In addition to each of the defenses available in an original creditor lawsuit, debt buyer lawsuit defenses may include lack of standing, limited admissibility of documents, failure to satisfy a condition precedent, and potential damages under the FDCPA.

1. 5 Common Debt Buyer Lawsuit Defenses
In an earlier slide share presentation, I
discussed Common Defenses to a Credit
Card Lawsuit and focused on those cases
filed by an original creditor.
Here, we are dealing with 5 Common Debt
Buyers Lawsuit Defenses such as those
filed by Portfolio Recovery Associates,
Midland Funding, Cavalry Portfolio Services
or Cavalry SPV I, Unifund CCR, LVNV
Funding and others. These are situations
where the original credit card company sold
the account to a 3rd party who moved
forward with a lawsuit on the debt.
Original Creditors
Each of the defenses discussed in the original slide share also apply to debt buyers.
The same consent orders entered by the original creditor are also relevant as to the
balance owed when the account is sold. Additionally, the inconsistencies in the credit
card statements and contract amendments can help dispute the alleged
lawsuit. Counterclaims are discussed at greater length below because of the
application of the FDCPA, but payment plans can still be an option, if necessary, in a
debt buyer lawsuit.
Standing
Many answers to a lawsuit allege that the “Plaintiff lacks standing” as an affirmative
defense, but what does that mean? At its most basic, the argument is that the debt
buyer does not own the account or can’t prove that it owns the account. Often times, the
only evidence that the debt buyer owns your account is a photocopied “Bill of Sale” or
“Assignment” that does not reference your individual account in any manner. As an
essential element of a collection lawsuit, the debt buyer needs to be able prove
ownership of the debt.
Admissibility of Evidence
With the appropriate objection, it is difficult for debt buyers to admit the documentation
obtained from the original creditor. A witness from the original creditor is rarely
available to establish the authenticity and reliability of the credit card statements,
if available at all. As the debt buyer’s witness likely does not have personal knowledge
of the record keeping practices of the original creditor and considering the limitations in
the transfer of the actual accounts, the Court can deny the admission of the
documentation into evidence. Without the documentation in evidence, the debt buyer
cannot prove its case.
Conditions Precedent
Another common affirmative defense in Florida is the “Failure to satisfy a condition
precedent”. Florida law requires a debt buyer to provide notice that they purchased an
account prior to filing a lawsuit. This is known as a condition precedent and must be
established at trial if at issue. In pertinent part, Fla. Stat. § 559.715 states, “…the
assignee must give the debtor written notice of such assignment as soon as practical
after the assignment is made, but at least 30 days before any action to collect the debt.”
Counterclaims
The Fair Debt Collection Practices Act (FDCPA) applies only to 3rd party debt collectors
and covers many of the same debt collection violations as the FCCPA such as threats
of violence, harassing collection calls, and other unfair collection actions. The FDCPA
provides additional damages that can be used in addition to the FCCPA to offset the
balance alleged in the debt buyer lawsuit or to recover damages.
Conclusion
Depending on the unique facts of each debt buyer lawsuit and your personal financial
situation, there may be additional defenses available; however, this is a quick list of 5
Common Debt Buyer Lawsuit Defenses. In addition to each of the defenses in the
original creditor lawsuit article, debt buyer lawsuit defenses include standing, limited
admissibility of documents, conditions precedent, and additional damages under the
FDCPA. If served or threatened with a credit card lawsuit by a debt buyer, please call
Florida Credit Card Defense Lawyer Scott Florin at Florin Legal, P.A. at (813)449-4287
or request a free consultation.