This publication is a
summary of law contained in Codes, Statutes and Court Cases. For those
who want
to do further research, we have included some citations- that is the
place were
the information summarized can be found.
This packet should help if you have
been served with a lawsuit in a debt collection case, and if you want
to
prevent garnishment of your income and assets or a lien against your
property.
* This
packet is not a substitute for actual representation by a lawyer.
Always try to
consult or hire a lawyer before answering papers.
Yes, if you believe that you do not
owe part or any of the amounts claimed.
Do I have to answer the
Complaint?
No, if you agree that you owe the
amount claimed or you do not wish to dispute the claim.
What happens if I do not answer the Complaint?
The
plaintiff will win
automatically. The plaintiff will get a judgment for the amount of
money the plaintiff
asks for in the complaint. Even if the plaintiff wins, there are limits
on what
the plaintiff can do to collect. See our publication Debtors'
Rights in a Lawsuit
for details.
Can I be sued for an unpaid bill even if I
have offered to make small payments on my bill or even if I have told
the plaintiff I would make full payments as soon as I could?
Yes.
However, most
creditors would rather not have to spend money on lawsuits and will
enter into
agreements for you to pay installments. If you can't make a payment,
contact
the creditor right away and explain what happened. If they don't hear
from you,
they may assume you don't intend to pay and will file a lawsuit. If
they win,
the costs of that suit will be added to the amount you owe. The
creditor does not
have to accept anything less than what you owe.
Can I be sued even if I cannot afford to pay
the debt?
Yes. It is no defense that you cannot
afford to pay the debt.
Why should I file a declaration declaring my
exempt assets and income?
The Declaration lets your creditors know that you have income and/or
assets that are protected from being garnished or taken. It also lets
them know that if they try to garnish or lien these things, you can sue
them under the Fair Debt Collection Practices Act (FDCPA). You
should include a copy of your bank statement and any other statements
showing your sources of income. (Black-out or cover-up your account
number and your social security number on that those statements
first.) Also, if your spouse has income from a non-exempt
resource, like wages, your spouse should open her/his own account and
deposit the non-exempt funds there. That account will be at risk
of garnishment if your spouse is named in the complaint.
What are a Summons and Complaint?
The person starting a lawsuit must prepare a statement, telling the
judge what the problem is and what s/he wants. That statement is called
the Complaint. The person starting the lawsuit is called the
plaintiff. If the lawsuit is against you, you're the defendant. The
plaintiff must have a copy of the Complaint delivered to you so that
you will know about the lawsuit. You will also get a Summons. It tells
you that you have a right to disagree with the Complaint in writing. It also tells you the
amount of time you have to answer the Complaint, and where to deliver
your Answer.
If you do not tell the court in writing that you disagree with the
statements in the Complaint, the judge will assume that you agree with
it and will usually give the plaintiff what s/he asks for. In other
words, the plaintiff wins by default, since you have not answered. If a
Default Judgment is entered in the court records against you, you may
not be notified if you have not answered.
Once the plaintiff gets a judgment against you, s/he may be able to use
that judgment to take money from your bank account or paycheck, or to
take some of your property to pay the judgment. So you really
must file a written response
within the time limit given by your Summons (usually twenty days.
Read your Summons carefully for the deadline).
You may respond by delivering either a Notice of Appearance or an
Answer to the person who signed the Summons and Complaint. A Notice of
Appearance just states that you have appeared in the lawsuit. By
delivering a Notice of Appearance, you will prevent the court from
entering a default judgment against you without a court hearing. A Notice of Appearance does not explain your
position in the lawsuit. This will be done when you file your Answer.
Use the form Notice of Appearance in this packet. (A sample Notice is
also in this packet.) Try to do both the Notice of Appearance and
the Answer at the same time. If you cannot, you must at least do the
Notice of Appearance. If it is delivered and filed before the plaintiff
goes to court, s/he must inform you of all further court
hearings.
Plan on delivering and filing
your Answer before you go to court. Use the Answer form in
this packet. The directions for filling it out are below.
What is an Answer?
The Answer is your written response to the statements in the Complaint.
You are called the defendant.
In your Answer, do not tell the entire story or make legal arguments.
Do state whether you agree or disagree with each statement in the
complaint. You should either type or neatly hand-print your
answer.
Your Answer must be clear and readable. It must say whether you
agree or disagree with some or all of the statements in the Complaint,
or whether you do not know if the statements in the Complaint are true.
Your answer also must be on 8 ½ X 11" paper.
By filing an Answer in time, you keep your rights to argue about this
matter in court and to be told of further proceedings.
You may feel embarrassed or guilty about being in debt or being in an
accident. You may just want it all to be over with. Or you
may feel you should be punished and want the judge to punish you. Even if you feel you are at fault, you
should still file an answer. It does not mean that you are trying to
avoid your legitimate debts. You may disagree with the amount of
money the plaintiff asked for in the Complaint. You may also want to
answer to preserve your right to be notified of further hearings. If
you do not file an Answer, you may lose your chance to say how much you
think you should pay. But be aware that filing an Answer may
increase the court costs and attorney fees that you may owe if you lose
the case.
You will need one original and two copies of your Answer. You will file
the original with the court. One copy will go to the
plaintiff. You will keep a copy. The section below called "What
to Do with the Answer" has details on how to do this.
What is a Declaration of Exempt Income and
Assets?
It
is a sworn statement that lets creditors know they
cannot garnish certain kinds of your income and assets. [1]
[1]
You do
not need to bring income and assets that are over the exemption limit
to your
creditor's attention. However, once your creditors find out about your
assets
and income that can be garnished or liened, they may do so anyway.
Also, if you
have income that is over the exempt amount, the excess can be
garnished.
Likewise, no matter what your property is worth, even if the creditor
is not
able to repossess it, they can still put a lien on it for the amount
you owe.
How do I fill out the Answer?
A. The Caption
Look at your Summons and Complaint. They have a heading that gives
information about the case. This heading is the "caption." All court
papers, including the Summons, the Complaint, and your Answer, are
called "pleadings." All pleadings use this same kind of caption.
The caption looks something like this:
IN THE ___________________ COURT OF THE STATE OF WASHINGTON
IN AND FOR THE COUNTY OF _______________________
(YOUR OPPONENT'S NAME),
No. ________
Plaintiff,
ANSWER
vs.
(YOUR NAME),
Defendant.
The
top line gives the name of the court, the
state, and the county. For instance: "District Court of Washington for
Pierce County" or "In the Superior Court of the State of Washington
In and for the County of Pierce."
The
left side lists the names of the Plaintiff
and Defendant.
The
right side lists the number that has
been assigned to this case by the court clerk (so that they can keep it
filed
correctly) and the title of that particular pleading.
If the papers
you received have no file number, the plaintiff may have decided to
deliver
(or serve) the papers to you before filing them with the court. The law
allows
this. You are still bound by the time limit listed in your Summons. But
you may
not need to file your Answer with the court yet. You will still have to
deliver
a copy to the plaintiff's lawyer (or the plaintiff if s/he has no
lawyer). Read
your Summons carefully. It should tell you what to do.
When
you write or type your Answer, fill in the caption at the top of the
page. Copy the necessary information from
your
Summons and Complaint. Copy the names of the plaintiff and defendant just
as
they are on the Summons and Complaint, even if they spelled your
name wrong
or called you or your spouse "John Doe."
B.
Admissions/Denials
After filling out the caption, use
the middle of
the page to give your answers to the statements in the Complaint.
Usually, the
paragraphs in the Complaint will be numbered. You may list the numbers
and say
one of three things about each paragraph of the complaint:
You admit that it is a
true statement. (Examples: that
you
live in Pierce County. or that you are
not a member of the Armed Forces.) Admit the statement only if you
agree with every
part of it. Otherwise, deny the statement.
You deny that it is a
true statement. (Example: that you owe a
specific amount of
money to the person named.)
You write that you do
not know whether the statement is
true or not. (Example:the collection
agency who is suing you is licensed and bonded. You might assume that
they are,
but you have no evidence; you have never seen their license.)
Read your Complaint carefully. Make
sure you briefly answer all the
statements in it.
If you totally disagree with
everything in the
Complaint, simply write a single sentence saying you deny each and
every
allegation in the Complaint.Do not deny
things that you know are true.
C.
Defenses
You may also have technical or
legal defenses to
the Complaint, such as an argument that the statute of limitations has
run.
Actions to collect debts, like all actions, have a time limit called
the
"statute of limitations," which usually begins once the creditor has
a right to sue you (example: once you
miss a payment). Once that time limit has passed, the person can no
longer
collect the money from you, and the action will be dismissed. For more
information on the Statute of Limitations, call CLEAR if you are
low-income (1-888-201-1014,
M ? F 9:15 a.m. ? 12:15 p.m.) or check the Revised Code of
Washington
(RCW). The reference department at your local library should be able to
help
you find the right section of the RCW.
You may also argue as an
affirmative defense that
you do not owe the money. Even if you did buy the item that the
plaintiff is
suing about, you might not owe the money if the item was defective and
you
returned it or tried to return it.
You could lose an "Affirmative
Defense"
if you file an Answer without stating it.
You may have claims which you want
to make
against the plaintiff. You must state
these claims in your Answer if they arise out of the same transaction
or
occurrence that the plaintiff is suing about.
Example: if
an appliance seller sues you over a debt
for purchase of an appliance that was defective and injured you, any
claim you
wish to make against the seller/plaintiff must be stated in your
answer. Or, if
the plaintiff violated Fair Debt Collection rules (see the Debtors'
Rights - Collection Agencies publication), you may have a
damage
claim against the plaintiff. For more information on counterclaims,
consult a
lawyer or the court rules.
*
NOTE:If
you intend to make a counterclaim, then you
must pay a filing fee in order to file your Answer.Some counties may allow you to try to waive
the fee.Ask your clerk about local
procedures.If you do not plan to file a
counterclaim, cross out the term "counter-claim" in the caption,
footer, and
the last sentence of your answer.Otherwise,
the clerk may try to charge you a filing fee
anyway.
E.
Exempt Income
If your income is exempt from
garnishment, then
you should include a paragraph in your answer making the plaintiff
aware of
that fact. Example: if your only income
is Social Security, which is exempt from garnishment by federal law,
then you
would write in your answer the following: "My income consists only of
Social Security." This is not a defense to the underlying lawsuit. But
it
does provide the plaintiff the information that your only income is
exempt from
garnishment. If you lose the lawsuit and the plaintiff later garnishes
your
bank account containing exempt funds, then you may have a cause of
action
against the plaintiff.
F. The
Signature and Your Address
On the last page, put the date you
sign your
name. Below that, sign your name with your legal signature (the one you
use for
checks). Just below your signature, print or type your name so it will
be
easily readable. Finally, put your address below that. Now your Answer
is done.
You
need to be able to receive delivery by mail and by
hand at this address. Do not use a
P.O. Box. You should use an address
where you know you will get your mail. Notices of hearings will be
mailed to
that address. If you fail to appear
because you did not get the notice, a judgment may be entered against
you by
default.
How do I fill out the Declaration of Exempt
Income and Assets?
Reread the "Parts of the Answer" section of this
publication to fill out the first page of the declaration.
Section 4 of the declaration: Check every box that
applies to types of income you get. Example: if you are receiving
SSI, you would place a check in the second box under section 4.
Section 5 of the declaration: Do the same thing for
assets/property that you own. Example: if you own a private
library worth $1,000, you would place a check in the fourth box under
section 5.
Last part of the declaration: Give your signature
and the date. By signing the declaration, you guarantee that all the
information you provided in it is true. If you fill out any part of the
declaration untruthfully, you may be prosecuted for perjury, which is a
class B felony. If you are prosecuted for committing perjury on
this declaration, this will be considered a fraud. Then it is
unlikely that you will be able to discharge the debt underlying this
lawsuit in bankruptcy. Remember: creditors are very good at finding out
what assets and income you have. You must be honest in this
declaration.
Attach a copy of your social security statement and your
bank statement. You should have covered-up the social security
number itself and the bank account number itself.
What do I do with these Documents Once I Have
Filled Them Out?
A. Delivery
Make at least two copies of your Answer and Notice of
Appearance. Deliver one copy of each of these papers to the plaintiff's
lawyer. Print the lawyer's name and address on the lower right-hand
side of the Summons and Complaint. If the plaintiff is representing
him- or herself, deliver a copy of the papers to the plaintiff. If you
do not want to deliver them yourself, have a reliable friend do it for
you.
You must deliver a copy of your Answer or Notice of Appearance on or
before the date stated in the Summons. It is important that you deliver
your Answer and Notice of Appearance on time. So you should deliver a
copy of each document personally to the plaintiff's lawyer. You may
leave the papers with a secretary or receptionist. If you are
delivering the papers to the lawyer's office, ask the receptionist to
stamp the original and copy of each document with a "copy received"
stamp showing the date received. Getting your original and copy
of the Answer and Notice of Appearance stamped by the receptionist will
prove that you delivered these documents by the deadline stated in the
Summons.
If you decide to mail these documents to the plaintiff's lawyer, you
must allow enough time for the mail to be delivered by the deadline (at
least three days). It is not enough for the Answer and Notice of
Appearance to be postmarked on or before the deadline. It must be
received by the deadline stated in the Summons. Also, if you mail the
Answer, you should consider sending one Answer by regular mail and one
by certified mail, return receipt requested. Hand-delivery is best
because you can have the lawyer's office stamp the original and your
copy which shows that your Answer was delivered on time.
If you mail the Notice of Appearance and/or the Answer, the court needs
to know this was done. You do this by filling out a Certificate of
Service and attaching it to the original of the document that you
mailed. A sample Certificate of Service and a Certificate of Service
form you may use are attached. Make extra copies of the form before you
use it. You must identify what kind of legal paper the
Certificate of Service refers to (examples: Answer, Notice of
Appearance) and strike out the type of delivery that does not
apply. (Example:. if you mailed it, strike out the words
"hand-delivered.")
B. Filing
When the plaintiff pays the filing fee and files the Complaint with the
court, the court assigns a case number. That number will usually be
stamped or typed on the upper right-hand side of the Summons and
Complaint. The court will have no record of the case and will not be
able to give you any information about the case until the case has been
filed.
If there is a case number on your Summons and Complaint, then write in
the number on your Answer and Notice of Appearance and file the
original(s) with the Court Clerk. File the original Answer and Notice
of Appearance after you deliver a copy to the plaintiff's attorney and
get proof of service (the "copy received" stamp), but before the
deadline stated in the Summons. At the time you file the original
Answer and Notice of Appearance, you should stamp your personal copies
with the Clerk's stamp showing the date the originals were filed.
If the Summons and Complaint you received have no case number on them,
then the Clerk has no record of your case. You will not be able
to file the original of your Answer and Notice of Appearance. You must
still follow the regular procedure for delivering a copy of your Answer
to the plaintiff's lawyer, even if the case has not been filed. But
keep your original Answer and Notice of Appearance until you find out
that the case has been filed and has been assigned a case number. When
you get the case number, follow the procedure for filing the original
documents described above.
REMEMBER to make sure that you file your Answer within
the time limit listed in your Summons (usually twenty days). Do not
take a chance with that time limit! Once you have timely filed your
Answer and served the plaintiff's lawyer, you should be given notice of
any hearings. Do not miss these hearings. IF YOU HAVE ALREADY MISSED
YOUR TIME LIMIT, FILE AN ANSWER ANYWAY. A late Answer may be better
than no Answer at all. If you are too late, and a judgment has been
entered against you, you should contact a lawyer immediately.
Do you have sample forms I can see?
Yes. Here is a sample form for you to look at:
SAMPLE FORM - DO NOT FILE
DISTRICT COURT OF WASHINGTON COUNTY OF CLARK
123ABC COLLECTIONS,
Plaintiff,
v.
JOHN DOE,
Defendant.
No. 07-0000-01
ANSWER, AFFIRMATIVE DEFENSES,COUNTERCLAIMS
I. ANSWER
Defendant(s) answer the complaint as follows:
Admit the statements contained in paragraph numbers 1
and 2 except for the following statements:
_______________________________________________________
Deny the statements contained in paragraph numbers 3
and 4, except for the following statements:
_______________________________________________________
Lack knowledge about the truth and therefore deny the
statements contained in paragraphs numbers 5, 6 and 7.
II. AFFIRMATIVE DEFENSES
Defendant(s) other defenses are: Plaintiff's claim
is barred by the statute of limitations.
III. COUNTERCLAIMS
Plaintiff owes defendant $__________ because: not
applicable.
Defendant(s) request that this lawsuit be dismissed and that a judgment
be entered against the plaintiff(s) for any counter-claims, costs, or
attorney fees.
DATED this _21__ day of __February_____________, 2007.
John Doe
John Doe, Defendant
Name:
John
Doe
Address: 111
Cherry Lane Long, WA 98600
Phone No.: (206)
555-1212
Do you have blank forms I can fill out on a
computer?
Yes. The following forms are available for you to download in
MS Word format:
This
publication provides general information concerning your rights and
responsibilities. It is not intended as a substitute for specific legal
advice.
This information is current as of the date of its printing,
September 2011.
Information, Not Legal Advice. We are providing this information as a public service. We try to make it accurate as of the date noted in the materials. Sometimes the laws change. We cannot promise that this information is always up-to-date and correct. Most of the information provided on this web site is specific to Washington State law.
We do not intend this information to be legal advice. By providing this information, we are not acting as your lawyer. If you need legal advice, you should contact a lawyer through your local legal aid organization. Always talk to a competent lawyer, if you can, before taking legal action.
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