A Guide to Your Court Date: Know Your Rights
This resource, prepared by attorneys with NYLAG’s Consumer Protection Unit, offers answers to some frequently asked questions and walks through what you can expect at your court date.
Why am I in court today?
You are in court today because you are being accused of not paying back money you allegedly owed.
Who is suing me?
The party suing you is either:
- The “original creditor’s” attorney: An attorney hired by the company to whom you supposedly directly owed the debt (Ex/ Citibank, Chase, etc) to collect the money from you.
- A “debt buyer’s” attorney: Credit card companies and others sell their debts to people called “debt collectors” or “debt buyers” (Ex/ LVNV, Midland). Their business is to buy debts for a very low price and attempt to collect something from you and make a profit.
You have the right to know.
If you do not recognize the name of the Plaintiff that is suing you, or you have questions about why the Plaintiff is suing you – ask! (The Court Attorney or a Judge can help.)
What do I have to prove?
The Plaintiff is suing you so the Plaintiff has to prove their claim. It is their burden to prove that you owe them money, not your burden to prove that they don’t.
Plaintiff is not on your side.
Do not be intimidated. You do not have to speak to the Plaintiff. The Plaintiff can use anything you say against you, and you should not give the Plaintiff any private personal information. He/she does not work for the Court, but rather for a private company and they are trying to win their case against you.
Can I get more information?
Yes. If the Plaintiff has not provided you with any proof of their claim you can request that the court order “discovery,” which means the Plaintiff must send you proof that you owe the money and that they own the debt. More on this below.
Should I just settle to pay them?
Never settle for more than you can afford. If you want to make an offer, choose an amount you will feel comfortable with long term, not just now. Remember: You have bargaining power, and if you want more evidence of the claim, ask for it. It is your right, and most people want proof of exactly what they owe before they consider settling.
What happens if my case is “discontinued” or “dismissed without prejudice”?
What happens if my case is “discontinued”?
This means that your case is going away for now but the Plaintiff can bring it back within one year or within the statute of limitation period (3 yrs since last payment): Make sure you receive a copy of the Judge’s decision. If you are sued again in over a year, bring the decision to court and make the Plaintiff prove they have the ability to sue you again.
What happens if my case is “dismissed with prejudice?”
This means your case is over and the plaintiff cannot sue you ever again on this particular debt.
What will happen today?
First you will “check in” with the Court Clerk when they call your name. You must let the Clerk know if you are leaving the courtroom for any reason; even a brief moment or the bathroom. Otherwise your case can be called while you are gone, and move forward without you.
What does the Plaintiff have to do to win the case?
Plaintiff has to prove THREE things:
- That you agreed to borrow money from, and owe money to Plaintiff or the company from which they bought your debt. They have to prove that you had an account with that company, used the card, and did not pay.
- That the amount of money they are suing you for is correct. Whether you think this amount of money is right or wrong, the Plaintiff has to prove how they got to that dollar amount (including all the fees and interest charges).
- That they actually “own” your debt. If Plaintiff bought your debt from the original creditor, they have to show that they own your debt now. Otherwise, you may agree to pay this debt today and be sued again tomorrow by a different company if Plaintiff did not own the debt when they sued you. Plaintiff usually proves this by showing the Court a valid “Bill of Sale” or an “assignment.”
What defenses might I have?
There may be reasons why the Plaintiff should not win. When you were served with Court papers (the “Summons”), you may have written out your defenses in an “Answer.” If so, you probably already told the Court about your defenses. If not, here are some examples:
- You were not served with the Court papers, or were served incorrectly according to law. Good service means either:
- You were handed papers personally; or
- Someone 18 years or older at your home or place of business was given papers AND another copy of the papers were mailed to you within 20 days after this; or
The papers were taped to your door AND another copy mailed to your home within 20 days after this.
- You have never heard of the company suing you or never had a business relationship with them. (This is when a debt collector is suing you, not the original creditor). This is also called “lack of standing.”
- You are a victim of I.D. Fraud or mistaken identity. This often happens when someone steals your information and opens a credit card under your name (identity theft) or if they have confused you with someone with the same name who actually does owe the debt (mistaken identity).
- You paid all or part of this debt but it was not credited to your account. The Plaintiff claims you owe more than do, or more than you agreed to pay.
- The Plaintiff waited too long to sue you (Also called Statute of Limitations). Since the change of law in 2022, Plaintiff has 3 years to sue you from default (when you missed payment). It may be easier to calculate from your last date of payment.
What can I ask for today?
This depends on how many times you have already come to Court for this debt, and what you have said in the past. Here are some options:
If this is your first time in Court:
- You can let the Plaintiff know you are “disputing the debt” and ask them to “prove their case” based on what you read in the sections above on Plaintiff having to prove their case, and your possible defenses.
- DISCOVERY: You can ask the Court Attorney/ Judge for “discovery” which means you want the Plaintiff to send you papers/proof that they have a right to take your money. The Court may also require you to go over the documents after Plaintiff sends it to you to then respond. If you have financial hardship (usually unless you receive SNAP/and or exempt income, Plaintiff will not consider you to have hardship), the Court will also ask you to send proof of your financial hardship to Plaintiff before your next court date. Financial hardship is not a legal defense and Plaintiff can still choose to pursue its case against you, even if you have no income or money that Plaintiff can collect. Plaintiff may also reduce the amount you owe. Whatever you send to Plaintiff, you should bring a copy to court next time.
- SETTLEMENT: If you are 100% sure that you owe the Plaintiff money, the amount is correct and you have the money to pay, you can enter into a settlement to pay off your debt. Be very careful when settling and never get pressured into it. The Plaintiff is often willing to settle for much less than the amount they claim you owe because they want to resolve the case quickly to save their costs. You can negotiate! If you agree to settle and the court/Judge goes over the settlement with you, it is nearly impossible for you to change your mind later for whatever reason, so choose this choice wisely and carefully. If you miss even one payment, you can get a judgment for the amount Plaintiff sued for, so it is very important that you settle for an amount you can pay now and until its paid off. Settlement does not account for future hardship.
If this is your second/third/fourth time in Court:
- If discovery was ordered (see above) but you never received any papers, you should ask the Court Attorney/Judge for the case to be dismissed if you think there is something incorrect about the documents you were given (no proof of assignment, etc.)
- The Court will suggest a “remedy” such as these next steps:
- MOTIONS: Give either side time to make “motions” (Plaintiff may file a summary judgment motion to try to ask the Court to win on papers alone without going to trial or you can do a motion to dismiss if the documents are inadequate or you weren’t served properly). If Plaintiff files a motion, you need to file responses (Opposition) so Plaintiff does not automatically win. You can draft these documents with CLARO (see below for contact information).
- ASK FOR TRIAL: If the Judge has already ordered a “motions schedule,” either side can ask for a “trial date” as a final date to resolve the case. Original creditors will often bring a witness to testify against you, but you can still settle on your trial date if you choose to. Third party debt buyers may or may not bring witnesses, especially for lower amount lawsuits or if you claim financial hardship, but again, you can settle on a trial date if you do not want to go to trial. If the Plaintiff does not bring a witness for a trial on the trial date, you can ask the Court to dismiss your case and say that Plaintiff is “not ready” to move forward with their case against you, even the Judge told them to be.
- MOTIONS: Give either side time to make “motions” (Plaintiff may file a summary judgment motion to try to ask the Court to win on papers alone without going to trial or you can do a motion to dismiss if the documents are inadequate or you weren’t served properly). If Plaintiff files a motion, you need to file responses (Opposition) so Plaintiff does not automatically win. You can draft these documents with CLARO (see below for contact information).
What are some other important things to consider?
- Discontinued: Sometimes, if the Plaintiff sees you are going to fight the case, they may agree to “discontinue” your case. This may be because they may have no proof of the debt, proving it will cost them too much money, or they know you have no income that they can collect. Discontinuing your case is an agreement between you and Plaintiff, and means your case is done and you don’t have to pay or go to trial.
- Exempt Income: If the only income you receive is from government benefits such as Social Security Benefits, Unemployment Insurance, Disability, Child Support, or other Public Assistance, you are “collection proof.” This means that even if the Plaintiff wins the case and gets a “judgment” (a Court order stating that the Plaintiff has a right to collect money from you), there will be nothing for them to collect because your income is protected from all debt collection. Keep in mind, however, that a judgment lasts 20 years! If your situation might change (you might become employed or inherit money) then you may still want to dispute the debt or settle so that the Plaintiff cannot collect from you in the future. Exempt income/financial hardship is not a legal defense so Plaintiff can still choose to continue its case against you.
Where else can I get help?
There are two free programs located in the Bronx Civil Court:
The Volunteer Lawyer For the Day – Consumer Credit Project (VLFD – CCP) matches Volunteer Attorneys trained in consumer law with unrepresented defendants sued in particular types of consumer law matters. The Volunteer Lawyers represent defendants in court just for the one day of the defendant’s Court appearance. The Volunteer Lawyer will attempt to resolve the case on the day of the appearance. Regardless of the outcome, however, the representation ends that day. (Most likely, it is an attorney from this program that handed out this information sheet.)
If you would like to be represented by a Volunteer Lawyer on your next Court date you must check in with the Court Clerk at 9:30 am and sign up to be assisted. Generally, we can only take five cases per day, so we highly recommend also reaching out for assistance to other providers (listed below) before your next court appearance date.
The Civil Legal Advice and Resource Office (CLARO) provides limited legal advice through volunteer lawyers to New York City residents who have consumer debt issues in debt collection cases. They assist pro se litigants with documents needed such as answers, and motion response papers such as oppositions to summary judgment and motions to vacate default judgments.
Who's Who in Court?
From the Court:
The Judge — You may or may not end up seeing the Judge, depending on your case.
Court Attorney — They are an attorney who “conferences” your case instead of, or before, seeing the Judge. They will speak to both you and your opponent (Plaintiff) together to decide what to do next on your case. The Court Attorney is not your advocate and cannot give you legal advice. Generally, the court wants you to settle your case so if you want to assert your defenses, be clear on your position.
Court Clerk — They help manage the Courtroom, take attendance (“calendar call”) and call your case when it is ready to be heard.
The opposite side:
Plaintiff’s attorney — This is the person suing you. You do not need to speak with the Plaintiff. You can choose to just listen to what they are asking for and want. They may be friendly, but they are not on your side. If you do not like how the Plaintiff is treating or talking to you, politely tell them that you do not wish to speak to them, and let the Court Clerk or the Attorney know that you wish to have the Court Attorney or Judge present when you speak to the Plaintiff.
Be very careful before you sign anything given to you by the Plaintiff. Do not sign documents under pressure or without fully understanding what they mean. See below for examples of common documents and how they affect you.
Outside of the Courthouse | Other Consumer Debt Assistance & Resources
New Economy Project Know Your Rights Debt Collection Lawsuit: https://www.neweconomynyc.org/resource/lawsuits/
Free Financial Counseling (these counselors can also refer consumer cases to lawyers):
https://www.nyc.gov/site/dca/consumers/get-free-financial-counseling.page