Debt Collection: Claim and Delivery

Is a debt collector:
Calling you multiple times a day?
Calling your family and friends?
Showing up at your house?
Threatening your with jail?

You can..
Send a Cease and Desist letter through certified mail stating your name, the name of the company and that you request they stop contacting you about your debt. The company must stop harassing you, but just because they stop harassing you does not mean that you no longer owe them the debt.

If they continue to contact you after you send the letter you can file a complaint with the South Carolina Department of Consumer Affairs. Be sure to keep track of when the company contacts you and what they say. This information could be important if you are sued for the debt.

The complaint says “Claim and Delivery,” what is that?
A Claim and Delivery lawsuit is a legal action to recover personal property that is in your possession or was listed on the loan contract. It is one way for the company to sue you. You are NOT being sued for the money that you owe on the debt. You ARE being sued for possession of the property that is listed on your loan agreement or the amount of money that the property is currently worth if you no longer have it.

Note: They can also just sue you for the money and not the property. See our Summons and Complaint brochure.

I’ve been sued in a Claim and Delivery action, what should I do?
Protect your property by getting a lawyer to defend you. South Carolina Legal Services provides legal assistance under certain circumstances to eligible applicants. The South Carolina Bar Association also has programs to assist you with getting a lawyer.

Have you filed a response?
If the company has served you with a Claim and Delivery lawsuit, you should file an Answer as soon as possible before your court date. An Answer may not be required if your Summons does not tell you to file one. We recommend filing an Answer with the court because it tells the court your side of the story. You should do this even if they just filed a Complaint for the money. Be sure to mail a copy of the Answer to the company before you file the answer with the court, and add a statement that you mailed a copy of the answer you file with the court.

Sometimes your case can be dismissed.

Get the results you want
If the company violated South Carolina law by threatening you with things like jail or wage garnishment you may have defenses and counterclaims. There are also strict rules on what the company needs to prove in court to get possession of the property or a judgment against you. If you go to court and are prepared with your defenses there is a chance the case will be dismissed in your favor.

Our Services
You may qualify for free representation from South Carolina Legal Services to help defend you in your debt collection case. Even if we can’t represent you, we may be able to give you advice and answer your questions so you can represent yourself in court.

FAQ
Can I go to jail for not making payments?
No, you cannot go to jail for not making payments on a consumer debt.

I have been sued on a debt – should I go to Court?
Yes, you should go to court. If you or an attorney make the right arguments there is a possibility that the case against you can be dismissed.

How can I get the case dismissed?
You may be able to get the case dismissed for a number of reasons. For example, if the company;
1) Didn’t fill out the court papers or the loan papers properly;
2) Can’t prove the details of the charges or payments on your debt or;
3) Doesn’t have specific information about your property (such as serial numbers).

Can I sue the company?
Yes. For example, if the company;
1) Was unfair or deceptive in how it treated you;
2) Behaved badly toward you;
3) Lied to you or threatened you.
You may have claims and could sue them back. This is called a counterclaim.

Can they garnish my wages?
No, in South Carolina wages cannot be garnished to satisfy a judgment in a consumer debt case.

Can I go to jail for not paying a judgment?
No, you cannot go to jail for not paying a judgment on a consumer debt in S.C. A judgment means the company can try to collect from you, it does not mean you have to pay them if you are unable to.

Should I make a settlement?
This depends on your financial situation and the behavior of the company. Usually it is not in your best interest to agree to make payments as a settlement if you were already unable to make the regular debt payments.

How to Get Help for Court Apply for an Attorney
You can apply for a free attorney from South Carolina Legal Services to help you. There is no guarantee of acceptance of your case. The S.C. Bar Association also has lawyer referral options and a pro bono program where a lawyer can represent you for free in certain cases.

Apply for an Attorney
Call our intake line to apply:
1 (888) 346-5592
Or apply online at:
www.lawhelp.org/sc/online-intake

Come to one of our Clinics
We offer free information at our clinics and an opportunity to apply in person for our services. Check our website or email us to find out when and where our next clinic will be held in your area. ruralclinics@sclegal.org.

This brochure was prepared by South Carolina Legal Services and is provided as a public service.
Copyright retained by South Carolina Legal Services
Printed March 2018