First, two different plaintiffs
A creditor is the original party the money is owed to — companies like Capital One, Citibank, or Discover. When you open a credit card with Capital One, Capital One is the original creditor. They often hire a lawyer to represent them in court, but that doesn’t mean the debt was sold — only that they chose not to appear on their own.
A debt buyer is different. Here the original creditor sold the account to another company, which then collects on it or sues. If a debt originally owed to Wells Fargo is now owned by Midland Funding, then Midland is the debt buyer and Wells Fargo is the original creditor.
What follows applies only to cases that actually reach trial. If you default — fail to respond or show up — the judge will rule against you in most cases. The exceptions are few.
What an original creditor must prove
A lawsuit by an original creditor requires some showing of a relationship between you and the creditor, and that you owe them money — for example, that you opened a credit card, used it, and a balance remains. A store card works the same way: you bought products on credit from the store. Depending on your jurisdiction, these may be called contracts or open accounts.
What a debt buyer must prove
A debt buyer’s lawsuit requires a different — and heavier — kind of proof. It needs everything a creditor’s case needs, plus proof that the debt buyer now owns the account. And here’s the catch: the debt buyer can’t testify that you opened the account, and can’t testify that a balance is still owing.
That would be hearsay — a statement, other than one made by the person while testifying at the trial, offered to prove the truth of the matter asserted. (This definition comes from Federal Rule of Evidence 801; similar definitions exist in most states’ rules of evidence or case law.)
So the plaintiff has to prove, somehow and without relying on hearsay, that you opened the account and left a balance — and that they later bought that account. That is often where these cases are won and lost.
KCLS limits the geography in which we take cases. You must be a Virginia resident. Our fees are controlled by the local rules and your situation, and may range from free or pro bono representation, to a flat fee, to an hourly fee.
If you are not a Virginia resident, the National Association of Consumer Advocates can help you find a lawyer near you.
If you’ve been served in Virginia, don’t wait — the deadline to respond is short. See Warrant in Debt defense and Summons & Complaint defense, then call us at 804.592.0792 before your return date.
This article is general information, not legal advice. For advice about your situation, talk to a lawyer.