DEBT BUYERS BEWARE – PROPER DOCUMENTATION NEEDED TO PROVE TERMS AND CONDITIONS AND OWNERSHIP OF A CLAIM

Debt buyers must be able to provide documentation which proves the terms and conditions of the underlying debt and the proper assignment of the debt to the debt buyer in order to prevail in a contested debt collection case. In the case of North Star Capital Acquisitions, LLC v. Victor, 2009 ME 129, North Star Capital sued Peter Victor on a credit card debt which was originated by Capital One Bank. North Star filed a motion for summary judgment supported by an affidavit stating the existence of the credit card account and the amount of the debt at the time of its assignment to North Star. Attached to the affidavit was a credit card statement from the time of chargeoff by Capital One Bank. Mr. Victor challenged the District Court’s entry of summary judgment against him, arguing that North Star failed to prove ownership of the account and the amount due. Noting that North Star’s summary judgment filings failed to “provide any documentation or other proof of the original loan, the terms and conditions of the original loan, or its assignment to North Star,” the Maine Law Court held that the entry of summary judgment against Mr. Victor was inappropriate, as he had properly raised genuine issues of fact regarding the debt at issue.

Debt buyers often are unable to obtain full documentation for assigned claims. Most often, the original credit card application or signed credit card agreement are unavailable because the original creditor did not retain the documents or the account was established without a signed agreement, as in the case of telephonic applications. If the terms and conditions for the account are available, the debt buyer can often prove its case based on the common credit card terms and conditions which state that the debtor’s use of the card is evidence of the debtor’s agreement to the terms and conditions, thereby establishing liability for the account. If the terms and conditions are not available, however, the debt buyer will have great difficulty in prevailing on a contested claim. In the case of non-credit card claims, proof of liability on the account without documentation may not be possible at all.

The creditors rights attorneys at Gosselin & Dubord, P.A. are experienced litigators who have successfully prosecuted many assigned debt cases on behalf of debt buyer clients. If you have any questions regarding collection of assigned debts or need representation in connection with any creditor matter in Maine, please contact Attorney David R. Dubord at 207-783-5261, extension 212 or drd@gosselindubord.com.