The Bresso Law Blog

Bankruptcy and Family Law Blog

Creditor Lawsuits: How to Defend Yourself Part Two: The Answer

Ok, so you’ve read my first post on the summons and the complaint (hopefully) and you’re ready to file that written response referenced in the summons and in my previous blog post.

First and foremost, there are a few ways you can file a written response to a lawsuit.  The two basic responses to a lawsuit is the general denial or an answer.  A general denial is a blanket denial of all the allegations in the complaint.  You may use the general denial form (PLD-050) if the complaint is unverified (read below); or if it is verified, if it’s a limited civil case.  A limited civil case is where the amount the creditor is asking for is less than $25,000. However, if your case is one where the person suing you is a third party who is collecting the debt for someone else and you’re being sued for more than $1,000, you cannot use the general denial form and will have to use the answer form.

An answer is your written response to the lawsuit where you can either deny the allegations in the creditor’s lawsuit generally or specifically.

Another response to a complaint is a demurrer.  This is beyond the basics here but briefly, a demurrer is used to tell the court that the allegations in the complaint do not provide a legally sufficient reason for the creditor/plaintiff to sue you.  A demurrer questions only the legal sufficiency of the allegations, not if they are true or if the plaintiff can prove them. In the demurrer, the defendant must state what was left out of the complaint to make it legally insufficient.

If you think you want to get down and dirty and file one of these things, I suggest going to your local law library and look at Rutter Group’s, Civil Procedure Before Trial by Brown and Weil.  This is the civil practice pre-trial bible and it explains all about demurrers.  If your library carries the Forms book to this practice guide, there will be a sample forms you can use as a guide.

Since the answer form offers more flexibility than the general denial, the focus of this post will be on answers.  The easiest way to answer the lawsuit is use the judicial council forms.  You can find the forms at http://www.courtinfo.ca.gov/forms/.  You’re going to need Adobe Reader to use the forms.  If you don’t have it, you can download it for free at http://get.adobe.com/reader/. The use of the answer forms are not mandatory (though other forms during this process are) but I recommend using them because they’re easier and you don’t have to worry about missing something.

All right, grab your form and let’s go through it step by step.  Check below for a sample answer and proof of service that you can use as a guide.

THE CAPTION

1.      The caption is those boxes at the top of the first page.  In the first box, you’re going to put your name, address and telephone number.  In the “ATTORNEY FOR” space,  put “In pro per”.  It’s just a fancy way of saying you’re representing yourself.

2.      Below your personal information, you’re going to put Superior Court, the county the court sits in, the branch or division name and the court’s address.  In my sample answer, I use the Rene C. Davidson courthouse in Oakland.  You can find this information on the court’s website.

3.      The Plaintiff is the person suing you and the Defendant is you.

4.      You’re going to check the box, “TO COMPLAINT OF (name):” and put the name of the person who is suing you.  As an aside, a cross-complaint is a lawsuit that the Defendant can file against the plaintiff if they have a claim against the plaintiff related to the lawsuit the plaintiff filed.  For example, you can file a cross-complaint against the creditor for violations of the Fair Debt Collection Practices Act and California’s Rosenthal Acts, if there have been any violations of those two laws.

5.      Finally, put the case number in the caption.  The case number will be on the summons and the complaint.

In paragraph one (1), you’re going to identify the number of pages in your answer.  I would wait until you finish your answer, then go back and put the number of pages.

In paragraph two (2), you’re going to put your name.

THE DENIAL

In the answer form, you’re given two choices:  a general denial or a specific denial.  On the answer form, 3a is the general denial.  For the most part, checking box 3a will be sufficient unless the complaint that you received was verified.

How do you know if the complaint is verified?  A verified complaint will have a verification page somewhere in the documents that you were served.  A verification will declare under penalty of perjury that the complaint is true and correct.  This is not the same as a declaration regarding venue, which looks similar to a verification page. The declaration regarding venue will just talk about where you live and why filing the suit in a particular court is proper.  If it doesn’t mention that the allegations in the complaint are true, then it’s not a verification.

If they complaint is verified, you will have to check 3b and in section 3b(1) you will have to list the specific paragraphs in the complaint that you are denying.  Generally, I list in 3b(1) any paragraphs in Plaintiff’s complaint that specifies a balance due or any paragraph that says the cardmember agreement calls for attorney fees payable to the creditor/plaintiff. Whatever paragraphs you DO NOT list in 3b(1) you are admitting are true.  If you’re not sure, be safe rather than sorry and deny the paragraph.

Now, if there are paragraphs in the complaint you are not sure are true because you don’t have the information or the knowledge about the facts in that paragraph, use 3b(2).  3b(2) is like saying since you don’t have information on whether the facts in a particular paragraph are true to be safe, you’re just going to deny it.  Typically, any paragraph that mentions specific dates or what the agreement supposedly says, I put in this section.

I think the most important thing to do is make sure you’re not admitting something big, like that you owe whatever the balance they claim is due.  If you can’t do a general denial under 3a, I think you’re safest bet is to stick almost every paragraph from the complaint in either 3b(1) or 3b(2) and either way, the allegations in those paragraphs get denied.

AFFIRMATIVE DEFENSES

Paragraph four is another important part of your answer.  This is where you put your defenses to the lawsuit.  The thing to remember about affirmative defenses is if you don’t put them in, you won’t be able to use them later.  Most attorneys will throw in every possible affirmative defense they can think of (and are possible.  You don’t want to use personal injury defenses in a contract lawsuit) because they’d hate to find out later that a particular defense was available but it wasn’t included in the answer.

If you are looking at my sample answer, I have a separate attachment (form MC-025) for the affirmative defenses.  You can, however, put them on the answer form. I only used the attachment because I ran out of room on the form.  The defenses listed in attachment 4 is everything and the kitchen sink.  They are typical defenses used in contract/collection lawsuits.  If you’d like an explanation of the defenses, please send me a comment.

You’ll notice at the end there is a sentence informing the plaintiff and the court that you’re reserving the right to change your answer later if you learn something new.  The reason you add this to your answer is because during the course of the litigation, you may learn about a defense you didn’t know you had.  Up to a certain period of time, you can change you answer without getting permission from the court.  However, after that time, you will have to file a motion to amend your answer.

OTHER

This is a catch-all paragraph for you to include additional information in your answer.  I think I’ve used this section when Plaintiff was suing on an account that had been paid off or settled.  I put this information in paragraph 5 and attached a copy of the settlement confirmation letter.  Or maybe, if you’re a victim of identity theft, you can put that information here and attach copies of the police report.

PRAYER FOR RELIEF

Here is your prayer for relief (if you forgot, this is where you put what you are asking the court to do).  Always check paragraph 6b to recover the costs of your lawsuit and always check “other”.  I would specify attorney fees here.  Yes, I know you’re not an attorney.  But what if you hire one later, don’t you want that attorney to get a chance to have Plaintiff pay his fees instead of you?

Finally, add “such other and further relief the court deems just and proper” on the off chance the judge thinks you should get something other than costs of suit and attorney fees.

After you’ve finished with the answer, sign it in blue ink.  The blue ink is how the clerk knows she is getting the original.  It’s not always easy to tell original black ink from a photocopy.

SERVICE

Ok, now that you’ve got your answer, you need to serve it on Plaintiff’s attorney.  This is what you’re going to do:

1.      After you’ve finished the answer, get the proof of service form.  For service by mail, it’s Form POS-30.  Fill out the caption (see above).

2.      Because you are a party of the lawsuit, YOU CANNOT SERVE THE LAWSUIT YOURSELF.  You should get a friend or family member to complete the proof of service form and drop it in the mail for you.

The person who completes the proof of service form will have to put their address in paragraph 2.   In paragraph 3, they need to put the date they mailed the documents and the city the documents were mailed from.  In “the following documents” section you’re going to put “Answer” since this is the document you are serving on Plaintiff.

If they’re just dropping it in the mail box, they should check box 4a.  In paragraph 5a, you’re going to put the name of the creditor’s attorney and in 5b you put the attorney’s address which can be found on the summons and the complaint.

Finally, the person who serves the answer for you should print his/her name, sign and date it in blue ink.

3.      After you’ve done that make 3 copies of your answer and proof of service.  You’re going to mail a copy of your answer and proof of service to the creditor’s attorney.    It is important that you mail the answer on the date that you said you mailed it in the proof of service.  If you said you mailed it on December 10, then you should mail it on December 10.

FILING

Almost done.   All right, take the two remaining copies and the original of the answer and proof of service and go to the courthouse to file them.  Most courts break up their filing windows by case type.  A collection case is a civil case so look for the line for “Civil”.

To file your answer with the court, you’re going to have to pay a filing fee.  It’s not cheap to file your answer.  Currently, if you’re being sued for less than $10,000, the filing fee is $225; if you’re being sued for over $10,000 but less than $25,000 the filing fee is $370; and if you’re being sued for over $25,000 the filing fee is $395.

If you know you can’t afford the fee, you can request the court to waive the filing fee.  You do this by completing form FW-001.  Take the completed form FW-001 with you when you file the answer.  The court may grant or deny your request without a hearing.  If the court needs more information, they will set a hearing date.  If the court denies your request, you will have to pay the fees within 10 days or you can request a hearing date to explain to the judge why you cannot afford the filing fee.

You’re going to give the clerk your original answer and proof of service (the one you signed in blue ink) and she’s going to stamp and file them.  Most often, they ask you if you have copies but if she doesn’t let her know you have them.  She’ll stamp them and hand them back to you.

And you’re done!  You’ve filed your answer.  If you’re in Alameda County, you’ll be able to use the court’s domain web at http://apps.alameda.courts.ca.gov/domainweb/html/index.html and see a copy of the documents you filed with the court.  Most counties have case summaries or dockets online but very few (Alameda and San Francisco are the only ones I can think of) allow you to look at the documents and print a copy.

So what’s next?  Well, anywhere between 140 and 180 days after the lawsuit was filed (it depends on the county), you will have your first hearing.  The Case Management Conference.  In my next post, I’ll tell you how to get ready for this and the documents you have to file and serve before you appear.

Sample Answer

Sample Proof of Service

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October 29, 2010 - Posted by | Debt Collection | , , , , , , , , , , ,

5 Comments »

  1. I am in a financial crisis right now and I came across your blog’ your writing is very helpful and relief a lot of my stress and I am learning a lot. Thank You your generosity in writing and sharing your knowledge.

    Appreciated,

    Neari :)

    Comment by Neari | October 6, 2011 | Reply

  2. I would like to thank you for taking the time to share your knowledge with us. I recently received a summons and felt very frustrated trying to answer the complaint properly. You have taken some of my worries away now that I have some understanding of how to answer. Question: In CA does the SOL only begin from time of CO or missed payment ? Or could it be from when I first missed a payment, or maybe when I paid less than the minimum amount. It seems to me that these would be a breach of contract and therefore SOL has begun at this time. What do you think?

    Comment by Trina | November 19, 2011 | Reply

  3. If there is a verification page signed by the attorney but it is not notarized. Is that considered “verified” or “not verified”?

    Comment by Sam Bark | April 18, 2012 | Reply

    • I think it would depend on the state but in California, a verification page doesn’t need to be notarized to be “verified”.

      Comment by Kelly Bresso, Esq. | May 5, 2012 | Reply

  4. I am the same as #1 comment and I can’t tell you the stress and frustration you have eliminated!!!!!!!
    It is so hard to get honest help without attitude or ego. God Bless You!!! and THANKS. Midland Funding seems to be a real piece of work and I want to fight them with all I have and then help other people to do the same.
    I don’t say this word very much, but “I HATE MIDLAND FUNDING AND CHASE BANK FOR WHAT THEY PUT ME THRU!!”

    Comment by Mike Mercadante | June 14, 2012 | Reply


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