Part 1—The Summons & Complaint
Part 3—After the Answer
Recapping Part One: If you're served with a summons and complaint in Minnesota, you must answer within 21 days. Even if it doesn't have a court file number. Even if the court tells you there's no record of it. If you don't answer the lawsuit, the creditor will win the case automatically without a court hearing. Period.
An answer is a formal legal document that responds to each of the allegations in the creditor's complaint. A phone call or letter isn't sufficient. Here are the five steps for answering a Minnesota collection lawsuit.
Step # 1: Fill out the case caption
Start your answer by filling out the case caption. This is where the name of the county and judicial district are listed. It's also where the plaintiff and defendant's names appear. You can basically copy the caption for your answer directly from the summons. Just change the title of the document from "summons" to "answer." When you're done, it should look something like this:
Step # 2: Respond to all of the allegations in the complaint
The body of your answer is where you respond to the allegations in the complaint. There are basically three responses to an allegation: (1) admit; (2) deny; and (3) deny based on a lack of information. It's probably best for your answer to have a separate paragraph that responds to each paragraph in the complaint:
Your responses must be truthful, so if you know that the allegation is true, you have to admit for. For example, if the collection lawsuit alleges that you live in Hennepin County and you live in Hennepin County, you have to admit it. On the other hand, if the lawsuit alleges that you live in Hennepin County and you live in Ramsey County, then you must deny that allegation.
Many times, you won't know the answer to an allegation. For example, many debt buyer lawsuits allege that the debt buyer purchased the account from the original creditor. Since you weren't a party to this transaction, you have no way to know if this allegation is true or not. So it's usually best to deny the allegation based on a lack of information. You only have to admit something that you know for a fact is true.
You should also watch out for multiple allegations in a paragraph. It's possible to admit one part of an allegation and to deny another. Read each allegation carefully and be sure to respond to all of its parts and sub-parts.
Step # 3: Add your affirmative defenses
The next step is to add your defenses. These should include any reason why you don't think you owe the money or why the creditor shouldn't win the case. Here's an example:
So what defenses should you include? Keep in mind, of course, that there has to be a truthful factual basis for any defense you include in your answer. With that caveat in mind, here are four defenses that should defeat a collection lawsuit and three that won't get you anywhere:
Good defense: Statute of limitations. The statute of limitations is the amount of time set by law for a creditor to start a lawsuit against you. In Minnesota, for example, the statute of limitations for most credit card lawsuits is six years. Other types of debt have different statutes of limitations. For example, a car loan typically has a four year statute of limitations.
Keep in mind that the statute of limitations provides that the lawsuit has to be started within the required time. It doesn't mean that the lawsuit has to be finished within that time.
Once you know what the statute of limitations is, you need to determine when it starts to run in your case. Generally, the statute of limitations begins to run on the first day that you are in default on your account. A quick way to figure out when your account went into default is to determine the date that you made your last regular payment. Although this won't always be a precise date that the statute of limitations began to run, it's a good estimate.
When you know the applicable statute of limitations and the date it started in your case, the rest is just simple math. Using Minnesota's six-year statute of limitations as an example again, if you defaulted on your account on December 15, 2015, the creditor must start the lawsuit against you no later than December 15, 2021.
Bad defense: Financial hardship. Unfortunately, the fact that you can't afford to pay is not a defense to a collection lawsuit. The issue in a collection case is whether you're legally obligated to pay, not whether you can afford to pay. That fact that you're unemployed, receive public assistance, or are otherwise "judgment proof" may mean that the debt collector will never collect any money from you. But it's not a legal defense to a collection lawsuit.
Similarly, the fact that the debt collector refused to work out reasonable payment arrangements with you is not a valid defense. While it can be frustrating when a debt collector won't work with you, a court doesn't have the power to force a creditor to accept a settlement or payment plan.
Good defense: Unauthorized use or fraud. Federal law provides that a cardholder is not liable for the unauthorized use of a credit card. The cardholder is not required to notify the issuer of the unauthorized charges to use this defense in a collection case. The creditor bears the burden of showing that the use of the card was authorized and the creditor probably can't meet its burden of proof by merely submitting billing statements and asserting the cardholder never objected to them.
Bad defense: No signed contract. In credit card cases, creditors typically don't have to produce a signed contract to win the case. Instead, credit card cases are often brought under a legal doctrine called "account stated." Account stated is claim where the creditor must show that the defendant received billing statements and didn't object to them. There are defenses to this argument, particularly if the plaintiff is a debt-buyer, but the point is that a signed contract doesn't have to be produced for the creditor to win.
Good defense: I already paid off this account. This goes without saying. If you've already paid off the account, you don't have to pay it again. In legal jargon, this defense is called accord and satisfaction.
Bad defense: Divorce decree says my ex has to pay. Just because your divorce decree ruled that your ex is solely responsible for payment doesn't mean you can't be sued for the account too. Divorce courts don't have the power to modify contracts between you and a third-party creditor.
Good defense: No evidence of assignment. Many collection lawsuits are brought by debt buyers. Debt buyers are companies who buy debts for pennies on the dollar and file lawsuits to collect the full balance. Because of this, it's not enough for the debt buyer to show that you owe the original creditor money. They also have to prove that they have been assigned the debt and are its current owner.
Step # 4: Sign the answer
After listing all of your affirmative defenses, you must sign your answer. When you sign, you're attesting that everything in the answer is truthful and that you're not using the answer for an improper purpose, such as to harass the other side or to commit fraud on the court. You should include your address and phone number in the signature block:
Step # 5: Mail the answer to the plaintiff’s lawyer
Once you've completed the answer, make two copies. You serve one copy of the answer by mailing it to the debt collector's lawyer. It's best fill out a sworn statement, called an affidavit of service, to prove when you served the answer. You can also just mail the answer certified with a return receipt.
Keep the second copy of your answer for your records. You'll need to file it with the court once the creditor opens a court file.
Ready to talk to a lawyer about your collection lawsuit?
Schedule a consult with debt defense lawyer Todd Murray.
Since 2009, Todd has helped hundreds of Minnesotans defend debt collection lawsuits. His work has saved his clients millions of dollars (and many sleepless nights). Todd’s clients have described him as “very professional and easy to work with.” He lives in Minneapolis with his wife and four children.