How do I respond to a lawsuit for credit card debt?
Full Question:
Answer:
When a person is served with a complaint for a debt, he needs to file an answer to the complaint within the specified time, or else the plaintiff will win a default, or automatic, judgment in its favor. The discovery process is used to gather information from an opposing party, such as copies of business records, information in answer to written questions. etc. If the plaintiff gets a judgment against you for money and you are unable to pay it, the plaintiff can ask the court to create a judgment lien, and assets, such as bank accounts, can be attached, wages may be garnished, etc.
At a hearing, the defendant should appear on time and be properly dressed. Any documentation regarding the debts should be brought, such as receipts, billing statements, letters, memos, etc. The most common defenses to collection of a credit card debt include the statute of limitations, statute of frauds, waiver, estoppel, improper plaintiff, improper defendant, invalid debt transfer, violation of bankruptcy discharge, and violation of the Fair Debt Collection Practices Act. The defendant should address the court in a respectful manner and state the facts in a calm and succinct manner, avoiding being long-winded. Outbursts of temper should be avoided.
In some cases, a debtor may be able to negotiate a settlement with the debtor, although this is more difficult once a suit has been filed. In some cases, the creditor may settle for a lesser amount if the debtor is insolvent, since a promise to pay something is better than collecting nothing. These types of agreements are called an accord and satisfaction. If it is possible, a debtor should get a release included in such an agreement so that the creditor may not pursue the full balance of the debt claimed.
The following is from the Fair Debt Collections Practices Act:
§ 809. Validation of debts [15 USC 1692g] (a) Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing --
(1) the amount of the debt;
(2) the name of the creditor to whom the debt is owed;
(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;
(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and
(5) a statement that, upon the consumer's written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.
(b) If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.
(c) The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.
