Debt Collection: Claim and Delivery

Is a creditor:

• Calling you multiple times a day?
• Calling your family and friends?
• Showing up at your house demanding possession of personal property?
• Threatening you 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 Claim and Delivery.

The court papers say "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. If you no longer have the property, they can get a judgment for the amount of money that the property is currently worth, not the amount you owe. Keep in mind, the value is not what you paid for the item. It is what you could sell it for.

Note: They can also just sue you for the money in a Summons and Complaint case, instead of a Claim and Delivery for possession of the property. See our Debt Collection: Summons and Complaint fact sheet.

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 can also assist you with finding 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 anyway 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 when 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

I have been sued for Claim and Delivery – should I go to court?

Yes, you should go to court. If you or an attorney make the right arguments, the case against you may be dismissed.

Can I get in trouble if I no longer have the property?

Usually not if the property is just household goods, unless you sold it and didn't pay on the debt with the money you got. It is okay if you threw the property away because it was old or broken.

What if I still have the property?

You can bring the property to the hearing and turn it over. They can't get the money you owe because they only asked the court for possession of the property to be turned over. If you want to keep the property, you can make a settlement to pay the value of it. But you may have to pay the full amount you owe to keep it. Most property can be replaced for less than what you owe on a loan.

NOTE: Be sure not to turn over a computer or other device containing your personal information without wiping it clean or removing the hard drive. If you do, you could be at risk for identity theft.

How can I get the case dismissed?

You may be able to get the case dismissed for several 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;
• 3) Doesn't have specific information about your property (such as serial numbers); or
• 4) Let the 3-year statute of limitations expire.

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 like this.

Can I go to jail for not paying a judgment if they get one?

No, you cannot go to jail for not paying a judgment on a consumer debt in South Carolina. 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. In a Claim and delivery case, there would only be a judgment if you don't have the property anymore and they got a judgment for the value of the property.

Should I make a settlement?

This depends on your financial situation and the company's behavior. 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.