When Are a Debt Collector’s Records Admissible in a Collection Lawsuit?
In debt collection lawsuits, the main issue is usually whether there is evidence to show that the consumer in fact owes the debt, and to whom.
This is especially important in cases brought by debt buyers, companies that do not issue credit but purchase delinquent accounts for the purposes of collecting on them. Debt buyers are considered another type of debt collector.
When debt buyers and debt collectors purchase accounts from original creditors (typically, credit card companies and medical providers), they often do not purchase all of the account documents required to show that they own it.
So when are debt collectors’ records allowed to be presented as evidence?
There are two common types of documents that usually are not admissible in court: records created for the purpose of litigation, and records from the original creditor.
Records created for purposes of litigation are not admissible because they are considered less genuine. After all, anyone who was going to file a lawsuit could theoretically create any kind of records they want. Under Massachusetts law, there is a rule of evidence that records created for the purpose of litigation are not admissible in court. This is called the “Business Records” Rule. It says that only business records created before the lawsuit was going to be filed are admissible. They are more likely to be trustworthy.
Records from the original creditor are not admissible unless they are “authenticated” by someone from the creditor. Authentication is when someone testifies based on their personal knowledge that a document is. Debt buyers, however, cannot testify as to what the documents are because they have no personal knowledge of them. All they know is that the creditor sold the documents, but they can’t verify that they are accurate or testify as to how they were created. Debt collectors will rarely go through the expense to send someone from the creditor to testify at trial.
Debt collectors and debt buyers often try to violate both these rules. If a proper objection is not made in court, then the judge might just let the documents in and enter a judgment in favor of the collector.
Culik Law is a consumer protection law firm. Our attorneys have experience getting these types of documents excluded in debt collection lawsuits and deal with many types of consumer protection. If you are dealing with a debt collector or feel your rights have been violated, contact us to see if we can help.