The Secret Defense to Debt Collection Matters
Unfortunately, many people find themselves in a situation where they get behind on paying their bills and, due to lack of funds, wind up not paying some of them. Not paying one’s bills will more often than not result in that debt being sold to a collections agency and that agency suing the debtor for payment (and adding on all kinds of things, like interest, attorney’s fees, penalties and the like to boot).
Selling one’s debt to a collection agency is an important step in the process that directly affects the subsequent lawsuit against the debtor. Typically, large lenders – especially lenders like credit cards companies – have a fair amount of debtors who stop paying (for whatever reason) on the debt owed to the lender which results in their debts being sent to collections. When these lenders send debts to collections, they do so by selling the debts to a collection agency. When they sell the debts to a collection agency, they will often sell the debts in bulk, often for pennies on the dollar. The transaction benefits the creditor as it gets something for the debts owed without having to pursue costly and time consuming litigation. The transaction benefits the collection agency because it can pursue collection (including law suit) against a debtor for the full amount despite having bought the debt for far less than its principal value, let alone its value inflated by interest and such.
More often than not, when debts are sold to collection agencies, the initial creditor (e.g.: a credit card company) simply provides an affidavit to the collection agency regarding the amount of the debts and the names of those who owe the debts. Typically, no other document is supplied by the initial creditor to the collection agency, including any contracts with the debtor or anything bearing the signature on the debtor. Once the collection agency assumes the debt, it has the right to bring suit against the debtor for the unpaid debt.
The lack of documentation of the contract with the debtor is absolutely key to any defense to the collection of the debt. If the creditor brings suit against the debtor in the Court of Common Pleas and does not attach the contract between the debtor and the creditor which underlies the alleged debt, the debtor can file objections to the complaint (the document which initiates the law suit) asking for it to be dismissed due to the lack of a contract. I can say, from personal experience, that such a tactic works as, very often, the collection agency pursing the debtor simply does not have the underlying contractual documentation to prove its case against the debtor.
If the case is brought in small claims court, the creditor does not have the obligation to include a copy of the contract to the complaint, so successfully defending against a collections law suit takes some shrewd strategy. The lack of documentary evidence is still a huge problem for the creditor, but the small claims aspect of this matter makes the approach different and much trickier. As the complaint does not require the contract to be appended to it, and the primary place for these matters to be resolved is at a hearing before a judge, the creditor has the procedural advantage. At the hearing, the collection agency, armed with an affidavit from the initial creditor (as described above), secures almost all of the other evidence it needs to win against the debtor through the debtor’s testimony.
Here is how the hearing would play out: the creditor describes the claim to the judge, which is that the debtor had a contract with a credit card company (for example), he did not pay the debt owed, and is now in collections and all of this is supported by the affidavit. Now, the affidavit, taken alone, is insufficient to win the case as there is no evidence that the debtor actually contracted with the creditor. So, at the appropriate time during the trial, the creditor will ask the debtor some questions (i.e.: cross-examination). These questions will be something like: “did you have a credit card from XYZ company on these dates”? “Did you make charges on it?” “Did you make all the payments on it?” “Do you owe $XYZ on the credit card?” And other questions like it. At the end of the examination, the debtor himself provides all of the evidence against himself that the creditor needs to win the case against him. As a result, the creditor will win the case against the debtor thanks to the debtor supplying all of the evidence, via his testimony, need by the creditor.
So, how does a debtor avoid the fate of the debtor in the above scenario? That is where a good lawyer comes into play.