How to Win A Credit Card Lawsuit
While this should be an obvious answer to the question “how to win a credit card lawsuit?”, unfortunately it is not… the simple answer is to hire a consumer attorney. The truth of the matter is that a consumer attorney will win a credit card lawsuit almost every time when that lawsuit is filed by a junk debt buyer, i.e. Portfolio Recovery Associates, Calvary, LVNV, Ability Recovery, Midland Funding, CACH. If the lawsuit is filed by the original creditor i.e. Citibank, Discover, Capital One, Bank of America, then the odds go down quite a bit, depending upon certain factors, but the lawsuit can still be won. Please don’t be foolish and attempt to handle this very serious matter yourself. Now that I have said that, I will answer the question below.
The simple truth is that every single credit card lawsuit that is filed in Pennsylvania is defective, at least initially. How can I make such an assertion? Because I have handled over 5000 of these cases and I know that statement to be true based upon my extensive experience in handling these matters.
When a credit card lawsuit is filed in the Court of Common Pleas of (whatever county you reside in), the lawsuit MUST contain certain documents showing that the debt buyer or credit card company has enough information to move forward. (Magistrate/District Justice Lawsuits are also defective, but a description of how to handle those can be found here). In every single instance that I have ever seen, the lawsuit does not contain the essential documents to move forward. The court doesn’t “know” this, they will only “know” this if you file the proper response to the lawsuit and tell them…. and that response should be (in most cases) to file what are called Preliminary Objections. As an aside, it is amazing to me how many “chat rooms” I come across where an attorney or another individual advises someone to file an Answer to a lawsuit as quickly as possible to avoid a default judgment. To me, this can in some instances be considered legal malpractice. If you do not file Preliminary Objections, then they are waived and the defenses that go along with them are also waived.
Preliminary Objections are a statement to the Court that says “this lawsuit is defective”. The reason that I make the assertion that the lawsuit is defective is because it most certainly is lacking in sufficient documentation. To prove a credit card case under a breach of contract theory, the collector must provide sufficient evidence that there was a contract or agreement between the parties, must show evidence of the charges on the card, the interest rate for each year, the changes to the terms and conditions and, if the Plaintiff is a debt buyer, they must show that they have the right to sue you (this is called “Standing”). In other words, they have to prove that they bought your specific account from the original creditor.
Once the Preliminary Objections are filed, the matter will go before Motions Court. In Motions Court, the judge will review the complaint, and after Attorney argument, he/she should rule that the lawsuit is defective. In most instances, the judge will give the other side the opportunity to “cure” the defects that are present in the lawsuit. To “cure” the defects, the Plaintiff must provide additional documentation. Sometimes, especially where the Plaintiff is an original creditor, they can produce additional documentation. In many cases, especially where the Plaintiff is a junk debt buyer or collection agency, they cannot.
If additional documents are provided, then they again need to be reviewed to see if they meet the minimum requirements to move forward. If they do, great, we move on and have a hearing. If they do not meet the minimum requirements, then we file those Preliminary Objections again. Ultimately, the Plaintiff has to provide all of the substantial documentation outlined above. If they cannot, the lawsuit gets dismissed and the case is over.
In reality, this is not as simple as just filing Preliminary Objections. The argument on those objections, which is heard after the objections are filed, is the key component to handling these matters. There are nuances that only an experienced consumer attorney would know about, including how certain judges beliefs are slanted, what types of documents have been forged or are fraudulent or made up, how to handle different case law interpretations from different counties, and so on. Oral Argument is the key to having the Preliminary Objections ruled in your favor, and a layperson such as yourself just doesn’t have the years of experience and thousands of cases under his belt to handle one of these matters properly. So the real key to winning a credit card lawsuit is to hire a competent, knowledgeable Consumer Attorney.
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