Author Topic: What does "creditor's agent" mean, legally?  (Read 956 times)

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JoblessManchild

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What does "creditor's agent" mean, legally?
« on: December 18, 2017 06:51:08 PM »
I had my docket call today in General Sessions Court (Tennessee). I briefly met with an attorney and attempted to get a definite statement about the nature of the case, but I'm not sure what good it did.

I asked if the plaintiff (original creditor) actually made the decision to file the lawsuit. The attorney said that they "definitely did," and he knows this because they signed off on the paperwork that was filed with the lawsuit (i.e., the affidavit). I pointed out that the affiant was a member of the collection agency (the one representing the creditor in court). The attorney didn't seem to disagree with this, but said that he was an "agent of (original creditor's name)."

I don't think this really constitutes a decision to sue, as a third party collection agency can't actually be the original creditor. I'm aware that there may be some agreement between the collection agency and the creditor that allows for this kind of pseudo-representation (affiant is not himself an attorney to the best of my knowledge, but is a high-ranking officer in the same agency as the attorney), but that doesn't change the fact that after all this time, the collection agency still has not come up with any evidence that the creditor is actually suing me. This agency is somehow able to be a third party debt collector, the original creditor, AND the original creditor's legal representation in court.

Can someone tell me what might be going on here? Is this normal for creditor lawsuits, and is it legal?

BellEbutton

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Re: What does "creditor's agent" mean, legally?
« Reply #1 on: December 18, 2017 07:11:36 PM »
Who is listed as the plaintiff?   The collection agency or the original creditor?

JoblessManchild

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Re: What does "creditor's agent" mean, legally?
« Reply #2 on: December 18, 2017 07:19:44 PM »
The original creditor is named as the plaintiff. The collection agency is listed on the summons where "attorney for plaintiff" is normally listed, and the attorney who filed the suit is listed with the collection agency as well. Essentially, the summons says that the creditor is suing me and is using the collection agency as legal counsel.

BellEbutton

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Re: What does "creditor's agent" mean, legally?
« Reply #3 on: December 18, 2017 07:28:25 PM »
The original creditor is named as the plaintiff. The collection agency is listed on the summons where "attorney for plaintiff" is normally listed, and the attorney who filed the suit is listed with the collection agency as well. Essentially, the summons says that the creditor is suing me and is using the collection agency as legal counsel.

Is the collection agency a law firm?  Have you looked it up?

JoblessManchild

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Re: What does "creditor's agent" mean, legally?
« Reply #4 on: December 18, 2017 07:37:00 PM »
How can I look that up? The attorney listed on the court docket is a real attorney with a real BPR number, as is the attorney I spoke with today. The agency is Wakefield and Associates, Eastern Division, and the "account" is in their "legal department," whatever that means. They have an odd mix of attorneys and non-attorneys, and I don't know if the attorneys are employed or contracted, but their contact info is the same as Wakefield's.

As far as their actual status as a "law firm," I haven't given that much thought. Their website doesn't state that they're a law firm. The people on the phone say weird things like, "we're representing this account on behalf of the creditor," which makes me think they just like abusing legalese in hopes that I won't contest it.

Clydesmom66

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Re: What does "creditor's agent" mean, legally?
« Reply #5 on: December 18, 2017 08:15:40 PM »
The original creditor is named as the plaintiff. The collection agency is listed on the summons where "attorney for plaintiff" is normally listed, and the attorney who filed the suit is listed with the collection agency as well. Essentially, the summons says that the creditor is suing me and is using the collection agency as legal counsel.

Some states allow  a collection agency to sue on behalf of the original creditor and it isn't uncommon in medical debt cases.  Since TN is very creditor friendly it would not surprise me if that state allows this.  That might be what is leading to your confusion about who is suing you.  I would look into that.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

11181986

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Re: What does "creditor's agent" mean, legally?
« Reply #6 on: December 18, 2017 08:42:45 PM »
This sounds like it should be fine, so long as the agent is the true agent of the original creditor.  Agents can literally do basically anything a principal would do.  One of those is to authorize suit.  Now, just because the agent is authorized to bring suit, the original creditor will still have to bring their own proof for the lawsuit - and I would object to an agent, and not the original creditor, putting forward proof to support a claim.

And yes, as Clydesmom said, this type of arrangement is most common upon medical practices who do not really have the resources to be litigious.

JoblessManchild

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Re: What does "creditor's agent" mean, legally?
« Reply #7 on: December 18, 2017 09:03:05 PM »
I'm not surprised that it's legal in TN. The problem is that the original creditor doesn't seem to be involved at all, despite the attorney assuring me that they were "definitely" involved (by proxy). So there's pretty much no chance of the original creditor bringing their own proof. This seems like a good thing, but it's hard to fight a claim when it isn't even internally coherent.

To make matters worse, the attorney reset the case for two months from now after I requested additional documentation. Which he will almost definitely not provide.

Clydesmom66

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Re: What does "creditor's agent" mean, legally?
« Reply #8 on: December 18, 2017 09:26:01 PM »
I'm not surprised that it's legal in TN. The problem is that the original creditor doesn't seem to be involved at all, despite the attorney assuring me that they were "definitely" involved (by proxy). So there's pretty much no chance of the original creditor bringing their own proof. This seems like a good thing, but it's hard to fight a claim when it isn't even internally coherent.

To make matters worse, the attorney reset the case for two months from now after I requested additional documentation. Which he will almost definitely not provide.

This is where you are assuming WAY too much.  First and foremost all the agent has to do is request copies of the medical records, financial guarantee and billing statements.  Under the rules for admitting business records (which TN relaxed in 2013) they only need an affidavit attesting to their accuracy.  The provider does not have to show up to court if the state allows an agent to sue by proxy.  They only need to send their records. 

Instead of assuming they won't provide any documentation I would be mounting a defense on the premise they can prove everything and I need to fight what they have.  Your plan is a fast track to a summary judgment for the Plaintiff.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

JoblessManchild

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Re: What does "creditor's agent" mean, legally?
« Reply #9 on: December 18, 2017 10:15:04 PM »
Instead of assuming they won't provide any documentation I would be mounting a defense on the premise they can prove everything and I need to fight what they have.  Your plan is a fast track to a summary judgment for the Plaintiff.

So you think the collection agency is deliberately holding out on me? I can see why they might do this, but wouldn't they have already requested a summary judgment if they had additional evidence? The court date was today.

Unfortunately, it doesn't seem like Tennessee requires much in the way of evidence. The judge made a point to say that I have the right to dispute the affidavit, but as far as paperwork, I have nothing and they technically have something. That's why I'm guessing they don't have anything else. They might not need it.

CleaningUp

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Re: What does "creditor's agent" mean, legally?
« Reply #10 on: December 18, 2017 10:18:06 PM »
Here's you problem...

An attorney is suing you on behalf to the Original Creditor.  The attorney is licensed in your state to act on behalf of their client.  The lawsuit names the Original Creditor as the on filing the suit.

If you doubt any of these and wish to challenge the attorney and the creditor over matters involved in this lawsuit, it is going to be up to you to establish either through impeachment of their evidence or admissible evidence of your own that gets the case thrown out.

Good luck on that part...

You have a reasonable argument that their affidavit is self-serving and inadmissible, but they have gotten the time to correct their error and submit an affidavit that can pass muster.

Have you written out your discovery questions yet?  Do they allow you to gather the evidence you need to prove that they are not acting legally?


Is this a suit for medical collections?  If it is, you are up against somewhat different set of interlocking entities.

It is not unknown for hospitals and medical organizations to form separate corporations that do some of the accounting an all of the collections for the medical providers that own the billing/collections corporations.  In many ways, these are true "factoring" companies that provides the billing/collections activities in exchange for cash. 

It's a win/win for all involved.  The hospitals get rid of the administrative headaches and liquidates their receivables and the billing/collections company does the work and gets paid.

I ran into this when I had to go to one of the "walk-in-facilities" near by to get some pills for a painful, but not life-threatening condition. I was in the room for all of about 3 minutes (after a 5-hour wait), and walked out to the facility a relatively happy camper. 

A month or so later, I got a bill for $390 for their service. 

Needless to say, I challenged that billing the day I got it.  I got shoveled around to clerk-after-clerk, all of whom were offering the civil-service shrug.   

I then paid $90 of the bill, their advertised rate for an office visit, with a letter telling them that I was paying what they advertised and what I thought was a reasonable fee.

A few weeks later, my phone lit up from an outfit out of New Castle, Delaware demanding the balance of $300.00.

It took me a while to track them down through their corporation filings and other publicly available information.  The company was a consortium of about three-dozen hospitals and medical practices, mostly of the small variety, which officially takes on their receivables.  And since they are owned by the hospitals and practices, they claim that they are the original creditor.

This whole bit gets a little fuzzy legally, but it isn't a illegal practice.  There is a definite question as to whether or not they would be a "third party" collector.   And GIVEN their interpretation, their affidavit is not only legal but also admissible.

I didn't get the chance to go after the collector in my situation, so the legal yeses and noes didn't get fleshed out.

Key point, though, is that the onus is on the OP to make his case, and his discovery must be both comprehensive and precise if he wants to beat them with the affidavit stick.





...Instead of assuming they won't provide any documentation I would be mounting a defense on the premise they can prove everything and I need to fight what they have.  Your plan is a fast track to a summary judgment for the Plaintiff.



With but the expansion into the actual relationship between the OC and the collecting law firm, I see Clydesdale's remark as being spot on.

CleaningUp

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Re: What does "creditor's agent" mean, legally?
« Reply #11 on: December 18, 2017 10:21:27 PM »

...The judge made a point to say that I have the right to dispute the affidavit, but as far as paperwork, I have nothing and they technically have something. That's why I'm guessing they don't have anything else. They might not need it.


You're right...they may NOT need it. 

Civil courts are based on the preponderance of the evidence:   50.000000000000...000000000001%.

You've said exactly what the judge is seeing and trying to tell you...They have 100% of the evidence.  You have none.

That's the clear basis for summary judgment in every civil court in the land.


JoblessManchild

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Re: What does "creditor's agent" mean, legally?
« Reply #12 on: December 18, 2017 10:32:21 PM »
Are you aware of any statutes or precedents which involve cases like this? I'm aware that they may be legally authorized to this. However, I have received contradictory information about the nature of the debt, the case, and the parties involved. I have no problem paying a legitimate debt, but when the original creditor is unable to validate anything a third party debt collector tells me, I become suspicious. As the court date has been reset, it's possible I may be able to settle. I just want to understand the nature of the case if that's possible.

Clydesmom66

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Re: What does "creditor's agent" mean, legally?
« Reply #13 on: December 18, 2017 10:33:17 PM »
So you think the collection agency is deliberately holding out on me?

Yes, but not the way you mean it.  In a civil trial you must do discovery to determine what evidence your opponent intends to use at trial and a plan to attack it.  The Plaintiff in your case is NOT required to produce anything until you do discovery properly under the rules of civil procedure OR the court demands they produce a particular piece of evidence. 

Also, most states do not require that any evidence be attached to the complaint when the suit is filed.  Not having any documents now is not an indicator that they won't produce them at trial.

I can see why they might do this, but wouldn't they have already requested a summary judgment if they had additional evidence?

Summary judgment is when neither side disputes the claim.  You have answered and denied so they likely cannot file until they get additional documentation to support their case. They can always motion to the court for it at the next hearing.   There is no rush.

Unfortunately, it doesn't seem like Tennessee requires much in the way of evidence. The judge made a point to say that I have the right to dispute the affidavit, but as far as paperwork, I have nothing and they technically have something. That's why I'm guessing they don't have anything else. They might not need it.

They may not but so far you don't even have a plan of attack for what little they do have.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

CleaningUp

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Re: What does "creditor's agent" mean, legally?
« Reply #14 on: December 18, 2017 10:36:19 PM »
The issue that would be at hand for FDCPA purposes would be the definition of a third-party collector and whether or not they fallmunder that definition.

Remember, though, they would only be on the hook for a fine of UP TO $1,000.