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

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.

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.

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 2—The Answer

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.

Part 1—The Summons & Complaint
Part 3—After the Answer

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.

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

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. This post is a good place to start. 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.

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.

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.