Suffering from credit card debt? The Law Office of Matthew C. Bothwell, P.A. can help you seek credit card debt relief.
Credit card debt can be debilitating and your Jacksonville debt relief lawyer, Matthew C. Bothwell, Esq., is here to help. If you have defaulted on a credit card or owe the bank money there is a good chance you are being harassed by bill collectors. You may have even been served legal papers demanding you appear in court. We are here to stand by your side, can make the collection calls and letters stop, help you resolve your credit card debt and defend you against collection agencies and banks in court. You have rights and consumer protection laws such as the Fair Debt Collection Practices Act are in place at both the State and Federal levels to protect you from harassment and allow you to live in peace.
Unlawful Debt Collection (Consumer Protection)
Both the Federal government and the state of Florida have Fair Debt Collection Practices Acts in place to protect you from unscrupulous and unrelenting credit card debt collectors. These laws limit how debt collectors can contact you, when they can call you and how they can talk to you. Any violations of these required practices can and often result in your suing your creditors and obtaining judgments against them.
The Federal Fair Debt Collection Practices Act limits collection agencies in the following way:
- Collection agencies cannot call you before 8:00 A.M. or after 9:00 P.M.;
- Collection agencies cannot call you repeatedly with an intent to annoy, abuse or harass you;
- Collection agencies cannot contact you at all if you are represented by an attorney;
- Collection agencies cannot call you at work if the collection agency knows that you are prohibited from taking collection calls at work;
- Collection agencies cannot contact your family members, employers or any other party other than you and your attorney about the debt;
- Collection agencies cannot contact you at all after you have informed them that you will not pay the debt unless they are calling to tell you that they will no longer call you and will exercise their rights against you;
- Collection agencies cannot harass you, including the use or threatened use of violence or other criminal means to harm you physically, harm your reputation or damage your property;
- Collection agencies cannot use obscene language when speaking with you;
- Collection agencies cannot publish your name in a list of debtors;
- Collection agencies cannot advertise the sale of any of your debts to coerce you to pay the debt; and
- Collection agencies cannot use false, deceptive or misleading representations or means to collect the debt.
Credit card debt collectors can be required to validate their claim upon your proper request and provide proof of that you owe the debt. This means that they can be forced to give you all the information upon which their claim is based. If you are being harassed by debt collectors or have questions concerning your credit card debt or other debt, Jacksonville’s Debt Relief lawyer is here to help. Call Matthew C. Bothwell, Esq. for a FREE CONSULTATION.
Debt Collection Lawsuits
If you cannot settle your credit card debt or other debt with the bank it is likely that they will sue you and take you to court to collect. When you are sued by a creditor, debt collector or collection agency they are hoping you will not appear in court to defend yourself. When you do not show up or file a timely response to their Complaint the bank asks the court to enter a default judgment against you. When this happens you waive important defenses you may have to the claim making it far easier for the bank to obtain a judgment against you.
What banks, bill collectors or collection agencies don’t want you to know is that very often they do not have the necessary documentation to prove their claims in court, or their claim is otherwise barred by law, and by not responding you may fix these problems for the bank. Do not let a debt collector obtain a judgement against you they do not deserve. We are here to help. Please call Jacksonville’s debt relief lawyer, Matthew C. Bothwell, for a FREE CONSULTATION.
The Credit Card Lawsuit
Although no two lawsuits are exactly alike, below are the steps a typical credit card debt lawsuit will proceed through the court.
Step 1: Service of Process. When you are sued on a credit card debt or any debt at all, the bank must have an officer of the court personally serve on you certain documents necessary to start the case. These documents include the Summons, a Complaint and any other papers required by the court. This means that an office of the court, either a uniformed police officer or licensed process server must hand you the court papers directly or personally deliver them to a member of your household who is at least 15 years old at your home. If personal service is not possible because you either cannot be found after diligent search or are actively avoiding service, you can be served by publication. Service by publication happens when the bank files certain affidavits stating that after diligent search, they were unable to find you and post notice of the lawsuit against you in a local paper, likely one that you will never read for four (4) consecutive weeks. Only then will you be obligated to answer the allegations in the Compliant.
Step 2: Responding to a credit card lawsuit. After you have been served process you have 20 days to respond to the Complaint. If you are in small claims court (you debt is less than $5,000) in Duval County your initial paperwork will likely include a notice of an initial case management conference advising that you must appear in court on a specific day to admit or deny the debt (more on small claims court below).
If you are not in small claims court, or you reject the claim at the small claims case management conference, you must file a response to the Complaint within 20 days of service. Depending on the nature of the banks claim and the sophistication of the Complaint your response may ask the court to require the bank or collection agency to clarify its claim, dismiss its claim completely or simply admit or deny each individual claim of the Complaint and assert affirmative defenses (more on affirmative defenses in credit card cases below).
Step 3: Small Claims Case Management Conference. (THIS DOES NOT APPLY TO SUITS OTHER THAN SMALL CLAIMS.) If you are sued in small claims court an initial case management conference will be scheduled at which you and the bank’s lawyer will appear and advise the court whether you accept or reject the claimed debt. If you accept the claimed debt you are telling the judge that you do not wish to challenge the legitimacy of the bank’s claim. The court will then either enter judgment against you for the amount claimed or you will have an opportunity to work out a payment plan with the bank. If you reject the claim you are telling the court that you would like to assert your rights and, at the very least, try to settle the claim with the bank for less than you owe. If you deny the debt the court will ask if you would like to meet with a mediator at that time and try to negotiate a settlement. Unfortunately the banks lawyers rarely have the authority to negotiate debt and, in most cases, you will be forced to file a formal answer to the Complaint.
Step 4: Filing an Answer. If you do not more for a more definite statement or seek a dismissal of the bank’s Complaint you will need to file an answer. The answer admits, denies or states that you lack knowledge about the claim regarding each sentence or claim contained in the Complaint.
Step 5: Asserting Affirmative Defenses to a credit card lawsuit. Affirmative defenses to the credit card suit, or any lawsuit, are listed along with your answer to the Complaint. Affirmative defenses are statements made by you asserting why, as a matter of law or equity, you should not be required to pay all or a portion of a creditors claim. Typical affirmative defenses in credit card law suits include:
- Standing – Whether the plaintiff named in the law suit has the legal right to assert the claim against you.
- Statute of Limitation – Whether the plaintiff has brought its claim timely (typically within 5 years of the last date on which you made a purchase or payment if you actually signed a contract for the credit card or 4 years if you did not sign a contract).
- Improper Interest Charges – As a general rule, courts frown on banks waiting years to sue and then claiming interest during the period of their non-action. If this happens you should assert an affirmative defense rejecting these charges
- Other Improper Charges – In keeping the banks honest it is important to review the contract or agreement on which the bank relies in bringing its claim and ensure that they are not attempting to collect improper fees or more interest than is provided in the agreement.
All of these affirmative defenses may not be appropriate for your particular case and depending on the nature of your case; you may have additional defenses not listed here. It is important to list all known affirmative defense with your answer or you risk waiving them.
Step 6: Serve Discovery. After filing a response to the complaint it is important to serve discovery on the bank. This is done through a Request to Produce requesting the bank produce documents, Interrogatories requiring the bank to answer questions under oath regarding their claim and the bank’s standing to bring the suite and, in some cases, requesting that the bank admit or deny certain statements through Requests for Admissions. You are also allowed to depose the bank’s representative and question them about their claim.
Step 7: Mediation. Mediation is a process during which each party to a lawsuit meets with a third party mediator in an attempt to settle a case. Mediation is completely private and anything that happens or is said at mediation cannot be used at trial. If you are in county court or small claims court you will generally have to request the court order you and the bank to mediation. Because mediation can be expensive court’s will typically not require mediation without request when the amount money in controversy is small, as it is in county and small claims courts. In circuit court it is likely that the court will require you to mediate prior to going to trial but again, if you want to mediate the claim it will not hurt to make this request by filing a motion with the court.
Step 8: Trial. If your case cannot be settled you will be forced to attend trial. Trial is the final stage of a lawsuit and, when dealing with credit card debt, a single judge typically sits as judge and jury. At trial you will be allowed to call witness and present evidence in support of your affirmative defense. You will also be able to question the bank’s witnesses. The Plaintiff bank has the burden of proving its case and it is your job to convince the court that, as a matter of law, they have failed to do so. If you lose at trial the judge will enter final judgment against you requiring that you pay the plaintiff money. After the court enters a Final Judgment and your time for appeal has passed they will have the right to garnish wages and cease your property that is not protect by Florida collection exemptions. For more information about post judgment collections and property exemptions to collections please refer to our Post-Judgment Collections page. Trial can be a complicated event and its intricacies and burdens of proof are far too complex for this writing. We strongly recommend that you retain legal counsel before attempting to defend yourself against the banks professional attorneys’ at trial.
Negotiating Credit Card Relief Settlements
Trial is risky and, to be honest, if you have not paid a credit card debt and your creditors do their job properly, you will likely lose at trial. If you have no real strong legal defenses it is likely best to make every effort to settle your case. There is an art to achieving a positive settlement to a credit card case that involves asserting enough defenses to make the bank question its ability to win and, oftentimes, convincing the bank that even if they win, you are judgment proof or will simply file bankruptcy and avoid the debt completely. Timing of settlement offers and settlement negotiations is also important in settling debt, as is how you broach the subject of settlement with the bank. If you need help settling a credit card debt Jacksonville’s debt relief lawyer, Matthew C. Bothwell, Esq., is here to help. Give us a call and schedule your FREE INITIAL CONSULTATION.
Filing bankruptcy stops collection efforts and will typically discharge or get rid of all unsecured debt such as credit card debt, even if you have already been sued or a judgment has been entered against you. Bankruptcy can stop garnishment, levies, repossessions and foreclosures, and while bankruptcy may not be the best solution for everyone, it is important to consider all of your options when confronted with any debt situation or collection lawsuit.
If you have questions about credit card debt or any collection action Jacksonville’s debt relief lawyer, Matthew C. Bothwell, Esq., is here to help. Please contact us to schedule your FREE CONSULTATION.
Get a Free Initial Consultation Now