If you have been sued by a debt collector, we may be able to help. Creditors are notorious for using the courts as a tactic to bully consumers into paying a debt that the creditor claims is owed. Often times, consumers pay debts that creditors are not even entitled to collect.
It is important to know that, whether or not the creditor has a good case against you, you must appear in court to submit an answer to the complaint. If you do not respond to the lawsuit you will automatically lose the case and a judgment will be entered against you without your knowledge. A judgment gives the creditor the right to garnish your wages and seize the funds in your bank account.
Creditors are always represented by lawyers and often these lawyers engage in coercive practices to entice the consumer to settle. If you are sued by a creditor, it is strongly recommended that you contact an attorney who can advise you of your rights. The attorneys at Fishman & Mallon have successfully defended numerous consumers in debt collection defense cases.
Important things to know about debt defense collection cases:
Consumer who never received notice of the case: Many process servers for debt collectors engage in what is commonly referred to as, “sewer service,” which means that the process server intentionally failed to serve any legal papers on the person being sued by the debt collector in order to prevent the consumer from having a chance to respond to the lawsuit. If you never received papers that a lawsuit was filed against you, you may have a defense based on lack of proper service or lack of “personal jurisdiction.” Learn more about sewer service
3rd Party Debt Collectors: The plaintiff must prove that it legally owns the debt.
Debts are often sold for pennies on the dollar to third party collection agencies. For example, a consumer had a credit card with Discover Bank, but was sued on that account by Portfolio Recovery Associates, LLC (“Portfolio”). The consumer had been sued by a 3rd party debt collector. In this instance, Portfolio must prove it owns this debt by producing documents such as an “assignment” of the debt to it from the original creditor.
Does the debt belong to you?
All plaintiffs in debt collection cases must prove that the debt belongs to you. The plaintiff must produce a contract or agreement with your signature, along with evidence that you used the card and monthly balance statements that they provided to you.
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Amount of the debt
The party suing is required to produce evidence that amount being sued for is accurate and that any fees and penalties added to the charges are authorized by law.
Can the debt be dismissed because it is too old?
Often times a plaintiff will sue on a debt that is barred by the statute of limitations or is too old to be sued upon. The statute of limitations in New York State is 6 years on a breach of contract claim, but the applicable statute might be shorter if the agreement uses another state’s laws. You should consult with an attorney to determine whether you case can be dismissed on that basis. Read a case we won on the behalf of the consumer.
Even if you don’t have a defense which will get your case dismissed outright, simply appearing by an experienced attorney and challenging the debt can help you obtain a reasonable settlement of the lawsuit. In some cases, we may be able to collect attorney’s fees from the debt collector. Call us today to determine which of the above defenses are applicable to your case.