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How Not to Defend a Debt Collection Lawsuit

By Todd Murray

When I worked as a collection attorney, I would see the same erroneous defenses over and over again. Here are some of the most common:

You don’t have a signed contract

Somewhat surprisingly, creditors are not required to produce a signed contract to prevail in court. There are others case theories, such as account stated, that may allow the creditor to win without the contract. In my years as a debt collector, there were only a handful of accounts, out of thousands, for which the creditor was able to produce a signed contract.

I tried to pay, but you wouldn’t work with me

Unfortunately, courts don’t have the power to force a creditor to accept the payment arrangement you are proposing. The creditor’s unwillingness to work with you, while frustrating, is not a defense to a lawsuit. Similarly, the fact that you are on public assistance or are otherwise ?judgment proof? is not a defense to a lawsuit. The creditor may never be able to collect anything from you, but that doesn’t mean it should lose the lawsuit.

I never had an account with you

I would often see this when the lawsuit was brought by a debt buyer.  The original creditor that you had an account with may have sold it to a debt buyer that you have never heard of. If the debt has been legitimately purchased by the debt buyer, they have the same right to collect the debt from you as the original creditor.

My divorce decree says I don’t have to pay

Even if there is a court order ruling that your ex-spouse is responsible for a debt, you can still be sued by a debt collector for the debt. Divorce courts don’t have the power to modify contracts between you and a third-party creditor. You may, however, be able to sue your ex-spouse to reimburse you for any money you have to pay the creditor.

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Full post as published by Caveat Emptor on December 01, 2010 (boomark / email).