Expert: Ontrack Financial Group llc - 5/3/2009

Question
In the last year i have had some financial instability being in the auto industry. I am currently past due on credit cards that on my credit report says acct submitted to collections,charge off, closed by creditor,past due$$$. i have just received a summons to appear in court for this hsbc credit card. It lists the plaintiff as HSBC. From what i can read on the Internet if a bank charges off a debt to receive their tax credit they can not then come after the consumer in a judgment. Is this true or not? And if not what legal statements or laws do i need to know before entering the court room?

Thanks
Josh Smith
Battleground,WA

Answer
Dear Joshua,

Thank you for your question.

Let me clarify what you've read. If a bank charges off a debt you're still liable.

The items listed below should help you.

If you need further assistance please contact us at 888=686-6834

Ontrack Financial Group llc

Https://www.OntrackFinancialGroup.com

What you should know about debt defense:



1. If you defend your case, the plaintiff (credit card company or debt buyer) has the burden of proof. In a civil case such as a credit card lawsuit, the company must generally prove that (i) a contract existed between you and the company; (2) you substantially breached the contract by failing to fulfill your contractual duties (such as making payments); and (3) that the plaintiff was damaged as a result of your breach. Additionally, in cases where a debt buyer is suing you on some debt it purchased from a credit card company, it must prove that it purchased the debt from the company and has the present right recover the debt. If the plaintiff cannot prove each of these elements, they will lose.

2. You have the right to defend and demand that the company or debt collector prove their case in court before you are subjected to a judgment against you. If they are unable to come up with the proof necessary to meet their burden they will lose the case.

3. You have the right to get information about the alleged account and Plaintiff's case through a legal process known as "discovery". For instance, if you agree that you had the account but are not sure what the balance is or should be, you have the right to examine all of the details of the account and the various transactions to determine for yourself how much you really owe, if anything, instead of relying on the bald allegations in the lawsuit. Additionally, this process allows you to determine how much proof the plaintiff really has so that you may evaluate the likelihood that it would be able to prove its case in court.

4. You have the right to force witnesses from the credit card company or debt buyer to come to court to testify and you have the right to cross-examine those witnesses. You may also call your own witnesses to testify on your behalf.

5. You have the right to object to or move to dismiss the plaintiff's complaint if it is legally insufficient or if the Court lacks jurisdiction over you.

6. You have the right to file a Motion for Summary Judgment if the plaintiff is unable to come up with enough proof to meet their burden.

7. You have the right to assert certain affirmative defenses such as the "Statute of Limitations". The Statute of Limitations is the period of time in which the plaintiff must file suit or forever lose their ability to legally prove their claim. These defenses must be raised by you in your response to the complaint or you will waive them. An attorney will help you determine if you have a valid legal defense to the case against you.

8. You have the right to attempt to negotiate a reasonable settlement of the account. If you set out to defend the case instead of ignoring it, you will be in a better bargaining position when it comes to settlement. This is because most plaintiffs do not want to have to go through the drawn out process of litigation and a trial if they can just be more reasonable with settlement.  Ontrack Financial Group llc can help you negotiate a reasonable settlement that you can realistically afford if you legitimately owe the debt and the debt is legally enforceable.