Posts

Library of Glossary Videos

Library of Glossary Videos

The videos on this page are part of our glossary and our efforts to make the public more aware of it. You will find a brief description of the videos and a link to the page on which they occur.
Click here for the Glossary.

Glossary: Introduction Video

Glossary: Assignment

Glossary: Business Records Exception Video

Glossary: Charge-offs

Glossary: Dismiss, Dismissal

Glossary: Evidence – What Makes Something Evidence

Glossary: Small Claims Courts

Glossary: Statues of Limitations

 

Assignment Contracts – Holy Grail for Debt Defendants

We say that there are “no magic bullets” in debt defense, but every so often we find a few things that seem almost like they would or should be. However, the sort of “magic bullets” we refer to, and that don’t work, are simple, formulaic things like writing the word “refused” on the summons or claiming that it is illegal to use your name, or that using all capital letters matters in some way. Some people think these things have magical attributes that will bring you easy victory. In fact, they really have no legal . . .

Hey there! This content is available to MEMBERS only! Consider registering for an account.

In the Shoes of the Original Creditor

Debt collectors often masquerade as the original creditors both to make you think they have more evidence than they have and to make you feel guilty if you fight them. Here’s how to figure out if they’re trying this trick on you and what to do about it if they are.

Debt Collectors Make Their Money by Getting People to Give Up

Debt collectors often claim that they stand “in the shoes” of the original creditor. They do this as part of an attempt—illegal in my opinion—to intimidate the people they are harassing into believing they have more information than they do. You should make them pay.

How the “in the Shoes of the Original Creditor” Argument Comes up

There are various ways the “in the shoes” argument comes up, often beginning with the petition, in which the debt collector (a company you may never have heard of) claims to have extended credit to you, to have sought repayment, and to have been refused payment. You know it never happened that way if you think about it, but they’re hoping you won’t think about it at all.

What typically happens is that some debt collector bought the debt from somebody claiming you owed them money. As part of that purchase, they may have obtained a few electronic copies of statements and a computer record claiming you owe the money. This isn’t nearly enough to prove you owe them the money, and they want you to think that they have all the records because “they” lent you the money. They will often take it another step and actually submit affidavits claiming that you borrowed money from them (they say, “plaintiff” rather than their name, since that would reveal the deception). Or they will send you requests for admissions asking you to admit borrowing money from them—again, they say “plaintiff,” to hide the fact that they’re asking you to admit you borrowed money directly from them.

This is outright deceit, and it ought to offend anyone’s sense of fair play. But when you claim, rightly in my opinion, that this is an unfair debt collection practice under the Fair Debt Collection Practices Act (FDCPA), the debt collector argues vehemently that it has a right to make these claims because when it bought the debt it “stepped into the shoes” of the original creditor.

Nonsense.

The Grain of Truth behind Debt Collector’s Deception

The grain of truth behind the debt collectors’ deception is that a company collecting another’s debt generally has all the same rights to collect the money as the original creditor did. Debts are transferable in most cases, in other words, and the person assigned the debt has the same right to collect as the person transferring the debt.

But debt collectors do not “become” the original creditor (their buying the debt, after all, is what made them a “debt collector”), and claiming to be the original creditor is patently deceptive. Under the Fair Debt Collection Practices Act, a person (including companies) that routinely buys debts for the purposes of collecting on them is considered a “debt collector.” Essentially all of the provisions of the FDCPA apply to debt collectors, and foremost among these are the provisions against “deceptive” or unfair debt collection practices. These provisions apply to debt collectors but in general do not apply to original creditors. Thus the debt collector’s claim to stand in the shoes of the original creditor is, regarding their collection efforts, absolutely untrue.

Make them Pay with the FDCPA

As mentioned above, the debt collectors often send you discovery materials (i.e., requests for admissions, interrogatories, requests for documents) which use the word “plaintiff” instead of the company that you theoretically borrowed money from. What would prevent you from reading the word literally? They ask you to admit borrowing money from them—and you know you never did. Or they ask you for all the documents reflecting your account with them, and you know you never had an account with them. Why not simply deny it? That would be the literal truth, and in the legal process you are held to the literal truth.

As I have argued above, the claim that the debts were originally owed to the debt collector are false and deceptive. They misstate the law and are designed to make you believe that the debt collector is more able to collect the debt than it actually is. If you are looking for a counterclaim—and I have often pointed out that counterclaims can give you important power in a lawsuit by a debt collector—you might consider this an opportunity to make a counterclaim. You  might consider this tactic, regardless of where it comes up in the litigation, as an unfair debt collection practice.