Common Defenses to Credit Card Collection Cases

In recent years, collectors have started purchasing significantly discounted older credit card debts to initiate collection actions. However, these collection complaints often lack copies of the original credit card applications or other documents signed by the debtor. Additionally, the debts have been repeatedly sold and resold, making the plaintiff the second or third purchaser of the original debt. Furthermore, copies of sales agreements by previous purchasers are typically not included.

When is a defense is possible?

Some collectors might have trouble proving their claims because they don’t have the right documents or can’t show who the original credit card buyer was. If the debt collector doesn’t attach the right documents, the complaint might not be clear enough or specific enough.  The running of the statute of limitations is a critical defense for old, alleged debts.

Florida Statutes, Section 95.11(3)(k), provides that:

With respect to limitation of actions on an account, it is provided by statute that a legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts, must be commenced within four years.

When is a Credit Card Agreement Enforceable?

Credit card agreements usually have four main documents. First, there’s the account application, which the consumer signs. This is the first step in enforcing any debt you might owe from a credit card. Next, there’s the Card Holder Agreement, which usually has a lot of small print with sticky terms. The creditor can usually change or modify these terms. Then, there’s the Card Folder, which usually has the interest rate and other important details. It’s usually included in the Card Holder Agreement. Lastly, there are the Amendments to the Card Holder Agreement, which are often called Billing Stuffers. These documents are crucial in figuring out if the credit card agreement is valid and what the terms of the contract are.

Potential Defenses to Complaint Breach of Contract

Example 1: Plaintiff omitted to attach a complete and accurate copy of the original agreement between the parties (i.e., the Original Creditor and Defendant) and all supporting agreements through which Plaintiff allegedly acquired the right to bring an action against Defendant.

Example 2: The Plaintiff’s omission to attach a copy of the contract between the parties violates Rule 1.130(a), the Florida Rules of Civil Procedure, which specifically addresses this issue as follows:

All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleadings. Rule 1.130(a), Fla. R. Civ. Pro.

Example 4: The plaintiff’s attachments regarding ownership are insufficient to prove ownership of any account related to the defendant.

Example 5: The plaintiff also failed to attach a complete copy of the contract that allegedly transferred ownership of the alleged debt from the original creditor, Original Creditor (hereinafter, the Original Creditor), to any assignees, including but not limited to the plaintiff.

Example 6: Consequently, the plaintiff has not provided written instruments that can demonstrate that they may even bring this action against the defendant. However, even if they can, the plaintiff has not demonstrated any rights, if any, that they actually acquired, which would establish or limit the relief they may be eligible to seek from this court.

Potential Defenses to Complaint for Account Stated

Example 1: The Plaintiff’s Complaint lacks a cause of action for Account Stated because it fails to attach any documents related to the original account.

Example 2: Form 1.933, Florida Rules of Civil Procedure, mandates that the Plaintiff attach a copy of the account, including a list of items, the time each item accrued, and the corresponding amounts, to the Complaint in order to establish a cause of action for Account Stated.

Potential Defenses to Complaint for Quantum Meruit

Example 1: The Plaintiff’s Complaint attempts to establish a cause of action for Quantum Meruit, but it also lacks a sufficient basis for relief. Quantum Meruit is not applicable when the rights of the parties are clearly outlined in a written contract.

Example 2: The Plaintiff’s attempt to bypass the strict requirements of Rule 1.130, Florida Rules of Civil Procedure, is particularly problematic when a written contract is essential for forming a valid contract to pay a credit card debt.

Example 3: The Complaint alleges that the Defendant voluntarily accepted the benefits of the services provided by Original Creditor without specifying the alleged services. Original Creditor, a credit card issuer, does not provide any tangible products or services to consumers and includes charges that are hardly considered services.

Example 4: The Complaint fails to identify the specific goods and services provided to the Defendant. To establish a claim for Quantum Meruit, the Plaintiff must provide detailed information (1) about the goods and services provided; (2) that the Defendant received those goods and services; and (3) that a reasonable person would expect to pay for them. A mere repetition of boilerplate language is insufficient to meet these requirements.

Maimi Debt Collection Defense Lawyer

When it comes to debt defense, you can’t go wrong with an experienced lawyer. If you’re in South Florida and need help, reach out to Andrew J. Pascale, a debt defense lawyer with a proven track record. You can contact Andrew at 877-667-1211 today. Remember, this blog is not a substitute for legal advice, and it’s meant to provide general information only.