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By Sean A. Kelly
This is an experience of my friend, Linda.
Until three years ago, she was not aware of what is a summons and complaint, until she actually received one for a credit account that she apparently overlooked. I guess most of us out there would not be clear of what is a summons and complaint, or even understand how to proceed further when you actually receive one, just like how Linda received hers. She was unclear of what to do as well when she received her summons and complaint, thus she picked up the phone and called her friend who was an attorney who advised her on the next steps on what to do. The first thing that he advised her to do was to check on the name of the creditor, and the type of debt that she allegedly owed to the creditor. In some cases it may be possible that it is a case of mistaken identity, thus she was advised to ensure that she was actually responsible for the debt in question. In this case she was responsible for the debt, thus she proceeded to the next step that was advised by her friend.
Lawfully, a creditor has to send a summons and complaint document to the borrower if the former wants to sue the latter for unpaid debt. And it is also crucial that the lender has to send the document to the defaulting borrower within the statute of limitations period. The statute of limitations would differ in accordance to the state that you reside in, as well as the type of debt in question. For instance, without any legal exceptions, the statute of limitations in the state of California is set at four years for written agreements and two years for oral agreements. This means that if you default on your payment to your lender based on a written agreement, the lender has four years to file a case in the court of law. After this four-year statutory period expires, you are immune from being sued in the court of law for your outstanding debt. Even if your lender decides to sue you in court, the moment you raise the defense of statute of limitations, your case should be dismissed instantly. If you are unsure of what your statute of limitations period is, contact your Attorney General’s office and discover the answer.
Your summons and complaint could be mailed to you, or in most cases hand-delivered to your doorstep to ensure that you receive the document. Once you receive one, you should head to the county court where the hearing is scheduled, and fill up the Notice of Appearance form. This is compulsory regardless of whether you are responsible for the debt or not. The next step would be formulating a successful defense against the lawsuit. If you are not responsible for the debt, provide proof to back your defense, and get the lawsuit dismissed. You could also provide exemption declarations to the court clerk, for instance based on the statute of limitations. Check on the age of the debt that you are allegedly responsible for, and compare it against your state’s statute of limitations.
In this sense, the statute of limitations acts as a method of debt assistance as it protects you from irresponsible lenders that want to sue your even after the expiry of the statutory period. And if you are living on government benefits and do not command a steady income, this could be included in the exemptions declaration document. A creditor cannot file for a lawsuit that garnishes Social Security payment receivers (based on Title III of the Consumer Credit Protection Act), and this would help your defense as well.
Remember that if you fail to respond to a summons and complaint against you, the court would generally rule against you in court in favor of the plaintiff, regardless of whether you owe anything to the lender of not. Thus it is highly recommended that you respond immediately when you receive a summons and complaints, and work efficiently towards solving your debt issues! All the best!
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