If a credit card company is seeking to collect from you, there may be defenses you can use to protect yourself.
If you have credit card debt and are not paying, the company may seek to collect by filing a court action against you. Sometimes, the credit card company will sell your debt to a debt collector which will sue you. Regardless of who sues, if the suit is successful, the judgment against you allows the company or debt collector to obtain payment by taking money from your bank accounts or selling your personal property and/or real estate.
Don’t Get a Default Judgment
Frequently, those who have credit card debt and are sued or pursued by debt collection agencies think there is nothing they can do to prevent a judgment. As a result, sometimes the debtor (person owing the debt) will give up and simply not show up for court. It is a mistake to fail to show up for court, because the result will be a default judgment against you. Default judgments are almost impossible to fight. It is important to understand that there are defenses available to you that may prevent the credit card company from winning its case. An experienced debt collection attorney can help you assert those defenses in court. In fact, sometimes debt collectors will violate the law in their efforts to collect a debt. When they do so, it is possible for the debtor to actually be awarded money against them due to their bad conduct. Although there are defenses available in collection cases, many people think there is nothing they can do to prevent the company or debt collector from obtaining a judgment, and as a result, the person takes no action. The companies rely upon this type of thinking to obtain a judgment against you with minimal effort.
Debt Collection Defenses
When a you owe money to a credit card company, there are many defenses are a lawyer can argue on your behalf. For example: Failure to prove you authorized the credit card. It is common for credit card companies to file suit without a signed contract showing that you authorized the debt. In the case of debt collectors to whom the debt was sold, they frequently don’t even have the contracts available to them. In many cases the company or debt collector files suit without having or attaching the necessary documents to prove you signed the contract to authorize the credit card. The debt collectors may claim they have proof, such as billing statements, but these statements are hearsay and not admissible as evidence unless the debt collector has a person from the credit card to testify that the statements are business records. Rarely does this happen. The time period to collect the debt passed.
A defense to credit card debt collection is when the company sues beyond the statute of limitations.
In order to file a civil suit for credit card debt, the credit card company or debt collector must file that suit within a time period called the statute of limitations. The statute of limitations for most types of debt in Pennsylvania, is four years. Once this time period passes, neither the credit card company nor the debt collector may successfully file suit against you. Of course, you must know how to defend yourself against a time-barred suit, and it is important that you not do anything to toll (or stop) the statute of limitations from running. Failure to follow the law. Debt collectors sometimes violate debt collection laws in an effort to get debtors to pay. Under the federal Fair Debt Collection Practices Act, if debt collectors violate the law, they can be required to pay $1,000 per violation plus attorney’s fees. Common violations include:
- Failure to validate the debt when you request for proof, and failing to stop collection efforts for the required time.
- Threatening to sue when the debt is beyond the statute of limitations.
- Stalking or harassing you and using foul or abusive language.
- Continuing to call you when you have made it clear, in writing, that you do not want to be called.
- Accusing you of having committed a crime.
- Calling you before 8:00 am and/or after 9:00 pm.
- Fail to identify themselves.
- Speak to others such as friends, family, neighbors or your employer about your debt.
Mistakes by the credit card company. Sometimes debt collectors and credit card companies make mistakes. The debt may not be yours, or you may have completed payments. If you can show you paid the credit card debt and/or that the debt is not yours, you have a very strong defense against any efforts to collect the money.
Fail to Understand the Law? You Can Lose Your Credit Card Debt Case.
Even if you have a very strong defense, if you do not respond properly to a lawsuit for credit card debt, you can lose your case. This is why it is so important to have an experienced lawyer on your side. For example, in March, 2017, a Pennsylvania appeals court found that a debtor lost his case because he failed to properly answer discovery questions. Discovery is the process through which each side is able to ask questions and seek documents from each other. The company sued the debtor, Mr. Repine, and then, as part of discovery, send him eight written questions. Under the Civil Rules of Procedure, Mr. Repine was required to answer those questions in good faith. He had to either admit them, or deny them. If he denied the questions he was required to provide information as to why he denied them. The questions asked him for information such as whether:
- He received monthly credit card statements.
- Made or authorized the purchases reflected in the monthly statements.
- He had disputed any charges within sixty days of the receipt of any monthly statement.
Unfortunately, Repine merely responded “denied” to questions 1-7 and for question 8 he stated he did not know the answer. In response, the company filed a motion to obtain a judgment without going to trial claiming the answers were insufficient. The trial court agreed with the company and it entered judgment in its favor. In response, Mr. Repine filed an appeal. On appeal, the court upheld the judgment. The court held that Repine failed to make a good faith attempt to answer the questions. Under the rules of Civil Procedure, a general “denial” is considered the same as an admission. This is because it is not deemed a complete or good faith answer to the question. Along with its discovery questions, the company provided Repine with the documentation he needed to answer the questions. Unfortunately, Repine failed to make any reasonable inquiry to provide an appropriate answer.
It is Critical to Defend Credit Card Debt Cases Properly
Repine may well have had appropriate defenses to the allegations of credit card debt against him. Unfortunately, he did not follow the rules when he responded to the questions asked by the company. All parties involved in credit card debt cases: credit card companies, debt collectors, and defendants; are required to follow the applicable rules and law to prove or defend a case. Many companies have a high volume of cases and will frequently try to obtain judgments without following the rules. This is because many people do not challenge the claims against them. Such judgments can impact a person for many years to come.
Hoffmeyer & Semmelman Can Defend You
Hoffmeyer & Semmelman has substantial experience representing debtors in credit card debt collection cases. Contact us today to find out how we can help you defend yourself against debt claims. We have lawyers in York PA, Shrewsbury, and Mt. Wolf.