Tag Archives: debt collection

A Win for the Little Man: Missouri Debt Collection Cases are Harder to Prove for Companies Who Sell Debts

St. Louis Trial Attorney Explains New Evidentiary Case Law:

The Missouri Supreme Court Made It More Difficult to Prove Standing To Collect Debts.

Those defendants who owe debts that have been sold to other companies won a BIG verdict in their favor this week. In a ruling on January 17, 2012, the Missouri Supreme Court mandated strict proof of “standing to sue” by the debt-buying companies.  The Missouri Supreme Court unanimously said that the debt collection company failed to prove it had “standing” to collect a credit card debt from the debtor. Companies cannot just walk in court with a lawyer and say you owe a debt and get a verdict.  They must have evidentiary proof of “standing”.  Standing, sometimes referred to as standing to sue, is the name of the doctrine that focuses on whether a prospective plaintiff can prove they have some personal or corporate legal interest in the outcome of a lawsuit, not just a general public interest.

The Court held, in this simple collection lawsuit, that a debt buyer’s representative is NOT competent to lay foundation for transactional documents created by the original creditor.   So think this through…. the original creditor, who now has no interest in the debt or lawsuit, would have to produce a custodian of records(likely in another state) in order for the trial court to receive the debt assignment documents into evidence.  This makes collection and winning at trial MUCH more difficult for debt buying companies who have no control over the original creditors.  Why would the original creditor be interested in sending a representative across the country to prove the buiness records are legitimate, unless of course debt buying companies contractually require them to cooperate in collection actions.

This is a huge win for all of you that owe debts and are defendants in cases filed by mortgage companies and credit card companies who have sold your debt over and over.  Each time there was an assignment of the debt, there must be a custodian of records from that company to testify as to the business records related to the assignment.  That makes a LOT of work for the Plaintiff for collecting on small debts. The cost of proof (flying in witnesses) could easily be more than the debts.  The fallout of this Court decision may mean that those savvy debtors who hire trial attorneys will win at trial, as the lawyer will know how to object to evidence or the lack of evidence of standing.

The rule of law to take away from this case is that in cases that involve a party attempting to recover on an account owed to some other party, proof of an assigment of the account, and each subsequent assignment, is essential to a recovery.

This case has been closely watched by the debt-buying industry, which purchases debts that frequently are sold over and over and may have spotty records.  Lobbyist groups for creditors wrote numerous briefs to support the debt buying company’s case on appeal.  Despite the corporate push to keep it easy to prove debts, the Missouri Supreme Court required strict proof from these debt buying companies.  Remind me to send the Supreme Court a Christmas card.

For more information, the case is CACH LLC v. Jon J. Askew, SC91780.  If you would like to hear the oral arguments or see some of the supporting documents and briefs… click here… http://www.courts.mo.gov/SUP/index.nsf/fe8feff4659e0b7b8625699f0079eddf/05b1ab4a57ec67848625792f00750254?OpenDocument   

From my experience as a general practitioner, people like to do their own research on debt collection law, as they are reluctant to tell anyone the predicament they are in.  As a service to the public, the staff of the Federal Trade Commission (FTC) has prepared the following complete text of the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. §§ 1692-1692p.  http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf .  You might find it helpful if debt colletors are after you.  If you believe you are a victim of wrongful collection practices and want your right to a trial, contact St. Louis trial attorney Michelle M. Funkenbusch at 314-799-6602.