How Do I Defend Against an American Express Lawsuit?
Of all the credit card companies that resort to filing civil lawsuits to collect delinquent accounts, American Express tends to be among the most organized. This simple guide will offer some tips on how to best defend against such suits.
The Lawsuit - First Things FirstAmerican Express is very organized. Where many credit card companies will destroy old data, American Express has a unique ability to reproduce even the oldest invoices. I often joke that they can tell me what gas station I was at on October 3, 1997. At any rate, when American Express files suit, it is fair to say that they will not have difficulty substantiating the balances they claim.
The first thing to do in these cases, or in any case, is to be certain that an Answer is filed denying the indebtedness within the period proscribed by law. In Georgia, a defendant has 30 days to file an Answer from the date of service of the suit. To fail to file an Answer risks losing by default. This is never a good idea.
In the best case scenario, a defendant of an American Express suit will have the benefit of being represented by counsel. This will allow for any affirmative defenses to be asserted. These defenses may be useful as leverage in the event that a settlement has to take place to resolve the case. However, there are times when defenses, such as improper service or improper venue, may serve as a complete defense to the matter. This can require a more thorough review of the facts and circumstances, but such issues should not be overlooked.
In the event that time is short or an Answer must be filed without the benefit of counsel, or "pro se," a defendant should keep it simple and admit only what must be admitted. By this, I mean that if you see that American Express is suing for $13,294.58, you should deny owing that amount unless you are as certain it is correct and accurate as you are what color shoes you are currently wearing. If not, you should deny owing this amount such that you can force American Express to prove and substantiate its claims with records through discovery, which I will discuss more thoroughly below.
LitigationLitigation is a broad term that refers to the work conducted in preparing and trying a case. In this context, I am specifically referring to the discovery process in the case. Once an Answer has been filed in response to the Complaint, both sides may engage in discovery. This is where interrogatories, which is a fancy word for questions, can be sent to American Express' counsel asking about the debt, potential witnesses, documents, and any other information related to the claims.
There are other methods of discovery, such as requests for production of documents, and depositions. The choice of how to best get the answers you are looking for just depends on the individual case. This process can be time intensive and frustrating. If the right questions aren't asked, there can often be gamesmanship that takes place in this process where the other side will refuse to answer questions by claiming they are overly broad or using some other excuse. This process is important as, if the right questions are asked, American Express will limit what documents they can later use to prove the case at trial.
Obviously, this is a two-way street. American Express also gets to ask questions and seek documents in the possession of the defendant, should there be any. This can be tricky as, depending on what the answers are, American Express can set the case up to be won at summary judgment, which means that they would not have to take the matter to trial, but could instead use the responses to show the Court that there is no need for a trial as there is no genuine issue of material fact in dispute.
Discovery is the deep end of the pool. If you are proceeding without counsel, you should do as much research as you can on these matters so that you are really putting in the necessary work to understand how best to respond. I can't stress enough how important it is to focus on what is being asked and to determine how to truthfully and accurately respond. The case can be made or broken at this stage.