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Answering a Complaint to Collect a Debt in Formal Civil Cases

How do I respond to a Complaint to Collect a Debt?

You can respond to the Complaint by filing an "Answer" within 20 days of being served with a copy of the Complaint.

The Answer is where you:

You can file:

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If I am sued in small claims court, can I use the Answer & Counterclaim to Complaint to Collect a Debt?

To stay in small claims court, you are supposed to use the Small Claims Answer form, SC-3 PDF. If you want to move the case from Small Claims Court to District Court, check the box on the Answer & Counterclaim to Complaint to Collect a Debt, CIV-481 [Fill-In PDF]. By checking the box, you are agreeing to the case being heard as a civil case to collect a debt according to the formal Rules of Civil Procedure and Evidence instead of the more informal small claims process. You can learn more about the differences between these two types of cases.

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How do I fill out the Answer & Counterclaim to Complaint to Collect a Debt?

You can use:

Make sure to have the Plaintiff's Complaint in front of you so you can refer to it when filling out the Answer & Counterclaim. It will be easier if you review the Complaint before you start.

The Answer & Counterclaim to Complaint to Collect a Debt has 9 sections:

After you fill out the Answer form, make 2 copies (so you have 2 copies and the original).

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What are affirmative defenses?

Affirmative defenses are reasons you should win the case instead of the Plaintiff that you state in your Answer. To win the case based on an affirmative defense that you think applies, you will need to prove it to the court at a trial. If you can prove the affirmative defense at trial, you may be able to prove you do not owe the Plaintiff anything or that you owe the Plaintiff less than claimed in the Complaint.

If you think one of these affirmative defenses applies to your case, mark that defense on the Affirmative Defense section of your Answer. The descriptions below match the paragraph number on the Answer form in the "Affirmative Defenses" section.

1. It is not your debt. Sometimes a creditor makes a mistake and sues the wrong person. This could be because there is an error in their records, they have mistaken you for someone else with the same name, or because someone stole your identity and took out debt in your name. If you believe someone stole your identity you can report the theft and create a recovery plan at the Federal Trade Commission webpage: IdentityTheft.gov. To report the theft by phone, call the Federal Trade Commission at 1-877-438-4338 (TTY: 1-866-653-4261).

2. Wrong debt amount listed. Sometimes a creditor makes a mistake about the amount of money owed. If you can prove you paid the whole debt or that the creditor told you that you did not owe any more money, you could win the case. If you can prove that you paid part of the debt, or that there is a mistake about the amount you owe, you will not win the case, but it might mean you owe the Plaintiff less money. If you want to ask the Plaintiff for a detailed accounting of how the total amount was calculated, you may request that through a court process called discovery. You can read more about discovery.

3. Unknown Plaintiff. In some debt cases, the Plaintiff is a company that buys or collects debts. If that is true in your case, the Plaintiff may argue that you entered an agreement with someone else, that you owe that other person or company money, and that the Plaintiff bought the right to collect that money from you. You have a right to make the Plaintiff prove it owns the debt. You can read more about how to make the debt buyer prove ownership.

4. Old Claim. In Alaska, the time limit for suing someone about a problem with a contract is 3 years. This time limit is called the Statute of Limitations. The time starts running from the "date of default" on the contract, which is usually the day you made your last payment. If you have not made a payment in a long time, but then make a payment, the time limit usually starts over from the date you make the payment.

5. Already Litigated. If you or someone else already had a court case that addressed the debt listed in this case, you cannot be sued again for that same debt. If you are raising this defense, write the case number of the first case and the date it was filed in the Affirmative Defense section of your Answer & Counterclaim to Debt Collection Complaint. If it was not an Alaska case, write down the state where it was filed.

6. Bankruptcy. When a person files for bankruptcy, the bankruptcy court addresses repayment, or forgiveness, of some or all of the person's debts. You cannot be sued over any debt that was part of a bankruptcy case. If you are raising this defense write the case number of your bankruptcy case and the date it was filed in the Affirmative Defense section of your Answer & Counterclaim to Debt Collection Complaint. If it was not an Alaska case, write down the state where it was filed.

7. Improper Sale of Collateral. Some debt cases are about loans that had collateral (like a car loan that is secured by the car - the car is the collateral). If the debtor does not pay the debt, the creditor can take the collateral and sell it. There are rules about selling the collateral. The person selling the collateral has to give the owner notice of the sale and sell the collateral in a "commercially reasonable" manner.

Notice. The creditor must give you written notice of the sale a reasonable amount of time before it sells the collateral, usually 10 days. The notice must include :

See an example of an acceptable notice. (See AS 45.29.614)

Failure to give notice. If the Plaintiff did not give you proper notice, the court will assume the collateral was worth what you owed so you will not owe the Plaintiff any more money. If the Plaintiff wants the court to order you to pay more money, the Plaintiff will have to prove to the court that the collateral was worth less than what you owed by "clear and convincing evidence."

Commercially Reasonable. All parts of the sale of the collateral must be "commercially reasonable."

You can read the statute discussing commercially reasonable sales. (See AS 45.29.610).

If the Plaintiff did not take these steps, you may also have a counterclaim against the Plaintiff, which you can list in the counterclaim section of the Answer form.

8. Payday loans. A payday loan company cannot win a case against you for not paying back a payday loan unless it took these steps before suing you:

You can read the statute that lists these requirements. (See AS 06.50.550).

If the Plaintiff did not take these steps, you may also have a counterclaim against the Plaintiff, which you can list in the counterclaim section of the Answer form.

9. Plaintiff's Performance of the Contract. If the agreement or contract required the Plaintiff to do something before you owed any money, and the Plaintiff did not do their part, you can argue that you should not have to pay. An example would be if you signed a contract to pay the Plaintiff $500 to build a fence in your yard. If the Plaintiff never built the fence, but is suing you for the $500, this defense might apply.

10. Bounced Check. A Plaintiff cannot win a case against you for a check that did not clear, or "bounced," unless it did these things before suing you:

If the Plaintiff did not take these steps you may also have a counterclaim against the Plaintiff, which you can list in the counterclaim section of the Answer form.

If the Plaintiff did give you the proper notice, you can still end the case by paying the Plaintiff the amount of the check plus court costs and fees up to $150. This might save you some money if you can afford it because if the case continues and you lose, you may have to pay 3 times the check amount (up to $1,000) plus court costs and fees.

You can read the statute that describes the bounced check procedure. (See AS 09.68.115). Note: If the lender was a payday loan company, this statute does not apply. Look at paragraph 8, above, for the rules about payday loans

11. Active Military Service. If you are on active duty in the military, or have been released from active duty within the last 90 days, you can ask the court to stop the case for 90 days if your service prevents you from being able to attend or prepare for court hearings. This is called a stay. If you are still on active duty after the 90-day stay, you can ask for another stay. A stay won't end the case or your responsibility to pay the debt, but may delay it when you are on active duty and unable to participate because of your service responsibilities.

If this applies to your case, ask for a stay by attaching to your Answer:

12. Other. If you think you have an affirmative defense that is not listed, you can write it in paragraph 12 of the Affirmative Defense section of your Answer.

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Should I argue an affirmative defense?

There are things to consider when you are deciding if you are going to raise an affirmative defense.

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What is a counterclaim?

A counterclaim is a separate legal claim that the Defendant raises against the Plaintiff based on either the same or different facts. If you have a claim against the Plaintiff based on the same facts that the Plaintiff is taking about in the Complaint and you don't list it in your Answer, you might not be able to sue the Plaintiff for it later. A counterclaim could be that the Plaintiff owes you money under a contract or agreement, or that you think the Plaintiff broke some of the laws for collecting a debt or doing business in a fair way. You can read more about possible counterclaims:

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What does breach of contract mean?

Breach of contract means someone did not follow the terms of a contract or agreement. If the Plaintiff owes you something under an agreement or contract, you can explain that in the counterclaim section of the Answer form.

One example might be if you and the Plaintiff entered an agreement for the Plaintiff to build you a fence. You agreed to give her $500 before she started and $400 when she finished. Her Complaint says that you paid her $500 and she built the fence, but you did not pay her the second payment, so she is suing you for $400. But she used a different material than you agreed on and the fence blew away during the first storm. You might have a counterclaim against her for the $500 you paid her because you did not get the fence she agreed to build.

Another example could be if the Plaintiff and Defendant also entered into another separate agreement in addition to the one about building a fence. As stated above, the Plaintiff is suing you for $400 because you did not pay her after she finished building your fence. But you also had an agreement that you would detail the Plaintiff's car and she would pay you $100. If you detailed her car and she didn't pay you the $100, you may have a counterclaim for $100.

If you are listing a counterclaim for a breach of a contract or agreement, explain:

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What does violating fair business laws mean?

You may have a counterclaim if the Plaintiff did not follow the Federal Fair Debt Collection Practices Act or the Alaska Unfair Trade Practices and Consumer Protection Act that contain rules to protect consumers from unfair debt collection and unfair sales methods. You can read the Federal Fair Debt Collection Practices Act and the Alaska Unfair Trade Practices and Consumer Protection Act.

If you want to tell the court that the Plaintiff violated one of these laws, you have to explain two things to the court:

  1. How the Plaintiff violated the unfair business practices, which is discussed in the next FAQ, below.
  2. How you suffered damage from the Plaintiff's unfair actions. This may be the cost of paper, copying or stamps so you could file your Answer or other costs that you had. Mark the box that explains your costs or explain your costs in the "other" section. List how much you want the court to order the other party to pay you:

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What are the types of violations that happen under the fair business laws?

Any violation of trade laws can be a counterclaim. Some examples are listed below. You can talk to a lawyer if you want to learn more about other examples. If you think you have a counterclaim for a violation, you can explain it in the counterclaim section of your Answer form. The descriptions below match the paragraph number on the counterclaim section of Answer form.

1. Debt collector did not give you proper notice. Debt collectors are usually not the person or company you made an agreement with. They are usually collecting a debt you have with someone else. After the first time a debt collector contacts you to try to collect the debt, they must send you the following written information within 5 days:

If the debt collector did not follow these rules, you may have a counterclaim.

2. Debt collector harassed you. Debt collectors cannot:

If the debt collector did any of the above, you may have a counterclaim.

3. Debt buyer cannot prove it owns the debt: If the Plaintiff is a debt buyer it has to prove that it bought the debt. You can read more about what a Plaintiff has to prove. If the Plaintiff filed a lawsuit against you without enough evidence to show that it owns the debt, you may have a counterclaim that it is an unfair debt practice under Alaska law.

4. Plaintiff did not meet the notice requirements for bounced checks: The Plaintiff is supposed to send you a written notice at least 15 days before suing you for a check that did not clear (or "bounced"), stating that you could avoid court by paying back what you owed on the check plus $30. You may have a counterclaim if the Plaintiff did not send you the proper notice. You can read the statute that describes bounced check procedure. (See AS 09.68.115).

5. Payday loan company did not take proper steps: Before filing a court case, a payday loan company must:

You may have a counterclaim for any step the Plaintiff did not take. You can read the statute that lists these requirements. (See AS 06.50.550).

6. Other: You can write in any other violations you think occurred.

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What is the Offer to Pay section?

If you want to try to work out, or "settle" the case by offering to pay some or all of the debt, you can fill out the Offer to Pay section of the Answer form. This is not the only way to try to settle the case. You can always directly contact the Plaintiff, or the Plaintiff's lawyer if there is one, to talk about settling on your own or through mediation. You can learn more about mediation.

There are several options that you can offer or agree to for resolving your case.

You can propose a settlement to the other party with:

You can read more about filling out a Debt Settlement Agreement & Order Dismissing Case.

It is important to understand that once both sides enter into a settlement agreement that the judge accepts and signs, the case is over. It is very difficult to ask for something different if you change your mind.

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What is exempt property?

If you lose the case, the Plaintiff can execute the judgment and take funds from your paycheck, PFD, or bank account or seize your property to sell it to pay your debt. Some of your property, funds, or income may be exempt which means the Plaintiff is not allowed to take them. The rules are explained in the Judgment Debtor Booklet PDF. If you have exempt income or assets, you may want to tell the Plaintiff about them in your Answer so the Plaintiff will have that information to consider in deciding how to move forward with the rest of the case.

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What happens if I don't file an Answer?

If you have been properly served with the Complaint and do not file an Answer within 20 days then the Plaintiff may file for a default judgment against you. Learn about default judgments.

Consider filing an Answer even if you believe you owe the money the Plaintiff is requesting. This will give you time to talk to the Plaintiff about entering into a settlement such as arranging a reasonable way to pay such as a payment plan, or discuss options like reducing your interest. This could prevent the Plaintiff from seizing your property or taking money from your bank account, your PFD and your paycheck when you do not expect it and could prevent an entry of "default judgment" on your record.

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What happens after the Defendant files the Answer?

If the Defendant files an Answer and raises a claim against the Plaintiff, called a counterclaim, the Plaintiff can file an Answer to Counterclaim to agree or disagree with any counterclaims raised within 20 days. The Defendant should not respond to the Answer to Counterclaim. The Answer to Counterclaim should be the final pleading and the case will proceed.

After the pleadings are filed, there are 3 ways that the case can resolve:

  1. The parties can reach a settlement by working out an agreement without having a trial. This can be done between the parties or with the help of a third party such as a mediator or a settlement judge. Parties can reach an agreement at any time before the trial.
  2. The parties can have a trial where the judge or jury (if there is one) will make a decision based on both parties' arguments and supporting evidence.
  3. By the court granting a Motion for Summary Judgment or a Motion for Judgment on the Pleadings. If both parties agree on the facts, either party can file a Motion for Summary Judgment or a Motion for Judgment on the Pleadings. Either motion may end the case in favor of the party that filed it. The other party can tell the court it disagrees with the facts by filing an Opposition to Motion for Summary Judgment or Opposition to Motion for Judgment on the Pleadings. But if both parties agree on the facts, the court will decide how to end the case after reading the motion. You can read more about Summary Judgment and Judgment on the Pleadings.

If the case doesn't settle right away, you will receive an order from the court giving a date for a Pre-trial Conference or a Trial Setting Conference. The document that tells you about the first time to come to court may have different names, but usually the main purpose is so the judge can:

At the conference, you may:

This conference is NOT for:

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Rev. 28 February 2019
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