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Roger
Roger, Attorney
Category: Bankruptcy Law
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A debtor received a summons and complaint from a creditor for

Resolved Question:

A debtor received a summons and complaint from a creditor for a past due credit card bill. The complaint claims that the credit card was issued to the debtor, but does not state that the debtor agreed to have the card issued in his name. Attached to the complaint is the terms of agreement for the credit card, but the debtor's signature is no where on that attachment.

The debtor is considering filing an answer and motion to dismiss requesting the complaint be thrown out because (1) the debtor did not agree to the open the credit card and (2) the creditor does not allege that the debtor agreed to open the credit card. The credit bill is for $33,000.

How is the creditor likely to respond the the debtor's answer and motion? How likely is it that the debtor would be granted the motion to dismiss is the creditor cannot present a signed agreement?
Submitted: 11 months ago.
Category: Bankruptcy Law
Expert:  Roger replied 11 months ago.

Roger : Hi - my name is XXXXX XXXXX I'm a Bankruptcy litigation attorney. Thanks for your question.
Roger : IF the debtor received and used the card, that would satisfy the first issue of agreeing to open the credit card. Even if the debtor didn't specifically agree, the use of the card after receiving it would be enough to satisfy the question of whether or not the debtor agreed to the account.
Roger : If the debtor responded/filed a motion to dismiss that alleges that the debt is not his/hers, the creditor would likely provide proof that the card was received, activated and used by the debtor. If this proof is provided, it would be difficult for the debtor to claim the debt isn't his/hers.
Customer:

Since the creditor did not allege that the debtor agreed to open the card, nor provide proof of it with the complaint, would the debtor face Rule 11 violations if he filed an Answer that denies the creditor's allegations that the card was issued to him? Or should he ask the creditor for proof of the agreement before filing the Answer?

Roger : The agreement to open the card would be based on the debtor's use - - the agreement would be evidenced by the debtor's actions of using the card.
Roger : NO, this should not be Rule 11 sanctions material.
Roger : The debtor has the right to deny the allegations and force the creditor to prove the allegations.
Roger : The allegations can be denied and the debtor can demand a strict accounting from the creditor to prove the debt owed.
Customer:

Same for motion to dismiss - little risk of Rule 11 violation?

Roger : That's right.
Customer:

From your experience, on a $33k credit card bill, it is likely that a creditor will take the time to go through with the debtor's demand for a strict accounting? Or is it more likely the creditor will forgo pursuing a judgment, and instead, just continue with other collections methods?

Roger : If the creditor has already sued, then the creditor will take the case to the end - - including providing the accounting.
Roger : In these financial times, creditors will sue a debtor for hundreds of dollars, so they'll certainly pursue a debt of this size.
Roger, Attorney
Category: Bankruptcy Law
Satisfied Customers: 26571
Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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