Collection defense overview

The Minnesota Debt Collection Lawsuit Guide: Part 1—Summons & Complaint

This is part one of a three-part series about debt collection lawsuits in Minnesota:

Part 2—The Answer
Part 3—After the Answer

What is a Debt Collection Summons?

A debt collection summons is a notice that you’re being sued to collect a debt. The summons is accompanied by the complaint, which details the allegations the creditor is making against you. We refer to a summons and complaint, collectively, as a “lawsuit.”

What Does it Mean to Be “Served” With a Summons?

“Served” is just a fancy word for “notified.” Under the court rules, the defendant must get notice of the summons and complaint. This is typically done through personal service—where the summons is given directly to the defendant. A summons and complaint can also be served by leaving it with a person of “suitable age and discretion” at the defendant’s residence. In rare circumstances, a summons and complaint can be served by mail or even by publication in a newspaper.

Why Doesn’t the Summons Have a Court File Number on It?

In most states, debt collectors must file a case with the court before they can serve the summons and complaint on the defendant.

In Minnesota, however, the rules are different. Here, the summons and complaint can be served on the defendant without being filed with the court. This is called “pocket filing.” Because the case isn’t filed with the court at the time of service, it won’t have a court file number on it. And if you were to call the court and ask about the case, they would have no idea what you’re talking about.

Don’t be fooled by this. Just because the summons doesn’t have a court file number on it doesn’t mean that it isn’t valid. You still have to properly respond to the summons and complaint or you will lose the case by default.

So, What Do I Do With the Summons?

If you’re like many people, you’re tempted to do nothing and wait until you get a court date. Unfortunately, this common thinking is a huge mistake.

In Minnesota, you must answer a summons and complaint within 21 days of the date you are served. If you don’t, the creditor will apply for a default judgment. In a default case, the court considers all of the allegations in the complaint as true and gives the creditor whatever they’re asking for. In other words, the debt collector wins automatically—not because they have a better case, but because you didn't participate. In debt collection cases, a default judgment is entered administratively by a court clerk without a court hearing. In fact, in a default, a judge will never even see the case.

A default judgment is a court ruling that you owe the creditor money. And once a creditor has a judgment, they have the power to garnish your bank account and your paycheck.  Although default judgments can occasionally be overturned, for the most part they are final.

This is why it’s so important to answer a debt collection lawsuit within the 21 days. If you don't, you no longer can raise any defenses and will probably have to either negotiate a settlement or consider bankruptcy.

What’s Next in This Series

This is Part 1 of our Minnesota Debt Collection Lawsuit Guide. We also cover:

Part 2—The Answer
Part 3—After the Answer

 

Ready to talk to a lawyer about your collection lawsuit?
Schedule a consult with debt defense lawyer Todd Murray.

2017_11_03 Pic.png

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.

The Minnesota Debt Collection Lawsuit Guide: Part 3—After the Answer

This is part three of a three-part series about debt collection lawsuits in Minnesota:

Part 1—The Summons & Complaint
Part 2—The Answer

Now that you’ve served your answer to the collection lawsuit, you’re probably wondering what happens next. After all, the answer is only the beginning of the contested part of the case.

Here’s an overview of the remaining steps of the process.

Step 1 -- Initial Disclosures and Discovery Plan

After the answer is served, the parties are required to confer about the case and develop a plan for discovery (Step 2, below). This conference, which can be by phone, is required to take place within 30 days of the original due date for the Answer. Most debt collection law firms will send a letter to set up the conference.

The parties are also required  to disclose all known witnesses and supporting documents, as well as to itemize the claimed damages and describe any insurance coverage for the claims, at this stage of the case. These are known as Rule 26 initial disclosures and must be sent to the other side within 60 days of the original due date for the Answer.

Step 2 -- Discovery

Once the discovery conference takes place , the next step in a debt collection lawsuit is discovery. If the case has not been filed with the court, there is no explicit time frame for discovery to happen and the parties are free to serve discovery whenever they wish. Once the case is filed with the court, the court will issue a deadline for discovery to be completed by.

Discovery is simply an opportunity for the parties to exchange information about the claims and defenses involved in a case. Discovery is not compulsory and a party is only required to provide information if they're properly asked. The most common forms of discovery in a debt collection case are Interrogatories, Request for Production of Documents, and Requests for Admission. Interrogatories are basically just questions that one party asks of the other. Requests for Production of Documents, as the name implies, requires that certain documents related to the case be produced. And Requests for Admission are essentially true or false questions about the claims or defenses in the case.

To request discovery, a party has to properly serve their Interrogatories, Requests for Production of Documents, or Requests for Admission. Written discovery is usually served by mailing the requests to the other side. The other party then has 30 days from the day the discovery was served to respond fully. Simply mailing a letter to the other side asking them to provide information about the case is not sufficient and doesn't trigger the other side's duty to respond.

Requests for Admission are probably the most critical part of discovery, because if they are not responded to within 30 days, they are considered admitted. Creditors write their Requests for Admission carefully so that if the consumer doesn't respond to them, they will end up admitting each element of the creditor's claims. I've seen cases where the only evidence that the creditor put in front of the judge was the consumer's failure to respond to the Requests for Admission.

Step 3 -- Filing the Case With the Court

In 2013, the court rules were changed to require that cases be filed with the court and brought under court supervision within one year from the date the Complaint was served. If the case isn't filed within the one-year time limit, it is automatically dismissed with prejudice and can't be re-started. The rules allow the parties to agree to extend this deadline, but there rarely is a reason for a defendant in a debt collection lawsuit to agree to extend this deadline.

To file the case, each party must file their initial pleading (ie. the Complaint or the Answer) and pay the court filing fee, which is about $300. The parties also have to file their discovery plan from Step 1 above. Once the case is filed, it will typically be assigned to a judge and the court will issue a schedule with deadlines for the case.

Step 4 -- Summary Judgment Motion

The next step in the majority of debt collection lawsuits is the creditor's summary judgment motion. This is a hearing in front of a judge where the creditor will offer all of its evidence and legal arguments and ask the judge to give them a judgment. Defending a summary judgment motion is a complicated process, but essentially it requires the consumer to file a brief with his legal arguments, any written testimony that he wishes the court to consider, and any documents that he wants the court to review. There is a hearing where the judge will ask questions of both sides. The judge then considers all of the arguments and evidence and decides whether the creditor is entitled to a judgment. If the judge rules in favor of the creditor, a judgment is entered and the case is over. If the judge rules against the creditor, then the case will proceed to trial.

Step 5 -- Mediation

In most cases, the court requires the parties to engage in mediation. Mediation involves a neutral third-party, sometimes a retired judge, that tries to help the parties resolve their differences and settle the case. The parties usually have to bear the cost of hiring a mediator, although more and more courts are offering low-cost mediation for qualifying cases and parties. The mediator can't require you to settle the case, but they can help you see the benefits of settlement and propose different settlement options.

Step 6 -- Pre-Trial and Trial

If you're fortunate enough to defeat the creditor's summary judgment motion and the parties don't settle at mediation, the next step in a debt collection lawsuit will be a trial. The judge will issue detailed instructions about the time leading up to trial. There are so many variables at this point that it's difficult to describe all the potential scenarios. If you get to this point, you would benefit greatly from discussing your case with an attorney. You have a great deal of leverage to get the case resolved if you defeat the summary judgment motion and an experienced consumer attorney can help you maximize that leverage to get the best possible outcome.

A Final Word -- the Fair Debt Collection Practices Act

The Fair Debt Collection Practices Act is a federal law that regulates what debt collectors can and can't do when collecting debts. The FDCPA applies even if you owe the debt. If you're involved in a debt collection lawsuit, you should to educate yourself about the FDCPA.

Basically, a debt collector can't harass you, lie to you, or use any unfair collection tactics. If a debt collector violates the FDCPA, you can sue it for up to $1,000, plus any actual damages. The debt collector also has to pay your attorney fees and costs if you win your FDCPA case. A FDCPA claim can often be brought as a counterclaim in a debt collection lawsuit, which often will give you additional leverage to get the suit resolved.

What’s Next in This Series

This is Part 3 of our Minnesota Debt Collection Lawsuit Guide. We also cover:

Part 1—The Summons & Complaint
Part 2—The Answer

 

Ready to talk to a lawyer about your collection lawsuit?
Schedule a consult with debt defense lawyer Todd Murray.

2017_11_03 Pic.png

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.