A credit card company has sued you for credit card debt, and you wonder: What can I do? In this post, I’ll describe various courses of action you can take.
First, see if you really owe the money for which they are suing you.
If you do not owe the money
If you do not believe that you owe the money, you may be able to show the Court that you don’t owe the money. If there are any records that you do not have, then, the credit card company will be required to provide these records to you. You may send what are called “discovery requests” to the credit card company. In Oklahoma, any party in a civil lawsuit may send discovery requests to the other party. In discovery requests, you can ask the other party to provide you any information relevant to the lawsuit. If they don’t provide the information to you within thirty days, the judge can penalize the credit card company by ordering the company to pay your attorney’s fees.
You may also take the “deposition” of a representative or the credit card company. A deposition is where you subpoena someone to appear at a certain time or place and give oral, sworn testimony. In a deposition, you may ask the credit card company’s attorney about information relevant to your case.
If you believe that you do not owe the credit card company the amount that they claim you owe them, you may ask the Court to set the matter for trial. At the trial, the credit card company can put on evidence, and you can put on evidence. If the amount in controversy is worth more than $1,500, then you have the right to a jury trial.
At trial, the credit card company has the burden of proof. That means that the credit card company has to prove that you owe them money – you don’t have to prove that you don’t owe the money. If they can’t prove that you owe the money, the judge should rule that you don’t have to pay them. The credit card company must prove their case by a “preponderance of the evidence” – that is, they must prove that it is more likely than not (51%) that you owe the money. (In a criminal case, by contrast, the state has to prove their case is true “beyond a reasonable doubt.”)
Often, in credit card collection cases, the credit card company will try to avoid a trial by filing a “motion for summary judgment.” On a motion for summary judgment, the party filing the motion will argue that, with all of the affidavits and documentation on file with the court, there is really no dispute as to “material facts” and therefore a trial is not needed. If the credit card company can prove that there really is no dispute as to material fact, then the judge should grant the motion for summary judgment and order you to pay. If you can prove there is a dispute as to material facts, then the judge should deny the motion for summary judgment.
Often, in litigation, the parties will go to “mediation.” In a mediation, you and the credit card company, as well as your attorneys, will meet with a third party neutral called a mediator. The mediator is not like a judge, in that he cannot order you or the credit card company to do anything. But he can try to guide you toward a settlement. For more information on mediation, read my earlier post here.
If you don’t settle the case in mediation, and the judge makes a ruling (either at trial or in a motion for summary judgment) then, the loser may appeal the case to the Oklahoma Supreme Court. If neither party got all the relief they wanted, then both parties may file appeals. For information about the appeals process in Oklahoma, click here.
At any point during the litigation – discovery, deposition, mediation, trial, appeal, etc. – you have the right to have an attorney represent you. (You don’t have the right to a court appointed attorney, as a credit card lawsuit is not a criminal case. But you do have the right to retain an attorney at your own expense.) You also have the right to represent yourself. It may be best to have an attorney, as litigation can be complicated.
If you do owe the money
If you owe the money, there may be no sense trying to contest the debt. If you owe the money, you can try to enter into a payment plan with the credit card company. A credit card company may want to avoid the expense of a contested lawsuit, so they may be willing to settle for an amount less than the balance you owe.
If you can’t enter a payment plan, then the credit card company can ask the judge to hold an asset hearing, in which the judge will order a payment plan. Since the judge will likely order a payment schedule you don’t like, it’s best to try to work out a payment plan yourself.
You have the right to have an attorney represent you in a negotiated settlement, just as in a contested case.
Also, even if you owe the money, you may have some defenses to avoid payment. If the credit card company did not give you proper notice of the claim, that may be a defense. If the credit card company filed suit after the statute of limitations, that may bar their claim. To read about the statute of limitations in Oklahoma, read my post here. Or, if the credit card company violated the Fair Debt Collection Practice Act, you may be able to defend yourself on that ground.
Need help? Contact the Persaud Law Office
Whether you have a defense depends on all the facts of a particular lawsuit. The number of defenses that a defendant can potentially use is limitless – there are too many available defenses to list here. To see if you have a defense in your case, you may want to contact a lawyer. The Persaud Law Office has represented many clients in debt collection cases. We’ve negotiated many deals with creditors. If you would like assistance in a credit card collection case, feel free to contact our office.