Burden Of Proof Is On Debt Collectors Who Sue
June 26, 2008
What does a debt collector need to prove when it sues for a past due debt? The recent New Jersey case of Columbia Recovery Corp. v. Menchaca answers this question in a decision dealing with the consumer’s attempt to vacate a default judgment.
The consumer in the case contends that the debt is not hers and that it was erroneously charged to her. While she was searching for an attorney to represent her, the time to file an answer lapsed and a default judgment was ultimately entered. After the trial court denied her motion to vacate the default judgment she appealed.
The Superior Court of New Jersey, in deciding in favor of the consumer, noted
[The debt collector] has not produced any proofs whatsoever as to when the debt was purportedly incurred, the signature of the person who opened the account or who incurred the debt. Nor has [the debt collector] demonstrated that defendant was ever given notice of the past due debt. In other words, plaintiff has presented no proofs that defendant is the actual debtor beyond its bare allegations in the complaint.
Though this is a New Jersey case and, therefore, not binding in New York, it shows that debt collectors who sue - even if they get a default judgment - must be prepared to prove their case. Consumers who are sued for past due debts should not roll over and accept a judgment; rather, they should stand up for their rights and fight back.
A copy of the decision can be found here.
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