Original Creditor or Debt Collector?
The question of the month has to do with a petition brought in the name of the original creditor – is that who is suing you?
Member question is, if the summons and complaint list the original creditor but at the bottom of the summons and complaint it has “this communication is from a debt collector” am I dealing with the original creditor through their attorneys or is this a debt that they have transferred/sold?
My answer to this question used to be, always, that if the case was brought in the name of the original creditor, that’s who you should think actually was suing you, but my answer has changed somewhat. Now I would say that if you have any doubt about who is suing you, you should pursue the question in discovery. Specifically, that means asking interrogatories regarding whether the debt has ever been sold, and if so, to whom.
It Can Be Hard to Know Who Is Suing You
My new-found skepticism on this issue comes from talking with an ex debt collector who reports to me that debt collectors do (often, he says) sue in the name of the original creditor.
As I pointed out in In the Shoes of the Original Debt Collector, it is deceptive for the debt collector to pose as an original creditor. While certain of the rights of the debt collector are the same as, and are derived from, the rights of the original creditor, the law very definitely and explicitly regards debt collectors are different from original creditors. And original creditors are treated more favorably in the law than debt collectors. So it is a violation of the Fair Debt Collection Practices Act (FDCPA) for debt collectors to bring suit pretending to be the original creditors. That is so obvious, and bringing suit in the name of the original creditor would be such a blatant violation of the law, that I have always doubted that any debt collectors would dare to do it.
I, of all people, should know better! However, it is still true that the mere fact that the petition says “this is a communication from a debt collector…” does not mean you are being sued by a debt collector and not the original creditor when the original creditor’s name is on the suit. Lawyers are often cautious, and do a lot of things by routine and with forms, and so they could have put the warning on there unnecessarily.
However, if you have any suspicion that your debt has changed hands, but you’re being sued in the name of the original creditor, you should explore the question in discovery. And if you find out you are, in fact, being sued by a debt collector, I suggest you very strongly consider bringing a counterclaim under the FDCPA for deceptive and unfair debt collection practices. It should be a winner.