Recently I had oral argument on a Motion for Summary Judgment in a debt buyer lawsuit. During my presentation I was arguing that there was no evidence that my client owed any money to the debt buyer, CACH, LLC. The judge in the case interjected – “But you admit they owe someone, right?”.
That comment by the judge goes to the heart of the battle with junk debt buyers. Many judges and arbitrators take the position that a debt is owed so it doesn’t really matter if the debt buyer can’t cross all of the t’s and dot all the i’s.
I have two responses to this approach:
The Original Creditor is Not Suing My Client
My first response is that if the original credit in a case was suing my client then the case would be handled completely different. But that is not what we have with junk debt buyer lawsuits – the original creditor is no where to be found.
This is a lawsuit by a completely different company and it is vital that you focus the court on that fact. The focus should never be on the original creditor. The attorney for the debt buyer will likely try and focus almost exclusively on your relationship with the original creditor. I often see them discuss payments that were made to the original creditor, specific charges that were made, and the lack of objections.
In order to be successful you need to keep your focus like a laser beam on the fact that the original creditor is not suing you – the junk debt buyer is. They have to not only prove that there was a contract with the original contract, they have to show an unbroken chain of title from the original creditor to the debt buyer who is now claiming ownership
It is important to understand and point out to the court that this is not merely a technicality you are arguing. It is at the heart of the case whether or not the debt buyer actually owns this debt – something that even the Federal Trade Commission acknowledges the debt buyers often can’t do.
A Judgment Should Represent that All Rules Have Been Complied With
It is one thing for a junk debt buyer to say that you owe them money; but it is an entirely different thing for a court to sanction that allegation and award them a judgment.
Court proceedings are governed by the Rules of Civil Procedure and the Rules of Evidence. These Rules are in place as safeguards to make sure that a party cannot get a judgment without providing exact and specific evidence that they are entitled to judgment.
And this makes sense. A judgment carries a lot of power. Armed with a judgment a debt buyer can garnish your wages, levy your bank accounts, lien your home, and ruin your credit.
Before a court should grant all that power to a junk debt buyer they should at a minimum be required to comply with the various rules. If they can’t they shouldn’t get a judgment.
It is important to keep the court focused on why these safeguards are there and why the debt buyer must adhere to them.
Junk debt buyer cases should not be left to what a court “feels is right” but what can actually be proven at trial.
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John Skiba, Esq.
We offer a free consultation to discuss your debt problem and help you put together a game plan to eliminate your debt once and for all. Give us a call at (480) 420-4028