5 Common Debt Buyer Lawsuit Defenses
We previously discussed Common Defenses to a Credit Card Lawsuit and focused on those cases filed by an original creditor. Here, we are dealing with 5 Common Debt Buyers Lawsuit Defenses such as those filed by Portfolio Recovery Associates, Midland Funding, Cavalry Portfolio Services or Cavalry SPV I, Unifund CCR, LVNV Funding and others. These are situations where the original credit card company sold the account to a 3rd party debt buyer who moved forward with a lawsuit on the debt.
Each of the defenses discussed in the original article also apply to debt buyers. The same consent orders entered by the original creditor are also relevant as to the balance owed when the account is sold. Additionally, the inconsistencies in the credit card statements and contract amendments can help dispute the alleged lawsuit. Counterclaims are discussed at greater length below because of the application of the FDCPA, but payment plans can still be an option, if necessary, in a debt buyer lawsuit.
Many answers to a lawsuit allege that the “Plaintiff lacks standing” as an affirmative defense, but what does that mean? At its most basic, the argument is that the debt buyer does not own the account or can’t prove that it owns the account. Often times, the only evidence that the debt buyer owns your account is a photocopied “Bill of Sale” or “Assignment” that does not reference your individual account in any manner. As an essential element of a collection lawsuit, the debt buyer needs to be able prove ownership of the debt.
Admissibility of Evidence
With the appropriate objection, it is difficult for debt buyers to admit the documentation obtained from the original creditor. A witness from the original creditor is rarely available to establish the authenticity and reliability of the credit card statements, if available at all. As the debt buyer’s witness likely does not have personal knowledge of the record keeping practices of the original creditor and considering the limitations in the transfer of the actual accounts, the Court can deny the admission of the documentation into evidence. Without the documentation in evidence, the debt buyer can not prove its case.
Another common affirmative defense in Florida is the “Failure to satisfy a condition precedent”. Florida law requires a debt buyer to provide notice that they purchased an account prior to filing a lawsuit. This is known as a condition precedent and must be established at trial if at issue. In pertinent part, Fla. Stat. § 559.715 states, “…the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt.”
The Fair Debt Collection Practices Act (FDCPA) applies only to 3rd party debt collectors and covers many of the same debt collection violations as the FCCPA such as threats of violence, harassing collection calls, and other unfair collection actions. The FDCPA provides additional damages that can be used in addition to the FCCPA to offset the balance alleged in the debt buyer lawsuit or to recover damages.
Depending on the unique facts of each debt buyer lawsuit and your personal financial situation, there may be additional defenses available; however, this is a quick list of 5 Common Debt Buyer Lawsuit Defenses. In addition to each of the defenses in the original creditor lawsuit article, debt buyer lawsuit defenses include standing, limited admissibility of documents, conditions precedent, and additional damages under the FDCPA. If served or threatened with a credit card lawsuit by a debt buyer, please call Florin Legal, P.A. at (813)724-3063 or request a free consultation.