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Credit Card Lawsuit Defense Strategies

The important part to winning your credit card lawsuit is to simply fight back. Please note that the burden of proof that you owed this debt lies with the creditor that is suing you. The vast majority of credit card lawsuits are won because the defendant did not show up to challenge the creditor in court. In many cases, the creditor suing you does not have the proper documentation to prove you owe the debt and win the case. So, the best defense tactic is simply to fight your lawsuit.

If you have received a summons, there may be literally dozens of ways to defend yourself and win your lawsuit. This area of our website will explore some of the defensive tactics that have been used to win hundreds of debt lawsuits. In addition, this article will point out the basic steps involved in a typical credit card lawsuit and point out concrete actions others have taken to get their lawsuits dismissed.

Whatever you do, NEVER back down when it comes to fighting for your rights especially when you are being sued for a credit card debt. If you do not appear in court, they win by default. The given defense tactics can give you a leg up in court when you are defending yourself.

Below are the initial things to consider if you have received a summons for credit card debt:

  • Does your state require the written instrument to be attached to the complaint?
  • If so, it means a copy of the credit card agreement you signed must be attached to the complaint. If it is required and it is not attached, you can file a motion to dismiss because the plaintiff failed to attach the contract. Another option is to file a motion to comply with the trial rule stating that the written instrument (credit card agreement) is required to be attached with the complaint. Ask the court to give the plaintiff thirty days to amend their complaint to comply with your trial rule. If they fail to do so within that time frame, request a dismissal with prejudice. Please check the rules in your state related to summons for credit card debt.

  • Has the statute of limitations run out on this debt?
  • Each state has their own statute of limitation rules on collecting a debt. These limitations may vary depending on if the debt is based on a written agreement or an open agreement. Please check the laws in your state for more specific information about your state’s statues of limitations on debt.

  • Is there a affidavit attached to the complaint?
  • If there is an affidavit attached to your complaint, please examine it to identify if the person who signed is employed with the original creditor, or a junk debt collection agency. If it is signed by someone who is employed by the junk debt buyer, you have grounds to strike to the affidavit as hearsay. The affidavit should be signed by an employee of the original creditor. An employee of a junk debt buyer is typically not associated with the original creditor and may not have direct knowledge of your debt as far as the court is concerned. As such, you may have grounds to file a motion to strike the affidavit. In any event, if your motion to strike the affidavit is granted, it may make it very difficult for the junk debt buyer to prevail in court. Be sure to look up hearsay under your state’s rules of evidence.

  • Have you ever sent the collection agency suing you a debt validation letter?
  • If you sent a Debt Validation Letter to collection agency suing you and their response was a lawsuit instead of validated the debt, you may have grounds to counter sue them for $1,000.00. You will need proof that you sent the letter and they never responded; so be sure to send all legal communications with collection agencies through registered mail.

Preparing for Your Debt Lawsuit Response

If you’ve been served a credit card summons but don’t have the money to hire an attorney, you can still defeat junk debt buyers in court. You can win your credit card lawsuit with the help of these steps outlined below:

  • Make decision to answer summons.

  • Locate the deadline in the summons that indicates how much time you have left to respond. (typically 20 – 30 days)

  • Answer each individual allegation in your complaint with either:

    • “agree”, “disagree”, or “partially agree”
    • “affirm”, “deny”, or “lack of knowledge to fully answer”

    Whenever denying or disagreeing with an allegation write a statement explaining why.

  • File your summons answers by sending it via certified mail. Be sure to send one copy to the court, and one to the creditor. It is also wise to keep a copy for your own records. Mail the response within the time allotted before the deadline.

  • Be sure to arrive at the courthouse early for your court date and dress professionally. Failure to appear on the assigned court date will result in a default judgment against you.

Additional Lawsuit Defense Tips

  • Answer your summons. It is extremely important you answer your summons and show up to court. Remember, the burden of proof that you owe the debt lies with the creditor, and oftentimes they do not have this proof. If you show up, and the creditor lacks proof you owe the debt, you may win!

  • Check copyright date on credit card agreement. If the credit card agreement is attached to your complaint, be sure to check the copyright date on the agreement. In most cases, it will be dated after the date you incurred the debt. A motion to strike has been used successfully in these cases. A successful strike motion will make proving your debt much more difficult.

  • Closely examine the complaint. In many cases, the creditor that’s suing the defendant is not the original creditor with whom the defendant signed an agreement. Many times, the agreement the defendant has signed allows the original creditor to assign this debt to another party. However, since the defendant never signed an agreement with the plaintiff, the plaintiff must provide documentation in court that the defendant’s debt was legally assigned to them from the original creditor. If the plaintiff cannot provide this information, they may well lose jurisdictional rights to sue you.

  • Do not call the credit card company or the collection agency after you have received your credit card summons. If you have any questions regarding your summons or if you need discovery forms, contact the court clerk. You don’t want to do anything that will harm your case, so refrain from contacting or responding to aggressive junk buyers that call and threaten you. Overcoming a debt lawsuit is achievable once you have the right knowledge and resources for debt litigation.

Affirmative Defenses

  • Failure to mitigate damages: Use the failure to mitigate damages claim if the plaintiff has failed to mitigate any damages at all.

  • Failure of considerations: This claim may be used to void all contracts in certain cases. It is used in cases where there was never an exchange of money or goods between the defendant and the plaintiff.

  • Unclean hands: If the creditor’s attorney presents false witnesses or falsified proof in court, this defense should be invoked.

  • Failure to state a claim upon which relief may be granted: The defendant can use this defense if there was no statute cited or if there is no stated facts sufficient to constitute a cause of action against the defendant in the complaint. Listing the facts of the claim generally won’t be enough evidence for the claim.

  • Statute of limitations: The statue of limitations is a credit card lawsuit defense used if the debt lawsuit was filed beyond the statutory limit.

  • Lack of privity: The lack of privity claim may be used when there was no relationship in existence between the collection agency and the defendant. Privity refers to the power to enforce a warranty or promise. It also refers to a close, successive, or mutual relationship to the same right of property. If the defendant never signed any contract with the collection agency, this defense will certainly hold weight in court.

  • Statute of frauds: In certain situations a written agreement is mandatory to enforce a debt. If a creditor is attempting to sue you without a written agreement, this may be a statues of fraud violation.