Can a credit card company say they have no record of debt and then try to sue?
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Can a credit card company say they have no record of debt and then try to sue?
My father-in-law got a credit card in his name and added my husband onto his account. My husband’s father passed away and his mother kept paying the bill. She stopped paying it around 4 1/2 years ago and did not tell us. We applied for an auto loan at our bank 8 months ago and was turned down. We got a copy of our credit report and it showed that the credit card hadn’t been paid for all that time. My husband called the credit card company and the collection agency both to try to settle the debt so we could get an auto but both said they had no record of the debt. Now they are threatening to sue. Can they do that? Would it help if we had a copy of the phone bill showing that we tried to call them?
Asked on March 5, 2012 under Bankruptcy Law, Tennessee
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
As a practical matter, it's difficult to see how they could sue--in order to sue and win, a presumptive creditor must be able to prove the existence and amount of the debt. The burden is on the party suing to establish or prove its case (provide evidence supporting its case), and it must be able to do so by a "preponderance of the evidence," or that it is more likely than not that you owe the money. Without records, it is difficult (or impossible) to see how they could do that.
If they do try to sue without having records, they may be violating both debt collection laws (e.g. the Fair Debt Collections Practices Act, or FDCPA) and/or consumer fraud laws. If they try to sue, therefore, you should consult with an attorney--not only should you have an excellent chance of defeating a lawsuit which lacks evidentiary support, but you may have a counterclaim against them. Good luck.
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