If you’ve been sued by a credit card company for an alleged debt, you undoubtedly have many questions about how you can defend the lawsuit and preserve your legal rights.  Some of those questions undoubtedly include the proof that the credit card company is required to present in court in order to win.  One way to defend your case is to force them to present proof that they are entitled to win, and to recover the amount they are suing for.  This article discusses the proof the credit card company (or its debt collector) needs in order to win.

There are three basic proofs the credit card company will need to present evidence on in order to win: they are the proper plaintiff, you are the proper defendant, and that they are entitled to the amount they sued for.  We’ll discuss the basics of all three of those here.

First, they need to prove they are the appropriate plaintiff and are entitled to bring the lawsuit.  Although it may sound they can easily do so, this is not necessarily as easy as it sounds.  For example, if a debt collector is suing on behalf of the credit card company, do they have the documentation to prove the debt was assigned to them?  Can they prove they own the debt using evidence admissible in court?  Even if the company that is suing you is the company that issued your credit card (such as Capital One or Citibank), it is possible that they assigned or sold your debt to another company, and are no longer entitled to sue you for that debt.  In some cases, your debt has been combined with millions of dollars of debts from other consumers, and sold on Wall Street to investors.  Sometimes, the bank that issued you the credit card was sold or merged into another bank that may not have records of your transactions.  Remember, as the plaintiff, the credit card company has the burden of proof on these issues; if they cannot prove any of these using admissible evidence, they should not be entitled to win.

Second, they need to prove you are the correct defendant.  Again, this may be more difficult than it first seems.  For example, if you were simply an authorized user rather than an owner of the credit card account, you may not be responsible for the debt.  Also, there have been numerous instances where the debt collector simply sued the wrong person.  Sometimes it’s because the person who owed the debt shared a similar name with you.  Sometimes it’s because the credit card company just wasn’t sure if you were the correct defendant but a deadline was approaching, and they sued you “just in case”.

Third, they need to prove that they are entitled to the amount they are suing you for.  In order to recover the full amount, they need to prove they are entitled to the full amount; partial proof is not enough.  For example, they may be claiming that you owe amounts you never authorized.  They may be claiming for amounts you are unsure about, such as over-limit charges, late charges, or other penalties.  They may be claiming they are entitled to their attorney fees, even if that is not true.  Remember, what they put in the lawsuit are only allegations – to win, they need to prove each of those amounts.

Finally, even if they can prove all of these things, you may have “affirmative defenses” that will still allow you to win.  For example, even if they can prove everything they said, you can still win if they waited too long to sue you; if they are past the statute of limitations, you may be entitled to win if you present this properly to the court.  If you tried to work it out with them, and they made promises to you that they are not keeping, you may be able to assert fraud or misrepresentation as a defense.  There are many other defenses that you should also consider.

In summary, you may have valid defenses, either partially or completely, if any of the following apply to your lawsuit:

• The credit card company sold or assigned your debt to someone else
• The company that issued your credit card is different than the one that is suing you
• They cannot prove the amount they are suing for
• They did not attach a copy of your contract to the legal complaint
• They modified your contract without your permission, consent or knowledge
• You were not the owner of the account
• You did not authorize any of the charges
• Your contract did not authorize the payment of certain charges, interest or attorney fees
• The debt has expired because the statute of limitations has passed
• They made representations to you that they are now violating

Of course, whether these defenses apply will depend on the unique facts of your case.  If you would like a free consultation to discuss your case with an experienced consumer attorney, please feel free to call me on our toll-free number, 1-888-834-5297, or send us an email by clicking here.  I would be honored to speak with you.

Yes and no.  Last year, the Federal Trade Commission announced changes to its rules relating to telemarketing.  Some of those changes just took effect on September 1, 2009.

Among those changes is a prohibition on certain “robocalls” – calls made by computers called robocallers that use pre-recorded messages to bombard you and millions of other American consumers.  They’ve been used to try to sell you loan modifications, new mortgages, credit cards, sweepstakes, and all sorts of other products or services, including many that were not legitimate.

Previously, you were required to put your phone number on the “Do Not Call” list to avoid such calls.  Now, telemarketers are required to have written permission from you before they can call you.

The penalty for making a prohibited call is very significant – up to $16,000 per phone call!

But there’s a catch – and it’s a very big one.

There are several types of calls to which these rules do not apply, such as prerecorded messages with flight information, delivery information for things you have ordered, prescription information from your pharmacy, messages from your child’s school, and other “informational” messages.  This makes sense, since these are the types of messages you probably want to receive.

However, certain businesses are beyond the jurisdiction of the Federal Trade Commission and are thus exempt from these rules.  These exempt businesses and groups include:

• Debt collectors – if they are calling about actual bills and are not trying to sell you something
• Politicians
• Banks
• Telephone companies
• Charities
• Insurance companies

As you can see, this is a very big loophole.  Because of it, I doubt that most consumers will see any big difference in the amount of calls they will get from telemarketers.  And, there may well be an increase in junk mail, as telemarketers focus more on other ways of getting your attention.

Many consumers have asked us how they can file a complaint with the government when they have been harassed by a debt collector.  This harassment can be verbal or written, and can result from abusive conduct or from receiving deceptive notices; it also includes debt collectors failing to comply with the requires of the Fair Debt Collection Practices Act (FDCPA) or the Florida Consumer Collection Practices Act (FCCPA).

The good news is that it’s pretty easy to file a complaint with the Federal Trade Commission.  All you need to do is go to the FTC website by clicking here.  Once you’re at the FTC website, click on the Complaint Assistant icon that is located toward the upper right hand side, just below the tabs, and follow the step-by-step instructions.

Of course, if the debt collector is violating the law, in most cases it’s a good idea to hire an experienced lawyer familiar with debt collection law to make sure the harassment or abuse stops.  If you would like a free consultation with a consumer lawyer practicing in Seminole County, Orange County, Volusia County, Lake County or Brevard County, please feel free to contact me through this website / blog, or call us toll-free at 1-888-834-5297.  You do not need to put up with debt collectors’ illegal conduct!

If you have a lemon under Florida’s lemon law, and you have provided the notices required by that law, you may well be entitled to a hearing on your claim.  The hearing is a mini-trial, but significantly less formal.  There are generally three members of the Florida new Motor Vehicle Arbitration Board who will hear your dispute, with a decision requiring a majority vote.  The board members can also inspect your car at the hearing, if it would be helpful to their decision.

You have the right to present evidence, orally or in writing.  You have the right to testify and present witnesses on your behalf, including mechanics or experts.  You have the right to be represented by a lawyer, although the state does not provide one for free.  You have the right to cross-examine any witnesses offered by the manufacturer.  The car company also has these same rights.

The hearing is required to be held within 40 days, and the board must render its decision within 60 days.  However, in practice, the board often makes the decision on-the-spot after the evidence is presented at the hearing.  If the board decides in your favor, the car company must either provide you an acceptable replacement vehicle, or give you a monetary refund, within 40 days of the decision.  They also have the right to appeal the decision, although that is not done very frequently.

If you lose before the board, you have the right to appeal to the circuit court, but must do so within 30 days of the decision.  There are also other procedural requirements that must be met for the appeal.  In any appeal, the court will be informed of the board’s initial decision.

If you have experienced threats, lies, deception, abuse or harassment by a debt collector, you may be entitled to sue them.  If they have violated the Fair Debt Collection Practices Act (FDCPA) or the Florida Consumer Collection Practices Act (FCCPA), you have specific legal remedies.

If they violated those laws, you may be entitled to file a lawsuit against them, even if you owe the debt they are trying to collect.  If you win that lawsuit, you can recover up to $1,000.00 plus your actual damages caused by their breaking the law.  In addition, the debt collector can be held responsible for your attorney’s fees.

Suing a debt collector often also causes the misconduct to stop.  Once they have been caught, it’s very difficult for them to continue their abuse, since that may increase the damages you can win from them.  It also makes it very difficult for them to claim it was all an “honest mistake”.

So, if you’ve been abused by a debt collector, you may be able to recover money from them, and force them to stop their abuse.  If you have been the victim of an abusive debt collector, contact us for a free consultation to determine your rights.

At some point in their lives, most consumers will have a car that has lots of problems.  Often, the problem will occur over and over because it was never repaired properly.  If this has happened to you, it’s possible your car is a “lemon”.  To qualify as a lemon under the Florida Lemon Law, your car must meet several legal requirements.  This article summarizes many of the most important provisions of the Florida Lemon Law, which is formally known as Florida’s Motor Vehicle Warrant Enforcement Act.  The descriptions below apply to most vehicles (cars, pickups, vans, SUVs and minivans); the provisions that apply to recreational vehicles (RVs) are slightly different.  The Florida lemon law applies only to new vehicles, and not used vehicles.

Simply put, if your vehicle does not conform to its warranty, the manufacturer must fix your vehicle.  However, you must first report the “non-conformity” to the manufacturer within 24 months (2 years) of the time it was originally delivered to a consumer.  This applies even if the actual repairs are made after this 24 month period expires.  It’s also important to note that if the same problem occurs again after the 24-month period, the lemon law still applies as long as the problem was first reported within the 24-month period.  There are strict deadlines for how and when a consumer must apply to resolve a lemon law claim.

Next, the lemon law has a very specific definition of “non-conformity”, meaning that not every problem or nuisance is a non-conformity.  Under the Florida lemon law, a “non-conformity” means a “defect or condition that substantially impairs the use, value, or safety of a motor vehicle”.  However, it does NOT include a defect or condition that results from an accident, abuse, neglect or some modifications or alterations.

If your vehicle has a “non-conformity” under this definition, the manufacturer or its dealers are allowed a reasonable number of attempts to fix your car.  The lemon law requires that if the same defect is not fixed after 3 attempts, you must give written notice to the manufacturer by registered or express mail and give them one last opportunity to fix it.  The car company must then respond within 10 days, and must fix it within 10 days after your deliver it to the repair facility.

Alternatively, you must notify the manufacturer if your car has been in the shop for service for a cumulative total of 15 days (excluding the time for routine maintenance).

We highly recommend that you use the official State of Florida form for reporting the defect to the manufacturer.  A copy of that form is available from the Florida Attorney General’s website – just click here to visit that website.

The manufacturer is presumed to have been given a reasonable number of attempts to fix your car under the Florida lemon law if it has tried to fix the same defect 3 times, plus the final attempt after being formally notified, and has been unable to do so.  This same presumption arises under the Florida lemon law if your vehicle has been out of service a total of 30 days or more, including at least one attempt after being provided the formal 15-day notice.

There are two defenses that the car companies often use.  First, they may argue that the defect does not substantially impair the use, value or safety of the car.  What they are really saying is that the defect is a minor nuisance, and not very important.  Second, they may argue that the defect was not their fault, but was caused by an accident, abuse, or neglect.  Sometimes they argue that there were unauthorized modifications or alterations that created the defect; such unauthorized changes can void the warranty.

Last week, the National Association of Attorneys General (NAAG) published their list of the top 10 complaints received from consumers by the offices of the Attorney General of the 50 states.  The top 3 on the list remained the same as in the prior year (debt collection, auto sales and home repair/construction), but credit card disputes and mortgage issues rose into the top 10.  Here’s the entire list:

1. Debt Collection
2. Auto Sales
3. Home Repair / Construction
4. Credit Cards
5. Internet Goods and Services
6. Mortgages / Predatory Lending
7. Telemarketing / Do-Not-Call
8. Auto Repair
9. Auto Warranties
10. Telecom / Slamming / Cramming

The group of Attorney General offices warn consumers that “Too many people are being swindled out of their hard-earned money by scam artists.”

That is why the consumer protection laws of all the states, including those of Florida, are so critical.  If you are a resident of Seminole County, Orange County, Volusia County, Lake County or Brevard County, and feel you’ve been unfairly taken advantage of, or even swindled, with your credit cards, debt collection, auto sales / repair / warranty or other consumer issues, please contact us now for a free consultation, or call us toll-free at 1-888-834-5297.  We’re here to help Florida consumers.

In May, a new law was signed into effect that was designed to reduce some of the most unfair and abusive credit card practices.  That law, called the Credit Card Accountability, Responsibility and Disclosure Act, had several provisions that took effect in August 2009.  (Sometimes that law is referred to as the Credit Card Bill of Rights.)  Other provisions will take effect next year.  This article summarizes some of the changes resulting from this new law, as well as some loopholes that will undoubtedly be used by credit card companies.

The first change is that credit card companies must now give you 45 advance notice before they raise your interest rate.  The old law required only a 21 day notice.  However, there’s a catch: this applies only to fixed-interest-rate credit cards, and not to variable-rate credit cards.  This helps explain why some credit card companies have been trying to get their customers to shift to variable-rate cards.

The second major change is that the credit card companies must now mail your statement to you at least 21 days before the due date.  This gives 7 additional days to get your payment in on time.

Your interest rate cannot be increased retroactively unless your payments are late by at least 60 days.  Also, you can restore your earlier, lower interest rate if you then make payments on time for 6 months.

Fees cannot be greater than 25% of the credit limit on the card.  The earlier law allowed such charges to eat up half of the credit limit.  This provision is particularly helpful to those who have bad credit or subprime credit cards.

If there is more than one interest rate applied to purchases or advances under your credit card, the issuer must apply any payments exceeding the minimum payment first to those portions that have the highest interest rate.  This can reduce the amount you pay in interest.

Fees for penalties must now be reasonable and proportional to the provision of the agreement that was violated; such penalties can no longer be automatic without any reasonable basis for them.

The new law also allows you to “opt out” of any changes to the terms of your agreement, including any increases in the interest rates or fees.  If you refuse to accept the increases, however, you cannot use your credit card anymore, and you must pay the balance off within five years.

Unfortunately, even under the new law, the credit card companies are not required to give you any advance notice before lowering your credit limit or even closing your account altogether.  These actions can actually lower your credit rating, and you may not even know it until your card is rejected at a cashier when you are buying something.

All in all, this new credit card law is a significant improvement compared to the old law.  However, there are still far too many ways that the credit card companies can take advantage of you.

If you are sued on a credit card debt, we may be able to help you.  All too often, we get phone calls from people who acted too late or thought they could handle the situation themselves.  Some admit they were unprepared, unfamiliar with the legal terms or legal procedures, or became nervous when they stepped into the courtroom.  I offer free consultations and would be happy to discuss your situation with you.  Helping Florida Consumers is what this blog is all about.

In many cases, a consumer may have a legal defense to a lawsuit filed against them that seeks to collect on a credit card debt or other debt.  You may have defenses such as the lawsuit being too old (statute of limitations), the debt collector did not follow proper procedure in filing or pursuing the lawsuit, or others.  The question then is . . . how do you assert those defenses?

Don’t expect to just show up at trial and start talking about those defenses, as it may be too late by then.  The Court can decide that you are prohibited from asserting them at trial if you did not provide adequate notice about them before the trial.

In short, you generally assert those defenses by filing your Affirmative Defenses with the Court where the lawsuit is pending, as well as the debt collection lawyer.  This lets the debt collector and the Court know what your defenses are, and allows you to argue them at trial.  Filing them in writing prevents the debt collector from later arguing that they are unfairly surprised by your “new” claims.  If you properly preserve those defenses, and if you have the evidence to prove them in Court, you may be able to defeat the debt collector’s lawsuit even if they prove all of their allegations.  Don’t lose that right by waiting too long to file your Affirmative Defenses.

In many cases where a debt collector has sued a Florida consumer on a credit card debt or other consumer debt, they will file a Motion for Summary Disposition (in Small Claims or County Court) or its equivalent in Circuit Court, a Motion for Summary Judgment.  This is a very important legal document, and you should never ignore it.

Although Florida residents have a constitutional right to a jury trial, that right is not absolute.  For example, if there are no facts in dispute, there is nothing for the jury to decide.  A Motion for Summary Disposition means that the debt collector is telling the court that there are no facts in dispute, and that they should within right away, without any trial.  Generally, they say that you have not formally disputed that the debt is valid and that you owe the money.  They then argue that the law allows them to get a judgment against you.

It is critically important that you respond appropriately to such a Motion.  If you do not respond formally to the Court, you can lose your lawsuit before you even have a chance to explain your side of the story.  Don’t let this happen to you.  When you are faced with this, an experienced credit card defense lawyer knowledgeable about court procedure and credit card debt / debt collection can help you protect your rights in court.  Contact me now by phone, email or fax.  Or just click here to contact us over the internet.

It would be extremely upsetting to find out you’ve been sued in some court on the other side of the state, much less the other side of the country.  That would be tremendously unfair, as most people cannot travel long distances to court to present their side of the story.  And, hiring a far-away lawyer is both difficult and expensive.

Those are some of the reasons that the law very strictly limits where you can be sued on a debt.  (The place where the lawsuit is pending is called the “venue” of the lawsuit.)  Under federal law, there are only two places where you can be sued by a debt collector on a consumer debt.  The first possible location is where you reside at the time the lawsuit is filed.  If the lawsuit deals with your interest in real estate, the lawsuit can only be brought where the property is located.  The second place where you can be sued on such a debt is where you signed the contract that created the debt.

If you’ve been sued on a debt in a different location, a local consumer lawyer can determine if the debt collector broke the law.  Contact us now through the web, or call us on our toll-free number, 1-888-834-5297.

It should be common sense that debt collectors cannot use illegal tactics to try to collect a debt.  In fact, the Fair Debt Collection Practices Act (FDCPA) specifically prohibits debt collectors from using false and misleading statements to get their money.  That law specifies specific conduct that is prohibited:

• Falsely stating or even implying that they are affiliated with the United States or any State
• Falsely representing the amount, legal status or character of your debt
• Falsely representing that the debt collector is a lawyer, or that any of their communications are from a lawyer
• Falsely representing that non-payment of any debt will result in your arrest or imprisonment, or that they will seize or sell any of your property
• Threatening that they will take any action against you that they cannot legally take or which they do not intend to take
• Falsely representing that you committed a crime in order to disgrace, harass or humiliate you
• Communicating or threatening to communicate credit information that is false, including Failing to indicate that you have disputed the debt if you have actually disputed it
• Failing to disclose in their initial communication to you that they are attempting to collect a debt and that any information will be used for that purpose
• Failing to state in every communication that the communication is from a debt collector
• Using a fake business name, or falsely implying that they are employed by a credit reporting agency

This list is not comprehensive, as it seems that unscrupulous debt collectors never fail to find new ways to use false and misleading statements to try to collect a debt.  I hear about many of these tactics from consumers.  If you believe that a debt collector has violated the law by using any of these prohibited tactics, I would be happy to speak to you at any time, including evenings and weekends.  If it’s more convenient for you, just click on this link, to send us a message at any time.

The federal Fair Debt Collection Practices Act (FDCPA) provides important right to consumers in Florida and throughout the United States who are being harassed by debt collectors.  One of those is the right not to be subjected to debt collection practices that are unfair or unconscionable.  That law describes specific conduct by debt collectors that is unfair and illegal:

• Collecting any amounts that you did not expressly authorize in your credit agreement or that are not permitted by law; this includes interest, attorney fees, other fees, collection costs, charges and incidental expenses
• Soliciting (asking for) a post-dated check in violation of the FDCPA
• Depositing or threatening to deposit a post-dated check prior to the date on the check
• Taking or threatening to unlawfully repossess or disable your property
• Communicating with you by postcard
• Sending you a letter in an envelope that indicates it is from a debt collector

Each of these is a violation of the law.  In most cases, they are also violations of the similar Florida law called the Florida Consumer Collection Practices Act (FCCPA).  Let me put my knowledge of the law to work for you.  Protect yourself from such unfair debt collection tactics – call me now, toll-free at 1-888-834-5297, or by clicking here.

NO.  The Fair Debt Collection Practices Act (FDCPA) contains important restrictions on how and when a debt collector can contact you:

• They cannot contact you at any time or place that they know or should know is inconvenient for you.  Unless they are told otherwise, they can assume that your convenient times are only between 8:00 a.m. and 9:00 p.m.  If these or any other times are inconvenient, let them know!
• They generally cannot contact you at all if they know you are represented by a lawyer and they have your lawyer’s contact information.
• They cannot contact you at your place of employment / job location if they know or should know that your employer prohibits you from receiving such communications there.

Click on the titles to the following additional articles for more information on getting the debt collectors to stop calling:

Debt Collectors Won’t Stop Calling – What Should I Do?

Debt Collectors Are Contacting My Family And Friends – Can I Get Them To Stop?

In most cases, YES.  The Fair Debt Collection Practices Act (FDCPA) strictly limits how a debt collector can deal not only with you, but with your family, friends, neighbors and others.

The only persons a debt collector can communicate with about your debt are you, your lawyer, a credit reporting agency, the creditor, or their lawyers.  They can also contact others if they are trying to locate you, but they cannot tell those people that you owe a debt or send them any communications that indicate they are a debt collector.  They generally cannot communicate with anyone else about your debt unless you expressly give them permission, a court allows them to, or they are seeking to collect on a judgment they have obtained against you in court.

Also, they cannot even communicate with you once you tell them to stop – click here for more information on telling them to stop.  Also, once you tell them that you are represented by a lawyer regarding that debt and give them your lawyer’s contact information, they generally cannot communicate directly with you anymore, but can only work through your attorney.  This is one very effective way to stop further communications from a debt collector.