At this point in your debt journey, you may be well aware that one of the potential consequences of not making any payments on your debt is a lawsuit. Creditors or debt collection agencies have the right to sue anyone who is not making payments on what they owe. But what do you do if you stopped making payments, but no court papers have shown up? This article will look at why you might get sued in the first place. But we'll also look at why you might not see any court papers show up. Keep reading to learn more!
Oftentimes, filing a lawsuit against a debtor is not the creditor’s first course of action. In fact, there tends to be multiple things a creditor tries to do before opting for a lawsuit. Sometimes this includes hiring a collections agency to help collect the debt. Sometimes this includes contacting you themselves. And sometimes it means outright selling the account to recoup some of the lost revenue.
Despite a lawsuit possibly being the last course of action a creditor may choose, it does tend to be one of the most effective. If there have been multiple attempts to collect on the debt, and you still haven’t responded, there is definitely a high likelihood that your creditor will file a lawsuit. If this happens, court papers will be sent to your last known address. But what’s the point of a lawsuit? Let’s take a closer look at what a lawsuit can accomplish.
Let’s talk about the process.
Oftentimes, filing a lawsuit against a debtor is not the creditor’s first course of action. In fact, there tends to be multiple things a creditor tries to do before opting for a lawsuit. Sometimes this includes hiring a collections agency to help collect the debt. Sometimes this includes contacting you themselves. And sometimes it means outright selling the account to recoup some of the lost revenue.
Despite a lawsuit possibly being the last course of action a creditor may choose, it does tend to be one of the most effective. If there have been multiple attempts to collect on the debt, and you still haven’t responded, there is definitely a high likelihood that your creditor will file a lawsuit. If this happens, court papers will be sent to your last known address. But what’s the point of a lawsuit? Let’s take a closer look at what a lawsuit can accomplish.
In order to be successfully sued in court by a debt collector you must be serve you and you must successfully obtain the documents. Unfortunately, there are people who abuse this by purposely avoiding anyone who they think may serve them. Credtors can get around those requirements, however they still have to be able to prove that put in a good faith effort to find you. The steps of being sued are as follows:
Just this week, we spoke with a woman where the creditor served the papers at an address where she lived when she was 18 years old. This woman was now 30 years old, and she had updated her address with that creditor.
In the unfortunate event that you are sued by a creditor - the creditor is supposed to provide a good faith effort to serve you at your current address. Sometimes, however, you may not get served at your current address or a summons via mail could get lost. Nevertheless, you were not notified. How do you move forward?
In most cases the servicer/creditor has to provide what is called an Affidavit of Service. Basically, this is a document that the plaintiff or servicer signed acknowledging that all legally required methods of attempting to contact you where completed. It is a legal document that is essentially done under oath. There can be hefty penalties if it appears that it was forged or if false information was provided.
If you feel as if you were never properly served you may have some options. You can file what is called an Order to Show Clause. In some instances can have the original law suit dismissed if you can provide enough evidence against the servicer/creditor that they did not actually truly put in a good faith effort to contact you. This is done in a traverse hearing the soul purpose of this hearing is for the judge to determine if everything was done correctly.
After the traverse hearing, if you were able to provide enough evidence that you were not property served the judge may vacate the law suit and the creditor can re-serve you and the process starts over again. In some instances, the judge may simply dismiss the lawsuit which releases you of any liability to the debt. Make sure to pay attention to debt collection timelines if this happens, many times the debt could be outside of the statute of limitations, and that would be in violation of the Fair Debt Collection Practices Act
If you are wondering what a debt lawsuit can do, here is a list of some of the potential outcomes when you get served court papers. This is not an exhaustive list by any means, but it does give a good overview.
One of the most common things to come out of a debt lawsuit is wage garnishment. Wage garnishment is when your creditor is able to take a portion of every paycheck you receive until your debt is paid off. When a wage garnishment is granted, your employer directly takes out the portion of your paycheck. They then send it to your creditor, so you don’t ever see that money. This continues until the debt is fully paid. Once that happens, the garnishment will stop, unless you have another pending wage garnishment for a different creditor. Use our free wage garnishment calculator below to estimate the garnishment amounts per paycheck.
Another potential outcome of a debt lawsuit is a bank levy. A bank levy is basically a bank account freeze. This means you won't have access to the money in your account. Typically, you will still have limited access (you can make deposits or look up your banking information). However, you will not be able to make withdrawals or have any other entity make automatic withdrawals for any payments. The creditor will be able to withdraw money from your frozen account to satisfy the debt amount if that money is available in your accounts.
A property lien can also be placed on a property that you own if you have stopped making relevant payments. So, for instance, if you stopped paying your mortgage, the lender can file a lawsuit and place a property lien on your home. This will prevent you from being able to sell the property before you pay the debt that you owe. To remove a lien, you have to fully pay back the payments that you missed.
When your creditor files a lawsuit against you, they can request involuntary bankruptcy. This is a legal proceeding in which you are forced to file for Chapter 7 bankruptcy. The goal in doing so is to pay off your debt. While this isn’t as common as the other options, a creditor might select this if they believe you will not pay back the debt unless forced to through a bankruptcy proceeding. Chapter 7 bankruptcy is often called liquidation bankruptcy. A bankruptcy administrator will look over your estate, determine what is eligible to be liquidated, and will sell those assets in an attempt to repay your debt.
As you can see, there are many different options when it comes to debt lawsuits. So with all these options, why might a creditor unexpectedly not send court papers your way? Well, there are actually a few good reasons that might make a creditor second guess whether or not they will file a lawsuit. Here are just a few of those reasons:
Anytime you need legal counsel or service, things can get expensive. Depending on the amount of money you owe the creditor, or on the complexity of the case, the creditor may not be able to afford to take you to court. This is often true with smaller, local creditors who don’t have access to deep bank accounts.
Similarly, a creditor may not be able to put in the time it would take to sue every single borrower who doesn’t make their payments. If your case is complex, or they know you are willing to fight every single detail of the case, they may decide it isn’t worth their time to file a lawsuit against you.
Again, this is similar to the previous two reasons. But if you owe a relatively small debt compared to the time and money it would take to get that money back, the creditor isn’t left with much profit at the end of the trial. Because of this, they may decide to not file due to the small size of what you owe.
Ultimately, if you do not have the funds to pay back the debt, the assets that could cover the cost or a job that would provide income, filing a lawsuit is meaningless. Without some way of bringing in money, the creditor knows you won’t be able to pay. If they are aware of this (which they will know) they may decide it is better to cut their losses and not waste time or money on a lawsuit against you.
At the end of the day, maybe the best thing to do is wait. If a creditor has decided it isn’t worth their time and money to file a lawsuit against you, it is likely the case will be dropped. While your credit will most likely be hurt, not much else can happen if they aren’t willing to sue. Keep an eye out, though. If your situation changes, there is a chance that the creditors may come back (if the statute of limitations hasn’t passed) and file a lawsuit once you’re in a better position. If you’d like to talk about your options, give us a call! We’d love to help figure out what to do next. And if you have been sued, read through how you should respond to a debt collection lawsuit here.
