadings are plain and simple numbered statements containing the facts that support the plaintiff?s claim for relief and a demand for a judgment. The debtor?s Answer should be stated in short and plain terms, consisting of defenses to each of the creditors claims and should admit or deny the creditors? averments. If the debtor is without knowledge of the creditors averment, then the debtor shall state so and the debtor?s answer shall be treated as a denial. Affirmative defenses shall be set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. For example:
1. The Defendant opened a credit card account with ABC Bank with account number: 4011-5565-8789-8548.
2. The Defendant account balance on said credit card is $8700.00.
3. Authorized users were given access to the credit card to buy travel packages for personal use with no intentions of repaying back the debt.
4. The Defendant owes the Plaintiff $8700.00.
1. Defendant admits having a past business relationship with ABC Bank. Defendant denies the remaining allegations in paragraph 1 of the complaint.
2. Defendant denies the allegations of paragraph 2 of the Complaint.
3. Defendant is without sufficient knowledge or information to form a belief as to the truth of the allegations in paragraph 3 of the Complaint, and therefore deny them.
4. Defendant denies the allegations of paragraph 4 of the Complaint.
a. Plaintiff?s claims are barred in whole or in part by the doctrine of laches.
2. Failure of Consideration
a. Plaintiff?s claims are barred in whole or in part by failure of consideration.
3. Unclean Hands
a. Plaintiff?s claims are barred in whole or in part by the doctrine of unclean hands.
WHEREFORE, Defendant respectfully request the following relief:
1. A judgment in favor of Defendant denying Plaintiffs all relief requested in their Complaint in this action and dismissing Plaintiffs? Complaint with prejudice;
2. That Defendants be awarded their costs of suit, including reasonable attorney?s fees; and;
3. That the Court award Defendants such other and further relief as the Court deems just and proper.
Demand For Jury Trial
In accordance with FL. R. Civ. P. 1.430(b), Defendant demands a trial by jury on all issues so triable.
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