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Debt-Collection

   Introduction

This page explains how debt collection cases work. If you need to file an answer in your debt collection case you can find one in the forms section below. You can also file an answer using MyCase.

 

Definitions

This page discusses the process for cases involving debt collectors. Both federal and state laws govern debt collectors.

Under the federal Fair Debt Collection Practices Act (FDCPA), a "debt collector" is someone who regularly collects debts owed to others. This includes collection agencies, lawyers who collect debts on a regular basis, and companies that buy delinquent debts and then try to collect them.

Credit card or mortgage companies are not considered "debt collectors" as defined in the FDCPA.

The person who is collecting the debt is called the creditor. The person the collection is against is called the debtor.

 

Notifying the Debtor

Before a debt collector can file a court case, they must send the debtor a written "validation notice" telling the debtor how much they owe, the name of the creditor, and how to dispute the debt or to seek verification of the debt.

The debtor has 30 days to dispute or request verification of the debt. "Verification" means asking for additional information, including the name of the original creditor.

The debtor may want to dispute the debt because they don't believe the debt is theirs, or they think the amount is incorrect. The Consumer Financial Protection Bureau offers sample letters the debtor can use to dispute a debt.

The Fair Debt Collection Practices Act requires  debt collectors to send this validation notice. If they debt collector does not send the notice it is not a defense to the debt collection case. However, it could give the debtor an opportunity to sue the debt collector for violating the Fair Debt Colleciton Practices Act. 

 

Illegal Debt Collection Practices

The Consumer Financial Protection Bureau has several web pages that explain what debt collectors can and cannot do:

The Federal Trade Commission's Debt Collection page also provides information about the laws that govern debt collection practices.

 

Resolving the Case Outside of Court

Resolving a case outside of court can save time and money.

Settlement

The parties can settle the case at any time in the process. The debtor can contact the creditor's attorney to see if they are willing to negotiate.

One example of a settlement is a payment plan, where both sides write an agreement that they debtor will pay the creditor a certain amount each month for a certain period of time. The amount could be the full amount owed, or it could be for something less than the full amount. The written agreement between the parties becomes an enforceable contract. If the debtor does not follow the contract, the creditor may file a new lawsuit to enforce the payment plan contract.

In some hardship cases (for example, in situations concerning a medical debt), the creditor may be willing to discuss the hardship with the debtor to reach a resolution of the debt.

Mediation

The parties can hire a mediator to help them work through their dispute and to try to come to an agreement. See the Alternative Dispute Resolution page for more information about the process.

 

Starting a Debt Collection Case

A debt collector starts a debt collection case by filing a complaint with the court. A copy of the complaint and a document called a summons must be served on the debtor by one of the methods described in Utah Rule of Civil Procedure 4.

In the complaint, the creditor must explain what they are asking for in the lawsuit. It should include the amount owed and if applicable, information about the debt and any buyer/assignee.

The person who filed the case is the plaintiff. The person the case is against is the defendant.

 

Responding to a Debt Collection Case

The summons states when the defendant has to file a response to the complaint. Usually, the summons tells the defendant they have 21 days (if they were served in Utah) or 30 days (if they were served outside of Utah) to respond to or "answer" the complaint. The answer is the defendant's chance to agree or disagree with each of the plaintiff's statements in the complaint, and to make any affirmative defenses, or to file a counterclaim. If the defendant believes that the plaintiff has violated the FDCPA, the defendant can consider filing a counterclaim.

The debt collector may have the papers served on the defendant before they have started a case with the court. This can be confusing for a defendant who wants to file an answer right away, but the court cannot find any case filed in its system.

Utah Rule of Civil Procedure 3 says the plaintiff must file with the court the complaint, summons and proof of service within 10 days of serving the defendant. The defendant can try contacting the plaintiff's attorney to discuss the complaint. The defendant can check with the district court of the county where the case will be filed to confirm that the plaintiff has filed the case. See our web page on filing procedures for more information on counting time.

The form to answer a debt collection complaint is available in the Forms section of this page. For more information about the answer process, see the court's Answering a Complaint or Petition web page.  A defendant who has questions about whether to respond to a complaint should get legal advice. See our web page on Finding Legal Help.

 

Common Defenses in a Debt Collection Case

If the defendant believes they have a legal defense to the debt collection case, it is important to say that in the answer.

Some examples of common legal defenses include:

  • The account is not the defendant's account.
  • The defendant legally cancelled the contract and so does not owe anything, or the creditor cancelled the contract and so is not entitled to payment.
  • The claims are barred because they were brought after the six-year statute of limitations period for actions based on a contract passed, or another applicable statute of limitations has passed.
  • The debt has been paid or excused so the claims are barred by accord and satisfaction, discharge, waiver, or release.
  • The defendant is entitled to an offset for amounts that they have paid or that should otherwise be credited to the defendant.
  • The defendant was a co-signer but was not informed of their rights as a co-signer.

The inability to pay a debt is not a legal defense to the debt. For a more comprehensive listing of legal defenses, see the Debt Collection Answer form.

 

If the Defendant Doesn't Answer - Default Judgment

If the defendant is properly served and does not file an answer within the required time period, the plaintiff may ask for a default judgment. This means the plaintiff gets what they have asked for, and the defendant won't have a chance to tell their side of the story. For more information about the default process and forms, see our page on Default Judgments.

 

Disclosure and Discovery

If the parties want the court to settle the dispute, they must get ready to go to trial. As part of that process, each party has the opportunity to find out about the strengths and weaknesses of the other parties' case.

Some of the information must be disclosed to the other parties, which means the party with the information must provide it to the others without being asked for it. Other information must be discovered, which means the party with the information must provide it, but only if asked for it.

Examples of documents that must be disclosed include:

  • Information about what the claim is based upon
  • A "charge off," or summary of where the debt stopped being paid off
  • Payment history
  • Balance statement
  • Bill of Sale - if the collection involves a debt buyer/assignee.

Examples of discovery include:

  • Depositions - sworn testimony
  • Interrogatories - written answers to questions
  • Request for production of documents

See the court's Disclosure and Discovery page for more information about the rules governing these procedures.

 

Judgment

If the plaintiff wins the case, either through default judgment or trial, they can start the process collect the money owed. The How to Collect a Judgment web page describes the processes a creditor can use, including garnishment.

 

Motion to Set Aside Judgment

A Motion to Set Aside Judgment is used to ask the court to set aside or "undo" a judgment or final order in a case, and to allow the case to move ahead as if the judgment had not been made. The Motion to Set Aside Judgment web page explains the process and provides forms.

 

Satisfaction of Judgment

Either party can file papers with the court to ask that the judgment be declared satisfied. The Satisfaction of Judgment web page explains the process and provides forms.

 

Motion to Renew Judgment

If the creditor has been unable to satisfy the judgment within the time allowed by law, they can ask the court to extend or "renew" the judgment to give them more time. The Motion to Renew Judgment web page explains the process and provides forms.

 

Forms

Forms for the plaintiff

Forms for the defendant

 

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