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Debtors' Rights in a Lawsuit

Authored By: Northwest Justice Project LSC Funded
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Read this if someone sues you for money. We provide general info. This may help if you need to represent yourself in court.

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Intro

The thought of being sued can be scary. A lawsuit can cause emotional and physical stress. To protect your rights in the lawsuit, pay attention to all the info you get.

Read this if someone sues you for money. We provide general info. It may help if you need to represent yourself in court.

Am I being sued?

Sometimes debt collectors send multiple pieces of mail and notices. If you have gotten documents called a Summons and a Complaint, you are being sued. These documents are generally hand-delivered by a sheriff or professional delivery service.

If you got a Summons and a Complaint, you must:

  • Read the papers carefully

  • Put on a calendar all the dates stated in the documents

  • Get legal advice, if possible

What court is the case in?

The Summons and Complaint say what court. Generally, lawsuits for money are in Superior or District Court.
Cases in Superior Court can be for any amount (usually over $75,000). Cases in District Court can be up to $75,000.

There is one exception. The District Court has a separate division, “Small Claims Court.” Small Claims Court:

  • Can hear cases for up to $5,000.

  •  Only awards money damages. It cannot award personal property such as cars, equipment, and household furniture or appliances.

  • Cannot stop or keep you or the person suing you from taking a particular legal act. We generally call this type of court action an injunction. An injunction is a court order commanding or preventing an action.

  • Must give you or the person suing you special permission to have a lawyer present. You can still talk to a lawyer or get legal advice.

*How do I Sue in Small Claims Court explains how to put a case on there.

How do I reply or answer to a Summons and Complaint?

Once you get a Summons and Complaint, you must file an Answer. An Answer is your response or defense to the statements in the Complaint by the person suing you. You can use our Answering a Lawsuit for Debt Collection – Interactive Forms (a guided interview that helps prepare court forms to respond to a debt collection lawsuit).

The Summons and Complaint usually have this info:

  • The deadline for filing your Answer is in the Summons

  • The Plaintiff is suing you

  • The Defendant is the person being sued (you)

  • What the Plaintiff claims (alleges) happened

  • What the Plaintiff wants or is suing for

  • The Court hearing the case

Answering the Complaint can take several steps. If you disagree with what Plaintiff says, or think Plaintiff should not get what its Complaint asked for, you must answer the Complaint in writing.

Your written Answer should have:

1. Court’s name (Superior or District Court), Plaintiff’s and Defendant’s names, and case number, if there is one. All this info must be on the top of the Answer. (All this info is in the Complaint.)

2. A statement saying what you agree and disagree with in the Complaint. If you do not agree with any of the paragraph, deny the paragraph. Otherwise, explain which parts you disagree with, and why.

*Example: “I admit statement one in the Complaint. I deny statement two in the Complaint.”

3. If your income is exempt from garnishment (see the following section “What property cannot be taken to pay the Judgment Creditor?”), put a paragraph in your Answer saying so.

*Example:  Your only income is Social Security. Federal law exempts it from garnishment. You could put “My only income is Social Security, which is exempt from garnishment.”

This is not a defense to the lawsuit. It does give Plaintiff notice that your income is exempt from garnishment. If you lose the lawsuit and the Plaintiff garnishes your bank account containing exempt funds, you may have a lawsuit against the Plaintiff.

*What is garnishment? It is a court case the creditor files asking the court to order you to turn over property or money to cover your debt. The sections “What is a Wage Garnishment” and “Can a Judgment Creditor Garnish My Bank Account” have more info.

4. If you believe Plaintiff owes you money, explain why in writing (a Counterclaim)

*What is a Counterclaim? It is a claim for relief or compensation made against the Plaintiff. Think of it as a counteraction Defendant takes against Plaintiff. There is a filing fee for a Counterclaim. In 2018, Superior Courts charge $240 for a counterclaim. (RCW 36.18.020.) District Courts can charge at least $43. (RCW 3.62.060.)

5. Your signature, address, phone number, and the date.

6. You must deliver a copy of your Answer to Plaintiff’s lawyer, or Plaintiff if they do not have a lawyer, within twenty days after getting the Summons and Complaint. Plaintiff’s lawyer or Plaintiff must get your Answer within twenty days after you are served with the Summons and the Complaint. There are two ways to deliver the Answer:

*You can hand deliver the Answer to Plaintiff’s lawyer or Plaintiff. If Plaintiff does not have a lawyer, get a stamped “received” copy to prove you delivered a copy.

*You can deliver the Answer using certified mail.

7. You must file the original Answer in the court where you were sued. You file the original by delivering it to the Superior or District Court listed on the Complaint.

8.   Keep a copy of the Answer for your records.

If you do not answer within twenty days, you will be in “default.” If you did not deliver an Answer to Plaintiff’s lawyer or Plaintiff within the twenty-day period, and the court has not entered an Order of Default, immediately file and serve an Answer as explained above.

*What does it mean to default? A default is a failure to timely answer a Complaint. If you default, Plaintiff can win without further notice to you.

I filed my Answer. Now what?

After you have filed and delivered your Answer, Plaintiff may want to settle the case to avoid going to trial.  You may want to try negotiating with Plaintiff.

If the case does not settle, there may be a trial. Or the court may resolve the case by motion or other proceedings. One type of proceeding is arbitration. Some counties require arbitration in all these types of cases.

*Arbitration is a form of dispute resolution. A third party who both Plaintiff and Defendant (you) agree on usually mediates. The decision of the arbitration is legally binding.

There may be other steps before a trial begins, such as motions, or pre-trial proceedings like discovery.

At trial, you can ask questions of Plaintiff and other witnesses. You can tell your side of the story through your own testimony, your witnesses, and papers that support your case.

If you are representing yourself, go to the courthouse a few days before your trial. Watch other cases so you know what to expect.

What if I lose at trial?

The judge will sign an order stating you owe Plaintiff money. This is a “Judgment.” Plaintiff is now a “Judgment Creditor.” If Plaintiff loses, the judge signs an order saying that.

If you have a counterclaim and you win on it, the judge signs an order stating Plaintiff owes you money. This makes you the “Judgment Creditor.”

Either you or Plaintiff may appeal the judge’s decision.

The judgment creditor has ten years to collect on the judgment, and can renew the judgment for one more ten-year period.

How can a Judgment Creditor collect?

Going through the process and losing a lawsuit can be hard emotionally and mentally. But remember:  You cannot go to jail for not paying a judgment, except, rarely, for refusing to pay a child-support judgment the court has found you can afford to pay.

But:  If the court orders you to appear for an examination of your finances, and you do not appear, you can be arrested. These types of examinations are “Supplemental Proceedings.” The section “What are Supplemental Proceedings” has more info.

The judgment creditor can collect by:

  • Garnishing your wages or bank account

  • The sheriff can sell your personal property (cars, appliances) or real property (house and land)

  • You can voluntarily pay or try to work out a payment plan with the judgment creditor

The judgment creditor cannot:

  • Garnish your wages or take your property without a court order

  • Come into your home or garage to take your property, unless you voluntarily let the judgment creditor in OR the judgment creditor has a court order allowing the repossession.Repossession is the act or an instance of retaking property.

*If you bought a car or other property and put that property up as collateral or security for a loan for that purchase, that Creditor may be able to repossess the property without a court order. The Creditor may not repossess if the repossession will cause a “breach of peace.” If you strongly object to the repossession, the Creditor should stop the repossession action, and go to court.

Can they take any or all my property to pay the Judgment Creditor?

No. By law, there are certain kinds of property that generally a judgment creditor generally cannot take from you. We call this “exempt property.”

The main exemptions are:

  • Temporary Assistance for Needy Families (TANF), Supplemental Security Income (SSI), Social Security (SS), Unemployment Compensation, Workers’ Compensation, and pension and retirement benefits.

  • Part of your wages: Generally, the greater of 35 times the current federal minimum wage or 75% of your take-home pay.  Call the Department of Labor to find out the current federal minimum wage, or check herehttp://www.dol.gov/whd/flsa/index.htm. Then multiply that amount by 35.

*Example: In 2018, the federal minimum wage is $7.25 an hour. If you bring home less than $253.75 a week, all your wages are exempt. If you make $400 a week, $300 is exempt. ($300 is 75% of your wages. That amount is more than $253.75). This income is usually not exempt from garnish­ment for child support payments or taxes.

*If the creditor is trying to collect on private student loan debt, the greater of 85% of your take-home pay or 50 times the state minimum wage is exempt. In 2018, the minimum wage in Washington state is $11.50 an hour.

  • Clothing.

  • Your cell phone, personal computer, and printer.

  • Household goods, appliances, furniture, provisions and fuel, up to $2,700 in value for one person, $5,400 for a married couple.

  • Equity in two motor vehicles for a married couple up to a combined value of $5,000.

What is Equity? Equity is an item’s value, minus what you owe on it and any debts you have listed it as collateral for.

  • Equity in a home up to $125,000.

  • Tools and instruments necessary to carry on a trade up to $5,000 in value.

  • Up to $1,500 in cash. Only $500 of that cash can be in a bank account.  

*Note: this $500 in a bank account is in addition to any money in the bank account that is exempt, such as TANF, SSI, SS, and so on.

  • If your debt is private student loan debt, you can have up to $2,500 in a bank account.

Money That Cannot be Taken from You (“Garnished”) to Pay Off a Debt has more info.

*The judgment creditor must get a court order to garnish or sell your property through the sheriff. To claim personal property exemptions, read How to Claim Personal Property Exemptions.

What is a wage garnishment?

This happens when the judgment creditor gets payment of the court award by taking money directly from your paycheck through your employer.

To garnish your wages, the judgment creditor and your employer must:

  • Send your employer a “writ of garnishment

*What is a writ of garnishment? It is a court order stating the judgment creditor has a right to collect a particular amount of money or property from a third party (example:  your employer).

  • Your employer then files an “Answer” telling the judgment creditor and court how much of your wages they will garnish and how much you will get. Your employer must figure out how much of your wages are exempt and pay you that amount.

  • The employer must hold the rest for the judgment creditor.

  • You should get a copy of both the “writ of garnishment” and the “Answer.”

The exempt part of your net wages is the greater of 35 times the current federal minimum wage or 75% of your net wages. ("Net wages" means gross pay minus taxes, Social Security, and other mandatory deductions.)  Call the Department of Labor to find out the current federal minimum wage. Then multiply that amount by 35.

*Example:  In 2018, the federal minimum wage is $7.25 an hour. If you make less than $253.75 a week net, all your wages are exempt. If you make $400 a week, $300 is exempt. ($300 is 75% of your wages. That amount is more than $253.75.)

*If the creditor is trying to collect on private student loan debt, the greater of 85% of your take-home pay or 50 times the state minimum wage is exempt. In 2018, the minimum wage in Washington state is $11.50 an hour.

Can my employer fire me because it must garnish my wages?

No. That is illegal.

There is one exception: your employer can legally fire you if it must garnish your wages for three different judgments during a twelve-month period.

Can a judgment creditor garnish my bank account?

Maybe.

A bank account garnishment process is like a wage garnishment. The judgment creditor sends a writ of garnishment to your bank. You are not entitled to notice of a bank garnishment. If they garnish your account, you may accidentally bounce checks.

You are entitled to info about this garnishment. You must get a copy of:

  • The Writ of Garnishment

  • Exemption claim form

Note: Funds in a bank account from certain sources are exempt from garnishment. Here are some exempt funds:

  • TANF

  • Social Security

  • SSI

  • All “federally qualified” pension and retirement benefits

Your bank does not claim exemptions for you. You must claim them yourself. The exemption claim form comes with the court papers. It should explain how to claim exemptions. You should file this form right away. Remember: you can claim an automatic $500 exemption in your bank account, or $2,500 in the case of private student loan debt.

Can a judgment creditor sell my personal property?

Maybe. A judgment creditor can get a “Writ of Execution” from the court telling the sheriff to take your property and sell it. The judgment creditor gets the money from the sale.

You can stop the sheriff from taking your exempt property by claiming exemptions. Make a list of all personal property (household furniture and appliances, cars, tools, equipment). Put “*” next to items you claim are exempt.
At the bottom of the list, write:

“I declare under penalty of perjury under the laws of the state of Washington that this is a list of my household furnishings and appliances (or tools or motor vehicles) and I believe the items I’ve marked with a ‘*’ are exempt from attachment.”

If the sheriff comes to take your property, show the list. The sheriff cannot take your property without further proceeding to determine the value of the items claimed exempt.

*How to Claim Personal Property Exemptions has more info and forms to use.

Can a Judgment Creditor sell my real property?

Maybe. A judgment creditor may try to have the sheriff sell your real property (land, house, and other buildings).
The homestead law protects up to $125,000 of equity in your home from most judgment creditors. If you live on the property claimed as a homestead, the exemption is automatic. You do not file anything. To claim a homestead exemption on property you do not currently live on, you must file a homestead declaration.

The homestead exemption does NOT work against:

  • A worker who has worked on your home

  • Someone who has provided materials used on your home

  • A lender trying to foreclose a mortgage on your home because you have not repaid the loan

*The homestead law also protects mobile homes.

What are supplemental proceedings?

A judgment creditor may get an “Order for Examination of Judgment Debtor,” “Notice of Supplemental Proceeding,” or “Order to Show Cause re: Supplemental Proceedings” to find out:

  • if you work

  • where you keep your money

  • what property you own

This requires you to appear in court to answer questions. You must comply with the order and appear in court or a warrant will be issued for your arrest.

When you appear in court, wait until the judge calls your case. Usually, the judge have you go to a separate room with the judgment creditor’s lawyer. The lawyer then asks you about your property. If the lawyer treats you badly, stop the examination. Go back and tell the judge. Examples of when to do this:

  • The lawyer is rude

  • The lawyer asks questions that do not make sense

  • The lawyer is looking for irrelevant info

You do not have to answer a question if you think the answer would be an admission of a crime. If you think this might be the case, ask the judge for time to talk to a lawyer. Supplemental Proceedings has more info.

 

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 June 2018.

© 2018 Northwest Justice Project — 1-888-201-1014.
(Permission for copying and distribution granted to the Alliance for Equal Justice and to individuals for non-commercial purposes only.)

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Last Review and Update: Jun 06, 2018
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