Any idea why debt buyers should never win a credit card lawsuit?
Answer: The Hearsay Evidence Rule.
The Hearsay Evidence Rule prohibits the admission into evidence of statements - oral or written - made by an out-of-court witness and offered to prove the truth of the matter asserted. [Hint: Start thinking about monthly credit card statements.
A digression first: For those who are new to credit card lawsuits, debt buyers are companies, often quite large, which are in the business of purchasing defaulted credit card debt and collecting for their own account. They don't pay a lot for the debt, and they can be pretty aggressive collectors. Debt buyers make BIG money, but they don't have to make it from YOU. Why? Because of the Hearsay Evidence Rule. To see how this works in your favor, let me ask a simple question: How does a debt buyer know how much to sue you for?
Answer: Somebody else tells them. [Somebody who won't be in court to testify]
Specifically, that somebody is whichever bank sold them the debt. The bank tells the debt buyer how much debt their pennies have bought, and that is ALL a debt buyer knows. They may also get the last monthly credit card statement which also reflects this amount.
Flash forward to the trial. To prevail, the debt buyer must prove damages. Damages is an essential element of every claim. The debt buyer's damages is the amount of the debt they allegedly purchased and have been unable to collect - even though they only paid pennies on the dollar. To prove damages, they will offer into evidence that last monthly credit card statement showing the amount you owe.
And when they do, you do exactly what?
OBJECTION, your honor. Hearsay.
You do this because you now understand that a credit card billing statement is nothing other than a [written]statement made by an out of court witness, offered to prove the truth of the matter asserted - that you owe X dollars. As such, the monthly statements are pure hearsay, inadmissible as evidence to prove the amount owe....or more precisely, to prove Plaintiff's damages. NO damages, no case. You win. Unless, that is....
...they produce a witness from the selling bank who testifies that the monthly statements are, in fact, authentic documents stating the correct amount owed. Which leads us to one final question...:
What are the chances that an original creditor will send an employee - say, from Delaware [Chase] or Virginia [Capital One] - all the way across the country to hang around court all day to testify in a case in which the bank has NO interest WHATSOEVER?
Not happening. I haven't seen it, and don't expect to. So the statements are out. And the amount of Plaintiff's damages is unproven. Like we said, No damages, no case. Judgment for the defense.
Actually, it's not quite that easy. So, you might want to line up some legal help. Why? Because judges will allow hearsay statements into evidence unless proper and timely objections are made. And SOME judges will allow it anyway.
William Rose is a Santa Monica Attorney representing consumers exclusively throughout the State of California in credit card related matters, including defending consumers in credit card law suits, negotiating reductions of their credit card debt and enforcing their rights under both the Federal and California Fair Debt Collection Practices Acts. To learn more about Bill Rose and his work, visit http://www.californiaconsumeradvocate.com/ or call toll free at 1-877-551-0210
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