Money & Debt

Discovery is the next stage of a debt collection lawsuit after the complaint, answer, and any affirmative defenses have been filed. Learn more about these documents in Responding to a debt collection lawsuit basics. 

Discovery takes place before trial so that the parties can present any useful information they find about the facts of the case to the judge or jury. The amount of discovery allowed depends on how much money is at issue in the lawsuit. If discovery is too restricted, you can request permission from the judge to go beyond the limits. The judge isn’t required to let you do more discovery than the rules provide.

Small claims discovery and motions

In small claims cases for less than $10,000, you must get the judge’s permission before doing any discovery.

Small claims discovery restrictions

Creditors in small claims cases aren't required to:

• Sit for a deposition (answer questions under oath outside court),
• Respond to interrogatories (written questions), and
• Respond to requests for production (written requests for documentary evidence).

Motions you can file without permission in small claims

Small claims rules limit motions (written requests for the judge to do something). Motions you can file without permission include:

• Motion to dismiss the case,
• Motion to change the trial location, and
• Motions to request a payment plan.

You can use our Easy Form program to prepare a motion for filing.

How to request permission to file other motions

If you want to file any other kind of motion in a small claims case, such as asking the court to allow discovery, you must first file a motion for leave to file. Attach a copy of your proposed motion so the judge can decide whether to grant your request.

Note: Even in small claims court, if you file a motion, the creditor has the opportunity to respond and object. The judge will consider both sides before making a decision.

Discovery and motions in cases over $10,000

If the case is for more than $10,000, the standard Illinois discovery rules apply.

Discovery tools in cases over $10,000

There are four discovery tools available in cases over $10,000:

• Interrogatories (written questions),
• Requests for production (written requests for documentary evidence),
• Requests for admission (written requests for the other party to confirm or deny facts), and
• Depositions (formal interviews outside court with a court reporter present).

Additional rules to follow

• Rule 201(k): You must meet with the other side to try to solve discovery issues before asking the court for help.
• Rule 219(a): If the 201(k) meeting doesn’t resolve the issues, you can file a motion asking the court to require a response.

Special rule for cases between $10,000 and $50,000

If the amount at issue is between $10,000 and $50,000, Illinois Supreme Court Rule 222 applies. Rule 222 doesn't apply to small claims, evictions, family law, or cases that seek something other than a money judgment.

The key Rule 222 requirements are:

• Both sides must disclose any evidence they plan to use at trial in advance, and
• If the creditor fails to file their Rule 222 disclosure, you can ask the judge at trial to exclude their evidence.

Note: If their evidence is excluded and they don’t have anything else to show, you may win the case.

Voluntary dismissals without prejudice

A creditor can voluntarily dismiss their lawsuit one time without notifying you first. If they do it again, they lose the right to refile.

Dismissal “without prejudice” means the creditor can refile it later. They have the longer of either:

• One year from the dismissal date, or
• The remaining time under the original statute of limitations.

Note: Making a partial payment or a written promise to pay can restart the statute of limitations.

Trials in consumer debt cases

In some Illinois counties, trials happen at the first court date. Call or text Illinois Court Help at (833) 411-1121 to check if this applies in your county.

Being ready for trial includes being prepared to:

• Try to settle the case directly with the creditor's attorney,
• Present all your evidence to the judge, and
• Make all legal arguments you want the judge to consider.

Continuances on the day of trial (special rule)

In credit card or debt buyer cases, the judge won’t allow the creditor to delay or dismiss the trial without a motion filed ahead of time. If the creditor failed to file their written motion, the trial goes ahead unless both sides agree to delay. You may be able to win by refusing to agree to a delay.

Special trial rules for small claims

In small claims cases under $10,000, trials are informal. 

Judges hearing small claims cases can allow:

• Hearsay and other non-standard evidence,
• Business records about the debt, and
• Direct questioning of witnesses by the judge.

After the hearing, the judge will explain their decision.

Default judgments in consumer debt cases

If a judgment was entered against you, check if you were properly served with the summons and complaint.

• If you weren’t served properly, the judgment is void.
• If you were served, you have 30 days to file a motion to vacate the judgment.

After 30 days:

You can still try to undo the judgment by filing a petition to vacate. You’ll need to show:

• A solid defense,
• A good reason why you didn’t participate, and
• That you didn’t know about the case.

Asking for a payment plan in small claims cases

If the judgment is under $10,000, you can ask the court to let you pay in installments. The law requires you to be given up to 3 years to pay, but judges may decide to allow longer. On these payment plans:

• You must agree to pay the full amount,
• The judge can pause collection while you pay,
• The judgment will appear in public records and on background checks, and
• If you miss payments, the creditor can try to garnish your wages or take money from your bank account.

How to ask for a payment plan:

• File a written motion, and
• Include information showing how you can afford to pay in installments.

You can use our Easy Form program to draft a motion. If you haven't filed a motion before your case is tried, you can still make a spoken request at the hearing.

Filing a counterclaim

A counterclaim is a lawsuit you file against the creditor or debt collector in the same case. If they broke the law or caused harm, a counterclaim can strengthen your defense and may lead to dismissal or a settlement.

Note: Deadlines apply. If you think you have a claim, talk to a consumer advocate lawyer right away.

Common counterclaim laws

Fair Debt Collection Practices Act (FDCPA)

The FDCPA provides limits for how debt collectors can act:

• They can’t harass you or use obscene language,
• They can’t pretend to be an attorney or a government official, and
• They can’t misrepresent the debt or threaten things they can’t do.

You can file a FDCPA counterclaim based on minor or technical violations of these rules.

Illinois Consumer Fraud and Deceptive Business Practices Act (ICFA)

The ICFA protects against deceptive tactics like overstating the debt or collecting on expired claims. You’ll need to show that you suffered money damages.

Fair Credit Reporting Act (FCRA)

If false information about your debt was reported, and the creditor didn’t investigate your dispute properly, you may have an FCRA claim. You'll have to show that you were harmed in some way.

Filing complaints with government agencies

You can report debt collectors to:

Consumer Financial Protection Bureau

PO Box 27170
Washington, DC 20038
https://www.consumerfinance.gov/

Federal Trade Commission

Consumer Response Center
600 Pennsylvania Ave., NW
Washington, DC 20580
(877) 382-4357

Illinois Attorney General

100 W. Randolph St., 13th Floor
Chicago, IL 60601
(800) 386-5438

Appealing a consumer debt judgment

If you think the judge made a mistake, you can file a notice of appeal within 30 days of the final judgment.

• The judge may have misapplied the law,
• They may have let in unreliable evidence, or
• They may have excluded important information that could have helped you.

Learn more about appealing an unfavorable court decision.