I’d love to take credit for the tips that are made here but Peter Holland of the University of Maryland Francis King Carey School of Law is the one that deserves the credit for writing a fantastic paper outlining the process. Holland provides amazing advice here and I wish we’d see more such academic papers posted to help consumers.
Consumers suck when it comes to dealing with getting sued by a debt buyer. And the most predominant reason why is because they fail to show up and defend themselves. They lose by default.
Admittedly getting sued by a creditor is an intimidating and scary process for many. Rather than face the situation or hire a lawyer to defend them it often feels easier to pretend like the suit doesn’t exist and you don’t have to deal with it.
When the original creditors charge off a debt they often sell the debt to generate some cash. The entity that buys the debt is called a bad debt buyer, junk debt buyer, or a debt buyer. Like a third party collection agency that is subject to you silencing with a cease and desist letter, the debt buyer is also subject to requests to stop contacting you using a cease and desist letter. But keep in mind, if you silence communications it might just force they to sue you faster. A cease and desist letter is not a magic wand.
For information on how to send a cease and desist letter, see the bottom of this article.
A debt may be sold one, three, ten times or more. As one debt buyer tries to collect and can’t, they will repackage their non-performing accounts and sell them on.
These debts may be sold for pennies on the dollar, meaning that a $10,000 debt may be purchased for $800 or less. The new debt buyer may just get a spreadsheet of account numbers, alleged balances, and consumers names. They then use this information to attempt collections and scare people into paying or suing people in bulk knowing they will win default judgments against consumers most of the time.
Here is a step-by-step look at what you need to do if you are sued by someone that bought the debt from the original creditor or after it was sold.
When you are sued you will get served with the complaint (lawsuit) and it may or may not contain supporting documentation about the debt included. Holland advises that you grab a highlighter and read through the paperwork you received multiple times.
You need to look for and highlight:
Look to make sure the company suing you has provided proof of the terms and conditions you agreed to with the original debt. It can’t be just some copy of a contract, it needs to be one that you actually signed. Look at the date on the terms and conditions they might have provided and see if it was actually in force when your account was with the original creditor.
In some states the debt buyer must be licensed as a debt collector. You’d be surprised how often this is overlooked. There have been some major cases won just because the debt buyer was not registered. To check if the debt buyer suing you is licensed do a Google search for debt collector licensed [your state] and contact that state agency and inquire about the license status and/or requirement of the debt buyer.
The current owner of the debt must also provide a clear lineage of ownership of the debt from the creditor that originated the debt. Think of it like the pedigree of the debt. The chain of ownership is important because without a valid chain of title the debt buyer may not be able to sue.
If they provide some statement showing the transfer of the debt from one buyer to another, look to make sure that it actually represents the specific account number in question here.
You should also look for an accounting of all charges and payments showing how the payments were allocated (interest, principal, and late fees). Does the debt buyer have any evidence to support the amount they are actually claiming and are those fees actually specified under the terms and conditions that you agreed to.
It might just be that the time available for the creditor to sue you has passed. This is called the statute of limitations or time barred debt. Just because the debt buyer is suing you does not mean they legally can. You should check online or better yet, consult with a lawyer licensed in your state to see if your account is what people call, “out of stat.”
It does not hurt to pull that highlighter out again and look for misleading statements and omissions in the lawsuit. For example, if the debt buyer has provide a bill of sale from when they bought the debt, look to see if it says there are no representations or warranties of any kind, including representations about validity, collectability, or the statute of limitations. Making this readily apparent for the judge will help them decide for you.
Also keep an eye open for blacked out or deleted information. Highlight those exclusions as well.
Be sure to Google every entity and every person who signed any document in your case. You may find information online from others about problems with documentation and fake signatures.
At this point you’ve done a tremendous amount of work to look over your case. Not everything may be apparent to you and it is always smart to get a lawyer to help you or represent you. According to Peter Holland, less than one percent of consumers ever get legal representation for these matters and the incorrect positions on technical issues can lead to the loss of your case.
Much of the rest of Holland’s paper is technical information for lawyers. You can read the entire paper here.