What to do if you're served with a lawsuit.

The day you open your door and a process server hands you a lawsuit, your initial reaction is likely to be emotional - fear, anger or even a sense of hopelessness at fighting companies that seen too powerful.   All of these emotions can leave you in a state of paralysis.   That's exactly what the company suing you wants.   They want you to do nothing so that they can take a default judgment and start trying to take away your assets without having to do anything other than serve you with the lawsuit.

As hopeless as the situation may seem to you in the moment, it's really not as bad as it looks - BUT you must do something, and you must do it within the first few weeks of being served with the lawsuit.   Don't allow yourself to become easy prey for debt collectors, credit card companies, inflated hospital bills, lawyer bills or anything else that you might be being sued for.

Follow these steps:
  1. Start by speaking with an attorney, even if you think you can't afford to hire a lawyer.   Most lawyers will give you a free or at least a low-priced initial consultation to discuss your options.   The Bronx County Bar Association maintains a referral service for lawyers by area of practice.   The association charges a small $35.00 fee and the lawyers agree to give you an initial consultation of up to 30 minutes for free.   You can get more informatiion by calling (718) 293-5600.   If you are a member of AARP, their Legal Services Network provides lists of lawyers in your area who will give you up to a 45-minute free initial consultation by phone or in person.   Lawyers in the network are also required to give you a 20% reduction on their services.
    • Ask the lawyer specific questions:
      • Does an "Answer" has to be served?   If so when?   Generally if you are sued in New York City Civil Court or New York State Supreme Court you must serve an Answer within 20 days if you were handed the lawsuit in person and 30 days if you were served any other way.   If you were served with a Small Claims Court case you just have to show up on the hearing date.   But confirm each of these with the lawyer you are meeting with.
      • What are the chances that you will win or have to pay less than they are suing for?   Before knowing whether it is worth it to spend the money on a lawyer, you should have some idea of whether the lawyer can save you money in the end.

      • Should I make a counterclaim?   If so, for what?   In addition to typical counterclaims. such as breach of contract or negligence, there are a great many consumer laws that give you the right to sue or make a counterclaim.   For example, a debt collector that disobeys the rules may be subject to being sued for $1,000.00 for each time they broke the rules.   Search the Licensed/Regulated Business page to look for rules that the business may have broken.   Then discuss them with the lawyer during the initial consultation.
      • What are my potential defenses to the lawsuit?   Take a look at the Affirmative Defense in our General Answer Form to see which ones may apply.   The lawyer may suggest ones not on the form.

      • How much does the lawyer charge?
        • Will it be a flat fee for an hourly fee?
        • Will you be required to pay a retainer up front? If so how much?
        • What happens if that retainer is not completely used by the end of the case?   The lawyer is required to refund any amount of the retainer not used.   If the lawyer doesn't tell you this, you may want to try a different lawyer.
        • How often will I receive a bill?   If you do hire the lawyer, she/he is required to give you a retainer letter spelling out all of the charges and is required to send you a bill at least every 60 days, even if she/he is billing against a retainer.
      • What is the chance of settling the case before having to go to court?
    • Even if you do not hire that attorney or any attorney to represent you, you should have gotten at least some basic questions answered. If the attorney refuses to answer those questions, by all means go to another attorney.

  2. See if you can get free legal representation.   Many employers and unions offer free or pre-paid legal plans.   Check with your employer or union to see if you are covered.

  3. Serve an Answer yourself:  WARNING: These instructions are only for individuals.   Corporations must usually Answer through an Attorney.   Although the Summons that you were served with says that you are required to "file" an Answer within 20 or 30 days, if you are sued in New York City Civil Court (other than Housing Court) or New York State Supreme Court you are only required to "serve" an Answer within that period of time.   That is done by mailing the Answer to the Plaintiff's attorney.   Doing so immediately stops the other side from taking a default judgment and buys you critical time in which to see what you want to do and possibly work out a settlement.   In fact, simply mailing an Answer within the proper time puts you in the best position to have the company suing you want to settle as you are showing them that you are not easy prey and that it will require effort on thier part to get a judgment against you if they are successful at all.

    While it is best to have an attorney prepare and serve an Answer for you, if you absolutely cannot get an attorney to represent you, you can prepare and serve the Answer yourself.   It's not very difficult and it will usually take less than an hour.   Our General Answer form is the most basic form of Answer and includes check boxes for you to check off any affirmative defenses that you think might apply.   It does not, however, include counterclaims.   In the future we'll try to put up additional forms for specific types of lawsuits with specific counterclaims and welcome your suggestions for types of forms that you would like to see on this site.
    1. Look at the papers that you were served with.   If you were served with a "Summons with Notice" instead of a "summons and complaint" then you should serve (first class mail is fine) a Civil Court Demand for Complaint or a Supreme Court Demand for Complaint on the other side.   This is an extremely easy form to fill out and mail.   You do not have to do anything further until the Plaintiff serves you with a "Complaint."   You would serve an "Answer" as described below.   Make sure that the "Complaint" is not printed on the back side of the "Summons."
    2. If you received both a Summons and a Complaint (large collection agencies have started printing the Complaint on the back of the summons so look at both sides of every paper that you receive) then you need to mail an Answer.   Go down each paragraph of the Complaint and put a mark next to each paragraph corresponding with the following definitions:
      • D for Deny:   Mark a "D" if at least some portion of a paragraph is not true.   For example if the paragraph says that you owe money, and you do not believe you owe money for any reason, including your counterclaims or affirmative defenses, mark a "D" for deny for that paragraph.
      • DKI for deny knowledge or information sufficient to form a belief:   Mark any paragraph DKI where you do not know whether or not it is true or you do not have enough information to determine whether it is true.   For example, if the plaintiff says that their business is a corporation with a principal place of business at a certain address and you don't know this for fact, simply mark it DKI.   Other provisions that would be important to DKI or DENY would be if you're being sued by a collection agency or bank that is claiming that a debt you owe was assigned to them.   Always DKI or deny paragraphs where they state that the debt was assigned to them and that they are the legal holder of the debt.   This is a very important element for them to prove and believe it or not quite often they cannot prove it. This is especially true with debt collection agencies.
      • A for Admit:   Anything you don't specifically deny or DKI will be considered admitted.   So after you've gone through the entire Complaint, make sure that every paragraph has either a D or DKI next to it or it's something that you are willing to admit.   For example, you may not have a problem admitting your name and home address.   If the lawsuit is regarding a credit card and they have a credit card number in a paragraph in the Complaint, you could admit that you had a credit card with that number.   If it has more information in the paragraph that you don't agree with, however, deny or DKI the paragraph.
    3. You can use these fillable PDF forms or use them as a guide for preparing your Answer.   They do not include any counterclaims and include only some possible defenses.   If you need additional defenses or wish to assert a counterclaims, consult a lawyer.
      Answer form for Civil Court   - Answer form for Supreme Court
    4. Make a copy of the Answer after you have signed it and keep the copy for your reccords.
    5. Mail a copy of your Answer to the attorney for the Plaintiff(s) at the address on the bottom of the Summons or Complaint.   You can mail it by regular first class mail.   The Answer is considered "served" the second you put it in a post office mail box or give it to the post office.

Affirmative Defenses.

To make this form fit as many possible types of cases as possible, it includes Affirmative Defenses which may not apply to your specific case.   Check off each Affirmative Defense that you believe applies.   It is also a good idea to cross out each Affirmative Defense that you think does not apply.   The following are descriptions of when you may want to include an affirmative defense in the same order as the form:
  1. That the Plaintiff(s) lacks standing to bring this action - This should usually be checked, especially if you are not being sued by the company you originally dealt with.   You may have signed a contract with a telephone company, for example, but are being sued by a Collection Agency or other compnay.   By checking this affirmative defense you can force them to prove that they have the right to sue you.   You will be surprised at how often a collection or other company can not prove this.
  2. That the Plaintiff(s) fails to state a cause of action upon which relief may be granted - This should usually be checked.   It simply means that the Complaint does not the correct information for what you are being sued for.
  3. That the Plaintiff has failed to join necessary parties to this action - This should only be checked if someone who should be in the suit is not named in the lawsuit.   An example would be your landlord's managing agent bringing the lawsuit and not naming the owner of the building.
  4. That Plaintiff(s) has violated the Fair Debt Collection Practices Act, and such other Federal, State and New York city consumer protection laws and, therefore, is estopped from asserting any claim herein - This should usually be checked if you are being sued for any claimed debt whether by a debt collector or the original creditor.   The following are examples of such violations:
    • Taking any action without verifying the debt after you sent a demand for verification.
    • Calling you at any number for any reason after you sent a letter telling them not to call you.
    • Call you before 8am or after 9pm even if you have not told them not to call you.
    • Calling you over and over again.
    • Calling you at work after you told them verbally or in writing that your employer doesn't allow such calls.
    • Contacting you in any way, other than by serving you with a lawsuit, after you have told them in writing not to contact you.   They can contact you once after that to tell you what they can or will do.
    • Making any threats of physical harm, the have you arrested, to garnish (take) your salary, bank accounts or other property if they do not have a judgment, or threatening to ruin your credit.
  5. These should also be included as a counterclaim which is beyond this form.   You may wish to get the advice of an attorney regarding adding a counterclaim.
  6. Plaintiff(s) failed to mitigate and/or diminish its damages, if any This should usually be checked.   It means that there was a way for them to make their damages smaller and didn't.   An example would be a a hall you rented but didn't use, not trying to rent it to someone else.
  7. Plaintiff(s) is not a party, nor in privity with the Defendant(s), to any contract, note or other obligation entered into by the Defendant - This should always be checked if the company suing you is not the same as the company you contracted with.   If you bought furniture from XYZ Furniture but are being sued by ABC Assets Corp, check this box.
  8. This Court lacks jurisdiction over the person of the Defendant(s) in that service wasnot properly made and/or filed - This should usually be checked unless you were personally handed the Summons and Complaint.   Even then you may want to check it since the person serving you may not have been allowed to serve you.   If you do want to pursue this defense you must bring a motion quickly or it will be waived.
  9. That the Plaintiff(s) fails to properly plead a contract action in sufficient detail and/or attach a copy of the alleged contract - This should usually be checked in any case where there was a written contract and/or sales slip and the full contract is not attached to the Complaint.
  10. That the Plaintiff(s) has not acted in good faith and does not come to this Court with clean hands - This should only be checked if the Plaintiff is asking for any type of stay, restraining order, protective order or injunction or asking that the Court change or fill in terms of a contract.   It should ALWAYS be checked in Answering a foreclosure action.
  11. That Plaintiff(s) has violated §349, et. seq. of the New York General Business Law by engaging in deceptive and fraudulent business practices and, therefore, is estopped from asserting any claim herein - This should be checked anytime you feel that the Plaintiff dealt with you unfairly (assuming the Plaintiff is a busines).   It should also be included as a counterclaim which is beyond this form.   You may wish to get the advice of an attorney regarding adding a counterclaim.
  12. That Plaintiff(s)'s damages, if any, were caused in whole or in part by the fault of the the Plaintiff(s) - This should be checked anytime you think that the Plaintiff did something wrong, for example, if a home contractor didn't finish the work as it was supposed to.
  13. Plaintiff(s) is not properly licensed and was not properly licensed at the time of the alleged service and is, therefore, barred from bringing this action - Anytime the company suing you (or providing products or services) is required to be licensed, you can check to see if they have the appropriate license.   If they do not, the Court may not allow them to sue you.   The best example of this is a home improvement contractor in NYC.   If your contractor is not properly licensed, they can not sue you for ANY money.   By checking this box, you can force them to prove that they had the correct license at the time of the service.

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