Few things are as startling as being sued, especially when that suit is delivered by a credit union or a bank. But as alarming as it is to take on a bank or debt buyer, there are defenses available, even when the suit appears ironclad. Creditors have to maintain comprehensive records of all their clients’ debts and must follow a number of debt collection practices to preserve their advantageous legal position. A debt defense attorney is an expert at holding creditors to those tasks, forcing them to prove their claims regarding the defendant’s debts. In short, a debt defense attorney has the knowledge and skill to push back against aggressive creditors, and help maneuver their clients into a favorable settlement.
Every debt collection lawsuit generally begins the same way, whether it is delivered by a bank, credit card company or debt scavenger. The plaintiff “serves” the defendant with a “complaint” and a “summons.” The complaint outlines the nature of the debt and the amount owed, and the summons notifies the defendant when they may answer in court, if the defendant decides to mount a defense. Mounting that defense is almost always the correct move, even if the situation seems bleak. If a defendant ignores the summons, the creditor is much more likely to win a judgement against the debtor, and therefore the power of the legal system in pursuing the debt. It will be much more difficult to attain a more lenient settlement if the defendant allows the debt to default following a summons. Further, if a creditor wins a legal judgement, they can pursue more aggressive tactics like wage garnishment or even going after bank accounts.
However, mounting a proper defense will require experienced legal assistance. Prior to forming an answer and defense, consulting with a debt defense attorney should be considered a must. As reputable attorneys often offer free initial consultations, there is usually little risk to the debtor in pursuing one.
What options are available to debtors, and which defense works best against a credit card company? A bank? A debt scavenger? Here are some of the most common, and most effective, defenses that an attorney can pursue on their client’s behalf:
1. When dealing with a bank – The number one mistake defendants make is ignoring a complaint and summons. That will not make the suit go away and, as already mentioned, it puts the debtor in an even more precarious position. But it goes the other way, too. As soon as the debtor answers the summons, the bank is immediately put on notice to gather all information and proof they will need regarding the debt. That takes time, money and manpower.This is the correct approach no matter who is doing the suing, but it is particularly effective with banks, because banks want to settle. They have so many debts to handle and so many records to keep up with that they are often less inclined to aggressively pursue a suit. That doesn’t mean that a bank will always settle, but confident posturing can make the bank think twice. At the least, it will weaken their position when it does come time to settle.
2. When dealing with a credit card company or debt scavenger – Credit card companies tend to be more assertive in their debt collection approach, as they aren’t as involved in as many areas as a bank is. Credit card companies have extremely active debt collection people on their payroll, so pushing back against a suit is not enough to shake them into a settlement.However, credit card companies are often plagued with disorganization, and this is the pressure point for defendants and their attorneys. Before anyone is required by the court to pay on a debt, the creditor must first prove that they own the right to pursue the debt. The creditor must also prove the debt’s validity and that the defendant is actually the one who must pay it. This requires extensive record keeping, and though credit card companies do their best to keep those records in order, they often fail the test when asked to present information for a single account.This is even more pronounced among debt scavengers, who frequently fail to gather all relevant account information when they purchase debt from others. As scavengers tend to buy debtor accounts in bulk, it’s typical for some of the critical details to be left out for a single account. Defendants can attack this lax attitude, and force the scavenger or credit card companies to show the required records.Also, credit card companies and debt scavengers (and banks, for that matter), must follow FDCPA regulations in pursuing collections from debtors. The FDCPA applies broadly to anyone employed or hired by the companies attempting to collect on the debt. That includes attorneys hired to file suit.The FDCPA sets standards for when and where debt collectors can contact the debtor. Specifically, the collector may not call before 8 a.m. or after 9 p.m., unless the debtor states that a call outside of those times is allowed. Collectors may contact the debtor at work or home, but if the debtor tells the collector to stop contacting them at work, the collector must do so. If a collector does not have the debtor’s contact information, they may contact the debtor’s relatives or associates to get that information, but in doing so, the collector is not allowed to disclose any details associated with the debt.If a collector violates these FDCPA rules (and many do, believing that the defendant won’t know any better), then a suit may be thrown out entirely. In fact, the defendant may countersue in some cases for egregious violations. Debt scavengers often take their chances violating FDCPA rules, hoping that this approach will help them win more than they lose.
3. When dealing with an attorney – Attorneys are held to the same regulations as mentioned above, so they must adhere to FDCPA rules as well. When handling an attorney directly, though, the one thing to consider is statute of limitations.Credit card companies, debt scavengers and banks will bend the rules to collect on debts, hoping that their prey isn’t aware of what those regulations are, and what they state. Aggressive attorneys sometimes try to play this trick as well, by ignoring the fact that a defendant is no longer allowed to be sued for a debt, under the statute of limitations. Those attorneys believe (and are often correct in believing) that the defendant won’t be aware that their debt has passed through the statute of limitations, and will give in. This does happen, so if several years have passed since the debt was last paid on, verify with the help of a debt defense attorney that it is still an active debt, for the purposes of a lawsuit.
There are additional defenses beyond these, such as contractual violations and fraudulent charges or practices. The important note is that there are options when being sued by a credit card company, bank or other collector, and a debt defense attorney knows how to best employ them for their client’s benefit.
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