If your credit card company sues you, you’ll need to decide if it's worth paying for an attorney to help you. In many cases, it is. An attorney can help you raise any defenses you have, negotiate with the creditor to settle the debt, or simply inform you of your rights and responsibilities in the matter.
Below are some situations where you should consider hiring, or at least consulting with, an attorney if your credit card company files a lawsuit against you.
If you believe you have a defense to the lawsuit, you might need an attorney to help you raise the defense in court. For example, some defenses that could require the assistance of an attorney include:
The statute of limitations has passed. Under state law, a creditor or debt collector only gets a certain amount of time to sue you for an unpaid debt. This is called the statute of limitations. The time limit varies from state to state, but it's generally from three to six years. (Check Nolo’s chart of Statutes of Limitations in All 50 States to find out the statute of limitations in your state or the state designated in the credit card contract’s choice of law section.)
If the statute of limitations has passed, you have to assert this defense by responding to the lawsuit and providing supporting evidence to get the case dismissed. An attorney can help you with this.
You aren’t the person who owes the debt. Credit card companies often sell unpaid debts to a debt collector and that party eventually files the lawsuit. Debt collectors sometimes sue the wrong person. If you have a name that's the same or similar to the person who actually owes the debt, you can raise the defense of mistaken identity.
To do this you’ll need to demand proof from the debt collector that you're the person who owes the debt. This can be tricky and an attorney can assist you in making the debt collector produce the original documents so that you can show that your signature, Social Security number, and other personal information doesn’t match that of the actual debtor.
The party suing you can’t prove it owns the debt. If the party that files the lawsuit isn't the original creditor, it must prove it owns the debt. This means that it must include appropriate documentation in its lawsuit showing that it bought your debt from the original creditor, or from another entity that purchased the debt from the original creditor. Otherwise you may be able assert lack of standing—meaning, the party suing you doesn't have the right to collect the debt—as a defense. An attorney can help you figure out if this defense is available in your situation.
An attorney might also be able to spot potential defenses that you haven’t considered. (Learn more about different defenses in Defenses to Credit Card Debt Lawsuits.)
Even if you think you don’t have a defense to the suit, you might want to consult with an attorney to help you understand what you’re facing and explain what could happen if you lose the suit.
For example, if you don’t respond to the suit, the court generally will enter a judgment against you for the amount the creditor claims you owe. Then the creditor can get this amount from you by doing such things as garnishing your wages or directing your bank to turn over funds from your account to pay the debt. An attorney can explain the specifics about what can happen in your situation.
You might want to try to negotiate a settlement of the debt—like by paying less than you owe in one lump sum—but dealing with a creditor or debt collector can be frustrating and time consuming. An attorney can negotiate with the creditor or debt collector on your behalf to reduce the amount you owe and settle the suit. (Learn how much it might cost to use a lawyer to negotiate with your creditors. If you want to negotiate a settlement on your own, get tips on how to work out a deal with a collector in Negotiating With Collectors on Unsecured Debts.)
If you're unsure of what to say to a creditor or debt collector, you could inadvertently hurt your situation. For example, if the statute of limitations has passed, you could restart it by saying or signing something that acknowledges that the debt is valid (like agreeing that you owe the money). You could also revive the statute of limitations if you make a payment on the old debt.
An attorney can advise you about what you should and should not say (or do) in regards to an old debt. And, if you decide to hire the attorney to represent you in the matter, the attorney can deal with all communication to and from the creditor or debt collector.
If you can’t afford an attorney, you might be able to get low-cost or free help from a legal aid program or clinic that provides legal assistance to low-income individuals and families. You can find a list of various legal aid programs on the Legal Service Corporation's website.
If you don't qualify for legal services help and can't afford to hire an attorney to represent you throughout the entire suit, it might be worth paying an attorney for an hour of legal advice. For example, the attorney might be able to confirm that you don't have any good defenses, provide tips on negotiating with the credit card company, and discuss other options you could have.