Friday, December 13, 2013

Filing an Answer to the Creditor's Original Petition in a debt collection lawsuit

Appearance by filing an answer & waiver of citation

What counts as an answer in a debt collection lawsuit and why it is important  

As a matter of due process, a plaintiff must see to it that the defendant is properly served with the lawsuit papers that tell the defendant what he or she is being for, unless the defendant waives service and appears voluntarily. Without proper service (or waiver thereof) the court does not acquire personal jurisdiction over the defendant and cannot enter a valid judgment. Any judgment rendered without jurisdiction is void.

A note on lawsuit lingo: state vs. federal courts in Texas  

In Texas state courts, the plaintiff's first pleading that is used to initiate the collection case against the defendant is called ORIGINAL PETITION rather than ORIGINAL COMPLAINT, and the document that directs the process server or peace officer (constable or sheriff) to serve it on the defendant is called a CITATION rather than a SUMMONS.

In federal court the term "civil action" is standard. In state courts, terms "Cause" (as in Cause Number) "civil case" and "suit" or "lawsuit" are more commonly used. Many courts use the abbreviation C or CV to distinguish civil from criminal cases (CR). CCL stands for Civil Court at Law and CCCL for County Civil Courts at Law in Harris County (because there are many county criminal courts of law also).

Note that in divorce cases, the terms Petitioner and Respondent are used instead of Plaintiff and Defendant. In dissolution-of-marriage cases, the petitioner is the spouse that files first, which may be the husband or the wife. Analogously, the same goes for disputes over child custody (SAPCR) that are not coupled with a divorce.

In debt collection litigation the Plaintiff is always the Creditor, which is why it is appropriate to use Plaintiff and Creditor interchangeably on this blog.

The only exception is when the consumer sues the creditor (or the creditor's attorney) for wrongdoing, such as violation of statutes prohibiting unfair debt collection practices (FDCPA, TDCA, DTPA). Most of those actions, however, are brought in federal court (or removed to federal court), except when such a cause of action is asserted as a counter-claim in a pending collection lawsuit. In that scenario, the defendant will also become a counter-plaintiff.

In a consumer debt collection suit the Defendant is always an individual, but on Amex cards and suits on business debt there will often be two defendants, one of them a business entity. In some of these cases, the individual is sued as a guarantor, rather than as a primary obligor.

Service of Citation by mail? 

A citation may also be served by certified mail, but may not be so served by the plaintiff's attorney directly. It will  have to be done through the clerk, the constable's office, or a private process server. Service by mail is rarely used in debt collection suits; except when it is order in combination with service by posting the lawsuit papers on the defendant's door pursuant to an order for substituted service under Texas Rule of Procedure 106 (Rule 106 Order).

The importance of the Defendant's answer 

Whether or not a lawsuit is answered in writing after the service of citation and original petition has important legal consequences: If the debtor was properly served (usually in person; or, if such service is unsuccessful, by attachment of a copy of the citation and petition pursuant to an order for substituted service at the address that the plaintiff has for the debtor), but does not file an answer, the debt collection attorney may move for a no-answer default judgment for the creditor. A motion for this type of default judgment does not require any proof of liability, and the amount of damages (and attorneys fees, if any are sought) may be established by affidavit. -- > Motion for default judgment;
-- > Affidavit in support of default judgment

But a no-answer default judgment cannot properly be entered against a defendant who has made an appearance in the lawsuit.

Filing an answer prevents default judgment (well, not literally, but at least it provides a valid ground for attacking a default judgment, if one is nevertheless entered). A defendant's ORIGINAL ANSWER may be filed in person or by mail (hard copy) if the defendant is not represented by an attorney, but a pro se defendant may also register to file and serve documents through the Texas eFile system at This will require a credit or debit card to pay service fees and some court costs (if applicable). Attorney are required to efile. Pro se litigants are still allowed to file hard copies. 

Filing an answer counts as an "appearance" in the lawsuit. Making an appearance in person at a hearing or trial in the case may also be sufficient, but the safer thing to do is to file an answer with the court. Why? Because the Plaintiff is not required to let the defendant know of any hearing on a motion for default judgment; should there even be one; nor is the creditor required to send the debtor a copy of the motion for default judgment if the debtor was served, but did not file an answer. Many courts will accept motions for default judgment without the need for an in-court attorney appearance, and will sign them as a matter of course as long as the formal requirements are satisfied. Some courts have a checklist and flag deficiencies. Practices vary. Court staff may call the attorney or make a notation on the online docket sheet, or both. Some judges write denied on the motion without entering a separate order. Such a denial is not a big deal. The creditor's attorney can come back and try to do better. If the case gets dismissed because it has been pending for too long -- DWOPPED, in court jargon -- it can be reinstated upon motion. DWOP stands for dismissal for want of prosecution.

Notice to the defendant must only be given to a defendant who has answered (unless a particular court has a policy that requires it even though the Texas Rules of Civil Procedure do not). The creditor's attorney may still send a notice of hearing, but the judge may grant a default judgment regardless, provided the other requirements for a default judgment are met, which includes a non-military affidavit. -- > When can the court grant a default judgment?

What counts as an answer? 

For pro se defendants, i.e. those who do not have a lawyer to handle their defense, the criteria are quite low. A short letter to the judge may be sufficient as long as it properly identifies the case (by cause number) and includes name, address, and signature, and -- at the minimum -- the words "general denial" or something that indicates that the defendant is not rolling over and playing dead.

The Texas Supreme Court has said that a defendant who timely files a pro se answer by a signed letter that identifies the parties, the case, and the defendant's current address, has sufficiently appeared by answer and deserves notice of any subsequent proceedings in the case.

That said, a letter by a family member of the defendant will likely not be sufficient because a lay person may not represent another person in court. The same goes for appearances in person at trial. This may seem very unfair, especially when the family member has more education than the defendant, or just wants to be helpful, but neither the Supreme Court, nor the Texas Legislature, has seen fit to change the rule, at least not in county court and district courts (there is now an exception for JP court).

The rules would require the defendant's answer or letter to be sent to the attorney for the creditor also (at the address shown on the petition). If that was not done, the creditor may move for default judgment unawares that an answer is on file; but the fact that the defendant has answered should preclude default judgment even if the creditor's attorney did not know about it. It still happens, but when it happens there is good cause for the default judgment to be set aside.

The judge, trial coordinator, or the clerk of the particular court, will typically examine the file to check whether or not an answer is on file. Some counties even have a system in place that involves a default judgment check-list on which all items must be satisfied and are checked off before a motion for default judgment will go to the judge (or a judge sitting by assignment) for signing. But many courts that hear routine collection cases are very busy, and there will be oversights, slip-ups, and all sorts of errors.

Unnecessary admissions in the defendant's answer 

Some pro se defendants make the mistake of making admissions in their answer, elaborate on their dire financial circumstances, and plead for mercy. Trial court judges will generally ignore the sob stories, assuming they even read the defendant's letter. Why? Because the sob stories are not relevant, at least not at the default judgment stage. What counts at that point is whether a paper signed by the defendant is on file or not. The content is generally of marginal importance. But if the defendant makes admissions on elements on which the Plaintiff's has the burden of proof, the creditor's attorney may used the admissions later as a substitute for proof of its own. -- > Judicial admissions in pleadings.

The content of the debtor's responsive pleading -- the DEFENDANT'S ORIGINAL ANSWER -- will also acquire importance if the defendant hires an attorney, or wants to counter the plaintiff's claim with an affirmative defense, such as time-bar under the four-year statute of limitations for debt claims (6 years for some promissory notes). If they defendant has already filed a narrative answer, the attorney coming into the case will file something, most likely an AMENDED ORIGINAL ANSWER that replaces the first one (not literally, but in terms of what counts as "the live pleading"). Some consumer debt defense attorneys merely file a general denial answer with one or two affirmative defenses briefly stated (such as the "applicable statute of limitations"); other include a whole litany of them, and some set forth more specific arguments why the creditor should not prevail, supported with citations to case law.

If a defendant wises up in time and realizes he has helped the creditor with admission in a filing with the court, he can also amend the ORIGINAL ANSWER as long as the amendment deadline has not yet passed either under the rules or under a case-specific docket control order. The general deadline is seven days before trial, but that also applies to motions for summary judgment regardless of whether or  not a trial date is set for a later time. Once the deadline has passed, leave of court must be obtained to amend pleadings, and if a judgment has already been granted, it is too late to amend. In that Johnny-come-late scenario, the Defendant would have to file a post-judgment motion, such as a motion for new trial.

Creditor's burden to prove case and Defendant's affirmative defenses 

Plaintiffs, including Creditors, must prove their case. The burden is on them, but to defend the case based on other reasons or circumstances, such as the contention that the debt is stale and no longer actionable under that statute of limitations (generally four years, in Texas) must be properly raised by the Defendant. If not, they are waived.

Affirmative defenses must be pleaded. As with a the "general denial," a short reference to the name of the affirmative defense will generally be sufficient; e.g. Plaintiff's claim is time-barred; or Defendant pleads the following affirmative defenses: statute of limitations; lack of capacity to sue, mandatory arbitration clause, etc....

Some defenses, however, require a sworn denial. The circumstance in which the need for a verified denial arises are rare (at least in credit card debt suits) and are not discussed here. -- > Verified denials; matter that require a sworn denial. --> Sworn account suit under rule 185.

Effect of filing an answer 

Under Rule 121, an answer constitutes an appearance of the defendant so as to dispense with the necessity for the issuance or service of citation upon him.” Tex. R. Civ. P. 121. Thus, if the defendant files an answer after finding a note from a process server on the door knob or somewhere in the vicinity but the citation is never actually served in person, such service is no longer required to bring the defendant before the court. The process server still has a duty to try to serve it because that is her job, but it will not matter whether she is successful or not. The defendant will have no valid complaint about not actually having been served with the citation because that would no longer be necessary. This problem sometimes comes up when the defendant hires an attorney and then relies on the attorney to handle the lawsuit. The attorney may file an answer before the defendant is served in person, and may not be aware that the defendant is served with lawsuit papers that include requests for admissions, which then may go unanswered. --> Requests for admissions and the deemed admissions problem.

Even if a general denial can be filed without having seen the pleading, the defendant will still want to know what is alleged in the petition and how much money is being sought from them. Luckily, many courts provide online access to court records in addition to docket information. Some require registration for a free account (e.g., Harris County); others do not (e.g. Galveston County, Fort Bend County, Dallas County. In some court systems it is also possible to purchase certified or uncertified copies online; others require that a request be submitted to the clerk for processing.

Efiling involves a different system and serves a different purpose. The eFiling system provides on-line access to courts (through the clerks) for submitting documents and receiving them, rather than for looking up documents passively.

How specific does the answer have to be? 

In Texas state courts, unlike federal district courts, the defendant does not have to respond to the allegations in the plaintiff's pleading point by point (and many collection lawyers don't provide many details to begin with, although there are exceptions). A GENERAL DENIAL will put all of the Plaintiff's allegations in issue, and only certain matters need to be raised expressly, a topic that goes beyond a general introduction to collection lawsuits.  -- > affirmative defenses must be pleaded; -- > conditions precedent and specific denials.

Effect of a General Denial 

A general denial is just that: a general denial of what the plaintiff has alleged in its petition. It constitutes a summary denial of each factual allegation and theory of recovery asserted by the plaintiff, accomplished with no more than two "magic" words. The effect of asserting a "general denial" is to require the plaintiff to prove its claim.

Pleadings are generally not evidence. Therefore, the creditor cannot be granted a judgment on the pleadings alone.

There are two exceptions to the rule that pleadings are just pleadings, however: (1) No-answer default judgment after proper service on the defendant; and (2) a properly pleaded Sworn Account Suit under Rule 185 that has not been neutralized with a verified denial. Verified in this context means sworn to.

Judgment on the Pleadings only? 

As for the first exception, the Creditor's unanswered and therefore uncontested pleadings only provide a basis for the court to find the defendant liable as alleged. That is not enough for a money judgment in a specific lump-sum amount. Even when the defendant has not answered at all, the Creditor must still prove the amount of damages with some evidence, typically in the form of an affidavit with attachments. The fact that a specific dollar figure (or two figures, one for principal and one for accrued interest) was stated in the ORIGINAL PETITION is not enough. That said, may Creditors attach an affidavit and other documents to their original petition to meet the requirement to prove the amount of the alleged damages (which would otherwise be considered unliquidated) at the point of inception.
As for the second exception, it no longer comes up much in collection suits on bank debt. Generally, a sworn account suit can only be brought by a "creditor" who sold goods or provided services. The  latter category includes attorneys that sue their clients for unpaid legal fees. It does not include a financial institution that made a loan or extended credit otherwise. The use of the loan proceeds or of the credit card for purchases does not entitle the financial institution to sue on sworn account because the goods or services were provided by a third party (merchant), rather than directly by the bank or credit union.

Sworn Account suit not viable for credit card and other bank debt 
A credit card debt suit should not be brought as a sworn account suit under Rule 185 because sworn account is not a proper legal theory for collecting that type of debt through the court system. While such debt collection suits are rarely filed as a sworn accounts any more, it does not mean it will never happen. When it does happen, and when the defendant does not complaint about it, the court may conclude that the error has been waived, assuming the judge even becomes aware of it, which cannot be taken for granted, esp. in courts that are very busy. The same conclusion could possibly be reached on appeal, although it may be worth arguing otherwise if the appeal is from a default judgment, where the pleadings that form the basis for the entry of judgment are scrutinized more thoroughly.
--> Pleading sufficiency and Special Exceptions.

If a default judgment is granted and it is based on a sworn account only, there may are good grounds to attack it based on a defect in the pleadings.

Even a default judgment on an otherwise valid legal theory under Texas law (breach of contract, account stated) may be attacked in a timely regular appeal or in a restricted appeal if the creditor's pleadings was defective, or arguably insufficient to meet the fair notice standard. --> Appeals from Default Judgments, Post-judgment on Default Judgment vs. Restricted Appeal, Bill of Review.


Last revised 12/8/2018 

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