Like you said, "assignees," not junk debt buyers pretending to be lawyers. This makes 3 in a row this week - Iâ??ve listened to people who claim they are being sued by Capital One, when in fact it is an attorneyâ??s office acting as a collector who is suing. Whatâ??s the difference? Plenty. For one thing, itâ??s fraud. In each of the cases, the consumer called Capital One who confirmed they did not own the debt any more and had â??assignedâ? the debt to Law Firm X. This changes the rules of the game in court significantly. If the Plaintiff in a lawsuit is a third party (not the original creditor), basically everything they say in court can be ruled as hearsay. Why hearsay? The debt collector was not present when the debt was being formed and cannot give first-hand testify to the veracity of the debt, payments made or processed. Think about all the cases youâ??ve seen on Law and Order on TV. The debt collectorâ??s testimony about a debt is tantamount to a witness who testifies that while he didnâ??t actually see a murder being committed, he heard about the details second hand. Second hand testimony is not valid and would be tossed out. In addition, the debt collector cannot present any documents unless they are authenticated as true and original copies by the original creditor, in this case Capital One. Can you see where this is going? With no evidence, they canâ??t win. While a you can probably not get a case thrown out of court due to the â??Incorrect Plaintiffâ? syndrome, you can: 1. Call your stateâ??s Legal Bar Association and turn in the law firm and the attorney handling the case - this is strictly against the rules (it is fraud.) Make sure you inform the lawyer on the case that this is what you are doing. It could get them to back down and dismiss the case. 2. Have you or your lawyer file a motion to dismiss or amend the original complaint to correctly reflect the right Plaintiff How to tell if Capital One (or indeed any credit card company) is NOT the real Plaintiff: 1. Look at past correspondence from the law firm. Does it say â??This is communication from a debt collectorâ? on it? If so, you can positively identify the law firm as the real Plaintiff. 2. How old is this debt? If itâ??s more than a year old, this is a red flag that the debt has been charged off. A phone call to the credit card company should confirm these suspicions. credit info center
Let's show where the clarity is and where the clarity is lacking. First, a JDB who has bought a debt is an "assignee" ... the document that actually transfers the debt from Cap1 to the JDB is termed an "assignment". The terminology is unfortunate, because it creates confusion, as I will detail in the next paragraph. When a creditor gives a debt to a collection agency to work on, or to a lawyer to sue on, the account has been "assigned" to the CA or lawyer. No ownership has changed hands, but the file (it once was a physical file, now it's likely to be a row in a spreadsheet with some associated image files) is now the agent's to go to work on. That means that unless the complaint clearly references LVNV or some other JDB, then you really won't be able to know who owns the debt with any certainty unless and until you invoke the discovery process (assuming their is one), or unless your local court's rules require the debt buyer to be identified in the pleadings and the attorney's office has cheated and you discover it later and can use it to reopen the case, vacate the judgment and slam them (fraud on the court). LVNV is so huge it is hard to imagine that Cap1 isn't selling everything they've got on a forward flow basis if they're selling them anything at all (except that Cap1 is so big they perhaps are in a position to have some bargaining power of their own in a situation like this). Knowing that LVNV is buying some is tantamount to the conclusion that LVNV is buying all. And TrakAmerica may be acting for LVNV, or they may be doing the work for Cap1 on the accounts that Cap1 has decided to keep and sue on. Debtors in court are going to be the only ones who can get really clear answers on this. LVNV doesn't seem to maintain their own in-house collections capability, rather they contract out to others who have the experience and capacity (and who are willing to take the heat). In that manner the debt buyer can keep its white gloves unsullied. Also, managing collections attorneys on a nationwide basis is a bit like herding cats. Unless you're talking a really small state, there is seldom a law firm with statewide capability that's willing to handle small consumer debt cases, so you have to find decent people you can work with on a metro-area by metro-area basis, and you may still have some holes in your swiss cheese where either you can't get an attorney to do the work, or the local judiciary won't give you a fair shake (Texas has 254 counties, many of them nearly uninhabited). Making it a paying proposition for everyone is tough.
I think this is true. I believe people living in a sparesly populated area,of a large state with one or two large metro areas, have a better chance of avoiding suit. For one thing, JDB's can't sue a large swath of debtors at a time, like they can in a densely populated county where they can get a volume "discount" from the local collection attorney. Most likely, in a small county, they have to retain another law firm to pursue the action at additional cost. Even with judgment in hand, enforcement is likely more tedious in a county a good distance from the collection attorney's office. Once you get beyond the obvious place of employment, and subsequent wage garnishment, I would imagine further enforcement activity would be costly. They would have to have good evidence that non-exempt assets exist, before justifying the expense.
Even if you can get a lawyer to travel to a distant county, without knowing the court personnel well they're likely to get "hometowned" in court ... what happens when you sue someone whose sister's brother-in-law's aunt is the judge's judicial assistant?
Or in rural idaho.However you don't get daily mail if no one else has a letter within 5 miles of you they don't come out into the second inless you go pick it up.
That may be true on Law and Order TV but those arguments don't cut much ice in the day to day routine of courtroom life. The truth of the matter is that their allegations are all that matters and the debtor can holler hear say evidence all day long at it won't get him anywhere. What say is theoretically true but another story entirely in the courtroom. Those kinds of statements in forums only give those who have no experience in court a false hope that they might have a chance to win which they don't really have. Worse yet it actually detracts from their ability to learn how to really win. The rule of thumb is that if you are getting sued in local courts you are going to lose no matter what you plead or how you plead it. Even a statute of limitations defense won't normally work unless you can prove when you made your last payment to the creditor. Yes, I can see where this is going quite clearly. It is going nowhere. That may not be the way the justice system is supposed to work and it may not be the way the Rules of Evidence or the Rules of Civil Procedure say it has to go but that is the way it actually does go in most local courts. While I must admit that some jurisdictions are slowly changing, most still work the same way and that is against the defendant every time. Part of the reason is that our courts are deluged with these kinds of cases and judges just want them over and done with in the quickest possible way. For them the easy way to get the job done is simply to deny all motions and pleadings by the defendant and grant the judgment and be done with it no matter how unjust it might actually be. They know they can get away with it most of the time because defendants usually don't even have the good sense to take a court reporter with them every time they go to court. No court reporters present means that there is little if any chance that an appeal can be mounted successfully and defendants probably don't have the money to mount an appeal even if they do have a court reporter there. The judges know they can probably get away with anything and nothing can be done about it. That's just the way it is and no amount of talk about what the rules say is going to change that. That will get you exactly nowhere. The bar association is nothing but an association whose members all consist of attorneys and they defend each other to the max. It is a good-ol-boys club to the max. About the only things that will get a lawyer disbarred is if the complainer can prove that the lawyer stole funds from his trust fund or did something really outrageous. Complaining to the bar association normally falls on deaf ears. The only question before the court is whether or not the defendant owes the debt. Who he owes it to is not open to question. Not so! Attorneys are 3rd party debt collectors by definition of federal law and has nothing to do with who owns the debt. They must identify themselves as 3rd party debt collectors regardless of whether they own the debt or are acting on behalf of an actual client. He must identify himself anytime he communicates with a consumer in any manner whatever except when actually speaking before the court. Some pleadings are exempt, some are not. Even though he has a judgment and is in the garnishment phase he is still collecting a debt and must so identify himself. If he fails to do that he is leaving himself wide open for a federal lawsuit for violation of FDCPA. So what? Of course it has been charged off. That is a foregone conclusion.
