Creditor Lawsuits Creditor Lawsuits

If a Lawsuit Is Filed

Other Affirmative Defenses

Remember when we talked about affirmative defenses, like disputing a debt? In most credit card debt lawsuits, creditors do not respond—either fully or at all—to a number of affirmative defenses. Their lack of response may work in your favor. Here are a few examples of affirmative defenses:

  1. Failure to respond to billing error disputes. If you filed a billing error dispute and the original creditor did not respond adequately, you may be able to show that the debt is (at least partially) under dispute and therefore no judgment should be awarded.
  2. Failure of consideration. Remember in the Debt Relief section you learned that your signature on a credit card contract is monetized and effectively funds your account? You gave the credit card company value by signing their contract. What did you get in return? A piece of plastic.
  3. Credit card agreements can be unconscionable. The terms of most credit card agreements are incredibly one-sided and can be changed at any time by the credit card company. Sometimes they are so one-sided that a judge will decide the credit card company in effect took advantage of you.
  4. Failure to validate and subject matter jurisdiction. Once you request verification and validation, if the information provided by the credit card company is not sufficient, they are barred under the FDCPA from pursuing debt collection activities. Since the FDCPA is federal, not civil, the civil court lacks subject matter jurisdiction.
  5. Assumption of risk. The premise of this defense is that the credit card company and debt collector assumes the risk of offering credit, and assumes the risk of failing to collect on that debt.

One affirmative defense you will almost always be able to use is to claim the plaintiff's attorney has violated the FDCPA by not validating the debt (since in most cases, the debt will not have been validated in an appropriate manner). A violation of the FDCPA is a denial of the due process rights guaranteed to you, creating a major obstacle for the debt collector to overcome.

During discovery the debt collector's attorney will almost always file a motion for summary judgment—they want the judge to decide the case without a hearing. If you have reasonable affirmative defenses, the likelihood of a summary judgment is slim; the judge will feel you deserve the right to be heard in court. If the debt collector's attorney fails to respond sufficiently to your requests for discovery, you may be able to file for your own summary judgment and have the case dismissed.

As you can tell, the debt litigation process is like a game—you just have to know the rules. This overview is not exhaustive by any means, but it is meant to orient you in the overall process. Again, you probably shouldn't try to deal with a debt collection lawsuit all alone. Request a free consultation from our Lawsuit Defense Partner Program.

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