How do you find "real party in interest"?

[Downto0]

I'm guessing that all state Rules have a section similar to this one from Iowa about "real party in interest":

Rule 1.201 Real party in interest. Every action must be prosecuted in the name of the real party in interest. But an executor, administrator, conservator, guardian, trustee of an express trust, or a party with whom or in whose name a contract is made for another’s benefit, or a party specially authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is prosecuted.

Note the underlining above. Would not an assignment of the debt apply here? Nowadays collectors are trying all sorts of tricks to shield themselves from the FDCPA. I've heard where the collectors are sometimes suing in the OC's name and the collector lists the OC as Plaintiff. They then hire an attorney to represent the OC Plaintiff. All the while the true owner of the debt, the collector, hides themselves behind the skirt of the attorney.

To me, a sure sign of a substitution of the real party in interest is where there is only a enough prima facie evidence provided with the claim to barely support a default judgment if the debtor does not show. OC's, on the other hand, generally provided tons of consecutive statements and an affidavit from their own office by a person with personal knowledge.

I believe that in order to pull back the veil to see who is actually the Plaintiff that one should file a motion to "identify the real party in interest". The points of this motion should be addressing the lack of evidence identifying the real party in interest. Then, one should have previously contacted the attorney, and any other purported interested party, asking for identification of the real party in interested. Upon silence or evasive answers from them, the motion would be appropriate and necessary.

Is this the right way to go about finding who the real party in interest is? All comments welcome.

[Hannimal]

I am interested in this as well. If anyone has any info I'd appreciate it.

[legaleagle]

This sounds like something that would be resolved in discovery. It doesn't make any sense that they would do this, because if there was a judgment granted it would be in the OC's name. The JDB would not be able to enforce the judgment. Even if they managed to do so, the money would go to the OC, not them. The key would be to see if the account is marked as charged off and sold on the credit report.

[Hannimal]

In my particular case, the account is just listed as charged-off and account closed by credit grantor.

However, none of the evidence submitted shows any connection between the OC and the law firm.

[Downto0]

The JDB would not be able to enforce the judgment.

Sure they could. They have assignment. This is not a new idea and it is not something just for collectors. Look at the types of situations it covers:

executor, administrator, conservator, guardian, trustee of an express trust

Consider the executor of a will. They file in the name of the deceased and they collect for the deceased. The money collected generally goes to the estate but if the will specified that a certain money collected should go to the executor, for their expenses, for example, then the executor is authorized to collect the money and put it in their bank account.

The Iowa Rules further states:

or a party with whom or in whose name a contract is made for another’s benefit

An assignment is made in the name of the collector for the OC's benefit. The money would go wherever the assignment/contract states the money should go. If the collector is a CA then any money collected would go to the OC. If the collector is a JDB then the money would go to the JDB.

No doubt Discovery would work but couldn't a person file a motion to identify the real party in interest?

[BV80]

I've never heard of a motion to reveal the real party in interest. You'd have to find out if such a motion is allowed by your court.

[Downto0]

So how would one find out who the real party of interest is? If the collector eventually would dismiss their case then Discovery would not work. How else could one find the real party in interest?

[BV80]

I'd call the OC. If they tell you the account has been sold, ask them when it was sold, and who purchased it. Even if they can't tell you who purchased it, they should be able to tell you when it was sold.

[Hannimal]

I have called the OC and they said it's not been sold, only charged off and closed.

I don't think the law firm has hard evidence such as statements and the affidavit they supplied was not notarized, didn't give the title of the affiant, and didn't say how the debt was obtained.

This has apparently gone from CapOne, to NCO financial, to this law firm. While CapOne is the listed Plaintiff, everything, including the background check of the law firm, looks fishy.

[Downto0]

I'd call the OC

If it were that simple I would not be asking question as to how to get an answer via the court.

Assume that phone calls were made to the OC and they were inconclusive. Assume that one phone called resulted in the OC not being able to find the file and that a second follow up call resulted in finding the file but the OC said that you would have to talk to the attorney involved.

This is inconclusive.

Assume that the attorney invovolved has filed a lawsuit to collect the debt and that the prima facie evidence sent was a generic agreement and an affidavit of debt by an "authorized agent" of the OC.

OC's don't send crappy evidence like this. They send at least a year's worth of statements and an affidavit from a person working for them, not an authorized agent.

Assume that the lawsuit was filed without contact with the debtor. Assume that the debtor sent for dv to both the attorney and the collection agency involved. Assume that neither answered dv or responded with the maxi-miranda as required by the FDCPA after intial contact with the consumer.

It is clear that whoever is involved who owns the debt wants to shove this thing through the court process and get a judgment before the debtor can even receive validation of who the owner of the debt is.

According to Iowa law, the owner of the debt can do this. They can sue in the name of the real party in interest without revealing who they are just the same as an executor could sue for the deceased without bringing up the executor's name.

I have found where identifying the real party in interest can be an affirmative defense. What I want to know is if the debtor can file a motion to identify the real party in interest. Maybe I am passing over the pertinent section in my Rules but I cannot find anything that would disallow such a motion. I'm just wondering if any of you have tried to find the real party interest and how you went about it.

Anyone?

[BV80]

I have called the OC and they said it's not been sold, only charged off and closed.

I don't think the law firm has hard evidence such as statements and the affidavit they supplied was not notarized, didn't give the title of the affiant, and didn't say how the debt was obtained.

This has apparently gone from CapOne, to NCO financial, to this law firm. While CapOne is the listed Plaintiff, everything, including the background check of the law firm, looks fishy.

If the OC says the account has not been sold, then CapOne is the Plaintiff. It appears NCO was merely collecting for them at one time.

[Hannimal]

Then why the paltry evidence? Why aren't there statements, etc?

This is from a Wall Street Journal article in 11/2010. The law firm spoken about is the firm involved in my case.

Michelle Smith Scott, a small-claims court judge in Indianapolis who handles disputes of less than $6,000, imposed in October of last year a limit of 500 new debt-collection cases every two weeks on law firm Bowman, Heintz, Boscia & Vician, based in Merrillville, Ind. Roughly 60% of the law firm's business comes from debt buyers, including Encore, according to a partner at the law firm.

Just like the current flap over foreclosures, debt buyers have run into trouble with judges in several states for taking shortcuts with papers filed in collection cases. "Everyone is hysterical about the robo-signing" by a mortgage-company worker who testified that he signed foreclosure documents without reviewing details of each case, says Ira Rheingold, president of the National Association of Consumer Advocates. "What's overlooked is that…the scale in collection cases far exceeds what we're focused on now."

In some instances, the debt buyers' aggressive pursuit of debt may skirt state or federal laws limiting collectors. A patchwork of federal and state laws governs debt collection and litigation. On the national level, the Fair Debt Collection Practices Act limits how collectors pursue delinquent borrowers. Once debt buyers sue to retrieve debt, they are subject to state laws that impose a statute of limitations, often between five and seven years after the borrower stops making loan payments.

[BV80]

According to Iowa law, the owner of the debt can do this. They can sue in the name of the real party in interest without revealing who they are just the same as an executor could sue for the deceased without bringing up the executor's name.

Not revealing the real party in interest and claiming another entity who has no interest in the debt to be the real party interest are 2 different things.

For instance, not revealing the real party in interest would be an authorized agent, such as a collection agency, suing in their own name rather than the name of the company who hired them.

Suing in the name of a Plaintiff who has absolutely no involvement in the suit is something else.

[legaleagle]

Sure they could. They have assignment.

You put up a couple of scenarios. Ones eems to be where a JDB pretends not to own the debt and sues in the OC's name.

the collector lists the OC as Plaintiff

In this case yes, they do have assignment, but file a lawsuit with the OC listed as plaintiff. The judgment would be granted in the OC's name, and the JDB would be unable to collect. I think this is rare, any attorney who did this deliberately might be looking at disbarrment.

[Downto0]

The assignment would give the JDB all rights to collect. They could use the OC's name to sue and the contract to collect.

I'm not making this stuff up. Do a Google and you will see that JDB's are suing without sending the maxi-Miranda and using the OC's name as Plaintiff. According to Iowa law, they can do it. In Iowa, if you have a contract with another party to use their name to collect the debt then you can:

or a party with whom or in whose name a contract is made for another’s benefit

Not revealing the real party in interest and claiming another entity who has no interest in the debt to be the real party interest are 2 different things.

Going by what you said, claim one would be, "The real party in interest has not been identified" and claim two would be, "The Plaintiff is not the real party in interest.

Claim one demands that the real party in interest be identified. The answer from claim one, would answer claim two.

This does not, however, answer how to apply these claims. I have not ever heard of a motion to identify the real party in interest either. It does not mean that it can't be done this way, just that it is a given if litigants have done it before.

Probably the best thing to do, after having given it a little more thought, would be to enter these claims in a MTD. One could also use the claims as affirmative defenses or possibly counterclaims.

How would someone enter these claims?