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Debt Collection Defense

Lake Mary Bankruptcy and Consumer Attorney - Law Office of Alex McClure

Whether it's your automobile, credit cards, personal loans, or medical bills; when you are sued in Florida over a delinquent debt the situation is serious.

When you have been served with legal process by a Sheriff's Deputy or private process server it's time for you to consider seeking out qualified legal advice on how best to handle your case. Many, if not most, of these cases go un-defended in Florida and the Plaintiff (the party suing you) prevails by default.

If you already have a judgment against you, I have a separate page dedicated to judgment defense in Florida and I also have numerous blog posts on various topics surrounding judgment defense in Florida that may provide you with insight on your current situation.

If a default judgment has been entered against you, I have a specific blog post which might be of interest to you.

Debt Collection Lawsuits in Florida, Generally

These types of lawsuits are filed directly by the creditor (the company or bank that gave you the loan, product, or service) or an assignee (a company that bought the debt from the creditor) in the course of collection of delinquent accounts. The lawsuits are almost always brought in a state court, generally where you reside at the time the lawsuit is filed although there are exceptions to this.

The court in which the case is filed will depend on the amount in controversy EXCLUSIVE of interest, costs and attorneys fees. (NOTE that interest as mentioned here is not the interest which would have capitalized on a credit account prior to charge-off. Its interest that continues to accrue on top of the charge off or final balance due on the account)

In Florida, there are two trial-level courts which may have different divisions within them to help spread the caseload and administrative duties, accordingly. These are the County Court and the Circuit Court.

  • County Court has jurisdiction in cases which the amount in controversy is $15,000.00 or less, exclusive of costs, interest, and attorneys fees.
  • Small Claims Court is a division of the County Court which hears cases where the amount in controversy is $5,000.00 or less. Again, it is still County Court, just a division within the court.
  • Circuit Court has jurisdiction in cases which the amount in controversy is $15,000.01 or more. Circuit courts are the first level appellate courts for county court.

It is important to pay close attention to your case when you have been sued by a creditor. If you ignore it, there is a chance that it will come back to haunt you months or years later when you least expect it. A judgment in Florida is good for twenty years from the date of issue. There is no requirement that a judgment creditor keep in touch with you or give you any advance notice of continued collection efforts throughout that twenty years. You can refer to my Judgment Defense practice page for more information on those processes.

Unfortunately, many of these lawsuits go unanswered (or the defendant fails to appear, if it's a small claims case) and the court enters a default as a matter of course. At this point, the creditor simply needs to submit affidavits to the court and a final judgment can be entered without the need for any further notice or hearings.

Once the debt is reduced to a judgment, Florida law provides the creditor with a variety of unpleasant collection methods such as property liens, wage and bank garnishment and property levy.

Small Claims Debt Collection Cases in Florida

Cases which are heard in Small Claims Court in Florida are governed by the Florida Small Claims Rules, the Florida Rules of Judicial Administration, and the Florida Evidence Code.

While it is the same Rules of Evidence as in all other Florida proceedings, they are to be construed liberally and in a “relaxed” fashion to allow unsophisticated litigants a realistic opportunity to present and defend their claims.

If you are sued in Small Claims Court, you will receive what is called a “Notice to Appear” along with the lawsuit (called a statement of claim in Small Claims Court) which will provide you with a date and time to appear at the Court to attend what is called the pre-trial conference.

In Florida, you or your attorney MUST appear at the pre-trial conference. A written answer is not required in Small Claims Court and WILL NOT protect you from a default if you fail to appear. (See Fla. Sm. Cl. R. 7.090) Over my years of litigating for creditors I saw many thousands of people send off a written answer believing that they were protected, only to be defaulted under the rules and have a judgment entered against them.

If you fail to appear at the pre trial conference, a default will be entered against you and the creditor will file affidavits with the court outlining the damage that they are seeking. The court will likely enter a judgment based on the default and those affidavits without any further hearings or notices.

Lake Mary Bankruptcy and Consumer Attorney - Law Office of Alex McClure

At the pre-trial conference you will be provided with an opportunity to speak with the party who is suing you (or their attorney) and attempt to work out some sort of settlement. The pre-trial conference is NOT a trial, and you will not be permitted to argue your case at this time. The court will generally only ask you if you agree or disagree with the claims against you and whether you are willing or able to work out some sort of settlement with the Plaintiff.

I have written an article specifically for persons considering settling their consumer debts which has some good pointers and considerations to be mindful of.

If you are unable or unwilling to settle, the court will set the case for trial and you will be provided with a notice of the date, time, and location. This isn't always the case, and sometimes if there are other matters to be handled in your case (such as motions, discovery, or other issues) the case will not be set for trial until the parties are ready.

Many contested Small Claims cases are disposed of by a process called Summary Disposition. This is where a party seeks to have the case decided before a trial because there are no genuine issues of material fact in the case for a judge or jury to decide on. This procedure requires some specific defense techniques to successfully defend against.

Ultimately, if the case cannot be resolved otherwise it will be tried at a trial. While most Small Claims cases are tried in front of the judge only (known as a bench trial) there is the potential to have a jury trial. The trial will be the final hearing in a case before a judgment is entered, whether in favor of the Plaintiff or Defendant.

County/Circuit Debt Collection Cases in Florida

Cases which are heard in County and Circuit Court in Florida are governed by the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, and the Florida Evidence Code.

Other than the amount in controversy, the most notable difference in County and Circuit cases as compared to Small Claims cases are the procedures which are used. The Rules of Evidence are not relaxed in these proceedings as they are in Small Claims.

In these cases, you are served with a summons and the complaint. The summons requires you to file a response within twenty days of the date of service, not including the day you are served. There is no specific appearance requirement in these cases unless a hearing is set and noticed.

For most people, other than the lack of a mandatory pre-trial conference they will notice little difference in the processes and procedures as the case carries on. If you simply ignore the lawsuit, you will notice no difference whatsoever in how the case is handled.

What I can do to help you if you are sued by a creditor in Florida

Lake Mary Bankruptcy and Consumer Attorney - Law Office of Alex McClure

While you are allowed to defend against these lawsuits without an attorney, the creditor who sued you will have experienced attorneys working on their side to represent their interests in court. In fact, the attorney who is suing you has likely handled hundreds if not thousands of cases just like yours and probably knows exactly what he/she is doing.

I used to be one of those attorneys.

I represented one of the largest debt buying companies in the industry for almost a decade. I filed and litigated thousands of lawsuits all over Florida to collect money due to my clients. I now represent consumers defending these types of cases throughout Central Florida utilizing all of the skills I developed over my years representing creditors.

There are a number of different strategies available to you when dealing with these types of lawsuits. These strategies are dependent on a number of factors including the type of debt, the party suing you (called the plaintiff) what documents are available, collection efforts, and a multitude of other specifics of your particular case and situation.

I offer a free consultation to review your lawsuit and provide you with options based on my years of litigating thousands of these types of cases. Depending on the type of case you have, I may be able to represent you at no upfront cost to you.

At the Law Office of Alex McClure, I pride myself on working closely with my clients to provide practical solutions to their consumer debt problems.

I do everything in my power to provide options that my clients didn't even know existed before consulting with me.

Contact the Law Office of Alex McClure today to find out how I can help you create a sustainable financial future for yourself.

The Law Office of Alex McClure provides services in Lake Mary, Sanford, Longwood, Deltona, Deland, Orlando and all of Seminole, Volusia, Orange, Brevard and Lake Counties. 

Solutions For a Sustainable Future

I make every effort to tailor my services to the individual needs of my clients by approaching their issues with an eye towards both their short and long-term goals. I strive to provide solutions which address their immediate concerns and helps them create a realistic and meaningful path towards long term financial sustainability. I look forward to working with you to develop those solutions and help you successfully navigate your consumer legal issues.