Learn about your options when filing a Bankruptcy in Brevard County
An important benefit of filing for bankruptcy protection is that the automatic stay goes into effect immediately upon the filing of your petition. The stay prevents creditors from continuing any collection efforts against you while your[…]
If you are one of the thousands of consumers that is facing overwhelming credit card debt, it may be time to consider filing a personal bankruptcy case. Filing a Chapter 7 or Chapter 13 can allow you to eliminate or discharge your credit card debt and obtain a fresh financial start. However, if filing for bankruptcy protection is not an option for you and collection lawsuits are being filed against you, it is important to confer with an experienced attorney regarding the defenses that may be available to you. Below are a few defenses to a collection lawsuit that might be available to you:
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Improper service. If you are not validly served with the summons and complaint, you have an effective defense (if timely alleged).
Statute of Limitations. The plaintiff seeking a monetary judgment against you must file the lawsuit by a certain deadline or it is time barred. You have a defense if the debt has gone “stale” and the creditor has lost its right to sue you to collect it.
Improper plaintiff. The party suing you must have the right to sue you. In other words, the plaintiff must be owner of your debt. This means that if your account was sold to a collection agent and the original creditor failed to properly transfer the documentation evidencing your debt, it may be possible to get the suit against you dismissed.
Wrong defendant. If you can prove that you did not incur the debt and that it does not belong to you, the court may dismiss the lawsuit.
Debt discharged. If you filed a prior personal Chapter 7 or Chapter 13 case and included the debt in your filing, proving the debt was discharged will prevent the creditor from proceeding with the lawsuit against you to collect it.
Identity theft. If the debt was incurred as a result of you being the victim of identity fraud, it is a valid defense to the lawsuit.
Accounting errors. You may have a partial or full defense if the plaintiff failed to correctly credit your account with payments or made some other accounting errors.
Unlawful debt collection. If the plaintiff used illegal debt collection practices against you, we can help you allege a counterclaim in the lawsuit. This means that you file a claim against the plaintiff seeking money damages which can be used to offset the amount you owe the plaintiff.
If you are interested in learning whether one or more of the above defenses are available to you, please contact us to schedule an appointment. Our office is located in Melbourne, but we proudly serve individuals and businesses across the State of Florida.
If you have been sued by a creditor and you did not appear or file a timely answer with the court, it is likely a default judgment has been entered against you. Many people just “give up” when this happens and believe there is nothing that can be done about it. However, many times there are good excuses for why you failed to appear or file an answer. If this is true for you, we can help you seek to have the default judgment set aside.
There are two primary types of “good cause” for failing to respond to a lawsuit, which are (i) there was a defect in the process that led to the default judgment, or (ii) you have a “reasonable excuse.” Additionally, you must be able to demonstrate that you have valid defenses to the plaintiff’s claims against you.
If there was a procedural defect or an irregularity in the proceedings which caused the default, it can constitute sufficient good cause for failing to appear. For example, if you were not properly served with the summons and petition or complaint. Common examples of improper service include leaving the court documents with a minor at your residence who fails to give them to you, serving somebody with your same name and you never receive the papers, or mailing the papers by certified mail to an improper address.
There are a variety of reasonable excuses that may have prevented you from participating in the lawsuit against you. For example, if you were in a serious car accident on the way to attend your hearing, the judge will find that to be a reasonable excuse for setting aside the default judgment against you.
You must also be able to inform the court that you have valid defenses against the plaintiff’s allegations in order for the default judgment to be set aside. This means that you must be able to explain why you should be granted another day in court. Let one of our attorneys help you determine if you have valid defenses to the collection case.
Call us today to schedule your initial consultation. Our office is located in Melbourne, but we proudly serve individuals and businesses across the State of Florida.
If you are drowning in credit card debt but you want to avoid filing a Chapter 7 or Chapter 13 case, we can help you discover the wide variety of defenses that may be available to you. It is imperative that you contact us as soon as possible because there is a strict deadline for submitting these defenses or they will be deemed to have been waived. Below are a few examples of defenses that may be available to you in a debt collection lawsuit:
Improper service. The law requires a creditor to follow strict requirements when serving you with a lawsuit. If you can establish that service of process to you was invalid, it is a valid defense.
Statute of limitations. A credit card company has a deadline for filing the lawsuit to collect the debt from you. If the statute of limitations for collecting the debt has expired, the lawsuit can be dismissed.
Standing. It is common for credit card debt to be sold to debt collectors or debt buyers, so it is also common for the supporting loan documentation to not get transferred properly. In other words, if the creditor cannot prove that it owes the debt, the lawsuit can be dismissed.
Discharge. If you filed a prior Chapter 7 of Chapter 13 bankruptcy case and included the collector’s debt in your filing and it was discharged by the court, the collection lawsuit is prohibited.
Identity fraud. If your identity was stolen or the debt does not belong to you, it can be a valid defense.
Accounting error. If you can prove that the plaintiff has sued you for an incorrect amount, you have a valid defense. This may include the creditor failing to properly apply your payments or charging fees you do not owe.
Abusive tactics. If a debt collector that has illegally harassed you or been abusive in its attempts to collect the debt from you, you can file a counterclaim seeking to recover monetary damages.
Contact Faro & Crowder, PA today to schedule a consultation