Have you consulted an experienced debt settlement lawyer regarding the possible defenses to a credit card lawsuit?
If you have been sued by a credit card company you may be wondering whether you have any valid defenses. A defense is a reason why the creditor should not win its claim. The following are some common legal defenses to a credit card lawsuit. Some of these defenses need to be asserted in the response or they may be waived.
If you allege only factual defenses such as the reasons you fell behind on your bills or that you are now unable to pay, the court will rule against you. In addition, a divorce settlement ordering that a spouse is responsible for a debt has no impact on your legal obligations to that creditor.
Statute of Limitations
A statute of limitation is a time limit that a creditor has to file a lawsuit against you. The statute of limitations for a credit card debt in Arizona is six (6) years from when you stopped paying the debt.. Therefore, if a creditor files a lawsuit after the statute of limitations has run, the court must dismiss the case.
Improper Service (No personal jurisdiction)
When a creditor files a lawsuit they deliver to you the summons and complaint. Most of the time you are “personally served” or hand delivered the document by a process server. However, other forms of service may be allowed with court approval such as delivery by mail or publication in a newspaper. Sometimes creditors do not follow the proper service rules or do not serve you at all.
Mistaken Identity or Identity Theft
This defense should be asserted if you believe the debt is not your debt. Mistaken identity occurs when you have been confused with a person with a similar name or other information. Identity theft is when someone steals your personal information and opens up credit card accounts in your name. With identity theft, your credit card company should be notified immediately and a police report should be filed as well.
Fair Debt Collection Practices Act (FDCPA)
The Fair Debt Collection Practices Act is a set of rules that are intended to eliminate abusive practices by creditors, to promote fair debt collection, and provide a system for validating and disputing debt. If a creditor is not following the guidelines an FDCPA violation should be alleged in the response.
Lack of Standing
Lack of standing means that a creditor does not have a legal right to file a lawsuit against you. Bad debt is often sold by credit card companies to third party debt collectors. If a lack of standing defense is raised, the burden shifts to the creditor to prove they own the debt or the debt has been properly assigned. Sometimes creditors cannot provide the necessary proof because the debt has been sold several times or the creditor has poor recordkeeping.
If you previously filed bankruptcy and the debt was discharged then you are no longer responsible for the debt.
If you’ve made payment of some or all of the debt it should be alleged in the response. It’s possible to pay the wrong creditor if you did not receive adequate notice of the debt being transferred.
If you were only an authorized user and given permission to use the card you are not responsible for that credit card debt. However, if you signed an agreement to be held jointly responsible you are a cosigner and this defense does not apply.
Amount in Dispute
The amount owed on the debt is often disputed. The creditor has the burden of proving the principal, interest, collection costs and attorneys’ fees are legal and accurate.
These are just some of the common defenses raised in a credit card debt lawsuit. You should consult an experienced debt settlement lawyer for specific defenses that apply to your case.