Debt Buyer Lawsuits: The Illusion of Evidence


Midland Funding Law suitIf you have been sued by one of the debt buyers, Midland Funding, Portfolio Recovery, LVNV Funding, you may have felt intimidated not only by the debt collection process but by the fact that you are dealing with a large company who is represented by an attorney. Many people are so intimidated that they make agreements or accept liability on a debt even though the debt buyer hasn’t provided any proof that they actually own the debt they are suing you on.

There are a lot of websites that will tell you that the first thing you need to do if a debt buyer contacts you is demand that they authenticate the debt.  If you have done this you likely received back a stack of documents which may have included things like statements from the original creditor, terms of agreement, and maybe even an application. Many people look at that big stack of documents and think their chances of winning their case are over.

But that’s not the case.

Just because a debt buyer is able to provide you with a large stack of documents doesn’t mean that they can prove that they are the owner of the debt and it certainly doesn’t mean that they can prove their case in court.

So, before you make any decisions as to your debt collection lawsuit, it is wise to have an attorney look over what the debt buyer has sent you and whether any of it means what they claim it means.

The Debt Buyer Must Prove That They Own the Debt

In order for a debt buyer like Midland Funding to obtain a judgment against you they are going to have to provide evidence to the court that they actually purchased the debt from the original creditor.  Merely having statements from the original creditor is not enough.  They must have a valid assignment or bill of sale from the original creditor that actually shows that your specific account was transferred.  Not only that but they must have an affidavit or testimony from the original creditor attesting that the bill of sale is true and accurate.

Rarely do the debt buyers have an affidavit from the original creditor that verifies the bill of sale.  But the debt buyer knows they need this.  So they try and meet this requirement by having one of their own employees sign an affidavit attesting to the validity of the transfer.  The problem is, this isn’t sufficient.  It is hearsay.

Let’s use Midland Funding as an example.  Let’s say that Midland Funding filed a lawsuit against you alleging that they bought a Chase credit card account that you used to own.  As evidence of this transfer Midland Funding provides you with a copy of a Bill of Sale.  However, Midland doesn’t provide you with an affidavit from a Chase employee to verify the Bill of Sale, Midland will provide you with an affidavit from one of their employees (or more typically an affidavit from Midland Credit Management).  This is Midland Funding’s attempt at making you think they have all their ducks in a row, when in reality – they don’t.

If you have been sued by a debt buyer and are feeling like you have no hope of winning your case, meet with a consumer law attorney who handles these types of cases.  More often than not the debt buyer will not have evidence it needs to prove its case and you may be in a better position to win your case than you first thought.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© John Skiba, Arizona Consumer Law Group, PLC | Attorney Advertising

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