Debt Collection — Who Has To Prove Whether You Owe The Debt?
Debt Collection — Who Has To Prove Whether You Owe The Debt?
It depends on where you are at in the collection process.
As a general rule the debt collector, who has contacted you claiming you owe the debt, must prove that you owe the debt.
Let’s look at it this way.
If a debt collector sues you, it absolutely has the obligation to prove, in court, that you owe the debt.
You can read more about debt collector (debt buyer) lawsuits in this section of our website. This is something the collectors hate to do.
Why?
Because either they can’t do it.
They don’t own the debt or they don’t have any proof you owe the debt, or they choose not to prove it for economic reasons.
Both of these are amusing, at least if it was so serious and if Alabama consumers weren’t getting judgments against them by these debt collectors.
If a debt collector writes you or calls you, it still has the obligation to show you owe the debt.
There are so many scams out there and if you pay the wrong company, you will still owe whoever truly owns the debt.
If the collector is writing you, you can send a simple dispute letter asking for proof.
Legally, the collector doesn’t have to send much.
However the collectors know that if they don’t send you proof, and they continue to collect on a debt you don’t owe, they have serious problems.
Especially when they get sued under the Fair Debt Collection Practices Act.
If the debt collector is credit reporting, you can dispute the debt but to force the credit reporting agency to remove it from your credit report you will need to show proof it is not owed.
You can and should certainly send a dispute letter directly to the debt collector.
This requires the collector to mark your credit report as disputed if it updates the account.
If you want the account to come off your report altogether, then you need to provide proof to the credit reporting agency that you don’t owe the debt.
Maybe you paid it off — send them the proof.
Maybe it is identity theft — send a police report and/or ID theft affidavit.
Here’s the bottom line — a collector must prove you owe the debt for it to take certain actions.
It is always good, however, when you can to show the collector you don’t owe the debt.
If it continues to collect, your case becomes that much more valuable as the wrongdoing is even more wrong and the damages to you will increase.
But if you are dealing with an honorable debt collector, it will not collect against you when you show that you don’t owe the debt.
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I have a question. What if a collection agency calls you and says that you will have to contact the creditor to dispute the debt? Is that legal? And this same agency does not give you any time to dispute the debt. Then the collector is persistent in collecting on the debt anyways?
No this is not legal. The collection agency or other debt collector has to accept your dispute and then follow the law with that dispute. It is illegal and a lie and an unfair debt collection practice to say “You must dispute this to the original creditor only.”
The “dispute process” has importance to debt collectors — not so much to the original creditor. If you followed this lie from the collector, you would not have exercised your rights under the Fair Debt Collection Practices Act (FDCPA). Hmmmm…. that’s why the collector said this!
Great question and I hope this helps.
John Watts
What if an Alabama attorney charges a flat fee for a service, but in the middle of your case, demands another sum because your case is more trouble than he anticipated? Otherwise, he’ll keep the money you paid, and refer you to a court appointed attorney. If all the money you had was already invested in this attorney, and you can’t afford to go find another on short notice, you feel coerced, but agree, begrudgingly to pay it. Later, you find out that this attorney lied to you, and in short, you are dissatisfied with his service, and after paying half of the extra money demanded, you refuse to pay further. Then, the attorney threatens to sue you over a sum that’s less than $500, when you’ve already paid over $4,000 for minimal work, and unethical behavior. How do you handle this? Would he really take this to court? My reply was that I would countersue, or file a complaint with the Bar Association. How should I handle it if he continues to badger me?
Tom,
I always suggest trying to work out these issues with any lawyers you have a disagreement with.
Both sides should follow the contract.
If you can’t work out the issue, the Bar Association usually has a process where they can help solve fee disputes — you might check with that.
I hope you get it worked out soon.
John Watts
Birmingham, Alabama
what happens of a collection company I hired for 6 months collected on a debt after contract had expired for 10 months without my knowledge. They tooh 6,500 on a 57,000 debt after contract had expired
MaryEllen,
Couple of thoughts for you.
First, if the contract expired then I doubt the collection agency had the right to collect the debt. Did they send the money to you or keep it?
Second, if the agency violated the law in such a way to expose your company to liability, then it may be a defense to point out this was done outside your authority — outside the contract.
Lots of legal issues can come up — depends on your state, the language of the contract, past dealings, etc. My suggestion is talk to the agency or get your lawyer to, and figure out what happened and why it happened.
Thanks for your question….
John Watts