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What If the Wrong Defendant Is Named in a Lawsuit?

George Simons | January 10, 2024

George Simons
Co-Founder of SoloSuit
George Simons, JD/MBA

George Simons is the co-founder and CEO of SoloSuit. He has helped Americans protect over $1 billion from predatory debt lawsuits. George graduated from BYU Law school in 2020 with a JD-MBA. In his spare time, George likes to cook, because he likes to eat.

Edited by Hannah Locklear

Hannah Locklear
Editor at SoloSuit
Hannah Locklear, BA

Hannah Locklear is SoloSuit’s Marketing and Impact Manager. With an educational background in Linguistics, Spanish, and International Development from Brigham Young University, Hannah has also worked as a legal support specialist for several years.

Summary: Are you being sued for a debt that isn't yours? You have rights. Learn how to respond to debt collectors when they come for a debt that doesn't belong to you and win in court.

Most people agree that being sued for an outstanding debt is bad, but being sued for an outstanding debt they do not actually owe is worse. Why? Because when you are served with that debt collection lawsuit, your mind is immediately inundated with unnecessary questions and concerns. Did I forget to pay a credit card bill? Was my identity stolen by someone who opened an account and racked up large, unpaid bills? You are forced to endure significant stress and anxiety until you ultimately realize that the debt collector sued the wrong defendant.

Unfortunately, lawsuits filed against the wrong defendants are a surprisingly common occurrence and growing with regularity. This is largely due to the fact that many banks and credit card companies are opting to sell old debts and delinquent accounts for pennies on the dollar to debt collection agencies. There are even instances where a particular debt has been sold again and again to different collection companies.

When these transactions are made, it appears certain key information regarding the account holder gets lost in translation. This increases the risk that the debt collector inaccurately identifies an individual as the debtor (e.g., suing “Jane K. Smith” when the account holder was named “Jane H. Smith”). This leads to a needless lawsuit being filed against the wrong defendant.

If you are mistakenly sued by a debt collector and do not owe the debt, it is important to take prompt action. Doing nothing and hoping the lawsuit goes away is not the right choice. If you take proactive steps to address the issue of mistaken identity, there is a good chance you could potentially get the lawsuit dismissed fairly quickly.

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1. Draft a Motion to Dismiss

In the legal profession, a “motion” is a formal request for something to occur in a lawsuit that is submitted to a court. A Motion to Dismiss requests that the judge overseeing your case enter an order dismissing the debt collector's lawsuit. Your motion should clearly explain the situation and provide evidence to substantiate your argument that the debt collector sued the wrong defendant.

If your Motion to Dismiss is granted on all claims, the case is effectively ended and will be closed. It is also worth pointing out that a lawsuit can be dismissed “with prejudice” or “without prejudice.” When a case is dismissed with prejudice, it means the plaintiff is prohibited from filing the same case against the same defendant again. Conversely, when a lawsuit is dismissed without prejudice, the plaintiff retains the ability to file another lawsuit against you in the future.

After filing your Motion to Dismiss, take the following steps:

  • Send a copy of your stamped Appearance and Motion forms to the counsel for the plaintiff (i.e. the debt collector). You should be able to locate the contact information for the other parties in the Complaint
  • Send copies of the Motion to Dismiss in the manner you stated you would in the Notice of Motion, which could be via hand delivery, U.S. postal service, or through an electronic submission portal.
  • Send copies of your motion, and any supporting documents, on the same day you file them with the Clerk of the Court.
  • Make sure to timely file your motion.
  • Be sure to retain one copy of each court-stamped form for your records.

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2. Contact the Debt Collector Identified in the Lawsuit

Before filing your Motion to Dismiss, you should consider proactively calling the debt collector, or the legal counsel representing the debt collector, to discuss the situation. You should explain that you do not owe the amount alleged and/or that you are not the correct defendant. You should also let them know that you have the Motion to Dismiss drafted and ready to file with the court.

If the debt collector, or their legal counsel, agrees that you are not the correct defendant, it is acceptable to simply ask them to dismiss you from the lawsuit. If they agree, request that they file a formal dismissal motion and send you a copy of the filing. However, do NOT rely solely on this phone conversation or place your trust in a verbal agreement.

3. Be Sure to Attend the Court Hearing

Whether the debt collector agrees to dismiss you from the lawsuit or not, make sure you attend the formal court hearing that typically follows after a motion is filed in a case. If the debt collector refused to dismiss you from the case after you explained the situation, you should appear in court and be ready to explain to the judge that you are the wrong defendant. Make sure to bring any relevant documents to court with you that can help you prove that you are the wrong defendant.

Getting sued for a debt you do not owe can be an extremely aggravating and stressful event that, unfortunately, far too many people are forced to endure. If you are the wrong defendant identified in a debt collection lawsuit, it is important to take action and file a motion to dismiss with the court. You should also proactively reach out to the plaintiff (typically the debt collection company) and explain the oversight. It may be possible for the plaintiff to proceed with dismissing you from the lawsuit.

What is SoloSuit?

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.

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