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What does "Demand proof of the underlying debt" mean?


VLDCA
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I was reading up on some caselaw & just received an article where a judge said "I've watched & wanted to tell defendants in these suits to demand proof of the underlying debt because that proof is so often flimsy."

So I was wondering if I had already received my 'underlying debt'. So what exactly was this judge referring to?

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I found this on the web and it is my guess to as to what it means:

.....What he was referring to is the request for proof of debt that you can require from a debt collector under the FDCPA (Fair Debt Collection Practices Act). Once you have requested proof of the underlying debt, the creditor is not allowed to file suit against you or continue to collect the debt until they have sent you written proof. Thus, although the letter can delay collection, it is not a permanent bar from them contacting you. Although you normally want to request proof right away, most creditors will be afraid of violating the FDCPA and will stop until they send you proof......

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Plaintiffs’ lawyers aren’t the only ones coming up with novel new legal theories. Now, the defense bar is fighting back against FDCPA lawsuits by hitting plaintiffs where it hurts – proof that the underlying debt is even a consumer debt at all. The FDCPA only applies where the underlying transaction creating the debt was for personal, family or household purposes.

Have you been sued for a debt where the plaintiff claims identity theft, or for debts that were not his or hers? Well, if the plaintiff doesn’t know anything about the underlying debt, how does the plaintiff know that the purpose of the debt was for personal, household or family purposes? The simple answer, she doesn’t! That doesn’t stop plaintiffs from alleging in their FDCPA complaints that the debt is a consumer debt. It may be good enough to allow the lawsuit through the courthouse door, but two recent decisions have held that the plaintiff needs proof of the purpose of the underlying debt if she wants to get her case in front of a jury and not thrown out.

In Anderson v. AFNI, Inc. , and Kimmel v. Cavalry Portfolio Associates, LP, two separate judges of the United States District Court for the Eastern District of Pennsylvania, held that a plaintiff must present evidence of the purpose of the underlying debt in order to survive a defendant’s summary judgment motion. It is not good enough that the plaintiff speculate as to the purpose of the debt, nor is evidence that the defendant treated the debt as a consumer debt sufficient to meet the burden.

I think the shoe is on the other foot here. The Plaintiff woul be someone suing the creditor for fdcpa claims.....

Edited by chiquita55
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Do you have proof? Do you have copies of the real statements? Do you have the charge slips signed by you? Native copies of things? Is the declarant bringing these things? I doubt it.

So its really this detailed? I have copies of the alleged statements (not complete). No charge slips, native copies of things & not sure if the declarant has them :roll:

Edited by VLDCA
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Well in my mind it is. haha But whether a judge agrees, I don't know but they do need proof that the bill is yours and I don't believe computer generate copies count for that. Read that Vee vs Vinhees case (google it) re: computer generated stuff. We used that in my case. I have no idea what made them back off but they dismissed.

Maybe it was because they didn't have proof, maybe because they didn't want to pay that declarant to come and spend time and money getting the proof needed. I will never know or maybe it was Vee vs Vinhees.

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Well in my mind it is. haha But whether a judge agrees, I don't know but they do need proof that the bill is yours and I don't believe computer generate copies count for that. Read that Vee vs Vinhees case (google it) re: computer generated stuff. We used that in my case. I have no idea what made them back off but they dismissed.

Maybe it was because they didn't have proof, maybe because they didn't want to pay that declarant to come and spend time and money getting the proof needed. I will never know or maybe it was Vee vs Vinhees.

2005 case of Vee Vinhee vs. American Express Travel Related Services Company Inc. — in which Vinhee (who was filing bankruptcy while owing over $40,000 to AmEx) won his case without legal representation and without even attending the trial. (Read more details here). Basically, AmEx lost because the company rested its case on its own internal computer records, which could not be proven authentic to the satisfaction of the court.

Got It thanks!

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The court still allowed American Express to provide secondary evidence to justify the damages even though the defendant in his bankruptcy statement agreed to the alleged amount but the burden of proof was still on Amex to provide the details of the damages. (Date of Transaction, the amount charged, the source or merchant) etc... so even if your case goes this far look into the BOP because it states there that if the Plaintiff can't justify the total damages claimed and only provided incomplete statements then the total amount of the itemized debits and credits are what the true damages are and not the one final cc statement these jdb's seem to only provide (it's not itemized)

Hope this helps.

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Proof of the underlying debt means that the plaintiff, who brings the suit, must present admissible evidence to the court that substantiates the amount sought. This can consist of presenting business records, affidavits, and other evidence that establishes that:

1 An account between the parties was established

2. there was an agreement between the parties

3. One party became lawfully indebted to the other party

4. The indebted party defaulted and refused to pay

5 The indebted party retained invoices and made no protest as to the amount

If the plaintiff bought the debt from the original creditor, they must provide a bill of sale which conclusively proves that the subject account was purchased. A generic bill of sale that does not list the defendant's name or account number is worthless. Most "junk debt buyers" will not pay for all the records needed to prove their case, it is not in their business model. You can see this in the posts here.

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