Collectors can't win judgment without proof of debt

To Her Credit columnist 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, and also wrote for MSN Money, and, and has guested on Martha Stewart Radio and other programs.

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Dear To Her Credit,
In 2011, I received a notice from a collection company, claiming I had an overdue balance. I'm not even sure what company they think I originally owed money to, and I haven't seen any evidence that I owe this debt. When I received the notice, I requested debt validation from the collection agency. This was in May 2011. I did not receive any response, so I assumed the problem had gone away. On June 25, 2015, I heard from them again. They are still not answering my request for debt validation, but they are asking the circuit court for a Motion for Summary Judgment. What can I do?   -- Juls


Dear Juls,
You were smart to ask for debt validation. In many cases, when people ask for debt validation, debt collectors who have skimpy evidence of debt will simply give up and move on. If you don't remember the debt, it may be incorrect or even fraudulent. Sometimes, the collector doesn't even have the right to collect on the debt. That's why the law allows you to ask to have the debt validated before you pay.

If the collector had sufficient information to validate your debt, you would think they would have done so in 2011. Now, it looks like the collection agency -- or another agency that acquired the debt -- is ready to try again.

This time, they're using the Motion for Summary Judgment to move things along.

A Motion for Summary Judgment is a judgment that can be issued when there are no disputes of material fact, and one party is clearly entitled to judgment. In other words, this motion should only be applied in a debt collection case when there is no dispute over whether you owe the money or how much you owe. This type of judgment is only used in civil matters, such as debt collection. It is not used in criminal cases.

You can defend yourself from a Motion for Summary Judgment by showing that you dispute the material fact of whether you owe the money. To have the Motion for Summary Judgment denied, you don't have to prove your side of the case. You just have to show substantial evidence that a dispute of material facts exists, in your case that the collector has not provided validation of the debt.

To defeat the Motion for Summary Judgment, you should draft a letter stating the facts of the case. Be sure to state that you asked for debt validation and did not receive it, and that you do not believe you owe the debt. You should also ask the collector to show how they arrived at the amount owed, including any interest and penalties that have been added.

Be sure to file your response with the court by the deadline, and send a copy to the collector's lawyer.

If you succeed, and the Motion for Summary Judgment is denied, the collector can still try to collect from you. Collecting without the judgment will be more time-consuming and expensive. Unless they have enough solid evidence on their side, they may give up.

If this debt is relatively small, along the lines of being just a nuisance, you could just dispute the Motion for Summary Judgment and then wait to see if the collection agency takes additional steps. If the debt is significant, especially if a successful suit against you would threaten your financial security, you should seek qualified legal counsel in your state.

For a debt this old, you should also check the statute of limitations in your state. It's possible that you can use the statute of limitations as a defense if the debt is too old to be collected.

Debt collectors, even those trying to collect bogus or long-forgotten debts, can cause people a great deal of stress. Worse, they can do you serious financial harm. By promptly responding to them and any motions they file, however, you can stand up for yourself, and for your rights under the law.

See related: Judgment-proof debtors have an imperfect shield, 8 things debt collectors may not do

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Updated: 11-24-2017