Senior Legal Line - October 2009In this month's Senior Legal Line, find out what to do if credit card debt is coming back to haunt you.
By: Senior Citizens’ Law Project, Budgeteer News
Dear Seniors’ Legal Line:
I just received a “Summons and Complaint” in the mail today, regarding a credit card debt that I owe. It states that I have 20 days to answer, and if I do not answer I will lose the lawsuit by default. It also wants me to sign an “acknowledgment of service” in order to reduce the cost of the lawsuit. I am a senior and live on a very fixed income of Social Security benefits. I live modestly in a small apartment and have one old car for my transportation. I simply could not afford to pay back the credit card debt — now I am being sued. What should I do?
You are not alone. I see many clients in the same position. In Minnesota, it is estimated that debt collectors filed over 36,000 default judgments. It is scary to be served with a lawsuit and fact a potential judgment, but hopefully this article can help ease your mind. I encourage you and anyone else in a similar situation to contact us or another attorney for more information.
First, here is a short explanation about what is going on: The summons and complaint you received is the start of a lawsuit (if you acknowledge the service in writing). In Minnesota, a lawsuit begins with the service of the summons and complaint; this is called “pocket service” or “pocket filing” because the plaintiff does not have to notify the court. In most other states, a lawsuit begins when the summons and complaint is filed with the court (where the petitioner/plaintiff has to pay filing fees).
After a person (known as the defendant) receives the summons and complaint, they have to choose:
1. Whether or not to sign the acknowledgment of service and return it to plaintiff.
In Minnesota, the lawsuit has not started until proper service is accomplished. This happens either (a) when a defendant signs the acknowledgment and returns it; or (b) if the defendant is personally served with the summons and complaint; or (c) if the defendant cannot be located after reasonable attempts, by publication in the local newspaper of record.
The plaintiff will argue that the defendant will reduce the overall potential judgment against him by signing the acknowledgment since the plaintiff did not have to pay a process server or sheriff to serve the summons and complaint on the defendant. On the other hand, if the defendant does not sign the acknowledgment, the defendant will buy himself more time to contact the plaintiff to explain why the lawsuit is a waste of the plaintiff’s time. In Baxter’s case, his income (social security benefits) is fully protected from collection under federal and Minnesota law. He has no other attachable assets since his car is probably valued less than $4200. Even if the defendant has a house, the house is protected by Minnesota law from collection for these types of judgments up to $300,000 in equity. Once a plaintiff knows the lawsuit is a waste of time, the plaintiff can choose not to file it. Also, even if the plaintiff files and the judgment includes the service fees, Baxter is exempt from collection, so there really is not much incentive for Baxter to make it easier on the plaintiff and sign the acknowledgment of service.
2. Whether or not to answer the complaint within 20 days.
If a defendant disputes the debt, or if there is a defense to the debt, then the defendant should submit an answer to the complaint. If the defendant does not dispute the debt and has no defenses, then there really is no reason to submit an answer; the defendant is allowed to do nothing and to allow the plaintiff to get a default judgment.
Twenty days later, if the defendant did not answer, the defendant will lose the case, which means the court will determine that he owes the money to the plaintiff. A judgment will be entered against the defendant. The judgment will automatically become a lien on any real estate that the defendant owns in the county in which the lawsuit took place (but Minnesota law protects homesteads, so the judgment will essentially just sit on the title of the homestead for up to 20 years). In Baxter’s case, because he is exempt from collection, he can choose to do nothing with relatively little risk to himself.
Sometimes, plaintiffs will attempt to grab the money from defendant’s bank accounts and/or wages before they obtain a judgment against a defendant. Minnesota recently added new protections for defendants in regards to these “prejudgment garnishments”. The plaintiff must serve a new, plain language “Notice of Intent to Garnish” on the defendant any time after the 20 days following the service of the summons and complaint, if the defendant did not answer the complaint. This is essentially a second notice that the plaintiff will attempt a garnishment in 25 days unless the defendant takes one of the following actions: (1) answers; (2) claims an exemption; or (3) contacts the plaintiff to set up a payment plan.
So, 45 days after service, the plaintiff can start garnishing the defendant’s bank accounts or wages, still without filing the lawsuit. However, in Baxter’s case, because only his social security benefits go into his bank account (he has no wages), the bank account is exempt from collection under federal and Minnesota law.
Please note: the sheriff will not come and arrest you if you choose not to sign the acknowledgment or go to court (you are not being subpoenaed and the summons and complaint is not a court order). There are no debtor’s prisons in America. In the future, its common for the court to order that the defendant disclose his/her financial assets and income; the defendant must answer a court order or face contempt of court.
In conclusion, if you receive a summons and complaint in the mail, you have to decide (1) if you wish to acknowledge service by mail or wish to make the plaintiff personally serve you; and (2) if you wish to answer the complaint and appear in court. In Baxter’s case, because the law protects his income and assets (the car), he can choose to not acknowledge the service by mail, to not answer the complaint, and to not appear in court. I encourage anyone who has any questions about the lawsuit process and/or debt management to contact our office or another private attorney for further information. This article does not purport to answer all aspects of a question, so please seek further advice about your particular situation; do not rely on this article alone.
This column is written by the Senior Citizens’ Law Project. It is not meant to give complete answers to individual questions. If you are 60 years of age or older and live within the Minnesota Arrowhead Region, you may contact us with questions for legal help by writing to: Senior Citizens’ Law Project, Legal Aid Service of Northeastern Minnesota, 302 Ordean Bldg., Duluth, MN 55802. Please include a phone number and return address. To view previous articles, go to: www.lasnem.org. Reprints by permission only.