If you have been sued over a credit card or other consumer debt in Florida, receiving a summons and lawsuit can be intimidating. You may not know who is suing you, whether you actually owe the amount claimed, or what will happen if you do nothing.
The most important thing is not to ignore the lawsuit.
Being sued for a debt does not automatically mean the creditor or debt buyer will win. The plaintiff still has the burden of proving its case, and depending on the facts, there may be legitimate defenses or other options available to resolve the lawsuit.
Shmucher Law represents consumers throughout Florida in lawsuits filed by credit card companies, debt buyers, and other creditors. With more than 20 years of experience representing Florida consumers in bankruptcy and debt-related matters, attorney Ofer Shmucher evaluates each case individually to determine the best available strategy.
That strategy may involve defending the lawsuit, challenging the plaintiff’s evidence, negotiating a settlement, or considering bankruptcy when a lawsuit is part of a larger financial problem.
What Should You Do If You Have Been Sued for a Debt in Florida?
First, do not assume that ignoring the lawsuit will make it go away. Failing to respond can allow the plaintiff to seek a default judgment without having to litigate the case in the ordinary way.
Once a judgment is entered, a creditor may have additional collection options, including attempting to garnish wages, freeze money in a bank account, or pursue other nonexempt assets. Florida law provides important protections and exemptions for some consumers, but it is generally better to address the lawsuit before a judgment is entered.
The first step is to determine who filed the lawsuit, what debt they claim you owe, when and how you were served, and what evidence may exist to support or challenge the claim.
Not every debt lawsuit can be defeated. But every lawsuit should be evaluated before deciding what to do next.
What Does a Debt Defense Lawyer Actually Do?
Debt defense is more than simply filing an Answer to a lawsuit. The first step is understanding the claim and determining the best strategy based on the facts of the case.
A debt defense lawyer may review how and when you were served, determine whether the lawsuit was filed within the applicable statute of limitations, examine whether the plaintiff has the legal right to collect the debt, and evaluate the evidence the plaintiff intends to use to prove its case.
The strategy will depend heavily on who filed the lawsuit and what evidence is available. Some cases may have legitimate legal or factual defenses. Others may be better resolved through settlement. In some situations, particularly when a person is facing multiple lawsuits or significant overall debt, bankruptcy may provide a more effective solution.
The goal is not to raise every imaginable defense. It is to identify the issues that actually matter in your particular case and determine the most effective way to address the lawsuit.
Who Is Suing You: The Original Creditor or a Debt Buyer?
One of the first things to determine in a debt collection lawsuit is who actually filed the case.
An original creditor is generally the company that originally extended the credit. For example, a credit card company may sue directly to collect an unpaid account.
A debt buyer is different. Debt buyers purchase portfolios of charged-off accounts from original creditors or other companies and then attempt to collect those debts. Some of the companies that regularly appear as plaintiffs in consumer debt lawsuits include Midland Credit Management, Portfolio Recovery Associates, LVNV Funding, Cavalry SPV, and Jefferson Capital Systems.
The distinction matters because a debt buyer was not the company that originally opened or maintained the account. If the case is contested, the debt buyer must still establish its right to pursue the particular account at issue and prove its claim with competent evidence.
That does not mean every debt buyer lawsuit can be defeated simply by demanding that the company “prove the debt.” Many debt buyers have documentation and evidence that may be sufficient to establish their claims. However, questions about ownership, account records, the amount allegedly owed, and the admissibility of evidence can become important depending on the specific facts of the case.
The strength of a defense depends on the evidence—not simply on whether the plaintiff is a debt buyer.
Legitimate Defenses to a Debt Lawsuit in Florida
There is no single defense that works in every debt collection lawsuit. The defenses that may be available depend on who filed the case, the allegations in the complaint, the history of the account, and the evidence the plaintiff can actually present.
Some of the most important issues that may arise include the following.
Can the Plaintiff Prove It Has the Right to Sue?
When an original creditor files a lawsuit, establishing its connection to the account may be relatively straightforward. A lawsuit filed by a debt buyer can present different issues.
Debt buyers purchase large portfolios of accounts, and an individual debt may sometimes be transferred more than once before a lawsuit is filed. If a debt buyer files suit, it must establish that it has the legal right to pursue the particular account involved in the case.
Depending on the circumstances, this may involve reviewing bills of sale, assignments, account-level records, or other documents connecting the particular account to the plaintiff.
The fact that a debt has been sold does not automatically create a winning defense. The real question is whether the plaintiff can establish its right to pursue the account with legally sufficient evidence.
Can the Plaintiff Prove Its Case With Admissible Evidence?
A plaintiff does not win a contested debt lawsuit simply by alleging that money is owed. It must prove the elements of its claim with evidence that the court can properly consider.
This is where many internet discussions about forcing a debt collector to “prove it” become misleading.
There is no universal rule requiring a creditor or debt buyer to produce an original signed credit card contract in every case. Likewise, simply demanding proof of a debt does not automatically result in dismissal of a lawsuit.
Instead, the real issues may include whether the plaintiff’s account records are admissible, whether the evidence properly relates to the defendant and the account being sued upon, and whether the plaintiff can establish the amount it claims is actually owed.
Florida’s rules of evidence allow business records to be admitted under certain circumstances, including records maintained or obtained by companies that did not originally create them. Whether particular records are admissible depends on the evidence presented and the foundation established in the case.
These issues can become especially important in debt buyer lawsuits, where the company filing suit may have purchased the account long after the original creditor stopped doing business with the consumer.
The question is not simply whether the plaintiff has paperwork. The question is whether the plaintiff can use legally sufficient evidence to prove the claim it actually filed.
Was the Lawsuit Filed Too Late?
Florida law limits how long a creditor or debt buyer has to file a lawsuit to collect a debt. The applicable statute of limitations can depend on the type of debt, the legal claim being asserted, and the specific facts surrounding the account.
If a lawsuit is filed after the applicable limitations period has expired, the statute of limitations may provide a defense to the lawsuit. However, this is not something a defendant should assume the court will automatically address.
Ignoring a lawsuit because you believe the debt is “too old” can be a serious mistake. A statute-of-limitations defense generally must be properly raised in the case. If you fail to respond to the lawsuit, the plaintiff may still attempt to obtain a default judgment.
Determining whether a debt is outside the statute of limitations requires reviewing the dates and history of the account along with the claims actually asserted in the lawsuit.
Are You the Person Who Actually Owes the Debt?
Debt collection lawsuits are sometimes filed against the wrong person.
This can happen because people have similar names, information becomes associated with the wrong consumer, or inaccurate data is transferred when accounts are sold. In other cases, the underlying account may have resulted from identity theft.
If you did not open or use the account being sued upon, that can be a significant defense. The specific strategy may depend on whether the problem involves mistaken identity, identity theft, or inaccurate information connecting you to someone else’s account.
Simply saying “that isn’t my debt” may not end the lawsuit. Documents, account records, identification information, and other evidence may be needed to establish that the plaintiff has sued the wrong person or is attempting to collect an account you did not open.
Were You Properly Served With the Lawsuit?
Florida law has specific requirements for serving a defendant with a lawsuit. If those requirements were not followed, improper service may provide grounds to challenge the court’s ability to proceed against the defendant.
Service issues can be particularly important when someone first learns about a lawsuit only after a default or default judgment has already been entered.
However, improper service usually does not eliminate an otherwise valid debt. In many situations, successfully challenging service may result in the plaintiff being required to properly serve the lawsuit and continue the case.
The importance of an improper-service defense is often that it can give a defendant who was never properly notified an opportunity to appear in the case and raise any other defenses that may be available.
Has the Debt Already Been Paid, Settled, or Discharged?
Sometimes a lawsuit seeks money that the consumer has already paid, settled, or otherwise resolved.
Records can be incomplete or inaccurate, particularly when accounts have been transferred or sold. A prior settlement may not have been properly reflected, payments may not have been credited correctly, or a debt that was discharged in bankruptcy may still appear in a creditor’s records.
If a debt has already been paid, settled, or discharged, documentation showing what occurred can be critical to defending the lawsuit.
What If There Is No Strong Defense to the Lawsuit?
Despite what you may read online, most debt collection lawsuits do not involve a hidden technical defense that will simply make the debt disappear.
There is no magic phrase that defeats a lawsuit. Demanding that a creditor “produce the original contract,” asking a debt buyer to “validate the debt,” or filing a list of generic defenses found online does not automatically prevent a creditor from obtaining a judgment.
In many cases, the debt is legitimate and the plaintiff has sufficient evidence to prove its claim.
That does not mean you should ignore the lawsuit.
Even when there is no strong legal defense, there may still be options for resolving the case. Depending on the circumstances, it may be possible to negotiate a settlement for less than the amount claimed, arrange payment terms, or reach another resolution that avoids the risks and expense of continued litigation.
The timing of those negotiations can matter. The available options may change depending on whether the lawsuit has just been filed, whether a judgment has already been entered, and whether the creditor has begun attempting to garnish wages or bank accounts.
For someone dealing with multiple lawsuits, substantial credit card debt, or other serious financial problems, defending or settling one lawsuit at a time may not address the larger issue. In those situations, Chapter 7 or Chapter 13 bankruptcy may be a more effective way to address the person’s overall financial situation.
The purpose of reviewing a debt lawsuit is not to invent defenses that do not exist. It is to determine whether a legitimate defense is available and, if not, identify the most practical way to resolve the case.
What Happens If a Creditor Gets a Judgment Against You?
If a creditor or debt buyer obtains a judgment, the lawsuit may be over, but the collection process may just be beginning.
A judgment can give a creditor additional tools to attempt to collect the money owed. Depending on the circumstances, a judgment creditor may attempt to garnish wages, freeze money in a bank account, or pursue other nonexempt assets.
Florida law provides important protections for certain income and property. Whether those protections apply depends on the individual’s circumstances and the source or ownership of the assets involved.
Wage Garnishment in Florida
Florida provides significant wage protections for certain individuals, including qualifying heads of family. Other federal and state limitations may also restrict how much of a person’s wages can be garnished.
However, these protections do not necessarily prevent a creditor from attempting a garnishment. A person who receives notice of a wage garnishment may need to take action to claim the exemptions and protections available under Florida law.
Bank Account Garnishment in Florida
A judgment creditor may also attempt to garnish money held in a bank account.
Some funds may be protected from creditors, including certain federal benefits and other exempt sources of income. Other protections may apply depending on how an account is owned and where the money came from.
When a bank receives a garnishment, access to funds can be restricted quickly. Anyone facing a bank account garnishment should act promptly to determine whether any of the frozen money is legally exempt from collection.
The possibility of post-judgment collection is another reason not to ignore a debt lawsuit. Addressing the case before a judgment is entered generally provides more options than waiting until wages or bank accounts are already being targeted.
What If a Creditor or Debt Collector Violated the Law?
The fact that you owe a debt does not give a creditor or debt collector the right to use unlawful collection practices.
Depending on who is collecting the debt and what occurred, federal and Florida consumer protection laws may prohibit certain forms of harassment, deception, misrepresentation, and other improper collection conduct.
A violation of a consumer protection law does not necessarily eliminate the underlying debt or automatically defeat the collection lawsuit. However, in some circumstances, unlawful collection activity may give a consumer separate legal claims against the company responsible.
If you believe a creditor or debt collector has crossed the line, the collection activity should be evaluated separately from whether the underlying debt is actually owed.
When Does Hiring a Debt Defense Lawyer Make Sense?
Not everyone who is sued for a debt needs to hire an attorney. The amount at issue, the strength of any potential defenses, the risk of garnishment, and the cost of representation should all be considered.
Hiring an attorney may make particular sense when you believe you have been sued for a debt you do not owe, the amount claimed is incorrect, you have already paid or settled the account, the debt was discharged in bankruptcy, or there are legitimate questions about whether the plaintiff can prove its case.
Legal representation may also be valuable when you simply want help resolving the lawsuit. Even when there is no strong defense, an attorney can evaluate the case, communicate with the plaintiff’s attorneys, negotiate toward a potential settlement, and help you understand the consequences of the available options.
For consumers facing several lawsuits or more debt than they can realistically afford to resolve individually, it may also make sense to evaluate whether bankruptcy offers a better overall solution.
The decision to hire an attorney should ultimately be based on whether legal representation is likely to provide meaningful value in your particular situation—not on the idea that every debt lawsuit contains a technical loophole waiting to be discovered.
Talk to a Florida Debt Defense Lawyer
If you have been sued over a credit card or other consumer debt, the first step is understanding what you are actually facing.
Shmucher Law represents consumers throughout Florida in debt collection lawsuits, settlement negotiations, and related financial matters. Attorney Ofer Shmucher has more than 20 years of experience helping Florida consumers evaluate their options when dealing with debt and financial problems.
Some cases have legitimate defenses. Many do not. Either way, ignoring a lawsuit can make the situation significantly worse.
If you have been served with a debt lawsuit, contact Shmucher Law to discuss the case and determine what options may be available.