Katie Wheat is a consumer who was sued by debt buyers and has been researching debt collection laws for over 10 years.
Why Does It Matter Who Is Suing Me Over This Debt?
It matters because in order to properly answer a complaint, you need to know if the plaintiff is the credit card bank or a debt buyer.
Who Is the Plaintiff?
You have received a summons and complaint for an unpaid credit card balance. In the court header at the top of the complaint, you will see "Plaintiff" and "Defendant."
Make sure that your name is listed as the "defendant." Next, note the name of the "plaintiff." Is it the name of a credit card bank with which you once had a credit card account? Or is it a name of a business you don't recognize?
The identity of the plaintiff is important because it can make a difference in the defenses you provide in your answer to the complaint and to possible counterclaims.
If the name of the plaintiff is a business you don't recognize, you've probably been sued by a debt buyer. In that event, a defense could be lack of standing to sue. That means that the debt buyer has not proven it owns the account in question. In addition, a debt buyer may be subject to the Fair Debt Collection Practices Act (FDCPA). That would enable you to file a countersuit for violations of the Act.
Credit card banks are "original creditors". Since an original creditor can prove it owns the account in question, lack of standing to sue would not be a defense to a lawsuit filed by a credit card bank. Original creditors are not subject to the FDCPA, so you would not be able to file a countersuit for violations of the Act.
You do not want to waste your time with defenses that will not help you. Knowing the identity of the plaintiff will enable you to concentrate on those defenses that are beneficial to you.
In the event that the identity of the plaintiff is a credit card bank, there is a simple way to determine if the bank is, in fact, the party suing you. I'll get to that a little later. First, let me go into some myths (misinformation) floating around on the internet.
Note: All cited court opinions are available on Google Scholar.
Myth: Credit Card Banks Rarely Sue for Credit Card Debts (If Ever)
Based upon personal experience, I can assure you that is not the case. Credit card banks will sue. There are court rulings across this country in favor of credit card banks who sued for unpaid credit card accounts. The banks had no problem showing that were in possession of the accounts.
In fact, there are credit card banks that prefer to keep charged-off accounts and file lawsuits for the balances. Here are just a few court rulings in favor or credit card banks who were named as the plaintiffs.
Capital One Bank (USA), N.A. v. Shahida Iqbal
New York, Appellate Term, 2nd Dept., 2017
"[W]e find that plaintiff tendered evidentiary proof in admissible form establishing that it does have standing to commence this action, as it is the original creditor that issued the credit card account to defendant."
Nguyen v. Citibank, NA
Texas Court of Appeals, 2013
"As described above, in her affidavit, Reynolds attested to the basis for her knowledge and explained that Citibank was the owner of the account in question, the delinquent balance was owed to Citibank, and the account records attached to the affidavit belonged to Citibank. Therefore, Citibank indeed established that it owned the account."
American Express Bank, FSB v. Hoang
Washington Court of Appeals, 2015
Read More From Toughnickel
"In support of its motion, Amex submitted a declaration from Linda Salas, assistant custodian of records for American Express Bank, FSB."
"Amex has established ownership of the account and associated debt through the cardmember agreement and the declaration of its records custodian."
Myth: The Law Firm Listed on the Complaint Is the Plaintiff
Some people assume that the law firm representing a credit card bank is the true plaintiff. This is a dangerous assumption because it suggests that the law firm is lying. Courts take that very seriously. The party who makes such a claim is the party who has the burden of proving it.
If you were to sue someone, you might hire an attorney to represent you. You, not the attorney, would be named as "Plaintiff". The attorney/law firm you've hired will merely represent you. The attorney will write and file the complaint, file motions, respond to motions filed by the other party, show up in court, etc. In other words, while you are named as the plaintiff, you are paying the attorney to do all the work for you.
That also applies to debt collection lawsuits. The party who is actually suing you is named as "Plaintiff". The attorney who signs the complaint is simply representing his client which is the party named as the plaintiff.
The following is quoted from the American Bar Association's "Model Rules of Professional Conduct".
PREAMBLE: A LAWYER'S RESPONSIBILITIES
 A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.
 As a representative of clients, a lawyer performs various functions. As advisor, a lawyer provides a client with an informed understanding of the client's legal rights and obligations and explains their practical implications. As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others. As an evaluator, a lawyer acts by examining a client's legal affairs and reporting about them to the client or to others.
I will summarize the following two rules.
Rule 3.3 Candor Toward The Tribunal
An attorney cannot lie to the court. Intentionally filing a lawsuit with false information, including the identity of the plaintiff, could subject an attorney to disciplinary action in the form of a fine, suspension, or disbarment.
Rule 3.4: Fairness to Opposing Party & Counsel
An attorney must also be fair to the opposing party. Lying about the identity of the plaintiff would violate Rule 3.4.
The Rules of Professional Conduct can be located on the website of the American Bar Association.
In Capital One Bank (USA) v. Rhoades (Ohio Court of Appeals, 2010), the bank was represented by an attorney with Thomas & Thomas, Attorneys at Law. Here's a comment from the court.
"Rhoades spends a great deal of time alleging and arguing that debt collector, Thomas & Thomas, used false and misleading representations in connection with collecting on this debt. However, Thomas & Thomas is not the plaintiff in this action."
The court recognized that while Thomas & Thomas might be a debt collection law firm, it was not the plaintiff who sued the defendant.
If you have any doubts as to the identity of the plaintiff, PLEASE contact a consumer attorney in your area. If you can't afford to hire an attorney, you can get a consultation for a minimal fee and have some of your questions answered. Your state's bar association be able to provide the name of a consumer attorney in your area. Another source that helps consumers locate attorneys is the National Association of Consumer Advocates.
A Simple Way to Determine If Your Account Has Been Sold to a Debt Buyer
One of the simplest ways to determine if the original creditor still owns your account and has not sold it to a debt buyer is to check your credit report. The following information is based upon a credit card bank that has reported information about your account to credit reporting agencies.
Credit card companies will "charge off" an account three to six months after default if the demanded balance is not paid. "Charge off" is an accounting term. It means that the company is claiming the unpaid balance as a loss. It does NOT mean that the company has sold the account.
The term “charged off” means that the lender has given up on receiving payment on the account and has written it off as loss. They may then transfer or sell the debt to a collection agency.
Notice the above states "MAY then transfer or sell the debt". While the bank may decide to sell a debt after charge-off, it may also decide to retain ownership of the debt.
If an account has been sold to a debt buyer, the credit card bank's entry on your credit report must reflect "sold", "transferred", "purchased by another lender", or similar language that indicates the bank no longer owns the account.
Additionally, the bank's entry on your credit report must reflect that the balance owed on the account is -0- (zero). .
Often, the original creditor will transfer or sell the account to a collection agency. In that case, the original account will be updated to show transferred/closed, and will no longer show a balance owed because the debt is now owed to the collection agency. However, your report will still show the history of the account, including the amount that was written off.
As stated by Experian, once a bank sells an account to a collection agency (which is a debt buyer), the bank's entry will show that the account has been transferred/closed and that nothing is owed to the bank due to the fact that the balance is now owed to the debt buyer which purchased the account.
Businesses that furnish information to credit reporting agencies are required to provide accurate information. The Fair Credit Reporting Act is located in 15 U.S. C. § 1681 (United States Code). According to 15 U.S.C. § 1681s-2(a), it is the "[d]uty of furnishers of information to provide accurate information."
Below is a list of court citations regarding the duty of furnishers to provide accurate information to credit reporting agencies. The first cite is from United States Supreme Court.
Congress enacted the Fair Credit Reporting Act ("FCRA"), 15 U.S.C. §§ 1681-1681x,in 1970 "to ensure fair and ACCURATE credit reporting, promote efficiency in the banking system, and protect consumer privacy." Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 127 S.Ct. 2201, 2205, 167 L.Ed.2d 1045 (2007).
Under § 1681s-2, furnishers may not provide inaccurate information to consumer reporting agencies. Chiang v. Verizon New England Inc.,595 F.3d 26, 35 (1st Cir. 2010).
Initially, furnishers have a duty to provide the CRAs with accurate information about their consumers. Boggio v. USAA Fed. Sav. Bank, 696 F.3d 611, 614 (6th Cir. 2012).
That is why a bank that has sold an account to a debt buyer must report that an account has been sold. Once an account has been sold to a debt buyer and updated as "sold" or "transferred", "purchased by another lender" or similar language, the bank will stop updating its entry each month. In other words, that is the last information the bank will report to the credit reporting agencies. The reason is because the bank no longer owns the account and has no new information to report.
The bank is also required to report the accurate balance owed on the account. Due to the fact that the account has been sold, there is no longer a balance owed to the bank. Therefore, the bank must update its entry to report a zero balance.
In the event that a bank still owns an account, the entry will not include any language that indicates the account has been sold. The entry will also reflect that a balance is still owed to the bank.
I am not an attorney and am not providing legal advice. The information I'm providing is based upon over 10 years of research. Please contact a licensed attorney in your state for legal advice.
This article is accurate and true to the best of the author’s knowledge. Content is for informational or entertainment purposes only and does not substitute for personal counsel or professional advice in business, financial, legal, or technical matters.
Questions & Answers
Question: Do junk debt buyers report to credit agencies?
Answer: Yes, debt buyers can report to the credit reporting agencies. From Experian:
“Once an account is sold to a collection agency, the collection account can then be reported as a separate account on your credit report.”
From the Consumer Financial Protection Bureau -page 8
“Once the account is in collections, the creditor, debt collector, or debt buyer can report the account to one or more of the three largest nationwide consumer reporting agencies (NCRAs).”
Katie Wheat (author) from South Carolina on January 07, 2019:
You’re more than welcome. While I’m sorry that you’re being sued, I’m so glad you discovered the facts that enabled you to make an informed decision.
I wish you the very best and hope that this new year brings you great health and happiness.
EmmasGammy on January 03, 2019:
I called Capital One and a lawyer. I found out that I am being sued by Capital One. I have hired a lawyer. Thank you!
EmmasGammy on December 16, 2018:
Thank you. That makes sense. I will call a lawyer for a consultation.
Katie Wheat (author) from South Carolina on December 15, 2018:
Shame on the person who gave you that advice.
I assume that whoever gave you that advice meant that debt collectors who have purchased defaulted accounts (more commonly known as “debt buyers”) will name the credit card company as the plaintiff in a lawsuit instead of naming themselves, the debt buyers, as the plaintiff.
That advice is both dangerous and incorrect. While I’m not claiming it has never happened, it would not happen in the vast majority of cases.
The first reason is because debt buyers have no reason to engage in such a deception due to the fact that most consumer defendants do not respond to debt collection lawsuits. As a result, the debt buyers are awarded easy default judgments in their favor. Why do they need to lie when most consumers don’t respond to a lawsuit?
A second reason is because any attorney engaging in that deception would risk disciplinary action that could include the suspension or loss of his license to practice law.
A third reason is because the debt buyer would be subject to sanctions by the court along with an FDCPA counterclaim by the consumer defendant.
That terrible advice causes consumers to raise defenses that would have nothing to do with original creditors.
If the person who gave you that advice is so sure that the plaintiff is actually a debt buyer, why did they not advise you to file an FDCPA counterclaim against the plaintiff for violating 15 U.S.C. 1692e (false or misleading representations)? He or she would also have advised you to sue the attorney because that attorney is considered to be a debt collector and, just like the debt buyer, is subject to the FDCPA.
Unless that person advised you to file a counterclaim, it leads me to believe that they don’t know nearly as much as they claim. In addition, they certainly know nothing about the FDCPA.
Considering the fact that Capital One does not show that the account was sold and updated last month, you can be assured that the bank still owns the account. It could not update an entry for an account it no longer owns.
If it would help you to put your mind at ease, think about scheduling a consultation with an attorney. You don’t have to hire him. Just get his opinion.