Consumer Protection Law
Consumer Protection Law Questions? Ask a Lawyer Now.
Hi! LegalGems here. I have extensive consumer law experience and will use this to assist you with your issue today. Generally the creditor must prove the debt. As you probably know, the appeal process involves a "de novo" trial - a new judge that will "re-hear" all the evidence. Some judges will be content with an itemized list detailing the actual charges, then the late fees, then the interest. If the appellant is able to introduce additional information - i.e. credit card statements, and an itemized summary of the monthly charges (actual transactions), then interest, then late fees, this could help persuade the judge that there was in fact a discrepancy in the accounting/billing done by the credit card company.
The judge has the authority to grant, to the prevailing party, $150 in attorney fees, so this won't go far; however, it may be worthwhile to have a bookkeeper prepare a concise statement showing where the discrepancy lies.
What is surprising is that most California small claims court offer free mediation, and if a discrepancy was the root of the cause, that would be a great place to sit down with the mediator and the credit company to determine where the discrepancy lay. Then a mediation agreement could be signed and entered onto the record. Judges tend to look very favorably on alternative dispute resolutions.
So they are NOT required to show every penny from the debt?
How do we request mediation then? Is that automatically offered or do we request it?
If they have business records that show the amount owing, many judges will consider this adequate validation. It really depends on the judge. For example, some debt goes back years, so a judge may only request an annual summary showing the charges so they don't have to literally review every transaction. Also, the credit card company likely had, in its application paperwork, an agreement that any transaction that is contested by the consumer needs to be disputed in writing within 60 days, as that is very typical in cardholder agreements.
It varies by each county. Most counties will strongly promote it because of the backlog the judge's are experiencing due to the budget cuts. If you check on the website for your particular county, there should be information there; or the clerk will know. And mediation is generally free, as most counties have received grants and also have DIRPA funds to subsidize the program (thus freeing up the judge's time, as most pay the mediators a per diem, so they get paid whether or not they hear cases, so the court has a lot of incentive to use their already paid for services)
Excellent...thanks for your help!