The Second Step in a Debt Collection Lawsuit: The Answer or Motion to Dismiss
Updated: Sep 2, 2020
Part 2 in Series on Debt Collection Lawsuits
In the previous post we explained the first step in a debt collection lawsuit, the service of the debt collector’s Summons and Complaint. This post explains the second step in a collection case, which is the consumer’s Answer (or, in some cases, Motion to Dismiss). Typically, a consumer will deny any liability at this stage of the lawsuit and demand that the collector prove its case.
Rule 8 and Rule 12 of the North Carolina Rules of Civil Procedure govern the requirements for your Answer to the debt collector’s Complaint. Rule 8 says that your Answer should respond paragraph by paragraph to each of the collector’s allegations. For example, if paragraph 5 the debt collector’s Complaint includes an allegation stating that your last payment was on a certain date, but this is incorrect, you should deny it in the corresponding paragraph 5 of your Answer.
Rule 12 says that any defenses you have must be stated in your Answer. At the end of your Answer is typically included a list of any reasons why you do not owe it. A common defense our office uses against debt buyers is that there is no “privity of contract” between our client and the debt buyer, and as such the debt buyer is not the “real party in interest” under Rule 17. In layman’s terms, this means that we deny the debt buyer owns the account unless they can produce documentation showing so.
With certain defenses, you can file a Motion to Dismiss rather than an Answer under Rule 12. These defenses available with a Motion to Dismiss are listed at Rule 12(b). These are applicable to every case – whether by a debt collector or not. They include lack of personal or subject-matter jurisdiction, improper venue, insufficient service of the lawsuit, and failure to state a claim. Whether one of these defenses might be available in your case is a fact-sensitive inquiry that should be performed by a licensed attorney.
In debt collection cases filed by a debt buyer, there is another basis for having the case dismissed – failure to include the documents required under the Prohibited Practices by Collection Agencies Act, G.S. § 58-70-150. Every debt buyer who files a lawsuit in North Carolina must include with their Complaint: (1) the signed contract, or if there is no signed contract, copies of documents created when the credit card was used; and (2) the complete chain of assignments showing that the debt buyer owns the account. If a debt collector fails to include these documents, you can file a motion to dismiss. You might also be able to get statutory damages.
Procedurally, when you file either an Answer or a Motion to Dismiss, you must send the original to the court and a copy to the debt collector’s attorney. You must also include a certificate of service as required under Rule 5.
After you file your Answer to the collector’s lawsuit, you move on to the “discovery” phase of the case. The next post will explain what discovery is, what documentation our office usually requests from debt collectors in discovery, and some strategies we employ to try to gain the upper hand.
Culik Law is a Charlotte, North Carolina consumer protection law firm. Our attorneys represent consumers and small businesses in matters involving debt and debt collection. If you are negotiating with a creditor or debt collector, or if a collection lawsuit was filed against you, contact us to see if we can help.
SERIES ON DEBT COLLECTION LAWSUIT STEPS