Being sued by a credit card company is a very scary thing. A person may have a judgment issued against them, at which time the creditor can garnish a person’s wages or take other measures to recover the debt. Fortunately, if a creditor has filed a lawsuit against you to get you to repay your debt, there are defenses available. Below are some of the most common defenses used in credit card debt lawsuits. Knowing them is not enough, though. You must speak to a Fort Lauderdale debt defense attorney who knows how to argue them effectively and who can find issues with the creditor’s case.
Incorrect Service of Process
According to Rule 1.902 of the Florida Rules of Civil Procedure, there are certain procedures that must be carried out when a summons and complaint are served. These documents officially begin the process of the lawsuit and they are served to you by the sheriff on behalf of the creditor. If this process is not followed exactly, it can serve as a defense to the lawsuit. When this is the case, you must state this in your response to the summons.
Statute of Limitations
In Florida, there is a statute of limitations, or time limit, on debt lawsuits. That statute of limitations is five years from the date of your last payment. For example, if you haven’t made a payment to a creditor in four years, and then you make a payment, the statute of limitations is reset to the date of that payment.
Violations of the Fair Debt Collection Practices Act
The Fair Debt Collection Practices Act (FDCPA) holds many protections for consumers that are in debt. It outlines certain actions creditors cannot take when trying to collect the debt from you. It also stipulates actions creditors must take. For example, if you ask a creditor to provide you with validation of the debt, they must stop all attempts to collect the debt until they provide that validation. Additionally, creditors are not allowed to contact you at certain times, and they are not allowed to make idle threats, such as threatening to sue you when the statute of limitations has expired.
A violation of the Fair Debt Collection Practices Act provides more than just a defense to a credit card debt lawsuit. If a creditor has violated any of your rights guaranteed under the FDCPA, you can file a countersuit, which is a lawsuit of your own against the creditor. Through these types of lawsuits, you can recover damages, or compensation, that includes attorney’s fees, other losses you have incurred, and up to $1,000 per violation committed if it’s found the creditor took unlawful actions.
Lack of Standing
Creditors are only allowed to sue you if they have a relationship to you. This sounds like common sense, but it becomes a sticking point in many credit card debt lawsuits. This is due to the fact that credit card companies often sell debt they can’t recover to other debt collectors. If the debt collector then tries to sue you, you can assert the lack of standing defense. Many people do this because they don’t even know when their debt has been sold by the original creditor.
After you assert this defense, the debt collector must then prove that they own your debt. That sounds like a fairly easy task, but it’s not always so simple. For example, while a debt collector may have purchased debt from the creditor, they may not be able to prove that they purchased your specific account. Proving this is particularly difficult when the debt is sold more than once, which happens often. When this is the case, the current owner of the debt may not be able to gather the proper documentation to meet the proof requirements of the court.
Payment of the Debt
Of course, if you’ve paid the debt, this is always a defense to a debt collection lawsuit. This is even a valid defense if you’ve paid the wrong party. For example, your debt may have been sold to a debt collector, but you paid the original creditor. In these cases, the courts may order the debt collector to collect the debt from the original creditor.
If you have filed for Chapter 7 bankruptcy, have properly listed the credit card debt in your claim, and a judge discharges your debt, you are no longer responsible for it. Additionally, creditors and debt collectors are not allowed to contact you once your debt is discharged.
It’s unfortunate but true. Sometimes a person’s credit card or worse, their identity, is stolen and someone else racks up charges in their name. Other cases are not this extreme, but a business could have incorrectly processed the credit card and forwarded charges in error to the card. This can provide a defense to a credit card debt lawsuit, but borrowers should never wait until these cases get to the point of a lawsuit.
By the time a lawsuit is filed, your credit will have already suffered, and defending a lawsuit is a bigger hassle than never letting it get to that point anyway. All consumers should keep a careful eye on their balances and statements, and report any errors as soon as they are noticed. Not only must the creditor be notified in these cases, but in cases of criminal activity, such as identity theft, you should file a police report, too.
Have You been Served a Summons? Contact Our Florida Debt Defense Attorneys
Being sued over credit card debt is very frightening, but you don’t have to face it alone. At Loan Lawyers, our Fort Lauderdale debt defense attorneys know the defenses that can get your case dismissed, and we’ll pursue them aggressively. We will ensure creditors and debt collectors are complying with the law and that your rights are being upheld. Before responding to the complaint, call us at (954) 523-HELP (4357) for your free consultation to learn more about how we can help with your case.
Loan Lawyers has helped over 5,000 South Florida homeowners and consumers with their debt problems, we have saved over 2,000 homes from foreclosure, eliminated more than $100,000,000 in mortgage principal and consumer debt, and have recovered over $10,000,000 on behalf of our clients due to bank, loan servicer, and debt collector violations. Contact us for a free consultation and find out more about our money-back guarantee on credit card debt buyer lawsuits, and how we may be able to help you.