In What Court Are You Being Sued?

If you are being sued, it will be either in Small Claims Court or Connecticut Superior Court.

You can go to Google and search under: “Connecticut Judicial Website” or type in the search function of your browser: https://www.jud.ct.gov

The “Small Claims Court” is part of Connecticut’s court system and in Small Claims Court, a person can sue for up to $5,000 in money damages only.

Small Claims Court is presided over by a magistrate who is an attorney.

In Small Claim Court the cases are not recorded and there is no transcript of the proceedings or hearing.

The rules of evidence are more flexible in Small Claims Court. The system is designed to give ‘speedy justice’ to small matters. There is no appeal from a Small Claims Judgment.

If you feel that your case is more complicated than what the Small Claims Court and that you need to have discovery as of right, then you could transfer the case to the Superior Court . But there 2 important issues to consider:

• There a fee of $125.00 to transfer the case to the “Regular Docket”; and,
• If you lose the case in Superior Court, and the opposing party has an attorney, you could be liable for the attorneys’ fees of your opponent.

HOW DO YOU ANSWER A LAWSUIT?

Anywhere from 95% to 98% of all credit card cases result in DEFAULT JUDGMENTS!

Defendants, people who are being sued are ‘defendants’, do not even APPEAR in Court. They believe it’s hopeless to fight the case or they are embarrassed or ‘afraid’ to appear in public because they owe a debt. Therefore, the Judge or Magistrate (Small Claims) enters a ‘default judgment’ because you did not even ‘appear’ in the case. You have struck out at bat because you didn’t go to the plate!

WHAT DOES IT MEAN TO ‘APPEAR IN A CASE?’

Many people think that you have to ‘physically appear’ or ‘physically’ go to Court and waive to the judge or magistrate in order to appear in the case. Making an ‘appearance in your case’ is not like going on a late night television program and ‘waiving to the audience’ and saying, “Hi, I’m here”.

There’s an ‘Appearance Form’ which you complete and mail to the Court and once you mail this form to the Court, your have then ‘filed your appearance’ in the case. And you will have officially ‘appeared’ in the case. Therefore, a default judgment for failure to appear will not be entered against you. Once the creditor gets its ‘default judgment’, they will be on Cloud #9. Why? Because now they can collect on their judgment, even if you had valid defenses or what might be called ‘counter-claims’.

WHY SHOULD I FILE ANY ‘APPEARANCE FORM’ WITH THE COURT BECAUSE I’M GOING TO LOSE THE CASE AND IT’S REALLY HOPELESS? WHY WASTE MY TIME?

Let’s assume for the moment that your case is ‘hopeless’ and it has been pre-ordained that you are going to lose your case. Why file an Appearance in the case?

By filing your appearance, you are letting the Court know that you are taking the matter seriously. You will get all the notices and any papers which the Plaintiff’s attorney files with the court. And here’s what is very important. You will know when, where and at what time to physically go to Court. And let’s say that the Court enters a judgment against you and orders you to pay $35.00 per week. But you can’t afford $35.00 per week. You can simply ask the judge or magistrate to pay a lessen amount per week, or every 2 weeks or once per month. And, this is important, you can ask the judge or magistrate not to have interest run on the debt!! And this is very important. The judge or magistrate has the discretion not to allow interest to run against your debt.

I will explain later how you can argue for a reduced payment schedule on the debt and why charging interest on the debt would be unfair.

And finally this is super important to know: by having a reasonable payment plan, and religiously making those payments, the creditor cannot ask the Court to attach your wages or your bank account!

HOW DO YOU ANSWER A COMPLAINT

If you don’t respond in writing to the complaint, the Plaintiff (the Creditor) will file a Motion for Default Failure to Plead. What should you do if a Motion for Default for Failure to Plead is filed against you?

Answer: Don’t freeze like a deer in the headlights of a car. You simply must file a response to the pleadings.

You can manuscript or write your answer to a complaint or use the court form

First, here’s a sample complaint from either the Small Claims Court, Form JD-CV-40: Small Claims Write and Notice of Suit.

Next, here’s a sample of a manuscripted or written complaint:

Here’s a sample of a typical ‘answer to complaint’, using Court Form JD————

Here’s a sample of a typical ‘answer to a complaint’ using a manuscripted answer.

Question: What can you do if you failed to file a timely answer to Plaintiff’s Motion for Default for Failure to Answer or Plead?

Answer: There are 2 documents that you have to quickly write and then file those papers with the Court and mail a copy to the attorney for the creditor or if there’s no attorney, then to the actual creditor plaintiff.

Document #!: Motion to Set-Aside the Default for Failure to Plead or Answer.

Document #2: “Defendant’s Answer to Plaintiff’s Complaint”.

You must file the original with the court, and you must mail a copy to the attorney for creditor with your certification on the document that you mailed your Answer and you must keep a copy in your file. See Sample:

HOW MUCH CAN THE CREDITOR ATTACH OR SEIZE MONEY FROM YOUR BANK ACCOUNT?

ANSWER: A thousand dollars is exempt from the creditor seizing your bank account. But be careful. Let’s suppose you and your spouse have a joint checking account. And the debt is just your debt. And you owe $5,000.00. And in your bank account you have all your wages into one account. And you have $2,000 if your money in the account and your spouse has $3,000 in the account.

HOW MUCH CAN THE CREDITOR SEIZE OR LEVY ON YOUR ACCOUNT IN THE ABOVE QUESTION?

ANSWER: Is it:

1. $3,000
2. $5,000
3. $1,000
4. $4,000

The answer is (D) $4,000.00 because you only have one exemption of $1,000 for the entire account. Since you have the right to draw the entire amount above your account, the creditor can, also, exercise all of your rights and withdraw $4,000.00 because you only get a $1,000 exemption. Obviously, if you are sued and lose your case, joint accounts will be in jeopardy.

How do you “Answer a Complaint or a Law Suit?”. See Form:

WHAT IS A MOTION TO DISMISS?

QUESTION: WHAT ARE “AFFIRMATIVE DEFENSES”?

Besides answering or responding a ‘complaint’ or a ‘law suit’, you can file Affirmative Defenses along with your answers to the complaint.

Sample answer with affirmative defenses:

What are the Affirmative Defenses?

ANSWER: Some affirmative defenses are as follows:

1. Identity Theft
2. Payment (partial or full)
3. Amount of debt in dispute
4. Lack of Standing
5. Lack of License to Collect a Debt
6. Failure to allege licensure in the Complaint
7. Statute of Limitations
8. Debt has been previously discharged in bankruptcy
9. Claim Preclusion or Issue Preclusion (also know as res judicata and collateral estoppel)

• General denial
• Minor or incapacity at time of making contract
• Failure to state a cause of action
• Failure to satisfy a condition precent
• No account stated, a property objection was made
• Arbitration
• Improper Venue
• Lack of personal jurisdiction
• Lack of subject matter jurisdiction
• Fraud, duress or mutual mistake
• Failure to comply with agreement or law
• Active military status
• Payment protection insurance
• Usury
• No basis for legal fees
• Unconscionability

Please explain these ‘special defenses’:

• Identity Theft:

If the lawsuit is for a credit card debt and there are charges on the account which were the result of a data breach or ‘identity theft’ where someone charged your credit card, you would have an affirmative defense either against the entire debt or at least a portion of the debt that was not your responsibility. Of course, it would be very helpful if you had filed a police report and had a copy of that report. Also, if you sent letters to credit bureaus complaining that you were fraudulent charged on your credit card statement, this documentation will be very important in establishing this affirmative defense. (More about Identity Theft later.)

• Partial or full payment or what is called ‘accord and satisfaction’.

If you had a valid dispute with a sales transaction and you believe that you don’t owe either the total debt on the credit card or a portion of it, and suppose you ‘settled the dispute’, you could raise the affirmative defense of partial or full payment which is called the affirmative defense of ‘accord and satisfaction’.

• You dispute the amount of the debt

You might have evidence that your payments were not applied; or payments weren’t properly applied; or interest calculations are incorrect; or the amount which is claimed as due and owing wasn’t calculated from the wrong date; or other charges were improperly applied.

• Lack of Standing

Debts are sold or assigned to Debt Buyers and it’s an affirmative defense to raise the issue that the present Debt Buyer is not the assignee of the debt and, therefore, does not have standing to bring a law suit. There might have been as many 4 assignments of the debt before a law suit is brought against you. You have the right to challenge that the company suing you did not have a proper assignment of the debt and, therefore, does not have standing to sue you.

• Lack of license to collect a debt

In order to collect on a debt, a debt collection agency has to be licensed and bonded with Connecticut Department of Banking. If the collection agency isn’t licensed, they can’t collect on a debt in Connecticut. This is, also, true in most states. You can simply search in Google under Connecticut Department of Banking and then they have on their menu, ‘Verify a License’. Click on this button and go to ‘Consumer Collection Agencies’ and try to find their name. The website is: and their toll free number is . If you can’t find the collection agency name, be careful because sometimes they operate under a trade name and you can’t find their name on the Connecticut Department of Banking website as being licensed and bonded. Call the Banking Department’s toll free number and ask for the consumer credit division and help in verifying if the Collection Agency is license and bonded with the CT Banking Department. If a collection agency’s license has lapsed or is suspended, then you would have the affirmative defense that they can’t collect on any debt. Companies that buy debt like LVNV Funding and sue on that debt are ‘debt collectors’ and have to be registered with the Connecticut Department of Banking. There are 973 registered Consumer Collection Agencies as found on the Connecticut Department of Banking’s website under ‘Verify a License’.

• Statute of Limitations:

If a credit card debt is more than 6 years old, then a law suit would be barred under the Affirmative Defense of the Statute of Limitations.

Many times law suits are brought beyond the Statute of Limitations because the creditor will argue that the Statute of Limitations is an affirmative defense which means that you have to raise the defense in your pleading with the Court and since 95% of the law suits result in default judgments where the Defendant doesn’t even appear in court, the creditor gets a Default Judgment beyond the Statute of Limitations.

Now, there’s a little hook regarding the Statute of Limitation being only 6 years. The Statute of Limitation is measured from the date of the last payment which is a breach of the contract. And if you write to the creditor and acknowledge the debt, then this will re-set the Statute of Limitations for another 6 years.

As a practical matter, the Statute of Limitations runs from the date of the last payment. So, if you haven’t paid on credit card debt for 5 years and 364 days but on day 365, you make a payment, then you have extended the Statute of Limitations for another 6 years.

But, also, be aware that if you haven’t paid on a credit card debt in the last 6 years and, therefore, the Statute of Limitations would have run. However, year, you make a small or partial payment after 6 ½ years from the date of your last payment, then you would have re-set the Statute of Limitations for another 6 years! And the same applies if you have in writing acknowledged the debt.

• Discharge of a debt in bankruptcy.

It can happen that people are sued on a debt after receiving a discharge of their debts in bankruptcy. This situation gives rise to not only an Affirmative Defense but, also, a Contempt of the Bankruptcy Court and a possible Fair Credit Reporting Claim.

• Capacity to contract

It is an affirmative defense if the person to the contract was a minor at the time of entering into the contract or mentally incapable.

• Improper Venue

‘Improper Venue’ means that the law suit was brought in the wrong court. For example, if you live in New London County and a credit card company sues you in New Haven County which has happened, then you would have the Affirmative Defense of Improper Venue. However, if you live in New London County and you had rented a hotel room in New Haven and did damage to the hotel room, you could be sued where the transaction occurred, namely, New Haven. If Venue is Improper, you could raise this as an Affirmative Defense.

• Active Military Service

If you are active military, then it’s possible that a stay will be in place against any law suit until you are no longer active military.

The above is not an exhaustive list of possible affirmative defenses.

HOW CAN I DISCOVER INFORMATION FROM THE CREDITOR WHICH I NEED IN ORDER TO DEEND MY CASE?

Discovery of information and documents is done by sending to the Plaintiff a request for production of documents and questions. You send a document called: Defendant’s First Request for Documents and Interrogatories:

There are 2 documents to be developed and used.

Document #1: Notice of Request for Interrogatories is filed with the court.

Document #2: Interrogatories and Request for Production of Documents. Interrogatories are not filed with the Court.