Credit card lawsuit abuse
-Have you been sued (or threatened with suit) for an old
credit card debt?
-Have you been sued by someone
other than the original creditor?
-Sued by some company with an odd sounding
name like AIS Services, Asset Acceptance, CACH, Credigy, Commonwealth, Dodeka, Pharia, Portfolio Recovery Associates or
the debt past the statute of limitations?
you already pay off or settle the debt and still they are suing you?
-Perhaps you had a credit card but have your doubts that these people are the rightful owners
of the debt?
-Are they making threats
to take your home or put you in jail?
like it is a shakedown?
-Feeling overwhelmed and
needing to hire a lawyer?
I can help you.
Part One: About
Civil litigation is a major
part of my law practice and I have been a litigator for 15 years. Generally I do not represent
debtors. I am not a debt relief agency or credit card debt consolidator. Rather, I am
a business lawyer. Debt collection is only a small part of my practice, and typically when I handle debt
collection cases, I represent small businesses who are trying to collect a bill. I seldom represent consumer
But I make an exception
when debt collection agencies abuse the legal process, break the law, and clog the courts with junk lawsuits.
In those instances, I am eager to turn the tables and put the hurt on these scoundrels and their lawyers.
There are no guarantees, but if the facts are good, I may be able to get your case dismissed and possibly may recover
your attorney’s fees and even get you an award of damages. These are not big cases, but I’ll
take them anyhow. Your case may not be big, but I’ll bet it is important to you. I
take these cases seriously.
Two: The Statute of Limitations
First, let’s talk about the statute of limitations. There are time limits
on filing a lawsuit. These are called “statute of limitations.” If you were
living in Texas when you signed up for a credit card, then Texas law probably applies to your case. Under
Texas law, the statute of limitations on credit card debt is four years. Four years from when?
Four years from when you breached your contractual obligation to pay the credit card bill. If more
than four years have passed since your credit card became past due and you have not made a payment since then, you may be
in luck. The statute of limitations has probably run. If the credit card company did not file the lawsuit
until after these four years, then you should be able to get the case dismissed.
Unfortunately, there are things you can do to reset the statute of limitations clock.
If you defaulted more than four years ago, but at some point less than four years ago you sent in a payment, even a
tiny payment, you’ve just reset the clock. If you affirm the debt in writing, you’ve just reset
the clock. Debt collectors will try to trick you into doing these things.
The statute of limitations is an affirmative defense. This means
you have to raise the defense in your answer to the lawsuit. You also have the burden of proof on this
defense. This is something you should be able to prove by looking through your bank records and credit
card records. At the very least, you need to be willing to testify under oath that it was more than four
years. Sometimes, the companies bringing these lawsuits don’t have sufficient records to prove when
the default occurred, and thus can’t dispute your statute of limitations defense, but you should not count on that.
If it is the original credit card company who is bringing the lawsuit, it is very likely they have records.
On the other hand, if your credit card debt has been sold, the debt collection company who bought your debt may not
have the necessary records to prove when your default occurred. The more times it has been sold, the more
likely it is they don’t have the records.
Three: Do it Yourself Defense?
If you can prove that your debt is past the statute of limitations, you should be able to get
the case dismissed. Can you do this yourself, without a lawyer? Probably not.
It is very likely that the lawsuit included a set of “requests for admissions.” These
are often included in the petition and many people who represent themselves don’t realize they have to answer these.
The requests are intended to get you to admit every single fact the creditor needs to win its case. If
you don’t answer them correctly or on time, you will probably lose your case.
They have other tricks, too. They often
try to characterize the lawsuit as a “sworn account.” While a sworn account cannot be brought
for a credit card debt, they do it anyhow, and you have to know how to challenge this. You can’t
answer a sworn account with just a general denial. You either have to file a verified denial, or you have
to show the court that it is not actually a sworn account. And who knows what other tricks they will play
as the case progresses. Do you think these people play fair? I assure you they do not.
You need to know what you are doing.
Part Four: The Fair Debt Collection Practices Act
If a debt collector sues you (or even threatens to sue
you) for a debt that it knew (or should have known) was past the statute of limitations, that is a violation of the Federal
Fair Debt Collection Practices Act (FDCPA). If you can prove they violated the FDCPA, you can sue them
for actual damages, statutory damages of $1,000, and attorney’s fees.
Other violations of the FDCPA include making threats to put a lien on your homestead,
threats to have you arrested, misrepresenting themselves as law enforcement or a government agency, calling you at odd hours,
refusing to verify the debt, and so on. There is a whole list of bad behavior that violates the FDCPA.
If you hire me, I will go through the facts of your case with you to see if you have a FDCPA claim.
Filing a countersuit for violation of the FDCPA can be
a very effective strategy, and it is the main method by which you can recover attorney’s fees and damages in these cases.
Part Five: Other Defenses
As I mentioned above, sometimes these debt collection
companies don’t seem to have any records to prove their case. Now, they usually attach some kind
of affidavit or record to their petition to make it look like they have proof, but most of the time I find serious defects
in these records that I think makes them inadmissible. Before you pay a debt, you need to know that the
person suing you is the actual owner of the debt, and you need to know that they are suing you for the correct amount.
I have managed to get cases dismissed when the creditor could not or would not prove the debt.
Sometimes, however, they do manage to prove the debt,
there is no statute of limitations defense, and the violations of the FDCPA, if any, add up to less than what you are being
sued for. In those cases, settlement might be an option, though I have seen them dismiss even those cases
I thought they might be able to win. Just giving up and letting them take a default judgment against you or bully you into
a big settlement is a poor option. With representation from a good lawyer, you can do better than that.
You can also try negotiating with them yourself.
If it is a small case, it may not be cost effective for you to hire a lawyer. Bear in mind, however,
that you have a deadline to answer the lawsuit, and if you mess up in your answer to the lawsuit, they may take advantage
of that even while you are negotiating with them. Tips for negotiating yourself: (1)
get everything in writing; (2) don’t admit anything; and (3) avoid giving them personal information or “spilling
your guts.” Just keep it business-like, and be prepared to deal with someone who might very well
be rude, unpleasant to deal with, totally dishonest and possibly psychotic. You would think that offering
money to someone would make them friendly, but many of these debt collection people are just plain rude and unprofessional
all the time.
Part Six: Contacting
You are probably wondering
what it will cost to hire me. After you and I have discussed your case, I will be glad to explain my fees
to you. I won’t charge you anything to call or email me to discuss whether or not I am willing to
take your case. I won’t charge you anything to discuss my fee arrangements. The
call is free.
If you are thinking of hiring
me, don’t delay. The deadline to answer a lawsuit is pretty short, and it is really short in the
justice of the peace courts.
Seven: Information I Need
If you email me or call me, please have the following information ready:
-your name, address and telephone number;
-the geographic location of the court and the name of the court;
-the date on which you were served with the lawsuit;
-the last date on which you paid the credit card;
-the date the lawsuit was filed (look up in the top right
corner of the first page of the petition for a date stamp);
-the amount for which you are being sued;
-the name of the lawfirm or lawyer who is suing you; and
-the name of the plaintiff who is suing you.
Part Eight: Past Outcomes
Past outcomes or results are no guarantee or prediction
of your results. Each case is unique and the outcome depends on the facts and other factors.
Having said that, people nevertheless want to know what
kind of results I have obtained in these cases.
the most common result is that I get the case dismissed without my client paying any money to the debt collector. I
have never lost one of these cases.
cases, I also am able to recover damages and attorney’s fees. To get damages and attorney’s
fees takes a stronger case than those that just result in a dismissal. We have to be able to prove that
the debt collector knowingly violated the FDCPA or otherwise acted carelesssly or in bad faith. If I recover a sufficient
amount of attorney’s fees on the counterclaim, then my representation ends up being free for my client, and any damages
collected are paid directly to my clients.