If you are sued by a credit card company, you should begin planning your defence as soon as possible. You have a good chance of winning the lawsuit. As many as 90% of all plaintiffs in a credit card lawsuit have difficulty proving that the defendants owe them money. To begin your defence, carefully read the documents sent to you by the credit card company. Then attempt to meet with a lawyer to obtain expert legal advice.
Part 1 Responding to the Complaint
1. Examine the complaint. The lawsuit will be initiated by your credit card company filing a complaint in court. The credit card company is the “plaintiff” because it is the one who filed the lawsuit. The complaint is a legal document that describes the events that led to the lawsuit. You should carefully read the complaint.
A debt collection company that has purchased the debt may also sue you. The defences available to you will vary slightly depending on who is suing you. For the time being, simply read the complaint to learn why you are being sued.
2. Take note of the response deadlines. Along with the complaint, you should receive a summons. The summons will specify the amount of time you have to respond to the lawsuit. You should make a note of this date.
If you do not respond to the lawsuit, the plaintiff may obtain a default judgement. A default judgement means that you lose the lawsuit without even having the opportunity to defend yourself. The plaintiff can then garnish your wages in some states.
Default judgments are notoriously difficult to overturn. As a result, you should make a commitment to submitting an answer before the deadline.
3. Consult with an attorney. You should consult with a qualified attorney to build the best defence possible. A lawyer will listen to your description of your situation and provide tailored advice on how to defeat the lawsuit. To find a qualified lawyer, contact your local bar association, which should be able to provide a referral.
You can also go to the website of the National Association of Consumer Advocates. It has a feature that allows you to search for attorneys.
Even if money is an issue, you should make an effort to meet for an initial consultation. Many lawyers will provide a half-hour consultation for a small fee (around $50). You can ask the lawyer for advice on how to defend yourself during the consultation.
4. Make a draught of your response. You will file an answer in response to the complaint. In your response, you either admit or deny each allegation. You can also claim that you lack the necessary knowledge to admit or deny any allegation.
Your courthouse may already have a “fill in the blank” answer form printed. Stop by your court and ask the clerk. If not, inquire whether the court has a sample response you could use as a guide. Make sure to modify the sample to fit your specific needs.
You should state whether or not you want a jury trial in your response. If the plaintiff requested a jury trial, you will not need to request one. However, if the plaintiff has not requested a jury trial in its complaint, it is up to you whether or not to have one.
5. Include any affirmative defences you may have. Your affirmative defences should also be included in your response. With an affirmative defence, you basically argue that even if everything in the complaint is true, the plaintiff should lose. Affirmative defences that are commonly used include:
The plaintiff waited far too long to file a lawsuit. Every state has a statute of limitations, which is the time limit within which someone can sue you. The debt collection statute of limitations varies by state. However, if the plaintiff waited too long, you can have the lawsuit dismissed by the judge.
The plaintiff has failed to state a valid claim. Typically, the plaintiff must attach sufficient documents to the complaint to demonstrate a valid contract. A debt collection agency, for example, must demonstrate that it purchased the right to sue on a valid debt. If the plaintiff did not attach these documents, you can conclude that it did not make a valid claim. You should raise this defence even if the plaintiff attaches documents.
You were not properly served with the complaint. Each state also specifies how you must be served with a copy of the complaint. In New York, for example, the person filing a lawsuit must serve a copy in person or by leaving the complaint with a person in your home (while mailing you a second copy). The plaintiff cannot simply mail the complaint and summons to you or leave a copy with your next-door neighbour. If you were wrongfully served, you can use that as a defence.
6. Counterclaims should be included. You can also raise any claims you have against the credit card company or debt collector in your response. Debt collectors are prohibited by federal law from engaging in abusive behaviour. If the plaintiff has committed any of the following offences, you may file a counterclaim for $1,000 per violation:
Makes contact with third parties about your debt. There are some limited exceptions, such as contacting your attorney. If the plaintiff contacts your boss or family members, you should file a counterclaim.
Calls you at the most inconvenient times. If the plaintiff calls before 8:00 a.m. or after 9:00 p.m., you should sue them for breaking the law.
Threatens or employs physical violence. You have the option of filing a counterclaim.
Abuse, profanity, or obscene language is used.
When calling you, does not identify itself as a debt collector.
7. Put your response in a file. After you have finished your answer, make several copies and deliver them to the court clerk. Inquire about filing.
Depending on the court, you may be required to pay a filing fee. Inquire with the clerk.
If you are unable to pay the fee, fill out a fee waiver form.
8. A copy will be served on the plaintiff. You must send a copy of your response to the plaintiff. Inquire with the court clerk about acceptable methods of service. Make certain to send the response to the plaintiff’s attorney. In general, a copy can be served in the following ways:
Through the mail. You can frequently send a copy of the response certified mail, return receipt requested.
Personal attention. Typically, the answer can be personally served on the plaintiff by someone 18 or older. This individual cannot be you. Many people, instead, hire process servers to serve them. A process server can be found in the phone book or on the Internet. They usually charge between $45-75 per service.
9. Fill out and submit your proof of service form. Most courts will require you to sign a form indicating that you served the plaintiff with a copy of the answer. Request this form from the court clerk.
Whoever provides service must complete the form and return it to you. You must then file it with the court.
You should keep a copy of this form for your records.
Part 2 Building Your Defense
1. Examine your financial records. If you have been sued for failing to pay a bill, you should try to gather evidence that you have paid. If you can demonstrate that you have paid in full, you can defeat the lawsuit.
Look for checks that have been cancelled. The credit card company may have cashed your check but transferred the funds to another account. Collect any proof of payment.
Look through your credit card company’s correspondence. It may have sent you an email informing you that it had received your payment. If that’s the case, you can use this email as proof that you paid.
2. Examine your card’s membership agreement. In addition, the agreement may state that you are not in default until your payment is 60 days past due. If the credit card company tries to sue you before you have breached your contract, you can defeat the lawsuit.
3. Request that the plaintiff provide you with documents. The lawsuit moves into the “discovery” stage after you file your answer. You can request documents from the plaintiff during discovery. If you are being sued by a collection agency, you should request documents proving that the agency purchased a valid debt. You should ask for copies of the following documents to see if the debt buyer can prove the existence of a valid debt.
The underlying agreement. Often, the plaintiff will not even include a copy of the complaint. It will instead include a sample of the terms and conditions. These documents were sometimes printed years after you opened your credit card account. However, in order to sue you, the plaintiff must present a valid contract. If the plaintiff is unable to produce the contract, you may be able to obtain summary judgement.
Purchase contracts. The plaintiff must demonstrate that it has a valid title to the debt. If the plaintiff purchased the debt from another debt buyer, you must have every bill of sale dating back to the credit card company. Each bill of sale should be requested. If there is a break in the chain of title, you may be able to win your lawsuit.
A copy of the debt buyer’s driver’s licence. If you are sued by a collection agency, it is usually required by the state or city in which it operates to be licenced. Request a copy of its licence.
4. Obtain proof of identity theft. Someone could have stolen your identity and then used the credit card in question. In this case, you should gather any evidence of identity theft you have:
when you reported the identity theft, a copy of the police report
any correspondence with a credit reporting agency when you challenged inaccurate information on your credit report
any communication with the Federal Trade Commission in which the identity theft is reported
5. Filing a motion for summary judgement is required. You may be able to defeat the lawsuit without ever having to appear in court. For example, if the debt collection agency cannot demonstrate that it legally owns your debt, you may be able to file a motion for summary judgement. If you were the victim of identity theft and the credit card company cannot prove you signed up for the credit card, you could also file for summary judgement.
You argue in your motion that there are no material facts in dispute and that you are entitled to judgement as a matter of law.
If you win, the judge will dismiss the case, and the plaintiff will not be able to re-file it.
You should retain the services of a lawyer to draught this motion for you. Summary judgement motions are complicated and necessitate knowledge of your state’s laws. Call an attorney and inquire whether he or she provides “unbundled” legal services. If they do, you can frequently hire them to do specific tasks, such as writing the motion or representing you at trial later.
Part 3 Defending Yourself at Trial
1. Put on appropriate clothing. For your trial, you should dress professionally and neatly. Remember that the judge and jury will form immediate impressions of you based primarily on how you appear. You want to appear to have just finished a professional job.
If at all possible, men should dress in suits. If a man does not have a suit, he should wear dress pants and a collared shirt.
Women should dress in pant suits or skirt suits. Women can also opt for a conservative dress or dress pants with a nice sweater or blouse.
See Dress for a Court Hearing for more information on how to look your best in court.
2. Choose a jury. You are entitled to a jury trial. If you or the plaintiff chose a jury trial, you will have to select the jury through a process known as “voir dire.”
The judge begins voir dire by summoning a panel of potential jurors to the jury box. The judge then asks the jurors a series of probing questions, such as whether they are capable of being fair. If a juror admits that he cannot be fair—or if he knows you or the plaintiff—you should request that the judge excuse the juror.
You may also receive a set number of “peremptory challenges.” You can remove a prospective juror using a peremptory challenge without giving the judge a reason. You may excuse jurors for any reason other than their race, gender, or ethnicity.
You may wish to excuse any juror who works for a credit card company, bank, or other financial institution in your credit card lawsuit. They might not sympathise with your situation.
3. Make your first statement. You will begin the trial by making an opening statement after the jury has been sworn in. As the defendant, you will speak first. You should use your opening statement to lay out the evidence for the jury and explain why it is important.
For example, you could argue that you have already paid the debt. In this case, you should inform the jury about the evidence you intend to present. “As the evidence will show, the plaintiff cashed a check numbered 858 on April 15, 2014,” you could say. As the evidence will show, the total was credited to April Y. Smith rather than April S. Smith.”
In your opening statement, avoid presenting arguments. Stick to the facts you’ll be presenting.
4. Testify in court. You may be called to testify in your own defence. If you hired an attorney, he or she has the authority to question you. If you do not have an attorney, the judge may allow you to make a statement to the jury before the credit card company’s attorney cross-examines you.
It can be difficult to testify, especially if you have never done so before. It is normal for you to be nervous about cross-examination. To be an effective witness, keep the following tips in mind:
Listen carefully to the question and try to answer only the question that has been posed. Volunteering information that isn’t necessary for answering the question isn’t a good idea.
Never take a chance. If you don’t know the answer to a question, simply state, “I’m not sure.” I’d have to hazard a guess.”
Speak loudly. When asked a question, sit up straight and look at the lawyer. When responding, make an effort to make eye contact with the jury.
Maintain your composure. If you allow the plaintiff’s lawyer to make you angry, you will lose credibility with the jury.
5. Make your final argument. Following the presentation of evidence by each side, both sides will make closing arguments. You’ll come in second.
During closing, your job is to persuade the jury that you do not owe the amount of money claimed by the plaintiff.
Remember to back up your arguments with evidence from the trial. For example, you could argue, “Clearly, the credit card company does not owe the debt.” Did you come across any agreements with the defendant’s signature on them? Did you come across any documentation from the original credit card company that expressly granted the plaintiff the right to collect the debt? No, I didn’t. Instead, I found a photocopy of the cardmember agreement and a spreadsheet with the defendant’s name on it. It cannot collect if the plaintiff does not have a valid debt. And that is the case here.”
6. We’re waiting for the verdict. Following the conclusion of the closing arguments, the judge charges the jury by reading instructions about what the jury must find. The jury then goes into recess to deliberate. If there is no jury, the judge makes a decision from the bench.
If your case was complicated, the judge may postpone issuing a written ruling until a later date.
6. If you lose, file an appeal. If you lose, you may want to file an appeal. However, you should probably consult with an attorney about this. There are advantages and disadvantages to filing an appeal, and you should be aware of both before proceeding.
If you believe the judge made a mistake, you may wish to file an appeal. For example, the judge may have refused to allow you to submit a document into evidence that you should have been able to do. You may be able to win an appeal if the document was critical to your defence.
Appeals, on the other hand, can take up to a year and cost a lot of money. You will, for example, have to pay to have court transcripts created. Because appeals are very technical, you will also need to hire a lawyer to represent you.
If you want to file an appeal, you should do so as soon as possible. The time limit for filing an appeal varies by state, but it can be as little as 10 days after the final judgement is entered in some states.
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