2 Ways to Prove a Debt Collector Doesn’t Own Your Account
This post explains why debt buyers (a type of debt collector) are often unable to prove ownership of credit card accounts in lawsuits they file against consumers.
One of the most common types of debt-collection lawsuits is lawsuits filed by so-called debt buyers. Debt buyers are a type of debt collector who buys bad debt – usually credit cards – in order to collect on it.
For instance, if a Capital One credit card falls behind on payments, Capital One will sell it to a debt buyer rather than collecting on the account itself. The debt buyer purchases the account for pennies on the dollar and then sends collection letters or files collection lawsuits to get payment.
Consumers often feel intimidated or confused when debt buyers sue them in court. It’s hard to know what to do. When our office represents individuals against debt buyers, two of the most common arguments we make are that there was no assignment of the debt introduced into evidence, and that the documents that supposedly do show the debt was assigned are incomplete. These are explained below.
1. No Actual Assignment of the Debt Was Introduced Into Evidence.
When debt buyers purchase accounts, this purchase is called an assignment. A credit card company will assign hundreds of accounts at once in a large transaction valued at thousands or even millions of dollars. The assignment consists of a signed statement by the credit card company that identifies certain accounts (usually by name, account number, and other identifying information), and says to whom the accounts were sold (the debt buyer).
At least, that’s how it’s supposed to work. In practice, though, what usually happens is that the debt buyer does not produce the assignment. Instead, the debt buyer will provide an affidavit. The affidavit will claim that there was an assignment and that the debt buyer now owns the account.
The problem with a debt buyer using affidavits – instead of the original assignment – is that doing so violates the Rules of Evidence. One of the rules in the Rules of Evidence is the “Best Evidence Rule,” which is part of Rule 1002. It says that “an original writing … is required to prove its content.”
As applied to debt assignments, the Best Evidence Rule mean that the original assignment must be produced into evidence. The affidavit is insufficient because it is just a statement by someone claiming that there is an assignment somewhere but refusing to provide the actual assignment itself. Anyone could say that, and it is not credible, so it is inadmissible.
Therefore, using the Best Evidence Rule against debt buyers’ affidavits may be an excellent argument for consumers to make in a debt-collection case. In fact, it’s an argument that our office has made many times.
2. The Documents Purporting to Show the Assignment of the Debt Are Incomplete.
Sometimes the debt buyer might produce more than an affidavit – and also submit what is says is the assignment. Again, though, the Rules of Evidence come into play and may prohibit the debt collector from offering it into evidence.
The applicable rule in this situation is the “Rule of Completeness,” which is Rule 106 of the Rules of Evidence. The Rule of Completeness says that if a party introduces just a portion of a written document, the other party may require the full document to be introduced into evidence, too.
How is the Rule of Completeness relevant to debt buyers’ debt-collection lawsuits? Because even when debt buyers have an assignment, it is usually incomplete. The debt buyer will introduce a Bill of Sale, and maybe even part of a spreadsheet that was part of the assignment. But these documents are almost always just excerpts or parts of larger documents that the debt collectors refuse to produce.
The Bill of Sale usually references other, longer documents that were signed when the assignment was made, so under the Rule of Completeness, those documents have to be introduced, too. And the excerpt of the spreadsheet is inadmissible for the same reason – the full spreadsheet of accounts must be introduced, not just a part of it. By using this argument, a debt-collection case can thus often be dismissed or may be settled for a fraction of the amount.
Every debt-collection case is different, and there are many other defenses that you may be able to use if you are sued by a debt buyer. The reason debt collectors are so successful – even despite these evidentiary issues – is that less than 10% of consumers are represented by an attorney when they are sued on a debt. This makes it virtually impossible for consumers to present their defenses.
Dye Culik PC is a law firm with offices in Boston, Massachusetts and Charlotte, North Carolina. We represent consumers throughout Massachusetts and North Carolina in lawsuits and other disputes with debt collectors, debt buyers, and credit card companies. If you received notice of a lawsuit, or even if you just have questions about your rights, contact us to see how we can help.