If you’ve been sued for a debt and receive a summons, the first thing you must do is file with the court an answer to the summons and complaint. Your answer should respond to the allegations. Maybe you admit some of the allegations but deny others. Let’s assume you don’t owe the debt and you’ve filed an answer telling the court that you don’t owe the debt. What do you do next?
Creditors don’t want you to answer the summons and complaint. Collections is a volume game. The lawyers who file debt collection lawsuits get paid a contingency fee, or a percentage of anything they collect. If they don’t collect from you, they don’t get paid. This means they want to crank through as many cases as they can in as little time as possible. The fastest way for a debt collection attorney to get paid is to obtain a default judgment. This means that the creditor sued you and you failed to respond to the lawsuit. In that case, the creditor asks the court to issue a default judgment, since by failing to answer you have admitted you owe the debt.
But you are already ahead of the game. You’ve filed an answer telling the court you don’t owe! Many debtors stop here. They think that they’ve told the court their side of the story; surely the court won’t issue a judgment before you have a chance to talk to the judge. The debtors then do nothing, waiting for the court to set a hearing.
So many debtors make this mistake
After you file the answer, the opposing attorney will likely continue to send documents to you in the mail. These documents might be called “Discovery Requests” or “Requests for Admission.”
Don’t ever ignore anything an opposing attorney sends you
A good rule of thumb is that if an opposing attorney sends you a document in your debt collection case that the attorney also files with the court, you should file a response. If the attorney cannot get a default judgment against you, the next step will be to try and get “summary judgment” against you. Summary judgment is a judgment entered against a one party in a case without a full trial. Courts grant summary judgment when there are no disputed facts, and therefore no reason to try a case.
You may be thinking, “How can a court grant summary judgment against me? I answered and denied the claims.” But the creditor’s attorney will try and trip you up again by sending “Requests for Admission.”
Requests for admission will be governed by your state’s court rules. In Federal court that rule is Rule 36 of the Federal Rules of Civil Procedure. You’ll need to search for your state’s court rules to confirm the exact rules, but it will probably be similar to Rule 36 of the Federal rules. Basically, a party can send an opposing party a written request to admit certain statements. For example, a creditor might send you the following: “Admit that you owe the debt in question.” You then must respond to that request. Your court’s rules will outline how long you have to respond. In the Federal rules, you have 30 days to respond to the request in writing. If you don’t respond within that timeframe, the court will consider it admitted. In other words, if you received a request for admission asking you to admit you owe the debt in question, and you don’t respond within the appropriate timeframe, you have just admitted that you owe the debt.
If you receive a request to admit, do this instead
If you receive a request to admit, you need to prepare a document called “Response to Requests for Admission.” On that document you will recite the request and then your response. It will look something like this:
“Request No. 1: Admit that you owe the debt in question.
Response to Request No. 1: Deny. Defendant does not owe the debt.”
Then you should file the document with the court and send a copy to the opposing attorney.
That’s it! You’ve now thwarted the attorney in obtaining a judgment against you in the two easiest ways possible for a creditor. Taking this approach will help you get in front of a judge so you can make your case rather than lose on a technicality.
There are a few different ways you can respond to the requests for admission. First, you can admit. You’ll only want to do this if it’s obvious and you must admit it to tell the truth. Second, you can deny. This is what you’ll want to do if you get a question like the one above asking to admit that you owe the debt. Third, you can object. You’ll probably need the help of a lawyer if you’re going to object, or at least learn what the different possible objections are. That will be a subject of another blog later. If you want to be safe, you can simply write “Objection” in response, then also admit or deny.
There might be questions that you can’t admit or deny. Perhaps you don’t know the answer to the question. In that case, you must state in detail why you cannot truthfully admit or deny. It’s important to remember that if you don’t deny and don’t give an explanation why you can’t admit or deny, the judge may consider the matter admitted. If you claim you can’t answer because you lack knowledge or information to admit or deny, you must also respond by stating that you made a reasonable inquiry and that the information you know or can readily obtain is insufficient to admit or deny.
If you need help with the forms on responses to requests to admit, we’ve got you covered. With Debtbrief’s form bundle (which comes with our e-book with further in-depth explanations on how to use the forms) you’ll know exactly when and how to respond to any requests for admission. You can purchase these forms here.
What if I failed to respond to the requests for admission?
It might not be too late. You’ll probably realize something went wrong when the attorney files a motion for summary judgment and the court sets a hearing for you to appear. If you show up to that hearing without doing anything the judge will likely grant summary judgment against you, and you will then owe the debt. The judge will also likely tack on additional fees and costs. So it is absolutely imperative that you take action before the hearing. You’ll want to do this by filing two documents.
Motion to Withdraw Admissions
The first is a motion to withdraw the admissions. There’s nothing special about a motion. A motion is simply the method by which you can ask the court to do something. In this case, you are asking the court to withdraw the admissions you already made by failing to respond to the requests for admission.
Rule 36 of the Federal Rules of Civil Procedure says:
“A matter admitted under this rule is conclusively established unless the court, on motion, permits the admission to be withdrawn or amended. Subject to Rule 16(e), the court may permit withdrawal or amendment if it would promote the presentation of the merits of the action and if the court is not persuaded that it would prejudice the requesting party in maintaining or defending the action on the merits.”
This is just a fancy way of saying that if you tell the judge that you made a mistake in not responding, and that you can prove the matter you inadvertently admitted is not true, the judge will allow you to withdraw the admission. The reason for this is that court generally want the parties to decide cases “on the merits,” or based on the evidence, not on a technicality like failing to respond to requests for admission.
Your motion should quote your state’s rule for withdrawing admissions, then explain why you didn’t respond, then explain that you can prove the matter you admitted is not true, then ask the court to allow you to withdraw the admission. Once you complete it, you’ll need to file it and send a copy to the opposing attorney. You’ll then need to give the other side a chance to respond (probably about two weeks, but your court rules might differ), and then you’ll need to ask the court clerk to schedule a hearing on your motion. At the hearing, you will want to reiterate all the arguments you made in your motion.
Opposition to Motion for Summary Judgment
You’ll also want to prepare a memorandum in opposition to motion for summary judgment. The opposing attorney will have filed a motion asking the court to grant summary judgment. Summary judgment motions are complicated with lots of rules. I’ll be doing another blog post just on summary judgment motions. But for now, it’s enough to say that your opposition memorandum should ask the court to deny the motion for summary judgment because it is based on the requests for admission which you are now asking the court to withdraw. When you finish the memorandum, you’ll want to file a copy with the court and send a copy to the opposing attorney.
You’ll need forms to file
If you want to respond to the requests for admission, or file a motion to withdraw the admissions, or file a memorandum in opposition to the motion for summary judgment, you’ll need forms. That’s where we have you covered. Just click here and we’ll set you up with 10 forms that you need to defend your debt collection lawsuit, including responses to requests for admission, memorandum in opposition and motion forms.
Now you should know how to avoid this common mistake. If you have any other thoughts or questions, feel free to share a comment below.
