The first consideration in all lawsuits is “jurisdiction”. Without delving too far into complex legal issues, jurisdiction has two components:
- subject matter jurisdiction.
- personal jurisdiction.
The first answers the question: Does the court that plaintiff (the person or entity initiating the lawsuit) filed the case in have the power/authority to hear the case? For a typical collection matter that is usually not a matter of controversy.
The second answers the question: Was I (or my business) properly served with the initial pleading, most often a summons and complaint? Each state has its own civil procedure rules.
For a list of each state’s requirements see this: https://www.creditinfocenter.com/process-service-requirements-listed-by-state . Please note: some of the information provided may be incomplete or outdated, you should do further research to confirm the applicable rule(s).
If you are fairly certain that you have not been properly served, you can proceed served, you can proceed with a motion to dismiss on the ground that plaintiff has not obtained personal (in personam) jurisdiction.
A “motion” is an application to the court for an order of some kind. Its is most often done in writing and often requires a party (you) to email or e-mail or drop off a copy of your motion papers to the plaintiff’s attorney and file the original papers with the clerk of the court. Again, you should check the clerk of your local court to confirm the proper procedure.
Importantly, should you prevail on the that motion, there is nothing to stop the plaintiff from restarting the case, although this may be decisive if there is a statute of limitations issue, which is our next topic.
Statute of limitations
Every state has its own limitations period for the collection of debt, see this Statute of limitations by state . Again, please confirm with another reliable source of the information provided is still accurate. Every state has laws and rules in place to eliminate stale claims. If your last payment or communication or agreement, written or oral was beyond the limitations period, you may be able to prevail on a motion to dismiss on the basis of the statute of limitations.
In the typical collection scenario, you will either prepare a written answer, that you must serve on the plaintiff’s counsel and file with the clerk of the court or, you may have the option to appear before the clerk and answer orally. An answer is a pleading that responds to each and every allegation in the complaint, although in some courts, a “General Denial” is acceptable.
For each numbered allegation, you should respond in one of three ways:
1. Admit the allegation(s);
2. Deny the allegation(s); or
3. Or a statement that a defendant is “without knowledge or information sufficient to form a belief as to the truth of the allegation(s).”
As for choice “3,” you may see a paragraph in the complaint such as: “Plaintiff is a national banking association organized under the laws of the United States and having a principal place of business in city, state.”
Generally speaking, a party being sued (you) do not have specific knowledge about a particular bank or financial institution’s business profile so you respond with “3.”