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Credit Card Lawsuit Process

If you have received a legal notice from a creditor regarding an outstanding debt, the best course of action is to fight it. This article provides a step-by-step outline of the entire credit card lawsuit process.

1. Served with court summons and complaint

The process will begin when the credit card company files a document called the complaint with your local court. This explains the reasons for the lawsuit.

A paper known as a summons will then be sent to you by the court informing you that you are being sued. This document will also give the date you need to respond by.

2. Answer to the summons

You must answer the summons and complaint before the deadline.

Each numbered paragraph is a separate complaint that must be answered individually. You must use the correct terminology accepted by your local court. In most cases you can simply admit or deny. You can also state that a complaint is partially true or that there is insufficient information to admit or deny. For the latter two options you must provide more information to explain your response.

For an answer template click here.

i) Affirmative defenses

As part of your answer to the summons you can include affirmative defenses. These argue that even if the credit card company’s complaints are true, it should still lose the lawsuit.

You can learn more about affirmative defences you might be able to use here.

3. Discovery

This phase of the lawsuit allows both parties to request information and documents from the other party that may be used for the lawsuit.

i) Interrogatories

Interrogatories are written questions and are used as a means to obtain basic information such as witness names; the facts underlying a vague or indefinite statement in a pleading; or to ask simple, unambiguous questions.

How to answer interrogatories.

ii) Request for Documents

As the name suggests this is a request to produce hard copies of certain documents. Both parties have the right to request documents pertaining to the case. These documents may include things like contracts, application forms, copies of payments to the original creditor, receipts and letters.

iii) Request for Admissions

This request asks the opposing party to admit, under oath, that certain facts are true or that certain documents are genuine.

Click here to learn more about how to respond to the plaintiff’s request and request your own admissions.

4. Motions & Possible Outcomes

A motion is a written application that asks the judge to rule on the case or order a specific action. These can be filed at any time during the lawsuit but usually before the trial. It’s important to check your local court rules to see when you should file any motions.

Motions can be granted with or without prejudice.

Without prejudice means that they can re-sue you for the same debt. All they need to do is amend their complaint to comply and the lawsuit is back on.

With Prejudice means it is over and they can never sue you again for that debt.

There are a number of pre-trial motions that are important to your case.

i) Motion to dismiss

This motion asks the court to dismiss the case. To be successful there must be clear, specific grounds for dismissal. Some of these may include:

  • Failure to state a claim: The plaintiff doesn’t properly attach the necessary documents to the complaint.
  • Improper venue: The action was brought in wrong place.
  • Lack of personal/ subject matter jurisdiction: The court lacks jurisdiction or authority to hear the case.

Click here to learn how to prepare a motion to dismiss.

ii) Motion for hearing

After submitting any motions, the judge will either grant or deny the motion. Alternatively, he will set a hearing to review the details of the motion. At the hearing both parties will have the chance to argue their position.

iii) Motion for summary judgment

This motion can be filed when one party believes that no important facts are in dispute. This might be the case if, for example, the defendant admits to owning the debt. A party has the right to respond and object to the motion for summary judgment. If granted, the party filing the motion will win the case.

iv) Settlement

This is an agreement to resolve the dispute. In credit card cases, this usually means agreeing to a payment plan or one-off payment to end the dispute. Settlement offers can come at any time before and during a lawsuit.

5. Trial

On the rare occasions where no settlements are made and motions for dismissal or summary judgment are denied, the case will end in a trial. On the trial day, the plaintiff and defendant will present their arguments, evidence and witnesses. Based on what he hears on the day, the judge will make the final decision on the case.

For tips on how win in court, click here.