There are many defenses that can be raised to a debt collection lawsuit, but there are four top defenses that are used by consumers when sued by a collector sues you. This post describes those defenses.
If you have been sued by a debt collector for a credit card or other consumer debt, the lawsuit the sheriff serves you with the collector’s initiating document, the Complaint. Under the Rules of Civil Procedure, you are entitled to respond by filing an Answer, a document that gives your side of the case and that states your defenses.
Each case is unique and there are an infinite number of defenses you may be able to raise depending on your case. There are, however, four common defenses to a lawsuit against a consumer for a credit card debt.
Collection Defense #1: The Collector Doesn’t Own the Debt.
The court rules say that any debt collector who files a lawsuit must be able to prove that it is the “real party in interest” under Mass. R. Civ. P. 17. In other words, the debt collector must prove that they own the debt. However, debts are usually sold to debt buyers are transferred for a fraction of their value, and little documentation is often provided to them.
Under the Massachusetts rules of evidence, you have the right to ask for the documentation substantiating a collector’s claim that it owns your account. What debt collectors provide in response often does not pass muster. Instead, they often provide incomplete documents, self-serving affidavits, or so-called bills of sale that don’t even reference your account. Under the rules of evidence, that’s not good enough, as has been repeatedly decided.
To prove ownership, a debt collector must provide a complete chain of title to your account. This includes all documents showing each and every transfer or assignment of the account from the original creditor, to each intermediate assignee, to the debt collector presently collecting it. Each assignment must correctly state the name of the original creditor, the dates of the transfers must not overlap, and the right to collect the account must have actually been transferred. Many documents are incomplete or nonexistent. Our office has seen assignments that do not guarantee ownership of the account, assignments with the consumer’s name missing, incomplete chains of assignment, and numerous other issues. None of that is good enough. When debt collectors file a lawsuit in court, they have to play by the court rules.
Collection Defense #2: Not My Debt.
If the debt isn’t yours, you don’t have to pay it. Debt collectors nevertheless often sue people who are not obligated to pay an account. There are a few ways this can happen.
First, the collector might have confused you with someone else. Consumers often do not recognize the account that they’re being sued for. Sometimes that’s because the account is so old it has been forgotten. It is also common for debt collectors to mix up the consumer with someone else.
Debt collectors usually use skip tracing services to track down consumers. Skip tracing usually involves using electronic databases to match names to addresses. No computer system is perfect, so skip tracers can confuse a consumer with another person who has a similar name. Debt collectors may not double check, so the wrong consumer can get sued.
Or, an identity thief might have opened the account. It’s easy for an identity thief to use your name and Social Security Number to open a credit account in your name. Whether a stranger or – more commonly – a friend or family member, this happens often. No matter who the identity thief is, you are not liable for unauthorized use of a credit card. If you are an identity theft victim, you may also need to file a police report or fill out an identity theft affidavit.
Finally, the debt collector might be suing an authorized user instead of the account holder. Though most credit cards allow a cardholder to get an additional card for a family member, authorized users are not legally liable for the debt. But, sometimes the authorized user get sued if the cardholder doesn’t pay. That’s not legal in most cases, though. Authorized users are not responsible for the cardholder’s debts.
If you’re sued for a debt that isn’t yours, you might reasonably ignore the lawsuit. Unfortunately, unless you defend against the collector in court, nothing prevents them from getting a judgment against you and then garnishing your pay or attaching money in your bank account. It’s vital to respond any time you receive a legal notice.
Collection Defense #3: Wrong Amount.
A third defense to a consumer credit card lawsuit is that the debt collector sued you for the wrong amount. Collectors will often provide credit card statements or other documentation which they claim supports a certain balance. This information is not infrequently wrong. Debts are usually purchased in bulk and the debt collectors are given incomplete information. They purchase debts for pennies on the dollar, so they really do get what they pay for.
According to one report, the amounts alleged to be owed by one collection law firm were wrong 20% of the time. That means 1 in 5 lawsuits was, in whole or in part, based on a lie.
Another debt collector, Portfolio Recovery Associates, once admitted that they don’t receive information about consumers’ payments made after charge-off because “if no one disputes we get our judgment.” They admit that they have incomplete information, but nobody stops them – so they just keep collecting.
It takes some work to prove this type of error, but when you can prove it, it’s worth it. To prove that the balance is incorrect requires reviewing documentation from the debt collector as well as your own bank statements. You have to do the math, calculate interest charges and payments, and disprove the amount in the collector’s lawsuit. Misrepresenting the amount due is a violation of the number of state and federal consumer protection laws, and debt collectors hate to be shown up in court.
Collection Defense #4: Incapacity or Duress.
The defenses of incapacity and of duress also prevent you from being liable for a credit card debt if you are sued by a debt collector.
The defense of incapacity says that you are not responsible for a credit card debt if you do not have legal capacity to enter into a cardholder contract. Incapacity exists if, when you entered into the agreement, you were a minor, your were intoxicated, or you were mentally disabled. Minority is when you are under 18. Intoxication makes the contract voidable if you were so inebriated you were not able to understand the nature and consequence of the transaction, as may mental illness. Once you are no longer a minor, or you sober up, or you are later deemed mentally competent, you can affirm the contract and become liable for it.
The defense of duress exists when the creditor used coercion to get you to agree, and the coercion was so strong that you lost the reasonable ability to accept or reject the offer. Most credit card companies don’t put a gun to your head, but this defense may come up in a medical situation when you could not receive treatment unless you signed a contract to incur medical debt.
Conclusion
Though this post talks about the top four defenses that are raised against debt collection lawsuits, each case is different and there may be many others. The most important thing to do if a collector sues you is to respond and stop them from getting a judgment against you. In most cases, you have to file an answer in court within 20 days of the sheriff serving you with it. Consult an experienced attorney for advice on what to do in your specific situation.
Culik Law is a Boston, Massachusetts consumer-protection law firm that defends against debt-collection lawsuits by debt collectors, debt buyers, and creditors. Our office has represented clients in cases involving virtually all major collectors active in Massachusetts. If you are having debt-collection issues, contact us to see if we can help.
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