If you are served with a collection lawsuit, you have four basic options:
- Ignore the suit. This may be the best option for those who are “judgment proof” (meaning that the creditor will be unable to collect a judgment when it gets one.)
- Settle the lawsuit, either with a lump sum payoff, or through a monthly payment plan.
- File a bankruptcy.
- Defend the lawsuit, with a lawsuit defense lawyer.
If you want to defend the lawsuit, here are some defenses that can be raised.
The best thing you can do is to contact an experienced attorney right away. If you are a California resident, you may call our office at 1-800-455-1592 for a free telephone consultation.
SERVICE OF PROCESS
The United States Constitution provides that no one shall be deprived of “life, liberty or property without due process of law.” This includes the principle that parties whose rights are to be affected are entitled to be heard by the court, and in order to enjoy that right, must first be notified. The way that defendants in collection lawsuits are notified is by service of a summons and complaint.
Nonetheless, process servers occasionally pretend to serve the defendant without ever doing so. The defendant, not hearing about the lawsuit, does not file the necessary paperwork to prevent a default judgment. The defendant may not find out about the judgment until years later when his wages are being garnished.
In many such cases, we have been able to get the judgment set aside, or settled for a good discount.
STATUTE OF LIMITATIONS
This refers to the time in which a creditor must file a lawsuit, or be forever barred from suing. In California, it is four years in most cases.
Once the time limit has passed, the debt is no longer LEGALLY collectible. This does not mean that the creditor can’t continue to ASK the debtor to pay. Attempting to collect a time barred debt is not a violation of the Fair Debt Collection Practices Act (“FDCPA”), unless the creditor also threatens to, or actually files a lawsuit.
Creditors do, however, occasionally sue on time barred debts. In one instance, a judgment had been entered against our client for a debt that was well over five years old at the time the lawsuit was filed. After suggesting to the creditor’s attorney that there might be an FDCPA violation, a favorable settlement of the judgment was reached.
One reason that consumers sometimes want to settle time barred debts is that a debt can be reported on one’s credit for seven years (or longer in some cases), even though the statute of limitation has passed.
IS THE DEFENDANT LIABLE FOR THE DEBT?
Sometimes creditors sue parties who are not legally liable for the debt. For example, the owner of an incorporated business may be sued for a debt of the corporation, even though he never personally guaranteed the bill. Similarly, one spouse may not be liable for credit card charges and other debts incurred by the other spouse.
Also, if a credit card is issued to Maria, and she orders a second card for her son Joe, who is then listed jointly on all the billing statements, Joe may not be liable for the credit card charges that Maria incurred, unless he signed a personal guarantee for those debts.
CAN THE CREDITOR PROVE THE CASE?
If the lawsuit actually goes to trial, the plaintiff has the burden of proof, and cannot get a judgment without adequate admissible evidence to prove the debt is owed. This will require at least one witness to testify under oath and be subject to cross-examination.
Generally, a witness can only testify about matters of his or her personal knowledge – what the witness actually observed – rather than what the witness heard another person say, which is called “hearsay.”
An exception to the hearsay rule allows business records to be admitted into evidence in certain circumstances. In California, the following criteria must be met in order for a business record to be admitted:
- The writing was made in the regular course of a business.
- The writing was made at or near the time of the act, condition, or event.
- The custodian or other qualified witness testifies to its identity and the mode of its preparation; and
- The sources of information and method and time of preparation were such as to indicate its trustworthiness.
In some cases, a creditor may have all the billing statements, but may not have any witness who can testify as to how and when those records were made. In other cases, a creditor may not have any documentation at all to verify the debt. In either of these circumstances, the creditor should lose if the matter goes to trial.
These are some, but by no means all, of the defenses that may be available if you are sued by a creditor. Before deciding to simply settle a lawsuit or file bankruptcy, you should at least have a free consultation with at lawsuit defense lawyer at Crowder Law Center in Los Angeles, to explore the possibility of defending the lawsuit.