Taken to court for card debt? What to expect
The journey from summons to judgment unfolds in 6 stages
If you think ignoring a creditor's calls about an unpaid
credit card debt will make the calls stop, you may be right. The creditor may
send someone to your door to let you know "you've been served," instead.
If a debt goes unpaid and you've made no plans to repay it,
your credit card company may sue you in civil court for the balance, hoping a
judge will order you to pay. Not only could a judgment in the creditor's favor possibly
allow them to seize your property or take the money you owe directly from your
bank account or salary,
but it could leave you responsible for all court-related costs associated with
the lawsuit, as well.
While any legal action taken against you is a serious matter,
there are steps you can take after receiving a summons to appear in court that
could lessen the blow.
1. Try to stop the
lawsuit. Most creditors would rather settle a case without the hassle of
going to court. If you've been sued, contact the creditor immediately to see if
there is anything that can be done to stop the lawsuit from moving forward, says
Cristy Cash, director of counseling at Consumer Credit Counseling Service (CCCS)
of Central Oklahoma.
That strategy worked for Kenny Golde, a filmmaker who was producing
a movie when his business partner died suddenly in 2007, leaving him in debt.
After receiving a summons from a credit card issuer to which he owed $22,000, "I was like, 'Oh my gosh, I'm being sued,'" says
Golde, who wrote about getting out of debt in the book, "The
Do-It-Yourself Bailout." Before the case could go further, Golde spoke
to the creditor. He
agreed to settle the case by paying the issuer $10,000 and the lawsuit was withdrawn.
2. Contact a lawyer. Sometimes
a creditor isn't willing to withdraw the lawsuit, or you may believe you aren't
responsible for the debt. While you don't have to get professional legal
representation, a lawyer can help you
construct a defense and guide you through the court proceedings. You can find a
lawyer who specializes in debt collection law through the National Association
of Consumer Advocates or your
local bar association, says Colin Mabrito, a partner with the Houston-based
consumer law firm Joseph & Mabrito. If money is an issue, you may qualify
for free or low-cost legal aid through such programs as lawhelp.org, a volunteer network of
attorneys. You can also represent yourself but hire an attorney for a limited
scope engagement, meaning he or she would consult with you on a limited basis,
Mabrito says. "Most lawyers offer a free consultation. You have nothing to lose
by taking advantage of it," Mabrito adds.
If you've been sued, contact the creditor immediately to see if
there is anything that can be done to stop the lawsuit from moving forward.
Consumer Credit Counseling Service of Central Oklahoma
3. Consider your
defense. Just because
you're sued by your credit card company doesn't mean you should expect an
automatic loss. The creditor must prove that you owe the money, says Erik Kardatzke, a credit card debt attorney in Coral Gables,
Fla. For example, you may win if the creditor doesn't have all of the records
pertaining to your case, which is not uncommon particularly when you're being
sued by a company that bought your debt from a credit card issuer, Kardatzke
adds. Among the other reasons you might win your case: The statute of limitations is up for collecting on the debt in your state; the creditor failed
to credit you for payments that were already made; or you were only an
authorized user on the account and not liable for the debt.
4. Respond to the summons. Once you're served, you have a set amount of time
-- typically 20 to 30 days -- to prepare and file a response. A failure to do
so is arguably the worst thing you can do because the creditor automatically
wins a default judgment against you and, in some states, can garnish your wages
or bank account. In the response, you agree or disagree with the
allegations that have been brought against you and raise any defenses you have.
5. Follow the court
proceedings. Depending upon what state you live in and the particulars of
your case, a number of proceedings can occur. There may be a process called "discovery,"
in which both parties get more information from each other and from other
witnesses. For example, your attorney or the creditor's attorney may take
depositions, which are oral statements conducted under oath before trial. If
you have no defense and don't deny owing the money, the creditor may request a
summary judgment, which is a ruling by the judge in favor of the creditor
without the need for a trial. Likewise, your attorney may seek to have the case
dismissed because of a lack of evidence. If the proceedings continue to go
forward, there will eventually be a trial date where you must show up in court
to argue your case and respond to the allegations against you before a judge.
Other witnesses, such as employees of the credit card company, may also
testify. Most cases never make it to trial, says Kardatzke, as both
parties typically find it beneficial to come up with some kind of settlement
before it gets that far.
6. Accept the
judgment. If you lose the lawsuit and are found liable for the debt, work
with the creditor to come up with a payment plan so you can avoid drastic
measures such as garnishment. Once the
case is over, you can get to the business of putting your financial life back
together. "You have to deal with the legal issues first," says CCCS's Cash.
"But once your situation is a little more stabilized you can start thinking
about rebuilding your credit."
See related: How much can a debt collector take from your paycheck?, How to sue a debt collector -- and win
Published: March 8, 2013