Many debt collectors will offer a settlement agreement or stipulation to a consumer after a lawsuit is filed.  Usually, that agreement specifies that the consumer is to make certain payments every month for a set time period.  Often, the agreement promises that the debt collector will not seek or enforce a judgment, or will simply claim that the consumer can avoid “going to court”, if they only sign the agreement.  Then, when the consumer misses a payment or is short on a payment, significant problems can arise: their bank accounts are emptied, their car is seized, or their wages are garnished.  It is heartbreaking receiving a call from a consumer at this stage, as many of their rights have already been lost.

Countless times, after reviewing the lawsuit documentation, we are able to identify valid affirmative defenses that the consumer could have asserted to prevent the entry of a judgment.  However, most settlement agreements require that you give up your rights to defend the lawsuit.  Sometimes, they require you to agree in writing that you owe the debt – even if this isn’t true!  We have even seen settlement agreements / stipulations that give up your legal right to shield some of your money from judgment creditors.

Before you agree to sign such a settlement agreement, we would be pleased to review it and advise you of your rights and obligations.  For example, perhaps your income and assets are exempt from seizure if the debt collector obtains a judgment against you.  This may include your social security, disability, worker’s compensation, unemployment, wages/salary of the head of household, and other income or assets.  Why would you voluntarily want to give your money to a debt collector if they have no legal right to take it?

Unfortunately, if you aren’t aware of your rights, you may lose a significant portion of your funds that you could otherwise spend on essentials.  Don’t lose those rights – contact us today for a free consultation.

Plaintiff:  Razor Capital, LLC

Original Creditor:  Wells Fargo

Plaintiff’s Attorneys:  Desiree Andreu

Plaintiff’s Law Firm:  Law Offices of Andreu, Palma and Andreu, PL

Case Outcome:  Case dismissed without our client paying anything

Our client was sued by Razor Capital, LLC for claims under Account Stated and Unjust Enrichment, with reference to the National Banking Act.  Attorney Desiree Andreu represented Razor Capital, LLC.  After being retained, we filed the appropriate paperwork with the Court.  The case was dismissed without our client paying anything to Wells Fargo, Razor Capital or their debt collection lawyer.

While we handle personal injury cases in which someone was injured or killed by a defective product throughout Florida, we also handle credit card cases and other consumer protection cases in Seminole County, Orange County, Brevard County and Volusia County.

We have handled numerous consumer protection cases; let our experience work for you.  While the specifics for each case are different, and no one can guarantee the outcome of a case, we can guarantee we will keep you informed every step of the way.  We respect your privacy and will not put your last name or any dollar amount on any of our websites.  We have been in practice for 14 years and still do not charge our clients for phone calls, normal mailings and postage, copies or faxes.

Contact us for a free no obligation consultation at 1-888-834-5297.  We are conveniently located in Lake Mary, Seminole County, Florida with parking right outside our door.  Don’t wait until it’s too late, our consultations are always free.  If you are being sued on a credit card in Seminole County or Brevard, Orange or Flagler, we will be happy to meet with you at any time, including evenings or weekends.

Our client was sued by the law firm of Erskine and Fleisher from Fort Lauderdale, FL.  Erskine and Fleisher represented Palisades Collection, LLC and sued our client under various legal theories: Equitable Action for Promissory Estoppel, Equitable Action for Estoppel in Pais (Equitable Estoppel), Indebitatus and/or General Assumpsit for Money Had and Money Received, Unjust Enrichment and Money Had and Money Received.

After being retained, we filed our legal documents with the Court, and informed Erskine and Fleisher that we now represented our client.  Soon afterwards, the lawsuit against our client was dismissed.  We are here for the people needing assistance with their credit card lawsuit and would be honored to assist you.

Arrow Financial Services, LLC, a large and well-known debt buyer, was represented by Jorge L. Palma, a debt collection lawyer with the Law Offices of Andreu, Palma & Andreu, PL in Miami.  Even though they were suing our client, they could not provide the evidence that our client was responsible for the alleged debt, which they claimed stemmed from a GE Money Bank credit card.  After significant discovery, a deposition and several court appearances, Arrow Financial Services dismissed their case without our client paying a penny.  If you need assistance with a lawsuit filed against you, call us for a free consultation to learn more about your rights and possible defenses.

Attorneys Nicole Raines and Arthur Rubin from the law firm of Rubin & Debski, P.A. in Jacksonville, FL represented Capital One Bank (U.S.A.), N.A. in a lawsuit against our client.  While Rubin and Debski requested thousands in damages and attorney fees in their complaint, our clients did not pay anything to either Capital One or to their debt collection lawyers, Rubin and Debski, as a result of this lawsuit.  In fact, we used our knowledge of the law and experience in handling credit card cases to assert a counter-claim, suing Capital One on behalf of our client.  We were able to sue Capital One because our client had reached a settlement with Capital One years earlier, and had made the payments required under that agreement; they then violated that settlement by suing our client.  At the end of the case, Capital One ended up paying our client for violating debt collection laws, as well as our client’s attorney fees.

While each case is different, one thing is the same.  At the Rudnitsky Law Firm, we will give each of our clients the individualized attention they deserve.  Being a small firm has its advantages, including the ability to provide personal service to each of our clients.  Contact us if you are in need of attorney.

Our client retained us when she was served with a Summons and Complaint for a credit card debt collection lawsuit on behalf of Portfolio Recovery Associates, LLC.  Attorneys Jason Dragutsky, Robert Orovitz and Dana Sterna from Hayt, Hayt & Landau, P.L. in Miami represented Portfolio Recovery Associates, LLC.  Their legal claims included counts for Money Lent and Unjust Enrichment.

We successfully represented our client, and were able to get the lawsuit dismissed without any payment by our client on the alleged credit card debt.  Helping Florida Consumers is what our firm is about.  Please don’t hesitate to call us on our toll-free number (1-888-834-5297) or just click here to go to our “Contact Us” page to submit your information.

Our client was sued by Citibank (South Dakota), N.A. in County Court for an alleged credit card debt under various legal theories: Account Stated, Money Lent and Open Account. Citibank was represented by attorney Patrick Carey, Mairim A. Morales and Robert Rivera from the debt collection law firm of Patrick A. Carey, P.A. in Orlando, Florida.

After being served with the Summons and Complaint, our client initially reviewed information on the internet about debt collection lawsuits, but instead decided to retain us to defend against Citibank’s lawsuit. We promptly filed the appropriate notices, answer and affirmative defenses with the County Court, and served other legal documents on Citibank’s debt collection lawyers. As in many other cases, we were able to obtain an excellent result for our client: the Citibank (South Dakota), N.A. lawsuit against our client was dismissed without our client paying Citibank or their debt collector lawyers anything at all.

Don’t rely on the information on the internet, as much of it is either outdated, or not applicable to Florida law, or simply wrong. Put our experience and knowledge of Florida statutes, cases and court rules to work for you. While the facts of every case are different, one thing stays the same: the debt collection lawyers are experienced in debt collection. You need a knowledgeable Central Florida consumer protection attorney to represent you when you are sued, because your time, property, money, credit score, and your reputation are all at stake.

Almost everyone is aware that American taxpayers have funded the bailout of numerous banks and other companies.  The list of bailed out banks and financial institutions includes well-known ones such as Citigroup, Bank of America, Capital One, JPMorgan Chase, Goldman Sachs, Discover and many, many others.  The most recent estimate of government losses from the bailout has nearly doubled, and is now estimated by the Congressional Budget Office to reach $34 billion dollars.

Despite staggering losses, some of these banks gave massive bonuses to their executives during the last few years.  Citi provides several examples of such corporate greed.  Its CEO, Vikram Pandit, received total compensation of more than $38 million for 2008-2010.  Its Chief Financial Officer (CFO John Gerspach) received more than $9.7 million for 2009-2010.  Two other Citi executives received more than $20 million for 2009-2010.  Another executive received more than $8 million only for 2010.  During the 2008-2010 time period, however, Citigroup posted a cumulative net loss of more than $15 billion dollars.

One can only wonder how many Citibank consumers in dire financial straits could have benefited from the bailout money provided to Citi by American taxpayers, or how many senior citizens could have used even a small percentage of Citi’s executive compensation to put food on their table.

Zakheim and Associates, P.A., now known as Zakheim and LaVrar, P.A., sued our client on behalf of Discover Bank in a credit card debt collection lawsuit. The Zakheim attorneys assigned to this case, Kimberlee J. Otis and Michele L. Nihiser from Plantation, Florida, sued our client under the legal theories of Open Account and Account Stated.  NCO Financial Systems had also been involved in this credit card account. After we applied our knowledge of the applicable court rules, statutes and cases, including those applying to Open Account and Account Stated claims, the lawsuit against our client was dismissed.

As a Central Florida Consumer Protection law firm, our mission is Helping Florida Consumers.  We would be honored to put our experience to work for you.

Our client was sued by Arrow Financial Services, LLC as an assignee of Washington Mutual Bank. Arrow Financial was represented by the law firm of Hayt, Hayt & Landau in Miami, FL, including their attorneys Robert J. Orivitz and Dana Kalman (Dana Stern). They sued our client for Breach of Contract and for Money Lent. Our client initially tried to represent himself, but later retained us to handle the case for them when the debt collector would not give up. After we were retained, we applied our legal knowledge and experience, and the case was dismissed.

The Court also imposed sanctions against both Arrow Financial Services and Hayt, Hayt and Landau, who then appealed those sanctions. After extensive briefing, the appellate court upheld the sanctions against the debt collectors.  We are very proud that we were able to win the case for our client and provide him and his family with the justice they deserved.

The Law Office of Andreu, Palma and Andreu, PL from Miami, FL (attorneys Jorge Palma and Diamelyn Cepero) filed a debt collection lawsuit against our clients on behalf of debt collector Precision Recovery Analytics, Inc.  They sued our client for breach of contract, unjust enrichment and account stated.  After many motions and lengthy discovery, the debt collector’s lawsuit was dismissed and our client did not have to pay anything at all on the alleged debt.

While each case is different, one thing is the same.  We will defend your case 100%.  We are not a debt “negotiation” law office, we completely fight for our clients.  Know your rights and know that your case will be handled by an experienced consumer protection attorney from beginning to end.  Contact us for a free consultation.  We will be happy to defend you in a credit card lawsuit filed in Seminole, Volusia, Orange, Brevard, Flagler or Lake County.

We were retained after our client was sued by JP Morgan Chase’s Legal Department attorneys Philip A. Orsi, Lisa Dolin Eiss, Anthony J. Maniscalco, Buffy D. Thomas and Danielle E. Bishop.  We filed the necessary documents during the case, including discovery (interrogatories, requests for production and requests for admission) and motions.  After our aggressive representations, Chase’s lawsuit was dismissed without our client paying them anything.  If you need representation against a debt collector, call us.  We are here for the people who need legal assistance, anytime.  If you were sued in Brevard, Flagler, Lake, Seminole, Orange or Volusia counties, contact us at 1-888-834-5297 or through our easy web contact form.

Our client was sued by Citibank (South Dakota), N.A.  Attorneys Patrick A. Carey, and Robert J. Rivera from the law firm of Patrick A. Carey, P.A. in Orlando represented Citibank.  Citibank and its lawyers sued our client under three different counts: Account Stated, Money Lent and Open Account.  After requiring Citibank to respond to our discovery and a targeted motion, we won the case for our client.

If you were sued by the law firm of Patrick A. Carey, P.A. in Orange County, Flagler County, Seminole County, Lake County, Volusia County or Brevard County, call us for a free consultation.  Remember when you receive a Summons and Complaint for a credit card debt, you have important rights, but you have to respond within the allotted time or you can lose your case.  There is a lot of information on the internet for the people who want to investigate what their lawsuit might mean, their legal rights or to learn more about the law firm suing them.   However, it is best to get the answers to your questions from an experienced attorney.  Call us or email us anytime for a free consultation – we will make ourselves available.

Our client had been sued by Wells Fargo Bank, N.A. in County Court  here in Central Florida to recover on two separate claims from a Cash on Demand Account and a Credit Card Account.  The lawyer for Wells Fargo Bank (formerly known as Wells Fargo Financial Bank) was Enrico Gonzalez from the Temple Terrace, Florida debt collection law firm of Enrico Gonzalez, P.A.

Our client had initially filed a response to the lawsuit herself.  Once we were retained, however, we filed an amended response and asserted several additional defenses that had not previously been filed.  The amendment also allowed us the right to a jury trial, an important right in many credit card cases.

At the same time, we aggressively pursued discovery in this case, and requested the production of numerous documents to which we were entitled.  Wells Fargo was put on a strict deadline to comply with our requests.  Shortly after that, we were able to negotiate an outstasnding settlement for our client, which included the permanent dismissal of the Wells Fargo lawsuit without our client paying them anything at all, as well as removal of the accounts from her credit reports.

If you have been sued by Wells Fargo Bank, or any other debt collector, we may be able to help you even if you have already tried fighting them on your own.  Simply call us toll-free at 1-888-834-5297 or email us through our convenient web contact form to find out about how we can assist you in enforcing your rights.

A recent study confirmed what most of us already suspected: the credit card companies are back at it, raising rates yet again.  In fact, that study revealed that average interest rates are near an all-time high.  Here’s the reason: The new credit card laws and regulations have strict requirements on how and when a bank can raise interest rates for existing customers, but those requirements often do not apply to new customers.  The banks and credit card companies are taking advantage of this loophole to ensure their new customers are paying a high interest rate from the beginning, just in case they have difficulty raising the rates later.

In my opinion, this is a shame and simply wrong.  Just remember, all of us taxpayers paid for a bailout that included many of the same banks that are now trying to charge you these very high rates.  So, after we collectively paid to bail out the banks, they now turn around and try to stick to new customers for the sake of their profit.  One can only wonder how many of those credit card companies would have failed if we taxpayers did not pay for the bailout.

Of course, don’t expect the credit card companies to stop filing lawsuits against consumers, even if they dispute the amount or even existence of the alleged debt.  If you have been sued in a credit card lawsuit in Central Florida (Seminole County, Orange County, Lake County, Brevard County, Volusia County or Flagler County), please feel free to contact us for a free consultation and evaluation of your rights.  There are numerous defenses to a credit card lawsuit that may be available to you.  Please also feel free to review Taras Rudnitsky’s background, experience and qualifications, as well as a summary of some of the credit card lawsuits we have defended on behalf of other Florida consumers.

Our client was sued by Target National Bank in County Court here in Central Florida for an alleged credit card debt.  As an experienced Florida credit card lawyer, I vigorously represented our client in defending this debt collection lawsuit.  On behalf of my client, I asserted numerous affirmative defenses to Target’s lawsuit.  I then challenged Target National Bank to produce the required documentation that the debt was valid and owed to them.  After they failed to comply with their obligations under Florida law, including the Florida Rules of Civil Procedure, I filed the appropriate motions in the County Court.

Rather than produce the documents and information as required  by the Court, Target National Bank instead dismissed their lawsuit without our client having to pay anything on the alleged debt.  Target was represented by Zakheim & Associates out of Plantation, Florida, including attorneys Richard Battaglino, Sasha Haro, Kimberlee Otis and Arturo Arca.

If you are looking for help from a Florida debt lawyer or need help with a Florida debt collection lawsuit filed against you, we would be honored if you were to call us toll-free at 1-888-834-5297 for a free evaluation of your rights (and the debt collector’s responsibilities) in the lawsuit against you.  Or, if it’s easier for you, please click here to contact us directly through the internet using a very brief form.  Please don’t wait until a judgment has been entered against you, as you may lose important rights.  Call us today!

One of the more frequent questions we get is whether you can be sued for the credit card debts of a family member who has passed away.  Sometimes this question arises because a debt collector has contacted the husband or wife of a person who passed away and has insisted they are responsible for their loved one’s credit card bills. 

In most cases, you are NOT responsible for the credit card debts of your relative who passed away unless you were on the account or were a co-signer for that account.  This usually means that if you were responsible for that debt before they passed away, you may continue to be held responsible.  However, if you were not on the account and were not a co-signer, you are not generally responsible for continuing to make any payments.  In such a case, the debt collector cannot sue you because you did not enter into a contract for that credit card or its terms and conditions.

We have heard of numerous debt collectors telling consumers that they are responsible for their loved one’s credit card debts.  In many cases, they are simply not telling the truth.  In fact, by threatening legal action against you for your relative’s debts when you do not owe them, you may have a valid lawsuit against them for violating the Fair Debt Collection Practices Act.

If you are not responsible, then the only way the debt collector can recover its debt is to file a claim against the estate of your loved one who passed away.  If no probate estate has been opened, they will usually need to hire an attorney to open up such an estate.  They rarely do so, for three primary reasons.  First, it costs them money to hire an attorney and to open up a probate estate.  Second, there is no assurance that the probate estate even has any money in it to pay on the alleged debt; if not, they will have wasted their money.  Third, there is no assurance they can win their lawsuit, particularly if the credit card lawsuit is defended by an experienced consumer protection attorney.

The bottom line is this: don’t let the debt collectors prey upon you at a time when you are emotionally and financially vulnerable.  If you receive a phone call claiming you are responsible for the credit card debt of a loved one who passed away, contact a consumer justice attorney experienced in defending credit card lawsuits to determine your rights.

Some of our clients have been sued by debt collectors and initially tried to defend their lawsuits by themselves. Sometimes, they try this first because they know that the debt is not theirs, and that the debt collector has sued the wrong person. Sometimes, it’s because they have reached a settlement agreement before the lawsuit, and don’t understand why they are now being sued after reaching a deal with a credit card company. The common characteristic they share is a belief that because the lawsuit is unfair and wrong, the debt collector will do the right thing and simply drop their lawsuit. A consumer that is proceeding without a lawyer is said to be proceeding pro se or in pro per (short for in propria persona), which are Latin phrases meaning the person is representing himself or herself.

Unfortunately, many debt collectors, especially credit card companies, simply don’t care and just want to get more money from you. The consumer then gets frustrated as the lawsuit continues to move toward trial and the debt collection lawsuit still isn’t dismissed. Sometimes it’s not dismissed because the consumer does not know the court rules and procedures that are required to have the lawsuit dismissed. Sometimes it’s not dismissed because the debt collector simply fabricates evidence to avoid dismissal.

Some Florida consumer attorneys will refuse to accept clients whose cases have already been pending for some time. They are worried that they have lost the opportunity to control the litigation. However, we don’t automatically give up on such cases. We don’t believe a Florida consumer gives up their right to be represented by an experienced Florida debt lawyer in their credit card lawsuit simply because they did the right thing and tried to work it out on their own first. That is why we routinely represent such consumers. In fact, we have even accepted representation literally days before a scheduled trial in a credit card lawsuit.

If you are involved in such a lawsuit, please don’t give up and don’t get frustrated. As an experienced Florida consumer protection attorney, I would be honored if you selected me to pursue justice on your behalf. In fact, if the credit card company or other debt collector sued you for a debt that is not yours, or sued you after you had already settled the debt with them, you may be able to sue them back by filing a counterclaim or a separate lawsuit under the Fair Debt Collection Practices Act (FDCPA). Call us toll-free at 1-888-834-5297, contact us through our web contact form, or even fax your informaiton to us, and find out about your rights. Remember, our initial consultations are always free.

There are several ways in which you can defend a lawsuit filed against you by a credit card company, debt collector, bank, auto finance company and other plaintiffs.  One of those ways is by proving an affirmative defense.

An affirmative defense is different than just defending your lawsuit.  In order for a plaintiff to win a lawsuit against you, they have to prove each of the “elements” of their claim.  For example, in a breach of contract lawsuit, they have to prove the existence of a contract with you (which includes offer, acceptance and valid consideration), that you breached the contract, and that they suffered damages as a result of the breach.  In a traditional defense, you can simply point out that they failed to prove one of those elements with admissible evidence and win your lawsuit.  Click here for a more detailed description of how I, as an experienced Florida debt attorney, can defend your debt collection lawsuit.

But what do you do if the credit card company or other plaintiff can prove its case?  Does that mean you automatically lose and will have a judgment entered against you?  The answer is not necessarily, if you can prove a valid affirmative defense.

An affirmative defense is a defense that essentially provides a reason why you should win even if the plaintiff in a lawsuit can prove its case.  If you prove an affirmative defense, you can win the lawsuit or reduce the amount of money the plaintiff can recover.

One such affirmative defense is the Statute of Limitations.  A Statute of Limitations is a state law that prohibits a plaintiff from winning a lawsuit if they simply wait too long to enforce their rights.  For example, the Statute of Limitations for a breach of contract in Florida can be four years.  If they wait more than four years from the breach of contract, you can assert the affirmative defense of Statute of Limitations and have their lawsuit dismissed.  Click here for an example of a credit card lawsuit against our client that violated the statute of limitations and was dismissed.

Another affirmative defense can arise if you reached a settlement agreement with the credit card company and fully performed your obligations under that agreement.  If they then sue you for the original amount owed before the settlement, you can assert the affirmative defense of Accord and Satisfaction.  That simply means you reached a new agreement that you fully complied with, and they are not entitled to renege on their deal.

Examples of other potential affirmative defenses are:

• Plaintiff’s failure to attach the contract or other necessary paperwork to the lawsuit complaint
• Plaintiff’s failure to comply with court rules regarding how they must present their claim and describe
• An out-of-state Plaintiff’s failure to post the necessary bond with the clerk of the court
• Being sued on credit card charges that you did not authorize: if you did not authorize the charges (and are not a co-signer for someone else’s account), you are not responsible for the charges
• Being sued for late fees, over limit charges, collection fees, attorney fees, court costs and other fees and charges, unless those charges are explicitly allowed under the contract or Florida law

There are also many other affirmative defenses, depending on the type of case.  The key point, however, is that you can lose your affirmative defenses if you do not assert them properly and at the right time.  In some cases, these affirmative defenses can also allow you to bring a counterclaim against the debt collector or its attorneys.  In those cases, you may be able to not only win your case, but recover money from the other side.

You should consult with a knowledgeable Florida consumer attorney who is experienced in defending debt collection lawsuits.  If you are located in Central Florida (including Seminole County, Orange County, Lake County, Brevard County, Volusia County or Flagler County), we would be honored if you would call us on our toll-free number, 1-888-834-5297 for a free consultation.  That one call can mean the difference between winning and losing your lawsuit.  Of course, you can also contact us by using our convenient website contact form or by faxing us.  As a Florida debt lawyer, I am committed to pursuing justice on your behalf.

A series of new credit card regulations becomes effective on August 22, 2010.  This post briefly explains how those new regulations affect some of the fees that your credit card company can charge you for certain penalties.

Currently, your credit card company can charge you a late fee as high as $39, regardless of whether you are late with a $20 minimum payment or a $100 minimum payment.  Under the new rules, your late payment fee is generally limited to $25.  However, if one of your last six payments was also late, they can increase it to $35.  Also, if their actual costs incurred as a result of your late payment were more, they can increase their fee; however, I have a hard time envisioning any circumstances that a late payment by any typical consumer to a multi-billion dollar credit card company would justify a higher late fee.

Also, your credit card company will not be able to charge you a late fee that is higher than your minimum payment.  For example, if your minimum payment is $10, then they cannot charge you more than $10 as a late fee.

Similarly, they cannot charge you an over-limit fee that is more than the amount by which you went over the limit.  This way, if you go over your credit limit by $5, the most you can be charged for your over-limit fee is $5.

As a result of the new rules, your credit card company cannot charge you more than one fee for a single event that triggers penalties under your cardholder agreement.  So, if you make a late payment, then cannot charge you multiple fees for violating multiple provisions of your agreement.

Some additional regulations that are effective August 22, 2010 include:

• They cannot charge you any fees for not using your credit card
• They must explain the reason for any increases to your card’s annual percentage rate
• If they increase your annual percentage rate, they must re-evaluate the increase every six months and, if appropriate, lower that rate

Although these rules seem to be common-sense, they weren’t there to protect you in the past.

In prior postings on this blog, I have identified numerous problems with the way credit card companies, debt collectors, and their lawyers try to abuse consumers through the legal system.  In this post, I provide some guidance on possible solutions that would at least curb some of the most flagrant abuses.

Require Proper Evidence of the Debt:  In many debt collection lawsuits, the credit card company and their lawyers don’t attach the credit card contract to the lawsuit.  Why do we tolerate debt collectors who sue on an alleged contract but don’t even provide you a copy of that contract?  Florida’s laws of civil procedure require that the contract be attached to the complaint or statement of claim.  If it is not, the debt collector should be forced to either provide a copy of the contract or dismiss their lawsuit.

Require Meaningful Reviews by Lawyers Before Suing:  In many debt collection lawsuits, the lawyers simply file a form pleading that is essentially the same as for all their other lawsuits.  Requiring the lawyer to review the facts of each case before signing the lawsuit paperwork would go a long way toward curbing these lawsuits.  In one of my recent cases, a debt collector sued on an alleged credit card contract, but then denied that such a contract existed.  Such lawsuits are frivolous and nothing but an attempt to intimidate the consumer.

Strengthen Government Enforcement:  Meaningful enforcement of state and federal laws can also prevent significant debt collector abuse of the legal system.  Instead, the government’s enforcement tends to get publicity only in the run-up to elections.  Then, it conveniently fades until the next election.  Having an assistant attorney general spend an entire day in small claims court watching the abuses that take place would undoubtedly be an eye-opening experience for them.

Improve Consumers’ Access to Legal Assistance:  Very few consumers sued for credit card debt are represented by lawyers.  Part of the reason is that many attorneys prefer to work for large and wealthy corporate clients; in contrast, consumer protection attorneys in Central Florida are few and far between.  It would be helpful for court clerks to at least post information outside the courtrooms telling consumers where they can find free or low-cost legal representation.

These recommendations are drawn in large part from the May 2000 report entitled Debt Deception – How Debt Buyers Abuse the Legal System to Prey on Lower-Income New Yorkers.  Based on my experience as a consumer protection lawyer in Central Florida, these recommendations would go a long way to help Florida consumers from being victimized by debt collectors.

We have seen a recent increase in the number of consumers sued on an alleged debt arising from an old Providian credit card account.  Many people are surprised at these credit card lawsuits because those credit card accounts were so old.  Those lawsuits are not brought by Providian, which does not exist any longer; instead these credit card lawsuits are typically brought by debt collectors (for example, Arrow Financial) who have purchased the debt from Providian, or its successors: Washington Mutual (WaMu) Bank or J.P. Morgan Chase.

The good news is that you may have legal defenses if you are sued on an alleged Providian credit card debt.  However, you need to assert those affirmative defenses promptly, or you may lose the ability to use those defenses later in the case, including at the trial of the credit card lawsuit.

There may also be other ways to defend against a debt collector seeking to collect an alleged Providian debt.  For example, the lawsuit needs to comply with Florida’s court rules for the summons and complaint; often, they do not.  As another example, many debt collectors cannot prove their case as required under the applicable Florida laws and rules of evidence.  This is important, because debt collectors often try to collect on debts even when they do not have a legal right to do so, such as when the statute of limitations has expired.

It is important to use an attorney experienced in defending credit card debt collection cases to maximize your chances of winning.  We have had good success in defending Providian credit card litigation using our knowledge of Florida’s laws, including statutes, court rules and rules of evidence.  If you have been sued on an alleged Providian credit card debt anywhere in Central Florida, please call us right away for a free consultation about preserving your rights and a free evaluation of your case.  Don’t lose the ability to defend your case properly!  You can reach us on our office telephone (407-323-4949), on our toll-free number (1-888-834-5297), by fax (407-323-4955) or by clicking here to send us an email message.  Remember, we welcome your calls and emails at any time, including in the evening and on weekends.

Some consumers are shocked when they find out that a court has issued a Judgment against them.  This can happen when a consumer was never formally notified of the lawsuit by a process server.  Then, when they apply for credit, such as for a home loan or car loan, they are surprised to be declined because of the unknown Judgment.

Under Florida law, this does not necessarily mean you have no further options or that you have to pay the entire judgment.  There are some circumstances that allow you to ask the Court to vacate the judgment, or have it set aside.  This is because Florida law has a strong public policy favoring the resolution of cases in open court, rather than one party winning on a technicality.  There are generally two categories of cases where a judgment can be reversed, each with its own set of deadlines.

For the first category, there is generally a time limit of one year.  If less than one year has passed since judgment was entered against you, you may be eligible to get it set aside on any of the following grounds:  mistake, inadvertence, surprise, excusable neglect, fraud, misrepresentation, or misconduct of the party who obtained the judgment against you.  For some of these, you must also be able to demonstrate that you had a “meritorious defense”.  This simply means that you had a defense that you could have raised that could have made a difference in the outcome.

For the second category, there is no time limit for bringing the motion to vacate the judgment or have it set aside.  This category includes cases where the judgment is void.  Void judgments include those where the person being sued was not given the appropriate notice of the lawsuit or a reasonable opportunity to defend against the lawsuit.  There is no time limit for such judgments, because Florida law considers such judgments to be invalid and not legally binding.

If you have a judgment against you that you did not know about, contact a lawyer promptly to determine your legal rights.  If you live in (or the Judgment was entered in a court in) Seminole County, Orange County, Volusia County, Lake County or Brevard County, please feel free to call us toll-free at 1-888-834-5297 for a free consultation to determine your legal options.

Federal law allows you to get a free annual copy of your credit report from the three primary credit reporting agencies: Equifax, Experian and TransUnion.  However, be careful of imitators that are not really free.  For example, some companies will provide you copies of your credit report, and even include the word “free” in the title of their website, but their services are not really free.  Instead, they often require you to purchase a product or service (such as a credit monitoring service) in order to obtain your credit report.    One of those, freecreditreport.com, has paid over a million dollars in fines to the U.S. Federal Trade Commission to settle charges that its ads were misleading.

You can get to the website from which you can obtain your free credit report annually by clicking here.  You can request your credit report through that website, and get it almost instantly.  Or, you can also order your credit report by phone or mail through that website.  Once you get your annual credit report, make sure to review it carefully to ensure there are no errors.  Sometimes, you will see accounts you closed long ago still being listed as active.  Other accounts can indicate you are behind in your payments even when you are not.

If you find any errors in your credit report, immediately notify the credit reporting agency (Equifax, Experian or TransUnion).  Describe the error to them in detail, and provide them with documentation showing their error (if you have that documentation).  Keep in mind, you have the legal right to dispute any of the listed debts, and they are required to be marked as “disputed” if they are not removed.

As part of the effort to help consumers gouged by credit card companies, more changes to credit card rules were proposed by the Federal Reserve Board on September 29, 2009.  These proposed changes affect the so-called “Regulation Z” dealing with Truth-in-Lending aspects of credit cards.  They would help improve consumer protection from credit card companies by:

• Generally prohibiting interest rate increases during the first year the account is opened
• Generally prohibiting increases to interest rates that apply to existing credit card balances
• Prohibiting the credit card companies from issuing credit cards to consumers younger than 21 years old, unless the consumer or co-signer (such as a parent) has the ability to make the required payments
• Prohibiting credit card companies from charging over-limit fees unless the consumer consents to such a fee prior to the transaction
• Prohibiting creditors from using “two-cycle” billing methods as a way of increasing interest charges
• Prohibiting creditors from allocating payments in a way that maximizes interest charges
• Limiting fees charged for subprime credit cards

These proposed changes continue to implement the Credit Card Act recently passed by Congress.  Please note that these are not final rules, but are the Federal Reserve’s proposals for implementation beginning February 22, 2010.  There will also be additional changes scheduled to go into effect on August 22, 2010.

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.

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.