Money & Debt

You must respond to a collection lawsuit to present your perspective to the court. If you don’t respond, you’ll eventually lose the opportunity to participate. A decision may be made without you.

Learn more about debt collection lawsuits in Receiving a debt collection lawsuit basics and Discovery and motions in consumer debt cases basics.

Thinking through your strategy

As you prepare your response, think about your strategy. The best approach depends on the facts of your situation.

For example, if you agree that you owe the creditor the amount listed in the complaint and there are no problems with the paperwork, you might consider negotiating a settlement. Negotiating can:

• Help you avoid having a judgment entered against you that may show up on background checks or court records, and
• Allow you to enter into a realistic payment plan without the creditor being able to freeze your bank account or garnish your wages.

If you reach a repayment agreement with the creditor without a judgment being entered against you, then the judgment won’t show up on a background check. This is different from a repayment plan ordered by a judge in court. Plans entered by judges in small claims cases include the Rule 288 procedure, which enters a judgment against you that includes a payment plan but will also show up in public records and background checks.

If you’re able to negotiate a payment plan that doesn’t require a judgment, make sure the agreement clearly states that the creditor will dismiss the case.

Why you may want to go to trial

The creditor must prove its case. You can require them to go to trial and prove their claims. A creditor can’t postpone the trial to a new date unless they file a written motion or you agree to the delay.

This means that if you wait until trial to point out errors in the creditor’s case, you may be able to win and prevent them from trying again. Filing a motion to dismiss early can alert the creditor to problems with their paperwork and give them time to fix it.

Look for all the possible issues before you decide how you want to respond.

Service of court papers

After a creditor files a lawsuit against you, they must make sure you are properly served with the summons and complaint. There are four ways this can happen:

• Personal delivery (you are given the legal papers in person),
• Substitute service (the papers are left with someone at least 13 years old who lives with you),
• Certified mail (available when a self-represented person sues in small claims court for less than $10,000), and
• Service by publication or another method (used when other methods don’t work, such as publishing in a newspaper or electronic delivery).

You can use a problem with service as leverage to negotiate a better settlement. If you weren’t served correctly, you can also file a motion to quash service. However, if you succeed with that motion, the creditor can usually continue by starting over and serving you again.

Deadlines for responding to the lawsuit

The summons tells you the important details about your case, including:

• The name of the court and case number,
• The name of the company suing you,
• The amount of money they claim you owe,
• The date, time, and location of your court hearing, and whether you can appear by video call,
• Instructions for filing an appearance and response (if required),
• The deadline to file your documents with the court (called the return date), and
• Contact information for the plaintiff's lawyer or representative.

You must file your appearance before the return date listed on the summons or within 30 days after you receive the summons. The deadline for filing your response may be different depending on the court.

To understand what rules apply to your case, contact the circuit clerk’s office where the case was filed, or call or text (833) 411-1121 to reach Illinois Court Help.

Reading the complaint carefully

The complaint is a written legal document filed in court to start the lawsuit. It includes a list of factual allegations (statements the creditor claims are true) and asks the court to enter a judgment against you.

Don’t assume the complaint is accurate. Mistakes are common. The debt:

• May not belong to you at all,
• May be the result of identity theft, or
• May include the wrong amount.

Review the statements and evidence attached to the complaint and note whether anything is incorrect or missing.

When to notify the plaintiff right away

In some situations, you should immediately contact the creditor’s attorneys and consider speaking to a consumer advocate lawyer:

• If the debt was included in bankruptcy,
• If the debt is on an account where you were only an authorized user, or
• If you believe the debt doesn’t belong to you.

If the debt results from identity theft, you must respond to the lawsuit to protect your rights. Filing a police report alone doesn’t stop the case from moving forward. If you don’t respond in the court case, the judge may still enter a judgment against you. Learn more in Dealing with identity theft basics.

Complaint requirements for debt collection cases

Different rules apply depending on who is suing you. Review the complaint carefully to see if the plaintiff followed the correct procedures based on the type of company.

Plaintiff is a collection agency

Collection agencies must:

• File a document called an assignment along with the complaint, and
• Be licensed by the Illinois Department of Financial & Professional Regulation (IDFPR). You can check for their license using the IDFPR license lookup tool.

Plaintiff is a credit card company or a debt buyer

The complaint must include:

• The name of the original creditor (the company where the debt was created),
• The last four digits of the account number,
• The date of the debtor’s last payment,
• Whether the case was filed within the statute of limitations,
• The original balance, including interest, fees, or penalties, and
• If interest is being requested, the interest rate and how it was calculated.

Additional requirements for debt buyers

A debt buyer must also include:

• A Rule 280.2 affidavit that states:
  • The date the account was opened,
  • The nature of the debt (credit card, payday loan, etc.),
  • The chain of title (showing the companies that bought and sold the account), and
  • Whether the plaintiff is asking for additional interest or attorney’s fees.
• A sworn statement confirming they own the debt, and
• A complete list of the companies that previously owned the debt before the debt buyer purchased it.

Evaluating defenses in a collection case

After reading the complaint, look for common issues that may help your defense. You should check for:

• Statements that are incorrect,
• Required information that’s missing,
• Signs of identity theft, and
• Legal mistakes made by the creditor.

Identifying errors in the complaint

You can ask the company suing you to validate the debt. You can also send a letter to the attorneys representing that company.

To prepare:

• Review your credit reports to see how the debt is being reported,
• Compare the amount listed in the complaint to your records, and
• Look for missing documents, incorrect fees, or payments that aren’t reflected.

You can bring your records to court to show that the creditor’s amount is incorrect or that you don’t owe the debt at all.

Responding if the debt involves identity theft

If the debt comes from identity theft, special rules apply. You can start by reviewing the steps in Dealing with identity theft basics.

A complaint involving identity theft may also have other legal problems. Go through all of the facts and documents before deciding how to respond.

You must respond to the complaint to assert the identity theft problem. A judge can enter a judgment against you if you don't participate in the court case, even if you don't recognize the debt.

Common affirmative defenses in collection lawsuits

An affirmative defense is a legal reason the creditor shouldn’t win, even if the complaint is true. You must include any affirmative defenses in your answer so the judge can consider them.

Below are examples of common defenses. Not all of them will apply to your case. Review the complaint carefully and consider speaking with a consumer advocate lawyer if you see one or more of these issues.

The debt is too old

The statute of limitations is a time limit for filing a lawsuit. If the creditor filed the lawsuit after the statute expired, you can raise that as a defense.

If you're sued in Illinois, Illinois law determines the statute of limitations, even if your contract says a different state's law applies. In some rare cases, you might be able to use a shorter time limit from another state if:

• You lived in that other state when the debt went unpaid,
• The creditor wasn't based in Illinois, and
• That state’s statute of limitations is shorter than Illinois’s.

The statute of limitations usually starts running on the date of the last payment, missed payment, or default. For most debts, this is the last time you made a payment.

Making a new payment can restart the statute of limitations, but the creditor must prove that the payment actually happened. A note in their records without evidence usually isn’t enough.

Illinois statute of limitations by debt type

Here are the standard time limits under Illinois law:

• Dishonored checks: 3 years from the date the check bounced (only applies to the obligation of the check itself),
• Auto loans: 4 years,
• Sale of goods: 4 years,
• Credit card debt: 5 years,
• Unwritten contracts: 5 years (includes personal property claims),
• Medical debt: 5 years,
• Debts to government agencies: 7 years, and
• Written contracts: 10 years.

The creditor waited too long to enforce the debt

You may be able to use a defense called laches. This applies if the creditor had the right to file the lawsuit earlier but waited so long that it would be unfair to let them sue now.

The plaintiff is an unlicensed collection agency

A collection agency can’t sue to collect a debt in Illinois unless it has a valid license. You can search for licenses on the IDFPR website.

Note: Not all debt buyers are collection agencies, so this defense doesn’t apply in every case.

The plaintiff is a trustee or agent of a trust

If a trust owns the debt, the lawsuit must be filed in the name of the trust, not the trustee or agent.

The agreement wasn’t in writing

Under the statute of frauds, some types of contracts must be in writing to be enforceable in court. If your debt is based on an oral agreement that legally requires a written contract, this defense may apply.

The creditor is charging illegal interest or fees

If the agreement violates Illinois law by charging too much interest or adding unlawful fees, you can raise that as a defense. The court may find the contract can’t be enforced.

The lawsuit was filed in the wrong location

The collector must sue you in the county where you signed the contract or where you currently live. In counties with multiple court divisions, the creditor must file in the courthouse closest to your home.

The creditor violated the Illinois Collection Agency Act (ICAA)

The ICAA protects Illinois consumers by setting legal limits on collection agency behavior.

Violations include:

• Trying to collect a debt without a valid license,
• Using false or misleading statements, and
• Charging fees or interest that weren’t authorized.

If the agency violated the ICAA, that may also be a violation of the Illinois Consumer Fraud and Deceptive Business Practices Act.

Additional protections for military members

The Civil Service Member Relief Act (CSMRA) protects military personnel and reservists from unfair collection actions during active duty.

While you’re serving:

• You can request a reduction in interest rates to 6% on pre-service loans,
• Creditors can’t take your property or get a judgment without giving you a fair chance to respond,
• Your home and car are protected from foreclosure or repossession without a court order, and
• You can terminate leases without penalty if military service affects your ability to continue them.

If a creditor violates your rights under the CSMRA, you may be able to sue for damages. Contact IL-AFLAN for help.

When to talk to a lawyer about your defenses

Some defenses are more complex and may benefit from legal advice. Contact a consumer advocate lawyer if any of the following apply:

• The lawsuit was filed after the statute of limitations expired,
• The plaintiff is a trustee or agent instead of the trust itself,
• The lender is affiliated with a Native American tribe and claims Illinois law doesn’t apply,
• You were sued in a place where you don’t live, or
• You’re a military member or reservist and believe your CSMRA rights have been violated.

Defending against an account stated claim

Some creditors sue using a claim called account stated. This means they are claiming you agreed to the balance they say you owe.

You may be able to argue that an account stated claim isn’t valid if:

• You never agreed to the balance the creditor says you owe,
• You didn’t have a prior account relationship with the company suing you,
• You never received a statement of account, or you objected to it within a reasonable time,
• The amount includes fees, penalties, or charges that weren’t allowed by law or contract, and
• There wasn’t a clear and mutual understanding between you and the creditor about the final balance.

Understanding arbitration in debt collection cases

Some courts use arbitration or mediation in debt collection cases. Whether you’re in arbitration depends on the amount of debt and whether your contract gives you that option.

There are two kinds of arbitration that may apply in your case.

Private arbitration

Private arbitration, which is separate from court, usually happens through organizations like the American Arbitration Association (AAA) or JAMS.

To find out if you have this option:

• Look at the credit agreement or loan paperwork,
• Search the Consumer Financial Protection Bureau’s credit card agreement database, and
• Read any arbitration clause closely.

If your agreement includes private arbitration, you can file a motion asking the judge to pause the case and order arbitration. If the judge agrees, the creditor may drop the case or offer a better settlement.

In consumer cases, the creditor usually has to pay the initial arbitration fees.

Mandatory court arbitration

Some Illinois courts use mandatory arbitration when the amount at issue is between $10,000 and $50,000. This may also happen if either side requests a jury trial.

Mandatory arbitration is similar to a trial, but it’s more informal. The case is heard by a neutral third party (an arbitrator or a panel). After listening to both sides, the arbitrator issues a decision.

Either side can reject the decision and ask for a regular trial in court.

Filing an appearance and asking for a jury

Filing an appearance tells the court and the other parties that you want to participate in the case and receive court notices.

You must file your appearance by the deadline listed on your summons. Contact the circuit clerk’s office to find out if your county has special local rules. You can also use our Appearance Easy Form program to prepare your appearance for filing.

If you don’t file your appearance on time, you may lose your right to participate in the case.

Some courts also require you to file an answer, even if your case is for less than $10,000.

If you want a jury trial instead of a judge deciding your case, you must request one. You can do this on your appearance form. If you forget, you can ask the judge at your first court date, but your request may be denied.

Think carefully before asking for a jury. A jury trial takes more work. You’ll need to:

• Participate in jury selection (where you can ask the court to reject certain potential jurors), and
• Prepare jury instructions that explain how the jury should decide the case based on the law.

Both sides usually propose jury instructions. The judge decides which instructions the jury will receive after hearing arguments.

Filing an answer

An answer is a document in which you respond to each statement in the complaint. You can say whether each statement is true, false, or if you don’t know. You can also include affirmative defenses after the main response. Our Respond to a Lawsuit Easy Form program can help you draft the documents to file.

If the judge asks whether you dispute the debt, be careful with your answer. If you say you don’t dispute the debt, the judge may enter a judgment against you right away.

You can tell the judge that:

• You want the creditor to prove their case,
• You aren’t sure the debt is valid, or
• You think there are legal problems with the case.

Filing an answer in Cook County

If you live in Cook County, your debt case may qualify for the Early Resolution Program (ERP). This program helps you work with a free attorney to negotiate a settlement.

To qualify:

• You must attend your first court date,
• An ERP attorney may meet with you and the creditor, and
• You can work toward an agreement or get advice about defenses.

To learn more, call (855) 956-5763 or visit www.cookcountylegalaid.org.

Filing an answer outside Cook County

In many counties outside Cook, you may not need to file an answer if the case is for less than $10,000. However:

• Some courts have local rules that still require answers,
• Some judges may ask you to file an answer, and
• You may need to be ready for trial on your first court date if the creditor isn’t represented by a lawyer.

If you can’t attend court on the date listed on your summons, you can file a motion asking for a new court date. You can use our Motion Easy Form program to help you draft a motion for filing.