When you apply for a credit card, you are entering into a contract and agreeing to pay your credit card charges on time for each month that you have a balance. If you stop making payments or fail to pay your bills on time, the credit card company or a debt collector may sue you. If this occurs, you must respond to the lawsuit or the credit card company will obtain a money judgement against you and may garnish your wages. There are steps you can take to fight the credit card company’s lawsuit, whether you hire a lawyer or take on the credit card company yourself.
Part 1 Responding to the Lawsuit
1. Consider hiring a lawyer. If the lawsuit is for a large sum of money or you do not feel comfortable representing yourself in court, you should consider hiring a consumer law attorney. You can find attorneys in a variety of ways, including:
A recommendation from a friend or family member. If you know someone who has used a civil attorney, you can ask them if they would recommend that attorney. A referral from a trusted source who has had personal experience with an attorney is a good place to start.
Legal bar associations on a local or state level. Local and state bar associations frequently provide referral services to local attorneys. You can also check with state bar associations to see if any complaints have been filed against your potential attorney. Contact information for bar associations can be found at https://www.americanbar.org/groups/legal services/flh-home/.
2. Calculate the amount of time you have to respond to the Complaint. When a lawsuit is filed against you, you will be provided with a document known as a Complaint. The Complaint details all of the allegations levelled against you. To fight this lawsuit, you must respond to the Complaint within the time frame specified by the court’s rules. You can find out how much time you have to respond to the Complaint by using the following methods:
Contact the court clerk. The court where the lawsuit was filed is identified at the top of the first page of the Complaint. You can contact the clerk of that court and inquire about the number of days you have to respond to the Complaint.
Investigate court websites. The rules of the court are usually available on the court’s website. These rules explain how to format legal documents, how much time you have to respond to legal documents, and what information you must include in your response. You can find court websites by searching the name of the court on the internet.
3. Create a response to the complaint. If you are going to respond to the Complaint on your own, you should start working on your response, which is known as an Answer, right away. Your Answer must follow the rules of the court where the lawsuit was filed. You can request a sample Answer or a copy of the court rules from the court clerk. While the rules of the court may vary, most Answers will include the following:
On the first page, there is a caption. The caption identifies the lawsuit’s parties, the name of the court where the lawsuit was filed, the lawsuit/case number, and information identifying the type of document. For the most part, you can copy the caption from the Complaint but replace the word “Complaint” with “Answer.” The plaintiff is the credit card company or debt collector, and you are the defendant.
Your document’s introduction. Begin a new paragraph just below the caption and state your name and that you are “submitting this Answer in response to the Complaint, you are alleging the following:.” A sample New York Courts Answer can be found at http://www.nycourts.gov/courts/6jd/forms/srforms/ans examp.pdf. Remember that this is only a sample, and your Answer must comply with the requirements of the court where the lawsuit was filed.
In numbered paragraphs, respond to each allegation. In numbered paragraphs, your document must respond to each allegation in the Complaint. You can either admit that the allegation is true (for example, admitting that your address is correct), deny the allegation, deny some parts of an allegation while admitting others, or state that you don’t know whether the allegation is true or false.
Affirmative defences should be included. These defences have the potential to limit or eliminate your liability in the case. Part 1.4 discusses them in detail.
In your response, request a jury. If you want a jury to hear your case, you must state so in your Answer.
Include your signature as well as the date. You must sign and date the document after you have completed your Answer. Under your signature, you should also type or print your name.
Include your contact details. Include your address and a phone number where you can be reached after your signature.
Include a Service Certificate. You must create a separate document with the caption “Certificate of Service” and the document title “Certificate of Service.” This document must state that you mailed a copy of the Answer to the Plaintiff via certified mail and include the address where the document was mailed. If the Plaintiff is represented by an attorney, you must send or “serve” the Answer on the attorney.
4. In the Answer, state your affirmative defences. Consider whether the following affirmative defences are relevant to the facts of your case and should be included in your Answer in lawsuits involving a credit card company:
Limitation of Liability. Every civil lawsuit must be filed within a specific time limit known as the statute of limitations. You can find the statute of limitations for each state at http://www.nolo.com/legal-encyclopedia/statute-of-limitations-state-laws-chart-29941.html. The statute of limitations typically begins to run from the date of your last credit card payment. If the Complaint was filed with the court after the statute of limitations had expired, the lawsuit may be dismissed.
Infringement on the Fair Debt Collection Practices Act. The Fair Debt Collection Act is a federal law that requires debt collectors to provide you with certain information about your debt. It also describes how a debt collector may act when attempting to collect a debt. You should go over the law and see if the Plaintiff violated any of the provisions. If they did, you have the right to sue the Plaintiff for violating the law.  The law’s text can be found at https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text.
The debt was settled. If you have already paid the debt, you should include that as an affirmative defence in your Answer.
Charges of fraud. If someone stole your identity or credit card and used it to make unauthorised purchases, you should use this as an affirmative defence.
Identity theft. If you are sued and you never applied for the credit card or did any business with that company, you should include an affirmative defence of mistaken identity. You should also run a free credit report to see if anyone else has opened an account in your name.
Bankruptcy. If you filed for bankruptcy and your credit card debt was discharged, you can use this as an affirmative defence to the Complaint’s allegations.
5. The Answer should be filed and served. The court must receive your completed Answer. You should inquire with the clerk of the court where the lawsuit was filed about the requirements for filing an Answer. In most cases, you will need to:
Bring a copy of your original Answer as well as several copies to court. Many courts require you to bring one original Answer (with your signature) and two copies to the court for filing. Bring any copies you need to send to the Plaintiff, as well as a copy for your own records. Each copy of the Answer will be stamped by the court and entered into the court system.
Please make a copy for the Plaintiff. You must send a copy of your Answer to the Plaintiff or their attorney once the court has stamped all copies. You should send it in the manner specified in your service certificate.
Part 2 Constructing Your Case
1. Send out Discovery Requests. Following the filing and delivery of your Answer to the Plaintiff, you should begin preparing interrogatories and document requests for service on the Plaintiff. Interrogatories are questions that the Plaintiff must answer, whereas document requests request that the Plaintiff provide you with documents relevant to your case. Check with the court clerk to see if there is a limit on the number of requests you can make. During discovery, you may want to request the following information:
Describe how the Plaintiff obtained your debt. If Plaintiff is a debt collection agency rather than a credit card company, inquire as to how and from whom they obtained your debt. These agencies frequently buy and sell debt, so they may not have any documentation to prove that you owe the money.
Inquire about the total amount they claim you owe.
Inquire about the original credit card company.
You should obtain a copy of the original credit card agreement that you signed.
Demand proof that the debt was assigned, also known as “proof of assignment.” This proves that the debt collector has the authority to collect your debt.
Request documentation for all credit card charges that they claim you made.
Request that they identify any employees or individuals who have knowledge or information about the alleged debt.
Request that they provide all documents proving the alleged debt.
Request that they provide all documents proving how they obtained the debt.
2. Prepare a service certificate and send your discovery requests. You should attach a certificate of service to the discovery requests, just as you did with your Answer, and send them certified mail to the Plaintiff or their attorney.
3. Respond to the discovery You are legally required to respond to the Plaintiff’s discovery requests, just as the Plaintiff is required to respond to yours. In most cases, you must file your responses within 30 days. Your responses should include:
Respond to each interrogatory. You can respond to an interrogatory by writing an objection to the question. You must, however, answer the questions honestly and swear an oath to that effect.
Respond to requests for information. Document requests, like interrogatories, can be objected to. If you fail to turn over relevant documents, the Plaintiff may file a motion asking the court to compel you to do so.
4. Deposits should be made. A deposition is when a plaintiff or defendant or a witness testifies under oath in front of a court reporter. Your deposition may be requested by the credit card company or a debt collector. After reviewing the documents you received during discovery, you should consider deposing anyone who has information relevant to your case. If you decide to depose a witness, you must first serve a notice of deposition outlining when and where the deposition will take place. It is preferable to arrange this with opposing counsel before sending the notice.
Engage the services of a court reporter.
Make a list of the questions you want to ask.
Part 3 Going to Court
1. Pretrial Motions should be filed. If the Plaintiff failed to provide you with documentation of your debt, you should file a Motion to Dismiss for Failure to State a Claim before the trial begins. The Plaintiff bears the burden of proving that you owe them money and have failed to pay them. If they are unable to demonstrate these facts, their case should be dismissed. http://www.cod.uscourts.gov/portals/0/documents/judges/msk/msk samp dis mot.pdf contains a sample Motion to Dismiss.
2. Before going to trial, try to reach an agreement. Once you’ve been assigned a trial date, the Plaintiff may be willing to settle your case for a lower amount before spending money on a trial. If you believe they have a good chance of winning at trial, you should negotiate a debt reduction and repayment plan. If you believe they lack evidence, you may wish to proceed with the trial.
3. Make an introductory statement. An opening statement allows you to lay out the facts of your case and tell the judge or jury what you intend to prove during the trial. As part of your trial preparation, you should plan and write your opening statement.
4. Witnesses should be cross-examined. It is unlikely that many witnesses will be called at trial in a debt collection case. Before trial, the Plaintiff must provide you with a list of witnesses, and you must prepare to cross-examine them.
5. Present your case. After the Plaintiff has completed their trial, you will have the opportunity to call witnesses and introduce evidence that supports your position.
6. Make your final arguments. You will have the opportunity to make closing remarks to the jury after you have finished your defence. Because the Plaintiff must prove his case in order to win, you should discuss all of the ways they failed to demonstrate that you owed a debt or failed to document the correct debt.
7. Allow time for a decision to be made. After both parties have finished their closing arguments, the judge or jury will deliberate for some time before making a final decision on your case. If you win, the Plaintiff may be obligated to pay your attorney fees and other legal expenses. If you lose, you must pay the amount specified in the ruling.
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