Posts

Proving Ownership of the Debt – How Big is that in Debt Law?

 

Proof of Ownership of the Debt – How Hard Can it be?

To download a free copy of this article in pdf form, click here: How Hard is Proving Ownership

I get comments like this all too often: “A debt collector got a judgment without even proving ownership of the debt.” It makes me feel bad, but it makes me angry, too. Let’s talk about proof of ownership and then seque to a larger point – the point that ever person being sued by a debt collector MUST LEARN.

Proof of Ownership

It is not hard to prove ownership in the law. For a car or piece of real property (land), you just need a title (car) or (deed). You get them, essentially, by the seller giving the buyer a bill of sale which in turn gets verified by the state.

The state procedures complicate things a little bit, but it’s basically a very simple, rubber-stamped process. It is a mistake to regard this process as much of a hurdle or legal protection against the collectors. It isn’t in anybody’s interest to make it difficult or unpredictable – on the contrary.

Selling a debt is easier than selling a car. You need a bill of sale that identifies the thing being sold. And that’s all. Our commercial system favors a simple sales process because people believe that where there is easy and rapid commerce, there will be more commerce, and that makes everybody better off. That’s the theory, anyway.

It is Possible to Blow it

Now, as it happens, debt collectors sometimes do not satisfy this very simple process. How? By not identifying the thing being sold.

A typical debt bill of sale document says, “I, Bank, hereby assign all rights to the following debts to Debt Collector. See Attachment A for the debts assigned.” Sometimes – and quite often, actually – the debt collector, in attempting to prove it owns the debt, neglects to attach the “Attachment A” to its proof. That leaves the bill of sale unconnected to any specific account and thus fails to prove that the debt collector owns the debt.

The courts should always take that failure seriously, as it really does mean the debt collector did not prove it owned the debt. If it happens at trial, and you demonstrate the failure of proof, it should result in instant dismissal of the case because you have shown that the plaintiff has not established a constitutional requirement – that it be a true party in interest.

Still, you can see how it is basically a technicality, and you should know that the courts don’t like technicalities that help people avoid debts.

Chain of Title

Now let’s go one step further. Suppose a debt collector buys a debt and then sells it to another
debt collector. That happens all the time. If either of the bills of sale forget to attach “Attachment A,” then you say that the debt collector cannot prove a “valid chain of title.” That’s because with rare exceptions, a party that does not own a valid title cannot sell a valid title.

Again, though, not all courts are sensitive to the justice of this “technical” rule. It is NOT really a “technical” rule. Proof of title is critical to making sure that the plaintiff is the correct party in interest, as a bogus suit which manages to get a judgment against you will not bind the person with a legitimate title. If they scam you enough to get a judgment, then this will not stop the person with the legitimate title from suing you. Why should it? And that means you might have to pay twice.

Nevertheless, the courts have treated this requirement as if it were a technicality because it can look like the debt collector simply overlooked that element of the proof. You will be burned sometimes if this is all you depend on. Even though in my opinion you should always win.

The Bigger Issue of Attacking on ALL Fronts

Okay. Now let’s move on to the bigger issue. We put out a video called “The Most Dangerous
Myth for People in Debt” which may give you some insight into this question. The point there is that is that you cannot depend on other people – not courts, debt collectors, or opposing lawyers – to help you. You can’t depend on them to do the right thing.

In the real world, what you have to do is pile up as many reasons to do the right thing as possible and hope that one of them works.

If they don’t legitimately prove ownership you should win and probably will win more than 50% of the time. If that’s all you’ve got, you go with it, right?

But if you’ve got a debt collector, you know the chances are strongly against them having
legitimate, admissible evidence of the amount of the debt.

So you attack that, too.

They probably don’t have good evidence that you owe any debt, or that the original creditor
ever sent you statements, so you attack those things, too.

Any time you stop attacking before you run out of things to attack, you’re depending on someone else to take care of you. You’re hoping they’ll do the right thing without having been told all of the reasons to do so.

And how do you know what to attack? By doing discovery, by probing, researching, thinking… by doing everything you can, in other words, to find out what to attack. Our materials help you develop a full plan of attack and help you at every stage in implementing that attack, from answering the petition and submitting discovery, to motions and eventually trial.

Whether you use our materials or not, make sure you keep attacking the debt collector’s case until there’s nothing left to attack. Then you can hope to win.

Your Legal Leg Up

Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.

In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.

Products Related to this Article

There are no specific products related to this article because it addresses a strategy you should use throughout your defense. You might consider our memberships or our new program that we’re going to call Vision 20-20, out soon.

Memberships

Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.

Sign Up for Free Information

You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/

What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.

What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.

 

 

Kicking Debt Collectors out of Court – Jurisdictional Issues

We discussed two kinds of jurisdictional issues in a recent teleconference – two different issues that call for very different responses.

In this video we’ll discuss what happens when the debt collector doesn’t show its ownership of the debt and when you are not properly served with the lawsuit.

– Jurisdictional Issues in Debt Law

 

Ownership of the Debt

When debt buyers bring a lawsuit, their ownership of the debt is always in question. It won’t be their  name on the debt instrument or contract,  and they will have purchased the debt – gotten it on “assignment.”

There is nothing wrong with that, let me emphasize. Most debts are freely transferrable (unless either a contract or law says they can’t be transferred) – so in most cases this will not be an issue. But what is an issue is proof of ownership. Only the true owner of a debt is permitted to bring a lawsuit. In a way that’s a no-brainer, isn’t it? If I happen to hear that someone owes you money, I can’t sue them for it can I?

No – if I want to sue, I must prove that I am the “true party in interest.”

Without the true party in interest’s participation, the court  does not really have jurisdiction over the subject matter of the case. If I bring suit on a debt someone else owes you, and that person gets around to pointing out that I don’t own the debt,  the case should be dismissed immediately – without prejudice. If the person being sued does show that the plaintiff cannot prove ownership, the proper response by the court is to dismiss immediately without taking any other action – it can’t make a judgment about the validity of the debt without the real owner being present.

You can attack ownership of the debt at any time, and in a debt case you should always contest the issue not only because you might win, but also because  debt collectors actually try to collect debts that don’t belong to them fairly often. You should always make them prove it.

In the case of the big junk debt buyers, they often will have a so-called “bill of sale” between the original creditor and the junk debt buyer. It will say that the  creditor is selling and assigning umpteen million dollars worth of debts to the debt collector. It will mention an attachment with the numbers of the accounts sold.

And it will often not have that attachment or anything else linking your account to that sale. That is inadequate proof of ownership. It is no proof of ownership. If you attack the case on that basis it should be dismissed – unless the debt collector can supply the information. For some reason,they often cannot.

You can make this argument at any time.It isn’t waived by you participating in the case. Any time you can prove the debt ownership isn’t established, the case should go away.

Sewer Service

Sewer service is different. In this situation, the process server threw the summons into the ditch while the defendant was watching and then swore to having given the summons to the defendant. In that situation, the defendant is forced into a choice: attack the court’s jurisdiction immediately by motion to quash, wait and attack jurisdiction, or defend. If you take actions to defend on the merits of the case – you say you don’t owe the money – you will likely be “waiving” or letting go your attack on the court’s jurisdiction.

If there is anything suspicious to you about the way you were served, or if the language of the petition filed against you is not clear or understandable, you need to look at your rules of civil procedure – under the “pleadings” section – before you file an answer. Otherwise you risk waiving your attack and “consenting” to whatever was wrong. Sometimes you can lose your best defenses if you do this.