Sued for a Credit Card Debt» Print This Page
- September 21, 2009
- Debt Collection Lawsuit Defense
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 at 407-333-0001 or send us an email by clicking here. I would be honored to speak with you.Share This