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Credit Card Lawsuit Defense

When facing a credit card lawsuit it is important to know what defenses are useful for your case. As you’re going up against collection agencies or the original creditor, you need to have a strong defense to use. Debt collectors are actively filing suits to collect debts, whether they are legitimate or not. According to recent legal research a large collection firm based in Atlanta reports filing an average 279 collection lawsuits each day. That being said, a solid defense is imperative for your fight to win your credit card lawsuit. These collection agencies are not holding back, especially with the economy being unstable and experiencing decline in some areas.

Always file an answer when you receive your court summons in the mail. Debt collectors are expecting you to ignore their credit card summons out of fear of losing or not being knowledgeable enough to defend themselves. Also, they may expect the defendant to fail at responding in a timely manner. The result of each of these bad decisions is default judgment. If you want to automatically lose your case, don’t answer your summons. If you are going to respond late, expect a default judgment where, in effect, you lose. The default judgment is great for junk debt buyers and collection agencies because then they don’t have to prove you owe the money or how much you owe. You may not even owe as much as they’re saying or it may be too old, but by ignoring the summons you won’t ever know because you would have given up too early. At this point, a default judgment also means that the debt collector or the agent for the credit card company doesn’t even have to appear in court. Don’t make it easy for them. You have a fighting chance at this case.

Here are some of the most common defenses in a debt collection case:

  • Statue of frauds
  • Waiver
  • Estoppels
  • Statute of limitations
  • Violation of bankruptcy discharge
  • Violation of the Fair Debt Collection Practices Act

While violating the Fair Debt Collection Practices Act may not be a defense, it can be utilized as such. It is a federal law that protects consumers against the illegal practices of creditors, and various states have enacted their own versions of the FDCPA (The Fair Debt Collection Practices Act) giving consumers even more protection.

We have listed a few of the common affirmative credit card lawsuit defenses that are helpful in preventing the creditor from winning the case. These are just a few defenses as there are probably endless lawsuit defenses for debt cases that one can use depending on the defendant’s situation.

  • 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 used to void all contracts in certain cases. It is used in the case 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: If the purported contract alleged in the complaint wasn’t in writing, wasn’t signed by the defendant or a person authorized by the defendant and who was to answer to the alleged debt or default of the other person, the creditor’s complaint violates the Statute of Frauds. This is when the agreement falls within a class of contracts or agreements required to be in writing.

Also, if the plaintiff (usually a debt collector or collection agency) is not the real party in interest and has failed to name all necessary parties, this can be used as a defense. It is in the plaintiff’s best interest to use every single affirmative defense that pertains to his or her case or else the defense could be lost. Win your credit card lawsuit by having all of the appropriate debt lawsuit defenses when going up against those collection agencies.

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