How to Beat a Credit Card Lawsuit

Three Parts:Responding to the ComplaintBuilding Your DefenseDefending Yourself at Trial

If you are sued by a credit card company, then you should begin planning your defense right away. You certainly have a good shot of beating the lawsuit. As many as 90% of all plaintiffs in a credit card lawsuit have trouble proving that the defendants actually owe them money.[1] To begin your defense, closely read the documents the credit card company sends you. Then try to meet with a lawyer to get expert legal advice.

Part 1
Responding to the Complaint

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    Read the complaint. Your credit card company will start the lawsuit by filing a complaint in court.[2] As the party bringing the lawsuit, the credit card company is the “plaintiff.” The complaint is a legal document which describes the facts giving rise to the lawsuit. You should read the complaint closely.
    • You also might be sued by a debt collection company which has bought the debt. The defenses you can raise will differ slightly depending on who is suing you. For now, simply read the complaint to find out why you are being sued.
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    Note the deadlines for responding. You should receive a summons along with the complaint. The summons will tell you how much time you have to respond to the lawsuit. You should note this date.
    • If you fail to respond to the lawsuit, then the plaintiff can get a default judgment. With a default judgment, you lose the lawsuit without even having a chance to defend yourself. In some states, the plaintiff can then garnish your wages.[3]
    • Default judgments are difficult to set aside. For this reason, you should commit to filing an answer before the deadline.
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    Meet with an attorney. To build the best defense, you should meet with a qualified attorney. A lawyer will listen to you describe your situation and offer tailored advice as to how to beat the lawsuit.[4] To find a qualified lawyer, you should contact your local bar association, which should offer a referral.
    • You can also visit the National Association of Consumer Advocates website. It has an attorney search feature.
    • If money is tight, you should still try to meet for an initial consultation. Many lawyers will offer a half-hour consultation for a small fee ($50 or so). During the consultation, you can ask for the lawyer’s advice about how to defend yourself.
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    Draft your answer. You will respond to the complaint by filing an answer. In your answer, you admit or deny each allegation. You can also state that you have insufficient knowledge to admit or deny any allegation.[5]
    • Your courthouse might have a “fill in the blank” answer form already printed. Stop into your court and ask the court clerk. If not, then ask if the court has a sample answer you could use as a guide. Be sure to revise the sample to fit your circumstances.
    • In your answer, you should state whether you request a jury trial or not. If the plaintiff chose a jury trial, then you won’t need to request one. However, if the plaintiff has not chosen a jury trial in its complaint, then it is up to you whether or not you have a jury.
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    Include any affirmative defenses. You should also put your affirmative defenses in your answer. With an affirmative defense, you basically are arguing that the plaintiff should lose even if everything it says in the complaint is true. Common affirmative defenses include:[6]
    • The plaintiff waited too long to sue. Every state has a statute of limitations, which is the maximum amount of time someone has to sue you. The statute of limitations for debt collection will differ by state. However, if the plaintiff waited too long, you can have the judge dismiss the lawsuit.[7]
    • The plaintiff hasn’t stated a valid claim. Typically, the plaintiff must attach to the complaint enough documents that show a valid contract. For example, a debt collection agency must show that it bought the right to sue on a valid debt. If the plaintiff didn’t attach these documents, then you can state that it hasn’t made out a valid claim. Even if the plaintiff does attach documents, you should still raise this defense.
    • You weren’t served the complaint properly. Each state also requires that you be served a copy of the complaint in a particular way. For example, New York requires that the person filing a lawsuit serve a copy either in person or by leaving the complaint with a person in your home (while mailing you a second copy). The plaintiff can’t simply mail you the complaint and summons or leave a copy with your neighbor next door. If you were improperly served, then you can raise that fact as a defense.[8]
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    Include counterclaims. In your answer, you can also raise any claims that you have against the credit card company or debt collector. [9] Federal law prohibits debt collectors from engaging in abusive behavior. If the plaintiff has done any of the following, then you can bring a counterclaim for $1,000 for each violation:[10]
    • Contacts third parties about your debt. There are a few narrow exceptions, such as contacting your attorney. However, if the plaintiff calls your boss or family members, then you should bring a counterclaim.
    • Calls you at inconvenient times. Generally, if the plaintiff calls before 8:00 am or after 9:00 pm, you should then sue them for violating the law.
    • Threatens violence or uses actual violence. You can easily bring a counterclaim.
    • Uses abusive, profane, or obscene language.
    • Does not identify itself as the debt collector when calling you.
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    File your answer. After you complete your answer, you should make several copies and take them to the court clerk. Ask to file.[11]
    • You may have to pay a filing fee, depending on the court. Ask the clerk.
    • If you cannot afford the fee, then request a fee waiver form.
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    Serve a copy on the plaintiff. You need to send the plaintiff a copy of your answer. Ask the court clerk for acceptable methods of service. Be sure to send the answer to the plaintiff’s attorney.[12] Generally, you can serve a copy in the following ways:
    • By mail. You often can mail a copy of the answer certified mail, return receipt requested.
    • Personal service. You can typically have someone 18 or older personally serve the answer on the plaintiff. This person cannot be you. Instead, many people hire process servers to make service. You can find a process server in the phone book or on the Internet. They typically charge $45-75 per service.
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    File your proof of service form. Most courts will require that you sign a form indicating that you served a copy of the answer on the plaintiff. Ask the court clerk for this form.
    • Whoever makes service needs to fill out the form and return it to you. You then must file it with the court.
    • Keep a copy of this form for your records.

Part 2
Building Your Defense

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    Go through your financial records. If you have been sued for failure to pay your bill, you should try to gather evidence that you have made payment. You can beat the lawsuit if you show you have paid in full.[13]
    • Look for cancelled checks. The credit card company might have cashed your check but applied the money to another person’s account. Gather any proof that you have paid.
    • Find any correspondence from the credit card company. It might have sent you an email stating that it received your payment. If so, you can use this email as evidence that you paid.
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    Read your card member agreement. The agreement might also state that you are not in default until your payment is 60 days past due. If the credit card company tries to sue you before you contractually are in default, then you can defeat the lawsuit.
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    Request documents from the plaintiff. After you file your answer, the lawsuit enters the “discovery” stage. During discovery, you can request documents from the plaintiff. If you are being sued by a collection agency, then you should request documents that prove the agency bought a valid debt. You should find out if the debt buyer can prove the existence of a valid debt by requesting copies of the following:[14]
    • The underlying contract. Often, the plaintiff won’t even attach a copy to the complaint. Instead, it will attach a sample of terms and conditions. Sometimes, these documents were printed years after you opened your credit card account. In order to sue you, however, the plaintiff needs to come forward with a valid contract. If the plaintiff can’t produce the contract, then you might be able to win summary judgment.
    • Bills of sale. The plaintiff needs to show that it has a valid title to the debt. If the plaintiff bought the debt from another debt buyer, you need every bill of sale all the way back to the credit card company. Request each bill of sale. If there is a break in the chain of title, then you can win your lawsuit.
    • A copy of the debt buyer’s license. If you are sued by a collection agency, then it usually must be licensed by the state or city in which it operates. Ask for a copy of its license.
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    Get evidence of identity theft. Someone might have stolen your identity and then taken out the credit card at issue. In this situation, you should gather whatever evidence you have of the identity theft:
    • a copy of the police report when you reported the identity theft
    • any communication with a credit reporting agency, when you challenged erroneous information on your credit report
    • any communication to the Federal Trade Commission reporting the identity theft
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    File a motion for summary judgment. You might be able to beat the lawsuit without ever having to go into court. For example, if the debt collection agency cannot show that it legally owns your debt, you could file a motion for summary judgment. You could also file for summary judgment if you were the victim of identity theft and the credit card company cannot prove you signed up for the credit card.
    • In your motion, you argue that there are no meaningful facts in dispute and you are entitled to judgment as a matter of law.[15] If you win, then the judge dismisses the case and the plaintiff can’t refile it.
    • You should hire a lawyer to draft this motion for you. Summary judgment motions are complicated and require familiarity with your state’s law. Call an attorney and ask if he or she offers “unbundled” legal services. If they do, then you can often hire them to do discrete tasks, such as writing the motion or representing you later at trial.

Part 3
Defending Yourself at Trial

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    Dress appropriately. You should look professional and pulled together for your trial. Remember that the judge and jury will form impressions about you immediately, based primarily on how you look. You want to appear as if you have just come from a professional job.
    • Men should wear suits, if possible. If men don’t have a suit, then they should wear dress pants with a collared shirt.
    • Women should wear pant or skirt suits. Alternately, women can wear a conservative dress or dress pants with a nice sweater or blouse.
    • For more tips on dressing your best for court, see Dress for a Court Hearing.
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    Pick a jury. You have the right to a jury trial. If either you or the plaintiff chose a jury trial, then you will have to select the jury during a process called “voir dire.”
    • The judge begins voir dire by calling a panel of prospective jurors to sit in the jury box. The judge then asks the jurors a series of questions, such as whether they can be fair. If a juror admits that he can’t be fair—or if he actually knows you or the plaintiff—then you should ask the judge to excuse the juror.
    • You might also get a limited number of “peremptory challenges.” With a peremptory challenge, you can remove the prospective juror without having to give the judge a reason. You can excuse jurors for any reason other than because of the juror’s race, gender, or ethnicity.[16]
    • In your credit card lawsuit, you might want to excuse any juror who works for a credit card company, bank, or other financial institution. They might not be sympathetic to your case.
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    Deliver your opening statement. After the jury is sworn in, you will begin the trial by making an opening statement. As the defendant, you go second. You should use your opening statement to give the jury a roadmap of what the evidence will be and why it is significant.[17]
    • For example, your defense might be that you already paid the debt. In this situation, you will want to tell the jury what evidence you will present. You could say, “As the evidence will show, the plaintiff cashed a check numbered 858 on April 15, 2014. As the evidence will also show, the sum total was credited to April Y. Smith, not April S. Smith.”
    • Avoid presenting arguments in your opening statement. Stick solely to the facts you will present.[18]
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    Testify at trial. You might testify in your own defense. If you hired an attorney, then he or she can question you. If you do not have a lawyer, then the judge might let you deliver a statement to the jury before the credit card company’s attorney cross-examines you.
    • Testifying can be difficult, especially if you have never done it before. You may be very nervous about cross-examination, which is not unusual. Remember the following tips to be an effective witness:[19]
      • Listen closely to the question, and try to only answer the question asked. Avoid volunteering any information that is unnecessary to answering the question.
      • Never guess. If you don’t know the answer to a question, then say, “I don’t know. I’d have to guess.”
      • Speak clearly. Sit up straight and look at the lawyer when asked a question. When answering, try to make eye contact with the jury.
      • Stay calm. You will lose credibility with the jury if you let the plaintiff’s lawyer make you angry.
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    Deliver your closing argument. After each side has presented its evidence, both sides will make closing arguments. You will go second.
    • Your job during closing is to convince the jury that you do not owe the amount of money the plaintiff claims.
    • Remember to support your arguments by pointing to evidence admitted at trial. For example, you could argue, “The credit card company clearly doesn’t owe the debt. Did you see any agreement with the defendant’s signature on it? Did you see any document from the original credit card company specifically giving the plaintiff the right to collect the debt? I didn’t. Instead, all I saw was a photocopy of the card member agreement and a spreadsheet with the defendant’s name on it. If the plaintiff doesn’t have a valid debt, it can’t collect. And that’s the situation here.”
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    Await the verdict. After closing arguments, the judge charges the jury by reading instructions about what the jury must find. The jury then retires to deliberate. If you don’t have a jury, then the judge delivers a ruling from the bench.
    • If your case was complicated, then the judge might wait to issue a written ruling at a later date.
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    File for an appeal, if you lose. You might want to bring an appeal if you lose. However, you should probably talk this over with an attorney. There are pros and cons to bringing an appeal, and you should understand both before filing for one.
    • You might want to bring an appeal if you think the judge made an error. For example, the judge might not have let you submit a document into evidence which you should have been able to. If the document was important to your defense, then you might be able to win an appeal.
    • On the other hand, appeals can take over a year and can cost a lot of money. For example, you will have to pay to have court transcripts created. You will also need to hire a lawyer to represent you, since appeals are very technical.
    • If you want to appeal, then you should make a decision quickly. The amount of time you have to appeal varies by state, but in some states it is as little as 10 days after final judgment is entered.[20]


  • You should give some thought to trying to settle the lawsuit out of court. For example, you could participate in negotiation or mediation and get the debt cut 50% or so. Admittedly, you will still have to pay money and therefore won’t “beat” the lawsuit. However, settlement could save you the time and money.
  • If you are interested in mediation, then contact your courthouse and ask if they have a mediation program you could use.
  • You can also beat a credit card lawsuit by filing for bankruptcy. In bankruptcy, you probably can wipe out any credit card debt.[21] If you are interested in filing for bankruptcy, then contact a bankruptcy lawyer as soon as possible.

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Categories: Civil Litigation | Credit and Debit Cards