Part One: Preparing for Your First Court Appearance
You have received a summons and filed your answer. What should you do next?
Step One: Confirm the Date and Time of Your Appearance
After you file your answer, the court will send you a postcard with the date and time of your first court appearance. If you don't receive a postcard within a few weeks after you file your answer, you should call the clerk's office and ask whether your court date has been set. If you miss your first court date, the court will enter a default judgment against you, and you will have to file an order to show cause to vacate the judgment.
Step Two: Gather Your Evidence
If you would like to submit evidence in support of your defenses, now is the time to gather and organize it. For example:
- If you were served at the wrong address, you should get proof of your address at the time of service. The best kind of proof is a copy of your lease or a letter from a government agency, such as the Social Security Administration, HRA, or Medicaid.
- If you are an identity theft victim, you should get a police report.
- If you have paid the debt, you should gather proof of payment.
- If the debt was discharged in bankruptcy, you should gather your bankruptcy records, especially the list of debts to be discharged and your proof of discharge.
- If you have exempt income, bring proof of the source of your income, such as an award letter from Social Security or HRA.
Do not worry if you do not have evidence to submit. In credit card cases, it is very common for the defendant not to have any evidence at all. Remember that the plaintiff has the burden of proof. That means it is the plaintiff's job to come forward with proof that you owe the debt, or the case must be dismissed.
Step Three: Make a Decision About Settlement
At your first court date, the plaintiff and the judge will ask you if you want to settle the case by making a payment agreement. You should prepare for this moment in advance by deciding whether you want to and can afford to settle the case. If you do wish to settle, you should decide on an amount that is affordable to you. Write your decision down, and bring it with you to the court date. You can look here for some helpful guidelines to consider as you decide whether or not to make a settlement agreement.
Step Four: Practice Your Part
Court can be confusing, and you will not have much time to tell your side of the story. Therefore, it is important to pick out a few key points and stick to them. Below are some possible points that you might want to make in court, depending on your situation. If you need help deciding what points to focus on, call the NYC Financial Justice Hotline at 212-925-4929.
If you have a clear defense: By "clear defense," we mean a reason why you clearly should not have to pay. Examples of clear defenses are: you were served at the wrong address, you are an identity theft victim, it is not your debt, the debt is past the statute of limitations, the debt has been paid or discharged in bankruptcy, or you do not owe the debt for some other reason. In this case, you should refuse to enter into a settlement agreement and you should assert your defense at every possible opportunity. See Common Defenses to Creditor Lawsuits.
If you feel you owe some money, you can afford to make payments, and you want to negotiate a settlement agreement: You must still assert defenses. But you can use your defenses as a bargaining tool in order to negotiate a lower settlement amount. Remember that if the plaintiff is a debt buyer, it bought your debt from your original creditor for pennies on the dollar, and it most likely lacks the evidence it needs to win the case. The plaintiff can afford to reduce the amount of the debt significantly and still make a profit. Offer a little less than you want to pay, and be firm. Don't agree to pay more than is comfortable for you. If the plaintiff won't agree to your terms, ask to see proof of the debt.
If you feel you owe some money, but you cannot afford to make payments: You have no choice but to dispute the debt. You must insist that the plaintiff come forward with evidence that it has the right to sue you and that you owe the amount it has demanded. Most likely, the plaintiff will not have this proof, and the case will have to be adjourned for another day. In the unlikely event that the plaintiff does have some evidence of the debt, ask for an adjournment so that you have time to examine the evidence against you.
Finding the Courtroom
The court will tell you the address of the courthouse, the number of the courtroom, and the time of your appearance (usually 9:30 a.m.). The court is crowded in the morning, and you should expect to wait in line to pass through metal detectors and to board the elevators. You should arrive early so that you can get up to the courtroom by 9:30. You should be prepared to spend the entire morning at the courthouse. Most of that time will be spent in the courtroom waiting for your case to be called.
When you find the courtroom, you will see a bulletin board next to the door. The bulletin board has lists of cases that will be heard in that courtroom on that day. Look for your name on the bulletin board to confirm that you are in the right place. Write down the number of your case. Enter the courtroom and sit or stand quietly until the clerk begins the calendar call.
The Calendar Call
At some point in the morning, the clerk will begin the "calendar call." The clerk will begin by explaining the rules of the court, and then will read a list of cases to verify that the parties are present. Case names are read in the same order that they are posted on the bulletin board. Listen carefully for your name. When you hear your name, respond as directed, standing and speaking loudly. When the clerk says, "marked as ready," take a seat. Your case will not be heard until after the calendar call is finished. If you need an interpreter, be sure to ask for one at the conclusion of the calendar call.
Know Your Rights!
Under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, you have a right to an interpreter if you need one. It is important that you understand what is happening in the courtroom, so do not be afraid to ask for an interpreter. The court can and will provide interpreters in ANY language.
Negotiating with the Plaintiff's Attorney
As the morning goes on, you will notice the attorneys in the room (who represent the various creditors) calling out the names of defendants. At some point, the attorney who represents the plaintiff in your case will probably call out your name and ask you to step outside the courtroom. Remember, the attorney represents the plaintiff, and the attorney's job is to extract a payment from you. The attorney may seem nice, but he or she is not on your side. The attorney will ask you whether you want to settle the case. Hopefully, you will be prepared for this moment because you will have thought about it in advance and reached a decision. Your job is to stick to the decision you made. If you decided not to settle the case, tell the attorney that you do not want to settle at this time. Do not allow the attorney to pressure you into paying more than you think you can afford. See Negotiating a Settlement Agreement in Court.
Know Your Rights!
You do not have to agree to a settlement. If you can't afford to make payments or if you don't owe the debt, you should not enter into a settlement.
If you do not feel comfortable negotiating with the attorney in the hallway, you can always request a conference with court personnel. The court staff cannot give you legal advice, but they will help ensure that the plaintiff's attorney treats you fairly.
Seeing the Judge
Later in the morning you are likely, but not guaranteed, to go before the judge. Generally, if you and the plaintiff agree that the case should be discontinued or adjourned to another day, you will not see the judge. However, if you and the plaintiff cannot reach agreement, you probably will see a judge. When you go before the judge, the judge will want to hear your defenses and why you do not want to enter into a settlement agreement. You should make the same points to the judge that you made to the attorney. If you think the case should be dismissed because you have a clear defense, you were not properly served, or the plaintiff lacks evidence, you need to speak up and ask the judge to dismiss the case. Remember to be truthful and respectful, because the judge will be deciding whether he or she should believe you and your story. After speaking to both parties, the judge will decide how to resolve the case. Usually, the case will be adjourned to another day, and the plaintiff will be instructed to bring proof of the debt to the next court date.
Know Your Rights!
If you were not properly served, you have the right to ask the court to dismiss the case. However, you must assert this defense on your first court date, or you will lose it. If you want to argue that you were improperly served, do not agree to adjourn your case for another day. Instead, tell the court clerk that you want to see the judge. Ask the judge to dismiss the case for improper service.
Part Three: Your Second (or Third) Court Appearance
Your second (or third) court date is likely to be very similar to your first court date. You should follow the same steps outlined above in Part One to prepare for your court appearance. If you have a clear defense, you should continue to assert it. You should also continue to ask the plaintiff for proof of the debt. If the plaintiff lacks proof of the debt at the second court date, you should ask to see the judge. Ask the court to dismiss the case for lack of evidence. The court will decide whether to dismiss the case or give the plaintiff one last chance to get proof of the debt. If you are attending your third court date, and the plaintiff still has no proof of the debt, you should insist that the case be dismissed. Try to get the case dismissed "with prejudice," which means that it can never be brought again.
Sometimes the plaintiff might come forward with some documentation of the debt, or the plaintiff's lawyer might give you some additional legal papers. If so, ask the court for an adjournment so that you have time to respond to the documents or papers. Call the NYC Financial Justice Hotline at 212-925-4929 for advice.
How to Read a Civil Court Summons (PDF)
The Basics of Defending Creditor Lawsuits
Common Defenses to Creditor Lawsuits
Negotiating a Settlement Agreement in Court
Vacating a Default Judgment
Frozen Bank Accounts
What is Exempt from Debt Collection?
Helpful Links and Resources
LawHelp/NY: attorney referrals and information for pro se litigants
National Association of Consumer Advocates: national database of consumer lawyers
New York City Civil Court: information about representing yourself in court, including contact information and court forms
eCourts: information about cases filed in New York courts
Laws of New York: complete text of New York laws
The Legal Aid Society, When The Creditor Sues, What Are My Rights? (PDF)
Disclaimer: This site provides general information for consumers and links to other sources of information. This site does not provide legal advice, which you can only get from an attorney. NEDAP has no control over the information on linked sites.
Copyright ©2007 by the Neighborhood Economic Development Advocacy Project, Inc.
All Rights Reserved