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Legal Notes

Your rights if a creditor sues you

CLA logo slogan 01It can be terrifying to be served with court papers because you owe money. Most often these lawsuits are brought by a credit card company or collections agency in a small claims session of a District Court. The first thought is – I need a lawyer. But there are steps you can take to protect yourself, and this article will explain those steps. If you have access to a computer in your home or at your local public library, you can get more details at www.masslegalhelp.org/consumer. Please note, however, that when you owe certain debts such as child support, taxes, alimony, or criminal fines, the protections described below are not available.

First, make careful note of dates on the first court papers you get, called a Summons and Complaint. The Complaint will list who is bringing the lawsuit against you (called the plaintiff) as well as the amount of money they say you owe. The Summons will state the number of days you have to provide a written response to both the plaintiff and to the courthouse (called an “answer”) and it may give a date to go to court. It is essential that you go to court on the date given even if you do not have the money to pay the debt. If you do not go to court, a default judgment will be entered against you; that is, you will automatically lose (and it will be hard to undo the results).

The Court looks at your income and assets to determine if you can be ordered to make payments out of your income or to sell an asset to pay the judgment against you. If all your income and property (“assets”) are protected, you are “collection proof” regardless of age or disability status and you cannot be ordered by the court to make payments to satisfy the debt. Payments by the Social Security Administration (SSA), unemployment compensation, and state and federal veterans payments, for example, are “exempt” income (meaning a court cannot order you to pay a judgment using those benefits). Other types of income, such as wages, are not exempt but are protected from collection up to a certain amount. Other amounts of income, if not already protected as exempt or up to a certain amount, can be protected because they are used for a “special purpose,” such as paying your rent.

If you are age 60 or over or a person with a handicap, state law further protects you from collection lawsuits if you only receive exempt income and own exempt property. In both situations it is your responsibility to gather the documents that prove you qualify for this protection and to bring them to court. To establish your age, a birth certificate, driver’s license or state ID will work. If you are under age 60, you have to establish that you are “handicapped.” If you receive payments based on disability (Supplemental Security Income [SSI] and/or Social Security Disability Insurance [SSDI]), a letter from the Social Security Administration should be sufficient to establish “handicap.” If you do not get payments from the SSA based on disability, a letter from your physician stating that you have physical and/or mental impairments that severely limit or prevent you from participating in at least one major life area may be used to establish your handicap and right to protection from a collection lawsuit. Major life activities are breathing, walking, talking, hearing, seeing, sleeping, caring for one’s self, performing manual tasks, and working as well as major bodily functions.

Exempt assets (that is, property that you own) for elders and individuals with disabilities include one car (up to $15,000 in wholesale retail value) and one’s home to the extent the Massachusetts homestead law protects it. The homestead law protects your home if it is your primary residence. If you file a declaration of homestead at the Registry of Deeds you can get increased protection for the equity in your home, above the automatic protection of $125,000. Manufactured (mobile) homes are also protected by this law.

If you believe you qualify as age 60 or over or as “handicapped” and only have exempt income and assets, you may choose to contact the lawyer representing the company suing you (or the person suing you if there is no lawyer involved). It doesn’t hurt to let them know that you are protected from the lawsuit because of your age/handicap and lack of nonexempt income/assets and that the court will dismiss the case so it is most efficient for all involved for them to dismiss the case now. Be aware, however, that even if they say they will dismiss the case, you will want to confirm with the court that the case has been dismissed. ALWAYS GO TO COURT ON A COURT DATE unless you have confirmed with the court that your hearing is not happening.

If you have further questions about a new or pending collections action against you, you can contact the Massachusetts Senior Helpline at 800-342-5297, Monday through Friday, 9 a.m. to 12 p.m. They can provide advice and written materials; they do not provide representation by attorneys.

The views expressed in this column represent general information. To address your particular and specific needs consult your own attorney. If you need help with referral to an attorney, contact the Franklin County Bar Association at (413) 773-9839 or the Worcester County Bar Association at (978) 752-1311. Elder law resources may be found through the National Academy of Elder Law Attorneys, Massachusetts Chapter, at massnaela.com or 617-566-5640.

Community Legal Aid (CLA) provides legal services free to people age 60 and older for civil legal matters with an emphasis on access to health care coverage (MassHealth and Medicare) and public benefits as well as tenants’ rights. A request for legal assistance can be made by phone at 413-774-3747 or toll-free 1-855-252-5342 during their intake hours (Monday, Tuesday, Thursday, and Friday from 9:30 a.m. to 12:15 p.m. and Wednesday from 1:30 p.m. to 4:15 p.m.) or any time online by visiting www.communitylegal.org.