Have you been served a complaint for an old credit card debt? What are your options? Do you have defenses?
File an Answer
You should always file an Answer. You have twenty calendar days after you are served to file an Answer. If you do not file an Answer, then you are in default and the creditor is entitled to a judgment.
You do not have the burden of proof in the lawsuit. You should file an Answer and force the creditor to make its case against you. Also, the Answer will give you time to negotiate a settlement in the event you have no defenses.
Standing to Sue
Standing may be a possible defense to the lawsuit. If the credit card debt was sold, then the current owner of the debt must show that it is the lawful owner of the debt; and, therefore, it has standing to bring the lawsuit.
A Bill of Sale or Assignment is evidence of the ownership of the debt. Sometimes a copy is attached to the complaint as an exhibit. If the debt has been transferred and no Bill of Sale or Assignment has been attached to the complaint, then you may raise standing as a defense. If you do not raise this issue, then it will not be considered by the Court. Do not make it easier for the creditor to prove its case.
Absent the Bill of Sale or Assignment, the creditor will not be able to obtain a judgment when the account was acquired from someone else.
Is the Amount Demanded Correct?
You should request proof of how the amount the creditor is now asking for was calculated. Can the creditor produce a balance history? You may have a defense if the creditor is unable to produce the requested documents.
Is the Lawsuit Time Barred?
Ordinarily, a lawsuit on a credit card debt must be brought within four years to satisfy the Statute of Limitations. The four-year period begins to run from the time of the last payment on the account. You may have a legitimate defense to the lawsuit. But you must raise this defense otherwise you lose it.
The creditor may be subject to the Florida Consumer Collection Practices Act (FCCPA). Violations of said act may give rise to a counterclaim against the creditor. A court may award up to $1,000.00 per violation plus attorney fees and costs. You may also be awarded punitive damages. The FCCPA prohibits persons collecting a consumer debt from doing the following:
- simulate a law enforcement officer;
- use or threaten to use force;
- communicate with your employer before obtaining a judgment without your permission;
- communicate with you at a frequency reasonably expected to harass;
- communicate with you between 9:00 pm and 8:00 am without your permission;
- use obscene, vulgar, or abusive language;
- threaten to publish a “Deadbeat List”; and,
- communicate with you when the person knows you are represented by counsel.
The creditor also may be subject to the Fair Debt Collection Practices Act (FDCPA). While the FCCPA applies to any person collecting on a consumer debt, the FDCPA only applies to “debtor collectors” collecting on consumer debts. Attorneys that regular collect debts are “debt collectors.” In addition, debt collection companies are “debt collectors.” The following are examples of conduct prohibited by the FDCPA:
- communicating with you at an unusual time or place;
- communicating directly with you when the debt collector knows you are represented by counsel;
- communicating with you at your place of employment when the debt collector knows your employer prohibits such conversation;
- communicating with you after you notified the debt collector in writing to cease further communication;
- acting in a way which amounts to harassment or abuse;
- using false, deceptive, or misleading representations to collect a debt.
You may collect up to $1,000 per violation of the FDCPA. In addition, you may recover damages for emotional distress caused by the conduct.
A Chapter 7 or 13 Bankruptcy will stop a lawsuit and discharge the liability for the debt. However, you must qualify for a bankruptcy case. Contact an experienced bankruptcy attorney to determine whether you are eligible for bankruptcy relief.
If you have been served a complaint for an old credit card debt, and you want to learn more about your options, call the Law Office of Brent M. Myer, PLLC to schedule your free telephone consultation today!