WHAT DEFENSES DO I HAVE AVAILABLE TO USE IN A CREDIT CARD DEBT LAWSUIT?
IF YOU ARE SUED FOR DELINQUENT CREDIT CARD DEBT, WHAT DEFENSES CAN YOU USE WHEN ANSWERING THE LAWSUIT?
Remember answering the lawsuit is critical to avoid the credit card company from obtaining a default judgment or judgment of any sort. Also, the time to raise your defenses is at the time of Answering the Credit Card Debt lawsuit. If you fail to raise the defenses you may be waiting them for good.
Defend yourself and your rights with some of the most common legal defenses to a credit card lawsuit:
Challenge Challenge Service of the Lawsuit
Every State has different requirements but for Credit Card Debt Defense in Florida, New York and New Jersey, you can be served in some instances by email or by snail mail. In these types of service, you have thirty (30) days to respond to the credit card lawsuit. You must file the Answer with the appropriate Court which will be listed on the Summons and Complaint. We are trying to avoid a judgment so that the credit card issuer cannot garnish your wages.
On the other hand, in New York, Florida and New Jersey a debtor can also be served a credit card debt lawsuit personally. This means a process server handed you the lawsuit in person. In such instance, you will have twenty (20) days to respond with your Answer and defenses.
If the credit card company did not serve you correctly, you must raise this in your Answer to the credit card lawsuit.
Raise the Statute of Limitations
If the Statute of Limitations has run its entire course – usually three (3) years in New York and other states. This means the credit card debt is after three (3) years too old to be enforced. The time limit to enforce a collection lawsuit for credit card debt, varies from state to state. In most states, it is anywhere from three to six years.
The Statute of Limitations is a complex law. but is also very powerful.
The SOL clock typically starts counting from the date you last made a payment.
For example, If the Statute of Limitations in your State is (3) three years and you haven’t made a payment in two years, but later before the third-year passes, the debtor makes a payment to a credit card debt collector, will start the three (3) year limitation from scratch.
Fair Debt Collection Practices Act (FDCPA)
The FDCPA – The Fair Debtor Collection Practices Act is a federal law that limits the collection enforcement actions that can be taken to collect on credit card debt.
Remember a credit card debt collector includes any entity or person that call you when your credit card payment is delinquent. Debt Collector also includes debt collection attorneys hired to file a credit card lawsuit.
The FDCPA demands that Debt Collectors provide you as debtor with validation of your debt when you request it and stop collection activities until they do. It also prohibits additional collection activities, such as threatening to sue you or other forms of harassment.
The FDCPA defense against harassment must be alleged in your Answer to the Credit Card Lawsuit.
If you or your Credit Card Debt Defense Attorney wish to challenge a collector for FDCPA violation(s), you may be able to collect damages, attorneys’ fees of up to $1,000 per violation if it’s found to have taken place.
Lack of Standing
A credit card company, collection agency and or collection attorney can only sue you if the card issuer has a direct relationship to you. In other words, there must be a nexus of connection between you as the credit card debtor and the credit card creditor.
The Sale of Credit Card Debt
Credit card companies very often will sell their portfolio of delinquent credit card debt to what are known as Debt Purchasers.
Therefore, if an entity sues you for bad credit card debt BUT THE ENTITY SUING YOU IS not the original creditor you should assert “Lack of Standing” as a defense and if done so, the debt buyer (non-Original Creditor) will have to prove that it has the legal right and valid standing to sue you.
Debt buyers often attach documents to the credit card lawsuit. However, often these documents only prove that the debt buyer purchased certain debt from your creditor card issuer, but it is unable to prove that it bought your particular delinquent account.
If you allege the defense of “lack of standing,” the debt purchaser must show proof that your specific account was one of those that it purchased. Certain debt purchasers can’t bring such proof.
In fact, on occasion, the credit card debt is sold multiple times and in turn the present debt owner may have trouble getting documentation that is sufficient to meet the proof requirements of the court as to what it show you to prove it purchased your particular credit card debt.
Since credit card debt is sold multiple times and is transferred using technology, often a request for proof your debt was purchased too, is difficult to prove as the Original Creditor will not provide any additional documentation to prove as such.
Moreover, the information the debt buyer sends, lacks valid sworn statements, such as affidavits, and or signatures.
If your credit card debt has been sold to credit card debt buyers, it will be difficult for the creditor to meet the proof requirements of the court that it owns your specific debt too, that requires the creditor have a valid witness that can testify as to the accuracy of the business records and documentation (at the time they were originated). Moreover, the witness must state they know your account from personal knowledge. Anything less and the documentation must be challenged.
Payment of the Credit Card Account, in Part or in Full Even if paid to the Wrong Party.
Payment towards your credit card debt can act as a defense to a credit card collection lawsuit.
In fact, payment is a viable credit card debt defense even if you paid another party. For example, if your debt was sold to Debt Buyer #2, but you paid the wrong party, in this example Debt Buyer #1, the new owner (Debt Buyer #2) might be directed to obtain the payment from the original creditor, in the event you did not receive adequate notice of the debt transfer or sale.
Even if you made a partial payment one can use this defense of payment. Nothing in the law allows a debt buyer to charge you a penny more than what you in fact and law owe!
Fraudulent Credit Card Charges
In the event of identity theft, the defense of fraud is valid. This defense applies to a stolen credit card, or when a business runs your credit card improperly.
However, if this happens, don’t wait until you have been sued. Notify the credit card agencies as soon as you see the fraud and file a police report. This gives you evidence for your defense if the charge is not removed from your account.
Discharge in Bankruptcy
If you filed bankruptcy and received a valid discharge after the bankruptcy proceedings, and you listed the credit card debt in your bankruptcy schedules, you are not responsible to pay the discharged credit card debt. The appropriate time to assert a bankruptcy discharge defense is in the credit card lawsuit Answer.
Mistaken Identity
If you were sued on credit card debt that you do not owe because your name was confused or you have a name that is similar to the name of the real Debtor that owes the money, in this example, you may assert mistaken identity as a valid credit card lawsuit defense. These defenses can be raised in the event the debt buyer or original creditor sue you for credit card debt.
Make sure you demand proof that you owe the debt and ask the credit card debt buyer can produce the original documents, proving they lack vital information such as signatures, affidavits, signed contracts and other vital personal information.
Can Someone go to jail if they fail to pay a Credit Card?
No, in the United States there is no such law. Kindly note that owing money is not a crime. Additionally, you are not alone, according to statistics a majority of people will default on one Credit Card during their lifetime. Debt can affect anyone and you are NOT alone. Let the attorneys at your Credit Card Legal Clinic defend you and your legal rights when faced with a debt collector or debt buyer. Our law firm stands shoulder to shoulder with all our clients. We will defend you zealously and effectively, while making sure you are fully protected.
Can Someone go to jail if they fail to pay a Credit Card?
No, in the United States there is no such law. Kindly note that owing money is not a crime. Additionally, you are not alone, according to statistics a majority of people will default on one Credit Card during their lifetime. Debt can affect anyone and you are NOT alone. Let the attorneys at your Credit Card Legal Clinic defend you and your legal rights when faced with a debt collector or debt buyer. Our law firm stands shoulder to shoulder with all our clients. We will defend you zealously and effectively, while making sure you are fully protected.
Talk to a Credit Card Debt Settlement Attorney
If you need help responding to a lawsuit for nonpayment of a credit card debt, consider hiring a credit card debt settlement attorney.
GET IN TOUCH
Remember answering the lawsuit is critical to avoid the credit card company from obtaining a default judgment or judgment of any sort. Also, the time to raise your defenses is at the time of Answering the Credit Card Debt lawsuit. If you fail to raise the defenses you may be waiting them for good.
