Consumer Law

Should I Wait Until I Am Served To File An Answer To A Collection Lawsuit?

By M. Stan Herring

We are often asked this question by people who have been sued by debt buyers such as Midland, Asset Acceptance, Unifund, LVNV, and a host of other debt buyers. They may have been previously contacted by collection law-firms such as Zarzaur & Schwartz, Nathan & Nathan or others or they may have found out about the lawsuit by getting letters from lawyers offering to help. However they found out, the question is whether it is better to wait until they are actually served or is it better to go ahead and answer the complaint?

Normally we think it is better to go ahead and answer the complaint. We have talked to a number of Alabama consumers who have been sued but not yet served who decide to wait. Then they receive notice from their work that their wages are being garnished or they realize they have bounced checks as their bank account is wiped out due to a garnishment. They are stunned that the court has issued a judgment against them because they did not answer after allegedly being served.

Being served must happen for a judgment to be proper and stand (we have set aside a number of judgments where there was not proper service but it can be difficult) but it is proper to leave the papers with an adult at your house. Even if that adult doesn't tell you about the suit. Sometimes the person who is serving the papers serves the wrong person or wrong house but the court thinks you have been served and so a default judgment is entered. Or you may have been served but had something else going on in your life and just did not take note of the seriousness of the lawsuit.

For us (or any lawyer we know about) to move the court to set aside the judgment will cost you more money because of the work it requires. And we only do this when we are convinced that you were never served. The court has some discretion in what to do so you cannot count on the judgment being set aside.

If you wait, then you will need to monitor your case to see if you have been served. You should call the clerks office every week or so to find out. Otherwise you may be surprised with a garnishment.

Bottom line - you have to decide if it is in your best interest to file an answer and have certainty that you will not be hit with a default judgment or if you prefer the uncertainty of constantly wondering if the court thinks you have been served.

We will be glad to meet with you and discuss your situation if you live in Montgomery County to Madison County, Alabama.

Full post as published by Alabama Consumer Blog on January 04, 2009 (boomark / email).