Civil Summons Credit Card Debt
Upon receiving a credit card summons in the mail there are a few things you must ask yourself. For example, does the state require the written instrument be attached to the complaint? This written instrument would be the contract. So, is the contract attached? You would find out if it’s a requirement by checking the local court rules of trial procedure. If the contract is required by the court and it is not attached, the defendant can file a motion to dismiss because the creditor failed to comply with the trial rule..
Some other questions that you should ask yourself are: Is this debt time barred? Has time run out for the creditor to use the courts to sue me? This is also known as the statue of limitations. Each state has its own statue of limitation for collection of debt. The SOL for one state may be 6 years while it may be four or seven years for another. For example, if the defendant resides in Indiana where the SOL for collecting debt is six years and the defendant defaulted in 2003, from the year 2009 all of the lawsuits that come to him are time barred. The statue of limitations would have run out for the plaintiff to legally collect their money. In this example the defendant would ask the court to dismiss the case because the creditor is time barred pursuant to Indiana Code XXX which gives six years to collect debts.
When answering a credit card debt lawsuit the defendant should also ask himself: Is the assignment attached to the complaint? Should the assignment be attached according to the trial rules? If so, he can file a motion to dismiss for failure to name the real party of interest.
In case an affidavit is attached to the complaint, check for the signature. Is the affidavit signed by someone who is employed by the original creditor or is it signed by someone who is employed by the junk debt buyer? Sometimes an affidavit is grounds enough if uncontested to get a judgment. The defendant may be in a position to file a motion to strike the affidavit. He should check the rules related to evidence. If the information in the affidavit is considered hearsay, the defendant may want to motion to strike.
Defendants who have been served a credit card lawsuit should typically expect an affidavit of debt with their complaints. Note that the motion to strike can be the ultimate weapon in destroying the junk debt buyer’s case. Most junk debt buyers do not have the original contract or the credit card statements to back them up, and they use affidavits of debt to get by the defendant’s trial rule.
The older the credit card debt is, the harder it is to prove. This proof falls on the plaintiff or creditor. The creditor must prove all the documents, and most of them don’t have 50% of the documents, if any at all. The truth is that third party collectors do not have much to rely on. Therefore they use an affidavit of debt.
The reality is that credit card companies and junk debt buyers will take advantage of consumers’ lack of knowledge when it comes to credit card debt litigation. The creditor or the bank suing the defendant is primarily trying to make money. Sometimes when a consumer stops paying his credit card bill, some creditors will automatically sue them.
Here is a basic outline of the events with just about all court cases dealing with credit card debt:
- The complaint states the causes of action and all of the facts that control the outcome if facts/law can be proved.
- Flurry of Motions
- Motion to dismiss
- Motion for summary judgment (by defendant)
- Motion to strike
- Each complaint is answered one allegation at a time by admitting to or denying each allegation individually.
- Request for admission
- Request for production
- Court orders
- Trial (should it get this far)
- Formal presentation of facts are made.
- Law is used to determine the winner pursuant to rules of evidence.
The most important thing to keep in mind when dealing with a summons and credit card debt case is that ignoring the lawsuit is NOT an option. The defendant must respond to his/her summons. No matter how overwhelming the process or information may seem, you can fight for your rights and go to court equipped with the knowledge necessary to win your credit card lawsuit. It just requires some research, preparation, information from this website and the step-by-step help found in The Defendant’s Package.