By signing a contract with a credit card company you agree to the company's terms and conditions, including that which requires you to make regular payments. If you stop making payments, the credit card company or any third party that purchases the debt reserves the right to seek legal recourse in an effort to recover the debt you owe. Your signed contract serves as proof that the debt is legitimate but, depending on the circumstances, the credit card company may not be required to provide it.
Proving the Case
The burden of proof lies with the plaintiff. In this case, the plaintiff is the creditor. If an individual appears in court and claims to have no knowledge of the supposed debt, the judge will require the creditor to provide proof of the account's legitimacy. This sometimes, but not always, constitutes a copy of the original signed contract.
If the debtor chooses not to appear in court, however, the creditor is under no such obligation. The court assumes that the creditor's claim is legitimate and can award it a civil judgment by default.
When a credit card company sues an individual and that individual contests the suit, the credit card company will provide the court with any documents it has that support its case. This often, but not always, includes a copy of the original signed contract. Whether or not the credit card company retains a copy of the debtor's original contract depends upon the company's records retention policy.
Should a third-party collector purchase the debt from the credit card company and then file a lawsuit against the debtor, the court may request that the collector provide proof of the debt via a signed contract, but the credit card company is under no obligation to provide this information to the debt collector to aid in its lawsuit. You have the right to request that the plaintiff provide the court with a copy of your original signed contract.
If a creditor sues you, you have the right to review any documents the company intends to use in court to prove its case through a process known as "discovery." Through discovery, you can demand that the company turn over copies of its evidence to help you build your defense. The creditor can also request that you turn over any evidence you plan to use in your defense. Discovery allows you to find out whether or not the plaintiff has a copy of your original signed contract and formulate your defense accordingly.
The judge is the one who ultimately determines whether or not the creditor sufficiently proves its case against you in court. Some judges may require that the plaintiff provide a signed copy of your original contract while others may not. If the judge requires a copy of the original signed contract the creditor will lose its case against you if it cannot provide the requested document or provide the court with a valid reason why it does not have a copy of the contract.
State laws and court requirements vary. If you find yourself facing a debt collection lawsuit, consult with qualified legal counsel in your home state before formulating your defense. This article is intended to provide general information and should under no circumstances replace the advice of an attorney.
- Cornell University Law School: Dafault; Default Judgment
- NEDAP; Vacating A Default Judgment (Order to Show Cause); 2007
- Habush, Habush & Rottier, S.C.; Discovery; 2011
- Barry Broome; Greater Phoenix Economic Council; Pheonix, Arizona
- Photo Credit gavel image by Cora Reed from Fotolia.com
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