Reestablishing their good credit score is a top priority for most debtors. One way to do just that is by paying your current obligations on time: your mortgage, your car note and any other secured debts that you may have. Responsible use of credit cards is another good way to raise your credit[…]
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:
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.
Speak with an experienced Bankruptcy Attorney at Faro & Crowder, PA 321-784-8158
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 or credit card 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 a Brevard County Bankruptcy Attorney at Faro & Crowder, PA