Got a summons from Midland or Portfolio?
Answer it, on time. In New York City Civil Court you generally have 20 days to answer if the papers were handed to you and 30 days after proof of service is filed if they were served another way. Since 2022, a debt buyer's complaint on a consumer credit debt must include specific facts and documents, the suit must be filed within three years, and defenses like the statute of limitations must be raised in your answer or they can be lost.
The envelope says "Summons." The plaintiff is a company you never did business with, often a name like Midland Funding or Portfolio Recovery Associates, which buy consumer debts from banks and other lenders. The complaint says you owe money on an old credit card.
Do not panic, and do not put it in a drawer. Here are the first steps for a debt buyer's lawsuit in New York.
Step 1: find your deadline
The answer deadline is short
In New York City Civil Court, if the summons was personally delivered to you, you must appear and answer within 20 days after service. Otherwise, you have 30 days after proof of service is filed with the clerk (N.Y. City Civ. Ct. Act § 402). In other New York courts, CPLR 320(a) sets 20 days after personal service, and 30 days after service is complete for other methods. If you do not answer, the plaintiff can ask for a default judgment.
Write down the date you received the papers and how: handed to you, left with someone at your home, or mailed and affixed to your door. New York also has the court clerk mail you an additional notice, and a default judgment may not be entered until 20 days after that mailing, or at all if the notice comes back undeliverable (CPLR 306-d). That is a safeguard, not an extension of your time to answer.
Step 2: read the complaint against the checklist
The Consumer Credit Fairness Act changed what a consumer credit complaint must contain. Under CPLR 3016(j), the complaint must attach the contract, or for a revolving credit account like a credit card, the charge-off statement, and must state, among other things:
- The original creditor and the last four digits of the account.
- The date and amount of the last payment.
- An itemization of the amount sought.
- Whether the plaintiff is the original creditor, and if not, the date of sale and each prior owner of the debt.
If something is missing, note it for your answer. A default judgment request also requires affidavits, including one that, after reasonable inquiry, the plaintiff believes the statute of limitations has not expired (CPLR 3215(j)).
Step 3: check the defenses that must be raised in time
- The three-year limit. A suit on a consumer credit transaction must be commenced within three years, and after that a payment or promise does not revive it (CPLR 214-i). The statute of limitations is an affirmative defense that must be pleaded in your answer (CPLR 3018(b)).
- Service. If you were never served, or the affidavit of service describes a person or a visit that did not happen, say so. See the Sykes sewer service story for how that problem reached federal court.
- Venue. Under the FDCPA, a debt collector must sue where you live or where you signed the contract (15 U.S.C. § 1692i(a)(2)). See sued in the wrong county.
- Standing and amount. Is the plaintiff able to show it owns this account, and is the amount right, with no charges the contract did not allow (§ 1692f(1))?
- Identity. Is this your account at all? Mixed files and identity theft happen.
What the public record shows about debt buyer suits
Regulators have issued public orders about how large debt buyers litigate. We cite them because they show what is worth checking in any debt buyer's suit, not as a statement about your case.
- CFPB, September 9, 2015. The CFPB announced orders against Encore Capital Group (including Midland Funding and Midland Credit Management) and Portfolio Recovery Associates over practices it described as robo-signed affidavits, suits on time-barred debt and suing without documentation.
- New York Attorney General, 2014 and 2015. Settlements with debt buyers, including Portfolio Recovery Associates and Encore Capital Group, called for vacating judgments the AG described as improperly obtained on time-barred claims. See the full story.
- CFPB, 2020 and 2023. The CFPB announced that Encore (2020) and Portfolio Recovery Associates (2023) would pay civil penalties for violating the 2015 orders. See Encore and PRA orders.
The lawyers who file these suits can be debt collectors under the FDCPA (Heintz v. Jenkins, 514 U.S. 291 (1995)). A false statement in a collection suit can support an FDCPA claim with actual damages plus statutory damages of up to $1,000, and the FDCPA requires a collector found liable to pay the consumer's reasonable attorney's fees and costs. The deadline is one year from the violation. Our sued by a debt collector page and our post on old credit card suits in New York go further. For suits in New Jersey or Florida, see New Jersey and Florida; the New York procedures above do not apply there. For more on New York, see New York.
What to do this week
- Mark your answer deadline on a calendar today, counting from the date and method of service.
- Gather your records: old statements, the date of your last payment, any letters from the debt buyer.
- Compare the complaint to the CPLR 3016(j) checklist above.
- File a written answer with the court before the deadline, raising every defense that applies, including the statute of limitations.
- Talk to a lawyer about both the defense and any FDCPA claim against the collector.
Sources: N.Y. City Civ. Ct. Act § 402; N.Y. CPLR 320, 306-d, 3016(j), 3018(b), 3215(j), 214-i; 15 U.S.C. §§ 1692f, 1692i, 1692k; Heintz v. Jenkins, 514 U.S. 291 (1995); CFPB press releases of September 9, 2015, October 15, 2020 and March 23, 2023; NY AG press releases of May 8, 2014 and January 9, 2015.
Common questions
Does this post mean Midland or Portfolio did something wrong in my case?
No. They are named because they are among the largest debt buyers and people search for them by name. The steps apply to any debt buyer's lawsuit in New York. Whether a particular suit has problems depends on its own papers and facts.
I found out about the lawsuit after a judgment was entered. Is it too late?
Not necessarily. Under CPLR 5015(a), a New York court can relieve you of a judgment for an excusable default, generally within one year after service of the judgment, or because the court lacked jurisdiction, for example if you were never properly served. Talk to a lawyer promptly.
Can the debt buyer's lawyer be liable under the FDCPA?
Yes, potentially. In Heintz v. Jenkins the Supreme Court held that a lawyer who regularly collects consumer debts through litigation is a debt collector under the FDCPA. A false statement in a collection suit can be a violation.
Tell us what they did.
One conversation with an attorney, in your language. We tell you which laws the collector or the credit bureau broke, which deadline runs first, and what to save this week. If it is not a case we can take, we say so and tell you where to go.
(718) 484-7510The FDCPA and the FCRA require a company found liable to pay the consumer’s reasonable attorney’s fees and costs. Our fee arrangement is confirmed in a written retainer before we begin. English, Russian and Spanish in-house; an interpreter for any other language.