As an attorney, I’m used to seeing court papers such as summonses and complaints every day. But, for almost everyone else, seeing court papers sets off alarms that say “What’s this all about?” or “I don’t understand this!”, or “I don’t want to go to jail!”. But, you might have some ways to fight the debt.
You may have a defense to the lawsuit, especially if it is older debt. If it is too old to collect on, it can be a “Stale Debt”. Each state has a Statute of Limitations, on how long a creditor can collect on a debt. In Illinois, creditors can’t sue to collect on written contracts after 10 years, and after 5 years on unwritten obligations. Sometimes, the creditor will be able to collect past those time periods if they get a court judgment against you, and collect later.
If you weren’t the one who signed the contract, that’s a defense too! Many times, debt collectors sue the wrong people, or might try to sue you even if you didn’t sign the contract.
If you filed bankruptcy in the past, you need to check to see if that debt was included in that case. This is becoming a bigger problem. Debt collectors buy huge numbers of defaulted accounts. In those accounts there may be debts that were already written off by creditors. If the lawsuit is for a debt from before you filed a Chapter 13 or Chapter 7 case, and the case was completed, and you received a discharge, the collection lawsuit would violate the Fair Debt Collection Practices Act. And, you can try to get damages, money and legal fees, for the creditor’s violations.
So, the first thing to do when you get a lawsuit is not to panic, but to contact an attorney to review the lawsuit to check to see if you can fight it. Bankruptcy is an option, but not the only option.
When clients come in with court documents, we review them to see if there are any defenses to the lawsuit, and then see what the best strategy is to help you.
Daniel J. Winter
Offices in Chicago, Gurnee, Oak Lawn, and Skokie, Illinois