How To Win A Credit Card Lawsuit
- 1. Review Summons Carefully
2. File Notice to Appear
3. File a Motion to Dismiss (if applicable)
4. Send Discovery documents
5. File a Motion to Strike the Affidavit of Debt
- Is it the original creditor filing the complaint?
- Locate the Copy of Assignment: their legal right to sue you
- Do the third party collectors have legal claims to debt?
- When does the court expect a response?
2. File A Notice to Appear It is critical that you answer your summons by filing a notice to appear by the date stated. Failure to show up in court will result in an automatic judgment for your creditor. To file your notice to appear you must:
- Tell the court that you plan to attend court and defend your lawsuit
- Attach your Certificate of Service with every document
- Send one copy to creditor & keep one for yourself
- Check your state’s statute of limitations
- Cite the statutes if debt is considered too old by your court
- Clearly state your reason(s) for dismissal
- Find out if your local court requires a memorandum or affidavit with the motion
4. Send Discovery Documents Request to Creditor The Discovery phase allows each party to obtain evidence from the opposing party before going to trial. Discovery documents include: Interrogatories, RFA and Request for Documents. Determine which pieces of information the creditor has that you need and create discovery requests to obtain them. The Creditor must have documented proof of your debt so force them to show evidence. This is where many cases are won by the Defendant.
- Place a request for Interrogatories, Request for Admissions & Request for Documents
- Answer the questions and fill out forms accordingly
- Send Discovery via certified mail to Plaintiff and Court Clerk by the deadline (within 30 days)
5. File a Motion to Strike the Affidavit of Debt An affidavit of debt is a sworn statement from the collection agency stating that they are aware of the methods of record keeping at the original creditor concerning the debt in question. This is how they certify that the information in the complaint is true, but oftentimes the creditor’s affidavit of debt is fraudulent and you must file a motion to strike.
- These affidavits of debt are usually fraudulent or contain false evidence
- A motion to strike this evidence must be filed to get the evidence thrown out of court
- If you don’t object to this affidavit the court will assume the debt is valid
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If a court summons is answered the correct way it is highly likely that the collection agency will drop the case or it will be dismissed because collection agencies don’t want to deal with people who know their rights, challenge them and actually know what they are doing. Third party collectors rarely have the necessary evidence and will either drop the case and give up or the case will be thrown out due to lack of proof.
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If the Defendant fails to respond to their debt summons he or she will automatically lose by default judgment. Ignoring the summons or answering too late results in a default judgment, and the creditor walks away with even more of the consumer’s money than necessary. The collection agency that is suing expects the consumer to do one of two things: (1) Call and settle the case, or (2) Ignore the summons.
- Name of the company or original creditor If they cannot prove that they actually own this debt and can sue you, you win!
- Proof of assignment If the debt buyer cannot prove it has a valid chain of assignment back to the original creditor, you win!
- Signed documents/contract If they cannot prove that you owe the original creditor the stated dollar amount you win!
- Credit Card statements showing how they came up with the amount Defendant is being sued for If the debt buyer doesn’t have evidence of this credit card account, there is reason for dismissal! Make them prove it down to the last penny by providing such documents.