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June 08, 2018

Three Steps to Addressing an American Express or Bank of America Credit Card Lawsuit

Posted by Dan Dewoskin in Blog, Debt Collection Defense

Tags: American Express, Bank of America, Cooling & Winter, Zwicker

After the date of charge off, American Express and Bank of America will usually file suit if collection efforts have failed to resolve the matter.  Once these companies file suit, there are three very important steps to protect yourself as a consumer from suffering far more significant damage.

FIRST: Immediately upon being served, consider hiring counsel.  Although these cases may be filed in magistrate court, which is considered (by some) to be faster and more user friendly, the rules of evidence can be tricky to understand and apply.  Even when the courtroom is full of knowledgeable counsel, it can be challenging to ensure that the judge is applying the proper standard.  Judges are people, and these judges have many, many cases to sort through.  The fact that magistrate courts are not courts of record, meaning there are no court reporters, can make it more difficult for a consumer to properly ensure that due process is taking place and that no shortcuts are being taken.  There may be little or no opportunity to accurately review what took place after the case is heard by the judge.

If the matter is filed in State or Superior Court, the advantage that the creditor has in having experienced counsel is now even greater.  These attorneys are professionals and know what they are doing.  They can gear their discovery and tactics to use the procedures that a consumer does not know against the consumer.  We often hear that the consumers were waiting for a court date or a trial date.  In State or Superior Court, this day may never come, and yet the case can be lost all the same on paper filings with the Court.  If  someone chooses to represent himself or herself, which a person is entitled to do, he or she is expected to know all of the same procedural rules and rules of evidence as an attorney, which can be overwhelming.

SECOND:  Regardless of whether or not you can hire counsel, you must ensure that you file an Answer with all your defenses within 30 days of being served with the Complaint (the lawsuit).  Should 30 days pass without an Answer being filed, the matter is in default.  This means that the consumer has already lost.  Any defenses that existed would be waived by the consumer.  Furthermore, even though damages could still be challenged, other opportunities for the consumer to best position himself or herself for a favorable outcome have also been compromised.  There is a way to pay costs and re-open the default for 15 days past the 30-day window to answer, but the best practice will always be to file a timely answer responding to each and every claim in the Complaint.

THIRD:  Finally, take a moment to consider what American Express or Bank of America needs to prove in order to win the case.  Sure, by filing they are asserting that money is owed to them.  I have never met a consumer who knew the exact amount that was owed on his or her credit card at any given moment.  It can be viewed, perhaps, on a credit report.  It can also be viewed by logging into the account online.  In any case, to ascertain whether or not it is correct would require the consumer to review all the charges, the payments, the credits, and any other entries that may or may not be appropriate and accurate.

Do not ever take a debt collector’s word about anything.  It is not that law firms such as Zwicker & Associates or Cooling & Winter, LLC are actively trying to deceive consumers, but it is always in the consumer’s best interest to verify that the information and amounts are correct.  This can and should be done when it comes to litigation.  This may require subpoenas, discovery, motions, and/or depositions.

When a consumer takes no action upon being served with or advised that lawsuits are pending, it is the same as agreeing with every single allegation in the lawsuit.  Owing a debt is not the same as being charged with a crime, but the principles at work in defending against a criminal charge should be observed in many of the same ways.  Like a criminal defendant, a consumer should know his or her rights.  He or she should be aware of what is required and expected of the person or company suing him or her.  A consumer should not allow fear or unfamiliarity with the system to give American Express or Bank of America the advantage that it has come to expect over the course of filing thousands and thousands of lawsuits.

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Author: Dan Dewoskin