Summons and complaints are the most important pleadings filed in debt collection litigation, which makes properly drafting summons and complaints incredibly important. A summons is a notice to the debtor that the creditor is filing a lawsuit against them. The complaint is the meat. It is where the creditor outlines the “legal cause of action” for the claim(s) the creditor has. It tells the debtor, now defendant, the monies that the creditor seeks to recover and why.
Having drafted and filed summons and complaints for 50-plus years combined, Jared Turman and I wanted to share our biggest takeaways.
More Is Not Always Better
A summons and complaint should be brief while still containing the language required to get the job done.
A debt collection complaint outlines the issue. It should not repeat the entire account history between the creditor and the debtor.
If the debtor defends the case, they will have an opportunity to request more detailed information—an amplification of the summons and complaint, the pleadings.
Keep the Goal in Mind
The goal is to get paid. If the filing and service of a summons and complaint doesn’t get the job done, the objective is to be able to enter a default judgment.
Why a default judgment? A clerk of the court can enter a default judgment without a court order, making it a faster option than making a motion to the court. Once you have a judgment, you can proceed to enforcement to get paid.
Entering a Judgment
There are two main factors to consider when determining whether you will be able to obtain a clerk’s judgment.
Allegations In the Complaint
Experience is the key to predicting the types of judgment a clerk can enter without leave of court. You must properly state the legal claim or “cause of action” in the complaint. This may include:
- Claims for a liquidated sum or sum certain
- Claims based upon an account stated
- Claims based upon a negotiable instrument
Documentation
New York Supreme Court and most counties require the submission of documentation to prove that the monies are due.
Required documentation may include:
- The underlying agreement or contract between the party
- Statement of account
- Invoices or billing
- Correspondence (i.e. demand for payment)
- Negotiable instrument (i.e. check or other)
Properly drafting summons and complaints is necessary for successful debt collection litigation.
President, Frank, Frank, Goldstein and Nager
For other debt collection best practices, check out our previous blog posts.
