Often the debt collectors will pretend to be the original creditors and claim they lent you money or extended credit. They're hoping to scare you into giving up on the lawsuit. When you catch them in the deception, they claim that, as assignees, they're entitled to "stand in the shoes of the original creditor." This is a frivolous argument that should offend the courts (but won't unless you attack it). This article discusses how, and why, you can make them pay.
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.
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.
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.
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.
If you are being contacted by debt collectors, you need to be alert to protect your rights. These calls are often a prelude to their suing you. You might consider membership with our site, which gets you our ecourses for free, plus gives you many other benefits.Check out some of our e-courses. Or consider our prepaid legal plan to protect you from future possible litigation. With that, if you get sued, you'll get a lawyer to defend you for free.