George Simons | December 02, 2022
Summary: Are you being sued by a debt collector in South Dakota over a past due balance? Learn how to answer a summons for debt collection in South Dakota and win your case.
In South Dakota, any debt, whether credit card, utilities, or car loan debt, can be sent to a collection agency for recovery if you default on your monthly payments. These agencies will frequently call and send you debt collection letters, asking you to pay the amount owed. Such extreme debt collection tactics can be stressful if you do not know how to respond to a debt collection summons.
You have 30 days to respond to a debt collection summons in this midwestern state. Therefore, it is never a great idea to ignore this timeline because a default judgment can occur if you fail to beat the deadline. A default judgment means that the court can determine the validity of your debt, and the plaintiff will win the case without your presence in court.
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The first step to take after receiving a debt collection letter or phone call from a debt collector is to validate the debt by confirming the collection agency's name, contact information and then requesting a debt validation letter.
This letter should include details about the amount you owe and the name of the original creditor. It should also include the necessary steps to take if you wish to dispute the debt.
Upon receiving the validation letter, if you realize that you do not owe the debt collector, you should notify the debt collector in writing, asking them to stop contacting you. On the other hand, if you owe the debt collector, you can negotiate a suitable payment plan or a clear timeline to repay the debt with a one-off payment.
In the process, you should keep in mind the Statute of Limitations on various debts in South Dakota. If the debt you owe is approaching the expiration date of the Statute of Limitations, it is wise to contact a lawyer to discuss the best course of action.
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The filing fee for a Debt Collection summons in any South Dakota circuit court is $70. However, debt collectors collecting $12,000 or less can file a summons in a Small Claims Court. The filing fees in a Small Claims Court vary, depending on various factors.
The highest fee is $35 for cases seeking between $4000 and $12,000. You cannot appeal a small claim matter to either the South Dakota Supreme Court or Circuit Court; you, however, have a right to move a small claims action to a Circuit Court.
In most Circuit Court cases, a private process server or county sheriff serves debt collection complaints and summons. The service fee usually ranges between $30 and $50. Typically, the court will serve the Notice of Small Claims by mail.
After obtaining a judgment, the court clerk will include a sheriff's execution fee of $35 and a writ execution fee of $5. A Writ of Execution is a judicial order seeking the execution of a particular judgment. The sheriff will also charge a percentage of the total amount successfully levied and given to the creditor.
In South Dakota's garnishment proceedings, the law requires the debt collector to receive a sum of $15 to reimburse the expenses they incurred while preparing the garnishment disclosure form. The debt collector can include this amount in the debt that the creditor is trying to recover from you.
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It's best to respond to a summons as soon as you can. This is to prevent the court from ruling in favor of the plaintiff. Below are the steps you need to take when responding to a debt collection summons in South Dakota.
Answering the complaint can be stressful, but that should not be the case. You only need to read and understand the complaint then respond to the paragraphs with either of the following answers:
The next step involves giving the court reasons why it should pass a judgment in your favor by explaining why you do not owe the plaintiff any debt.
Some relevant defenses to include are:
Identity theft: if you believe that you incurred the debt in question through impersonation, you can add identity theft to your affirmative defenses. To convince the court that your identity has been stolen, make sure you have the necessary documents, including police and credit card reports and affidavits of forgery, just in case the court requests them.
Amount of debt in dispute: This defense applies when the amount the debt collector is suing you for differs from the amount you believe you owe. There may be different reasons for the disparity in the debt amount, some of which include:
South Dakota Statute of Limitations: The statute of limitations on most debts in South Dakota is six years. This includes mortgage, credit card, and medical debt. If the Statute of Limitations on your debt has already expired, a debt collector cannot pursue legal action against you. However, the Statute of Limitations can be reactivated if you make any payment towards settling your debt.
Contract cancellation: You could raise this affirmative defense if you had a contract with the creditor. In that case, you'll need to tell the court that the plaintiff did not implement the agreement that led to the debt.
Discharge of debt in bankruptcy: If there was a bankruptcy petition that previously included the debt you are answering summons for, the debt collector must discontinue the lawsuit or face another for the violation of a discharge.
Cleared debt: You can argue your defense on clearing the debt or making a partial payment towards settling the debt in question.
Lack of information: This defense is relevant if you were a co-signer to a loan or debt you're being sued for but did not have enough information on your rights as a co-signer.
It is essential to note that there is no bonding requirement or special licensing required to practice debt collection in South Dakota. You cannot, therefore, argue your defense on the collector's lack of license to collect a debt or the failure of the debt collector to allege licensure in the complaint as you would in other states.
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In South Dakota, if you do not have an attorney, you will need to file your answer in person or by mail. To do this, you need to mail a copy of your answer to the plaintiff's attorney and another to the court, and then pay the court's filing fee.
However, one of the easiest options to answer a debt collection summons in South Dakota is by using the services provided by SoloSuit. Given that debt collection laws are quite complicated, SoloSuit makes filing easy by doing it the right way.
South Dakota is among the few states that have fully adopted the federal regulations for debt collection as outlined by the Fair Debt Collection Practices Act (FDCPA) without any additions to their state law code. But this act does not dictate interest rates on consumer debts. South Dakota only allows a maximum of 15 percent on legal interest rates and 12 percent on judgment penalties.
Federal standards regulate debt collection practices in this state, with violations warranting penalties of up to $1000 and court fee payment. This means that there are laws that protect you as the consumer and govern the actions of debt collectors.
According to the FDCPA, a debt collector in South Dakota cannot:
Further, the law prohibits a debt collector from:
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Generally, South Dakota's law against garnishment of wages by debt collectors is more restrictive than federal laws. For instance, if the court declares that garnishment is the best way to enforce a certain ruling, the state of South Dakota allows garnishment of a maximum of 20 percent of your disposable income. In comparison, federal law allows garnishment of up to 25 percent of your non-exempt wages.
For garnishment summons, the debt collector will serve you a garnishment disclosure in the same manner you were served the debt collection summons and complaint. As the judgment debtor, the law entitles the debt collector to a 120-day lien on your income. A lien is a right given to the plaintiff by the court over your property or income until you clear your debt.
You will then hold the garnished income until the collector applies for and serves an order to release the funds. When that happens, you will be required to hand over all the held funds to the creditor. After serving you with another garnishment disclosure form, the debt collector can renew the lien on your wages for another 120 days.
The law gives you up to five days after being served in person or eight days if served by mail to claim exceptions. If you fail to claim any exceptions, the court will deem it a waiver of the said additional exceptions. If you fail to respond to a garnishment summons within 30 days, a collector may obtain a supplemental judgment against you.
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South Dakota Statute of Limitations |
|
|
Debt Type |
Deadline in Years |
|
Credit Card |
6 |
|
Medical |
6 |
|
Mortgage |
6 |
|
Auto Loan |
6 |
|
State Tax |
3 |
|
Source: Findlaw |
|
The Statute of Limitations is the timeframe within which a creditor and debt collector can pursue legal action against you to collect their debt. In South Dakota, there are different Statutes of Limitations on various debts. As a result, knowing the Statute of Limitations that applies to your debt can significantly impact your debt summons.
Suppose the Statute of Limitations on your debt has already expired. In that case, the debt collector can still contact you to pursue their debt but cannot file a lawsuit against you because the timeframe for legal action has already passed.
However, it is essential to note that the expiry of the Statute of Limitations on your debt does not automatically cancel the debt; the collection accounts remain in your credit report for up to seven years from the date of your first defaulted payment.
If a debt collector keeps contacting you regarding a time-barred debt, you can request in writing that they stop contacting you.
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Rather than work with expensive lenders for loans that will only worsen your debt problems, you can consider one or more of the strategies listed below to pay off your debt.
Consolidating your debt: Consolidating multiple debts into one loan that requires a single monthly payment can be a great strategy for meeting your debt obligations. However, it is imperative to go over the interest rates of this new loan with your lender, as debt consolidation can sometimes lead to higher interests and more extended repayment periods.
Debt Refinancing: Student loan, mortgage, and auto-loan refinancing are common methods to acquire better loan terms and lower interest rates on debts. Similar to consolidation, refinancing involves negotiating for a new loan to service an already existing debt.
In refinancing, however, payments are not necessarily consolidated into a singular monthly payment. If you have a good credit score, it should be easy to get approval for a new loan with better repayment terms.
Balance transfer card: You can use a balance transfer to pay off your debt faster and at a lower rate. Balance transfers involve transferring an existing debt to a new credit card with preferable terms.
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If you are facing a dire debt situation, reaching out to legal aid organizations and debt relief programs within South Dakota is a great place to start.
You may contact these South Dakota legal aid organizations:
While avoiding debt is not always possible, as a South Dakota resident, you don't have to crush under the weight of unmanageable debt. If you follow the steps detailed in this article, you will navigate your debt collection summons successfully.
The most important thing is to take advantage of available resources to prevent the debt situation from getting worse.
SoloSuit makes it easy to respond to a debt collection lawsuit.
How it works: SoloSuit is a step-by-step web-app that asks you all the necessary questions to complete your answer. Upon completion, you can either print the completed forms and mail in the hard copies to the courts or you can pay SoloSuit to file it for you and to have an attorney review the document.
"First time getting sued by a debt collector and I was searching all over YouTube and ran across SoloSuit, so I decided to buy their services with their attorney reviewed documentation which cost extra but it was well worth it! SoloSuit sent the documentation to the parties and to the court which saved me time from having to go to court and in a few weeks the case got dismissed!" – James
>>Read the NPR story on SoloSuit: A Student Solution To Give Utah Debtors A Fighting Chance
Here's a list of guides for other states.
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Being sued by a different debt collector? We're making guides on how to beat each one.
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