Owing money from credit card debt is stressful enough without the creditors suing to be paid back! We all want to pay our bills, but occasionally hard times befall us. Here are some considerations that will help you determine if you should hire a lawyer, or if you’re able to handle this by yourself (PRO SE).
What are the first things I should look at once I know I’m being sued for Credit Card Debt?
Being served with a lawsuit, or seeing your name on a docket, can be extremely stressful. But there are a few initial considerations to take into account that can sop the suit in its tracks here and now. First of all, where do you live, and where was the suit filed? You’ll need to determine if VENUE and JURISDICTION are proper. A court must have authority over you in order to bind you to a ruling. If you file a response or appear in court, you have basically waived any jurisdictional argument, because you have ‘availed’ yourself to the court. If you, for example, live in Duval County and suit has been filed in Miami Dade, you need to raise this defense. Next, once you see you’ve been sued, determine under what CAUSE OF ACTION. Usually, this will be a COUNT (I, II, etc). There are time limits to bringing certain causes of action, and once they’ve passed, it’s too late to sue. In credit card debt cases, the two most common causes of action are BREACH OF CONTRACT and ACCOUNT STATED. The STATUTE OF LIMITATIONS on a Breach of Contract cause of action is five (5) years. For an Account stated cause of action, it’s four (4) years. If You have credit card debt that caused a credit card to be shut off in 2009, and someone is trying to sue you to recover on it today, they’re tough out of luck, and you should raise a STATUTE OF LIMITATIONS defense in your ANSWER (if applicable; more on this below).
The third thing to look at is the amount being sued for. There are different rules for small claims court (less than $5000) versus County and Civil Courts for higher amounts. In small claims court, you don’t have to answer the complaint once you’re served with it. There will be a mandatory PRE-TRIAL CONFERENCE set by the court. I’ll explain more about this later.
If the amount of the suit is more than $5000, then you need to REPLY to the complaint; one way to address this is called an ANSWER, in which you admit/ deny/ state without knowledge and raise any affirmative defenses you have. You have 20 days from the date of service to do this. If you’re nervous about answering incorrectly or raising appropriate affirmative defenses, then reach out to an attorney or make an appointment with your local legal aide, so that an appropriate response can be submitted with the assistance of counsel.
Before you file an answer or go to your pretrial conference
- You need to be served with the suit. Simply seeing the lawsuit online on the docket is not adequate proper notice to you as a Defendant, especially if your pro se.
- If you are sued, call the attorney or law office who signed the lawsuit. There are TONS of these cases, and they clog up the court system; most of them settle anyways, especially in small claims court at that mandatory pretrial we mentioned earlier. There is no reason to wait for the Pre-trial conference, or until a court hearing is set. Call now, be honest about what you can afford and see if they can work with you. Oftentimes, discounts are available off the balance due if paid back within a certain period of time (example, 75% of the debt if paid back within 24 months). Alternatively, many companies can extend debt repayment over up to 60 months, and there is often no interest compounding on the debt at this time.
It is also always a good idea to request a verification of the debt (VOD). This is asking the Plaintiff to prove that the debt is in fact yours. Make sure the last four of the social security numbers for you and the debtor meant to be sued match as well. There are a lot of Jose Gonzales’ and Jane Smiths out there, and mistakes happen.
- And Finally…If you are unable to settle, then you’ll attend the pretrial conference (the date will usually be on the subpoena attached to the service of process) if its small claims, or file an ANSWER, MOTION TO DISMISS or other response if its in regular court.
Basis for Motions to Dismiss include the jurisdictional and statute of limitations arguments addressed earlier.