Sued by a debt collector
Do not ignore the summons. If you do not answer in time, the collector can get a default judgment and then restrain your bank account or garnish your wages. In the Civil Court of the City of New York you have 20 days to answer if the summons was handed to you, or 30 days after proof of other service is filed; elsewhere, check the summons. Your answer can raise defenses such as an expired limitations period, and the collector's own violations can become counterclaims.
A debt collection lawsuit usually arrives as a summons and complaint, delivered to you or left at your home. It is easy to put in a drawer. That is the one thing not to do. Most of what a consumer can do in these cases, including every defense on this page, depends on filing an answer on time. The collector's case may be weaker than the papers suggest, and the collector's own conduct may give you claims worth more than the debt. But none of that matters if a default judgment is entered first.
The answer deadline
Short, and it starts when you are served
In the Civil Court of the City of New York, a summons personally delivered to you requires an answer within 20 days after service; if it was served another way, within 30 days after proof of service is filed with the clerk (N.Y.C. Civ. Ct. Act § 402). In New York Supreme Court the general rule is 20 days after service, or 30 days after service is complete for certain other methods (CPLR 320(a)). In other courts, including New Jersey and Florida courts, the deadline is short, often 20 or 30 days or thereabouts depending on the court and how you were served. Check the summons; it states the deadline.
Write down the date you received the papers and how: handed to you, left with someone at home, or mailed. Keep the envelope. Then call a lawyer, or go to the court's clerk, before the deadline. An answer can be filed without a lawyer, but the defenses below have to be raised in it.
What a New York complaint must contain
The Consumer Credit Fairness Act (L. 2021, ch. 593) set rules for consumer credit suits filed in New York on or after May 7, 2022. The complaint must attach the contract (or, for a revolving account such as a credit card, the charge-off statement) and state (CPLR 3016(j)):
- The original creditor. And the last four digits of the account number.
- The last payment. Its date and amount, or a statement that none was made.
- An itemization. Principal, interest, fees, collection costs and attorney's fees, or for revolving credit, the amount at charge-off and what accrued after.
- Whether the plaintiff is the original creditor. If not, the date the debt was sold to it, the name of each prior owner, and the date of each assignment.
A complaint missing these items has a problem you can point out. The clerk must also mail you an additional notice, and no default judgment may be entered until 20 days after that mailing, or at all if the notice is returned undeliverable (CPLR 306-d). A request for a clerk's default judgment must include an affidavit that the limitations period has not expired (CPLR 3215(j)).
Common defenses
The statute of limitations
In New York, an action arising out of a consumer credit transaction against the borrower must be brought within three years, and once that period expires a later payment or acknowledgment does not revive it (CPLR 214-i). In New Jersey, contractual claims fall within the six-year period of N.J.S.A. 2A:14-1. In Florida, five years on a written contract and four on an unwritten one (Fla. Stat. § 95.11(2)(b), (3)(j)). A debt collector that sues on a time-barred debt violates Regulation F (12 C.F.R. § 1006.26(b)). Raise it in your answer. See zombie debt.
Standing and the chain of title
A debt buyer is suing on an account someone else opened, so who owns it matters. The New York pleading rule requires the complaint to name every prior owner and the date of each assignment (CPLR 3016(j)(7)). Gaps, inconsistent names, or a bill of sale that does not identify your account are points to raise.
The wrong county
A debt collector must sue you where you signed the contract or where you live (15 U.S.C. § 1692i(a)(2)). A suit filed somewhere else is itself an FDCPA violation. See sued in the wrong county.
Bad service ("sewer service")
"Sewer service" is the name for papers that were never actually delivered, with a false affidavit of service filed anyway. If you were never served, tell the court and a lawyer. A collector that obtains a judgment on service that never happened may face FDCPA and, in New York, GBL 349 claims. The checker covers this as "judgment without being served."
Wrong amount, wrong person, already paid
A collector may not misstate the amount or legal status of a debt (15 U.S.C. § 1692e(2)(A)) or collect amounts the agreement does not authorize (§ 1692f(1)). A debt that is not yours, was paid, or was discharged in bankruptcy is a defense and may be a claim. See a debt you do not owe.
Counterclaims: when the collector owes you
Collection law firms that regularly collect consumer debts are debt collectors under the FDCPA, including when they litigate (Heintz v. Jenkins, 514 U.S. 291 (1995)). So the FDCPA applies to the lawsuit itself: a complaint that misstates the amount, a suit in the wrong county, a suit on a time-barred debt, or a false affidavit. Violations in how the debt was collected before the suit, such as harassing calls or ignored disputes, count too.
- The remedies. Actual damages, statutory damages up to $1,000 per action, and costs and fees (15 U.S.C. § 1692k(a)). The FDCPA requires a company found liable to pay the consumer's reasonable attorney's fees and costs.
- The deadline. One year from each violation (§ 1692k(d)). A suit filed against you starts the clock on violations in that filing.
- Where. As a counterclaim in the collection case, or in a separate case in federal court, which the FDCPA allows without regard to the amount in controversy (§ 1692k(d)).
- State claims. In Florida, the FCCPA (two years; Fla. Stat. § 559.77). In New York, GBL 349 (three years). In New Jersey, the Consumer Fraud Act where an unlawful practice caused an ascertainable loss (N.J.S.A. 56:8-19).
Whether to counterclaim in the collection case or sue separately is a strategy decision that depends on the court and the facts. The how a case works page explains the steps.
After a judgment
If a judgment has already been entered, a creditor can restrain a bank account or garnish wages. New York protects a set amount in a bank account and exempts certain income, but the dollar figure is indexed and published sources conflict, so it is not published here. Call a lawyer promptly; there may be ways to vacate a judgment entered without proper service.
In New York, New Jersey and Florida
The FDCPA defenses and counterclaims apply in all three states. New York adds the Consumer Credit Fairness Act's pleading and default rules and the three-year limit. New Jersey's six-year limit governs most contract suits. Florida adds the FCCPA, which reaches original creditors who sue. See New York, New Jersey and Florida.
Common questions
What happens if I do nothing?
The collector can ask for a default judgment, which means it wins without having to prove its case. A judgment can then be used to restrain a bank account or garnish wages. In New York consumer credit cases, the clerk must mail you an extra notice and wait at least 20 days before a default, and no default may be entered if that notice comes back undeliverable, but those protections do not replace answering.
I never got served. I found out when my bank account was frozen. What now?
Call a lawyer promptly. If you were never properly served, there are ways to ask the court to vacate the judgment, and a collector that obtained a judgment without proper service may have violated the FDCPA. Bring the bank notice and anything you received.
The debt is old. Can they still sue?
In New York, a creditor has three years to sue on most consumer credit debts, and a later payment does not restart the clock. In New Jersey, six years on a contract claim. In Florida, five on a written contract. A collector that sues on a time-barred debt violates Regulation F. But you have to raise the limitations defense in your answer.
Can I sue the collector back in the same case?
Often, yes. FDCPA violations in how the debt was collected, including in the lawsuit itself, can be raised as counterclaims or in a separate federal suit, within one year of each violation. The FDCPA requires a collector found liable to pay the consumer's reasonable attorney's fees and costs.
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.