This article is the second piece I have written on defeating credit card lawsuits in court. Similar to a defense (really a discovery request) in foreclosure lawsuits where you ask the lender to “show me the note”, you request the credit card company to produce the credit application to prove a contract between you and the credit card company.
Disclaimer: this article is not legal advice, especially outside the state of South Carolina. Remember in court cases, the burden of proof is on the Plaintiff to prove their case. If they cannot prove their case, they lose. The protections to a Defendant in a civil case are the same as those that protect the Defendant in a criminal case. The only difference is that the burden of proof in a civil case is much lower than that needed to prove a criminal Defendant guilty. Still, there are consumer protections and the credit card company must prove their case in court.
The biggest thing a credit card company must prove in their lawsuit against you is that there is a contract between you and them; this is shown by the credit application. A credit card company needs to present this to the Court as an exhibit to prove the terms of the contract between you and them. If there is no contract, there is no breach of contract and no case.
Credit card companies are very similar to bullies on the playground. If you fight back, they will back off. They are unlikely to spend the time and resources to fight you in court because it is not efficient for them to do so. When I argued the previous case that I talked to you about in my last article, (http://bizcovering.com/business/legal-defense-techniques-on-credit-cards-statute-of-limitations/) the attorney told me “off the record” that he hoped I would win my Motion for Summary Judgment. He also said in open court that he was not even going to bring a witness from the credit card company to testify! Any evidence he would introduce would be hearsay, and therefore, not admissible! He was admitting that the credit card company was not willing to fight. They are only interested in the default judgment which they get most of the time.
I used this technique well in another case. A man was sued for credit card debt of $20,000. He thinks that his ex-wife signed the credit application in his name. I filed an Answer and Request for the credit application. (Note: You must file your Answer which denies the allegations of the Complaint of the lawsuit. Then, you file discovery requests, i.e. the loan application). The lender could not come up with the credit application. A few months later, they asked for a mutual dismissal of the case. Case closed! The $500 that he spent saved him a $20,000 judgment against him. Know your rights and fight for them! Hiring an attorney who knows those rights is a good idea.
Jack Donlan is the pen name for William H. Sloan, a civil defense attorney in South Carolina. He can be reached at 843-873-7531
Published in: Personal Finance