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Debt collectors must prove the debt is yours

By

To Her Credit
To Her Credit, Sally Herigstad
Sally Herigstad is a certified public accountant and the author of "Help! I Can't Pay My Bills: Surviving a Financial Crisis" (St. Martin's Press, 2006). She writes "To Her Credit," a weekly reader Q&A column about issues involving women, credit and debt, for CreditCards.com, and also writes regularly for MSN Money, Interest.com and Bankrate.com, and has guested on Martha Steward Radio and other programs. See her website SallyHerigstad.com for more personal finance tips and free budgeting worksheets.
Ask Sally a question, or read her previous answers in the To Her Credit archive
Question for the CreditCards.com expert

Dear To Her Credit,
We've been getting phone calls from a collection company saying we owe $249.25. They say the original amount was $111.52 that we owed to J.C. Penney, but it's been turned over to them.

We called J.C. Penney, and they say we haven't owed anything since 2006. We never got any bills saying we were overdue. We always pay our balances every month -- we can't stand to pay interest! So we don't know where this bill is coming from or why it would just show up all of a sudden.

The other strange thing is that this collection company doesn't know our current address, and we moved six years ago. I refused to give them my current address. I'm starting to think they are bogus, and I told them so. The lady I was talking to got defensive, and told me that I needed to prove to her that I didn't owe the money.

How can I prove I don't owe something to someone I've never heard of? Shouldn't the burden of proof be on them? If I do owe the money, I will pay it, but I certainly am not sending a check until I'm sure.

This whole thing is wearing me down. I'm so angry I can hardly sleep. What can I do?  -- Diane

Answer for the CreditCards.com expert

Dear Diane,
First, stop talking to them on the phone. You won't convince them of anything, and it's ruining your day (and night) every time they call.

You're right -- you are under no obligation to prove you don't owe a debt. "The debt collector has to prove that she owes the debt," says Jonathan G. Stein, consumer law attorney and author of the California Debt Blog. "The debt collectors like to reverse this -- but how do you ever prove a negative? You can't."       

The Fair Debt Collection Practices Act (FDCPA) gives you the right to ask for verification of the debt and proof that the collection agency has the right to collect the money. This is called "debt validation." If you request debt validation, the debt collector must provide it and is prohibited by law from taking any continued collection activity until that's done.

Take these steps to request debt validation:

  1. Tell the caller not to contact you by telephone.
  2. Ask for the company's name and address.
  3. Send a letter by certified mail to request validation of the debt (here's a sample debt validation letter. You're going to have to give them your current address so they can contact you by mail. But since they already have your phone number and could probably get your address on the Internet, that's not too big a concession.

"If she sends out a good validation letter, they will probably go away," says Stein. "Debt collectors like people who pay without questioning them or who won't respond to a suit. They rely on people saying, 'It's $200 and I'm not going to fight it.' If they can go after 1,000 people for $200 apiece in a month, that's a good month for them."

On the slim chance that you hear from them again, you then have to decide if the debt is legitimate and if they have the right to collect it.

"Even when they have evidence, it can be very weak evidence," says Stein. He's seen evidence that some debt collectors try to collect on debt before they actually own it. "You couldn't sell someone a car before you bought it, but debt collection companies do that all the time." If they never get questioned on it, they get away with it. "People have to push the issue and say, 'I'm not going to pay you until you prove you own the debt.'"

The debt collector should send you recent statements showing how much you owed to Penney's if it is legitimate. She should also show proof that the debt was assigned to her company. In addition, she may show copies of your original credit card application.

If you believe the debt is in error or that this company is trying to collect on bogus accounts and you can't get them to stop hounding you, it may be time to get legal help. Stein and most other consumer law attorneys will provide a pre-consultation at no cost. "We're looking for not just solving her debt, but finding out whether they've violated the FDCPA," says Stein. "In that case, we can collect our fees from the debt collection company."

Don't give in, and don't take it personally. Forget trying to clear your name -- you're just a name on a list to them anyway. Demand validation of the debt, and most likely they will just move on to the next name on the list.

See related: Know your rights: Fair Debt Collection Practices Act, Debt collection sample letters, The ugly side of debt collection, 11 tips for dealing with debt collection

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"Opening Credits"

Published: October 9, 2009


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