Defense Of Credit Card Lawsuits
A credit card company usually tries to beat the consumer in court just by proving that there was no objection to the monthly statements. To do so the company must prove the mailing of the credit card statements by someone with personal knowledge of the mailing or personal knowledge of a regular mailing practice. (2005 NY Slip Op 52015[U]).
The same type of proof is needed for the mailing of the credit card agreement. (2007 NY Slip Op 51041[U]). The proof of mailing must be by a person employed by the credit card company at the time of the mailings. (2013 NY Slip Op 51697[U]).
The account statements must show usage of the credit card, not just an open balance with fees and finance charges. (2007 NY Slip Op 51041[U]). Simply proving prior payments on the account may not be sufficient. (97 A.D.3d 522). Oral protests can be sufficient to establish a defense. (86 A.D.2d 519).
Documentary evidence must be submitted demonstrating how the total amount claimed was calculated. (80 AD3d 868). Conclusory allegations cannot be used to calculate the total debt. (178 A.D.2d 691). All of the purchases or transactions have to be itemized. (2009 NY Slip Op 52051[U]).
Where a contract is claimed, a law suit has not been allowed by simply proving that there was no objection to the charges. (2011 U.S. Dist. LEXIS 134678). Credit card companies and the companies to which they sell their accounts are notorious for suing consumers on transactions that are time barred. The credit card company may not recover upon any transactions that are time barred merely by sending continuing monthly statements. (287 A.D.2d 375). If the transaction was the purchase of goods, the time limit is four years from the purchase (301 A.D.2d 822).
The suit must be timely under the laws of the state in the choice of law provision in the credit card agreement. (2010 NY Slip Op 50974[U]). If the answer pleads a factual defense that the action is time barred, the plaintiff should not be able to get summary judgment without initially demonstrating that the charges are within the statute of limitations. (299 A.D.2d 64).
Credit card companies other than national banks cannot charge interest exceeding the State’s maximum rate. (786 F.3d 246). A credit card company was barred from collecting even the principal amount due because of an excessive interest rate (2009 NY Slip Op 29527).