This makes 3 in a row this week – I’ve listened to people who claim they are being sued by Capital One, when in fact it is an attorney’s office acting as a collector who is suing. What’s the difference? Plenty.
For one thing, it’s fraud. In each of the cases, the consumer called Capital One who confirmed they did not own the debt any more and had “assigned” the debt to Law Firm X. This changes the rules of the game in court significantly. If the Plaintiff in a lawsuit is a third party (not the original creditor), basically everything they say in court can be ruled as hearsay.
Why hearsay? The debt collector was not present when the debt was being formed and cannot give first-hand testify to the veracity of the debt, payments made or processed. Think about all the cases you’ve seen on Law and Order on TV. The debt collector’s testimony about a debt is tantamount to a witness who testifies that while he didn’t actually see a murder being committed, he heard about the details second hand. Second hand testimony is not valid and would be tossed out. In addition, the debt collector cannot present any documents unless they are authenticated as true and original copies by the original creditor, in this case Capital One. Can you see where this is going? With no evidence, they can’t win.
While a you can probably not get a case thrown out of court due to the “Incorrect Plaintiff” syndrome, you can:
1. Call your state’s Legal Bar Association and turn in the law firm and the attorney handling the case – this is strictly against the rules (it is fraud.) Make sure you inform the lawyer on the case that this is what you are doing. It could get them to back down and dismiss the case.
2. Have you or your lawyer file a motion to dismiss or amend the original complaint to correctly reflect the right Plaintiff
How to tell if Capital One (or indeed any credit card company) is NOT the real Plaintiff:
1. Look at past correspondence from the law firm. Does it say “This is communication from a debt collector” on it? If so, you can positively identify the law firm as the real Plaintiff.
2. How old is this debt? If it’s more than a year old, this is a red flag that the debt has been charged off. A phone call to the credit card company should confirm these suspicions.
Has this happened to you? Tell us about it! If you have a specific question – please, ask it at our forum discussion boards. We talk about this all the time!
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How do you prove or what documents do you have to present that a debt collector / law firm is the real party of interest in a court case & not Capital One Bank ?
Mostly by asking for documentation during discovery.