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Ways to Fight Credit Card Cases

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Sherman Tank
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It took a lot of these for the Allies to win WWII, but it only takes one good defense to win a case

Statute of Limitations

The statute of limitations is an affirmative defense to a lawsuit.  If the defense is valid and is properly raised by the defendant, the defendant should be able to get the case dismissed.

The statute of limitations on credit card debt in Texas is four years from the date of the consumer's breach of contract.  Generally, this means that the lawsuit must be filed within four years from the date of your last payment.  It is a violation of the Fair Debt Collection Practices Act for a debt collector to serve a consumer debtor with a lawsuit that was filed past the statute of limitations.

Burden of Proof

The plaintiff has the burden of proof in every lawsuit.  Credit card companies usually do not have much difficulty proving their case, but when they sell the debt to third party debt collection companies, the necessary business records don't always get transferred.  Without that evidence, the third party debt collectors can't prove their case.  Of course, the third party debt collectors have plenty of tricks to try to get around this problem, including sneaky requests for admission.  We know their tricks and know how to find out if they have the necessary records.  If they don't have the records, we will seek to have the case dismissed.

This isn't just a technicality.  If these debt purchasers can't prove they own the debt, then how do you or the court know they are the rightful owner?  What is to stop you from being sued multiple times by different shady characters claiming to own the debt?

Counterclaims for Violations of the Fair Debt Collection Practices Act

Debt collectors often commit violations of the Fair Debt Collection Practices Act.  These violations can give us grounds to file a counterclaim for $1,000 in statutory damages, plus any actual damages and attorney's fees.
Violations include serving you with a lawsuit that was filed after the statute of limitations had expired, threatening to file a lawsuit that is past the statute of limitations, filing the lawsuit in a county where you do not live, threatening to take your Texas homestead, misrepresenting themselves as law enforcement, and other forms of harassment.

Law Office of Anderson M. Simmons PC, 702 Rio Grande, Austin, TX 78701. Phone: (512) 499-8688 Fax: (512) 499-8688. Email: info@simmonspc.com

Disclaimer
This web site is designed for general information only. The information presented at this site should not be construed as legal advice or the formation of a lawyer/client relationship.