In debt-collection lawsuits, a debt buyer must prove that it has been assigned your particular account.[1] Notice from an assignor (original bank) to the consumer, while important, does not represent the actual assignment.[2]
A debt buyer's affidavit that allegedly attests to the assignment is also not enough.[3] An affidavit by the original creditor still isn't enough to substitute for the actual assignment in most courts. Those affidavits are often prepared in "anticipation of litigation" and generally do not constitute "business records" to reliably establish that the assignment took place.
Be wary of "Bills of Sale" that do not reference your particular account.[4] Also be wary of Bills of Sale or other attached documents that reference other documents but which are not attached. Such an omission does not qualify as a valid assignment of the particular account.[5]
Any account number provided in the debt buyer's documentation should not conflict with the account number of the originating creditor. Unless the debt buyer provides good evidence as to how the account numbers relate, the assignment document is probably defective.[6]
Critical Examination of Documentation
Beyond Affidavits: It's important to recognize that affidavits, whether from the debt buyer or the original creditor, often do not fulfill the legal criteria to demonstrate a valid assignment. These documents, typically prepared for litigation purposes, may not be recognized as authentic business records in court.
Analyzing Bills of Sale: Be cautious with Bills of Sale that fail to specifically mention your account. Furthermore, if these documents refer to additional, unprovided paperwork, this can undermine the legitimacy of the claimed assignment. Such gaps in documentation can be a crucial defense in your case.
The Significance of Account Number Alignment
- Matching Account Details: Discrepancies in account numbers between the debt buyer's records and those of the original creditor can be a pivotal issue. A valid assignment requires clear evidence linking any differing account numbers. Without this, the claim may be deemed unsubstantiated.
Contact us if you need help defending a collection lawsuit.
[1] Palisades Collection, LLC v. Gonzalez, 809 N.Y.S.2d 482.
[2] CACH, LLC v. Kulas, 21 A.3d 1015 (Me. 2011).
[3] Citibank v. Martin, 807 N.Y.S. 2d 284 (N.Y. Civ. Ct. 2005).
[4] Midland Funding, LLC v. Loreto, 950 N.Y.S.2d 492 (NY Civ. Ct. 2012).
[5] Wright v. Asset Acceptance Corp., 2000 WL 33216031 (S.D. Ohio Jan. 3 2000).
[6] CACH, LLC v. Trevisano (Mo. Cir. Ct. Mar. 18, 2010).