You Got Served! A Timeline for Getting Sued by Your Creditors

[This article deals with getting sued in California only]

America has turned into a “sue happy” country with everyone threatening to sue one another for any number of legitimate or illegitimate matters. Most of these are empty threats and many of the ones that do get filed are frivolous. And while many people know the meaning of “I’m going to sue you,” far fewer people actually know what it entails, and whether it would be worth the time and resources to pursue. We’re here to set the record straight. In particular, we dive more deeply into the specific scenario of “getting sued” by one of your creditors.

What does it mean to “get sued” or to “sue” someone else?

Let’s play defense first. Assume that you’ve been served with a lawsuit– what does it mean? Many people do not understand the legal process (in California, it varies from state to state) and this immediately places them at a disadvantage. 

What constitutes ‘being served’ (with a lawsuit)?

Two ways get served

1. “Substitute Served” – means the summons and complaint was given to a coworker or someone in the same household, and a separate copy was mailed to you.
2. You were personally given the summons and complaint.

How much time do you have?

1. You have 30 days to respond from the date service is completed; not the filing date. The timestamp on the documents is the filing date, not the service date.
2. What happens after 30 days. A default MAY be entered. A “default” is not the same as a “default judgment.” “Default entry” here means your time to respond is cut off. 
3. If you were substitute served, then you’ll have an extra ten (10) days (so forty ‘40’ days) in total to respond.

When is my trial date?

People commonly and incorrectly expect their initial paperwork to give them a trial date. That is not true. Trial is only set for when the case is ready for trial. What makes a case ready for trial? The defendant “appears” by filing a response that there are “issues” that are “ready” for the judge or jury to listen to and make a verdict. If you do not file a “response” and “appear” you do not have your day in court. 

To Respond, or not to Respond

What is a response? Most people believe their response is the time for them to plead their case, as if the Court will then rule on what you said. That simply is NOT the process. So what is a response that you can file?

What is a “response”? 

1. It is NOT the time to prove your side of the case. 
2. It is NOT to argue the facts. 
3. It IS a time to contest if the allegations of the lawsuit are true. Is it even legally liable? (E.g., if all facts in the lawsuit against you are true, can the law grant relief?”
4. It IS a time for you to deny or admit to the allegations. 
5. It IS a time for you to context that you were properly served. 

In most collection cases, you owe the debt. It is inevitable that you will lose the case and have a judgment against you. So how much time do you have?

If you do nothing:

1. 30 days from date of service to response.
2. Plaintiff-Creditor (the person suing you) requests “default” from the court. (not default judgment)
3. The court processes the request for default and then enters default. – as quick as the same week the Court receives the request. 
4. Plaintiff-Creditor requests a time to do a prove-up hearing and set a hearing. Depending on the court, this could be generally 30 days later. 
5. Plaintiff-Creditor “proves up” their claim by establishing that you’re the debtor, there is a contract, and they are now the holder of the contract’s benefits – the money “you owe them.” Court grants it.
6. Plaintiff-Creditor files for the judgment and notice of judgment is mailed. 
7. Generally, 15 days must pass before a “writ of execution” can be received. 

Creditor has “won” the lawsuit

It is important to note that at this point you have technically “lost” the case by not responding. Your creditor has won the lawsuit, gotten a judgment, and now has received a “writ of execution.”

What is a “writ of execution?”

It allows the judgment holder to:

1. Garnish your wages
2. Levy your bank account;
3. Put a lien on your real and personal property.

How is a “writ of execution” used? 

1. Once the “writ” is issued, it needs to be served on the bank or your employer (usually by the sheriff for bank levy)
2. The employer/bank gives you a copy or notification.
3. You have 10 days to file your “objection” or request to “exempt” a portion of what’s being taken with the court (with copy to any sheriff involved). [Grounds for Objections & Exemptions] 
4. A creditor can theoretically obtain a judgment and begin levying your wages or bank accounts about 75 days from when a lawsuit is filed (in a perfect world)

What to do if you “got served?”

One option is to do nothing and let the creditors take your money leaving you unable to pay your bills. 

OR

We can stop all this with a bankruptcy. It is prudent to begin the process with us now and make sure everything is set up. Do not wait until the last minute. Contact CN Law Now for a Free Consultation

References: www.courts.ca.gov