Protecting the Rights of Consumers
For Over 25 Years
Edelman Combs Latturner & Goodwin LLC
Facts about collection lawsuits:
1. You are entitled to get properly notified of the lawsuit, which means service of process in strict accordance with state law. We can determine whether or not you have been properly and legally notified of any lawsuit against you. If you are aware of a lawsuit and the court docket shows that the plaintiff claims to have served you, you generally should file a motion to quash rather than ignore the service, even if you dispute that service was valid. Otherwise, you will have a judgment entered against you. It is much more difficult to challenge service after a judgment is entered than before.
Note that it is possible to "serve" a person without their necessarily receiving the summons and complaint themselves or even knowing of the lawsuit. The law permits "substitute service" to be made on a member of the household or family over 13 years old, coupled with mailing of the summons and complaint to the defendant. In addition, service may be made by "special order of court," usually by regular and certified mail to the last known address of the defendant and posting of the summons and complaint on their door.
If the address information is not correct, it is easy for the record to show service when the defendant had no idea of the lawsuit. We have encountered increasing numbers of instances of "sewer service," in which service is purportedly made at incorrect or obsolete addresses.
2. You are entitled to a hearing before a judge and, if you wish, a jury, before a credit card company, debt buyer or creditor can get a judgment against you through the courts. You do not have to settle your case with the collection attorney on the terms they dictate.
3. Most collection lawsuits result in judgment against the consumer because the consumer defaults, which means not showing up in court or filing papers as required. It is worth your while to show up and demand your day in court. It is also worth your while to hire us to do this for you.
4. You have the right to demand proof of standing from anyone other than the original creditor. If the debt collector is different from the original creditor, you are entitled to see a chain of ownership that establishes whether the debt collector owns the right to sue on the particular debt. Otherwise, you might pay this collector off and then be sued later by another creditor who claims to own the debt.
5. You are entitled to proof of the debt. Many if not most debt buyers do not have evidence that you owe the money. Debt buyers count on your defaulting in order to win. Once they have a default judgment, they will try to garnish your wages and bank accounts.
6. You are entitled to proof of the amount of the debt. Some debt collectors add unauthorized interest to their claims. Others simply cannot prove what they claim is due.
7. If you are sued by a debt buyer, the question is not whether you might owe money to someone, but whether you owe the amount claimed to the debt buyer suing you. Never assume that you owe someone money just because they are demanding money from you. We have had cases where the same debt was supposedly sold to two different buyers, or where a debt was settled and the “balance” then sold.
8. Many collection cases are based on hearsay and other material that does not comply with applicable rules of evidence.
9. You are entitled to the benefit of the statute of limitations. Illinois statutes of limitation are two years for bad check penalties, three years for checks, four years for the sale of goods (automobiles, furniture, natural gas), five years for contracts not wholly in writing (credit cards, nonelective medical debt), and ten years for other contracts wholly in writing; these are usually measured from default or last payment.
We provide free consultations and defend many types of collection and foreclosure lawsuits in Illinois for a modest fee.