Legal Question in Civil Litigation in New York

Joined Credit Card Account

When my friend got married he and his wife was expecting a baby, so I co-signed for a $300 credit card. He didnt pay the bill for months and I started to get calls, so I contact him and told him to pay the bill so I wouldnt get hurt. And he said that he did, 7 sevens later I found out he pay the past due amount but not the full balance so our bank account frozen. I told him that I would setup a payment plan because my rent check bounce and the new court date was a month way which would have put me two months behind. So I call the law offie and set up a payment plan so i can get the judgement vacated. I told him that I want to be paid for the debt, we set up a $150 on the 30th of each month. Three months or me calling and texting and I havent seen no one payment so I set up a small claim court date for Sept 13. I put down the full amount of $1,500 but since the account was joined would I only get award half.

Keep in mind that we were to go on a TV court show but he backed out the last mintue.


Asked on 8/31/06, 1:49 pm

1 Answer from Attorneys
David Simon Hogan & Rossi

Re: Joined Credit Card Account

I'm not sure exactly what's going on, but it sounds like the credit card company sued your friend, as well as you, and took a judgment against both of you. Then, they began to execute on the judgment by serving a restraining notice on your bank to freeze your account - the bank will freeze double the amount. Then you mention a "new" court date. Is this you trying to vacate the credit card company's judgment?

First off, it sounds like you were not aware of the credit card company suing in the first place. You were supposed to have been served.

Second, when you say "co-signed" for the card, did you sign a personal guaranty? or were you actually listed on the account? There is a difference. If it's the latter, were you joint tenants? or tenants in common. If the latter, you may only be liable for half the debt. The credit card company is usually required to notify you before it sues you. Did you get any notice of the lawsuit before your account was frozen?

Be that as it may, you are now suing your friend in small claims court. You will need to establish the agreement between the two of you and that he promised to indemnify you or hold you harmless and be 100% responsible for the debt. To be brutally honest, this is difficult in small claims court without a written agreement. You can have an oral agreement, and you will have to testify that he agreed to be 100% responsible for the debt. But it's your burden of proof. If your friend says that wasn't the case, or that the card was somehow a wedding gift, you may not meet your burden of proof. So any additional evidence to get you over the hump will help. You have to prove your case by a preponderance of the evidence - more likely than not - 51% in the Court's eyes. Demand all the credit card statements either from your friend or the credit card company. If the court date is soon, tell the clerk of the justice court you want to issue a subpoena to the credit card company for the statements - ask the court to postpone your court date so the credit card company has time to respond. Show the court that all expenditures on the card were made by your friend. Ask him about each expense.

Lastly, hopefully you sent a few demand letters to your friend. Establish that he never objected to them and never once disputed the debt. This is called an "account stated", and it generally means that if somebody acquiesces and never objects to statements, they are presumed to be accurate and the debt is presumed to be valid or they would have objected.

If you take all of these steps, your chance of success will be much greater, and I don't think you will be limited to a 50% recovery unless you also made purchases or took out cash with the card.

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Answered on 8/31/06, 2:37 pm


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