Assignment is the foundation of the debt-buying industry, and the industry is built on sand. Or a swamp. Because assignment is also the industry’s weak spot, and the reason why most—if not all—debt-buyer lawsuits should fail.
Debt buyers must prove they have the right to collect a debt. To do this, it must show an unbroken, valid chain of assignment back to the original creditor. Most debt buyers cannot do this.
Debt collectors: making a mockery of the justice system since whenever. [via Consumer Law & Policy Blog]
The secondary debt market—credit cards and mortgages included—has relied on made-up legal terms and suspect justifications for years in order to turn the usually slow-moving court system into a speedy tool of business. It worked, probably because few consumers put up a fight. But more people are fighting back now, which means debt buyers are scrambling for legal footing.
It isn’t working, at least not in Pennsylvania, where the state court of appeals recently said “we reject [the] ‘This is how the industry does it’ mantra.”
Today, the Massachusetts Supreme Court decided that if Wells Fargo and US Bank couldn’t keep track of their property, the court wasn’t going to help them take that property away from the consumers living in it. In other words, the “produce the note” strategy not only works, it is the law. At least in Massachusetts.
This decision could spill over into other states, since the foreclosure process in Massachusetts is similar to other states that permit non-judicial foreclosure. Besides, taking property without competent evidence kind of flies in the face of the Due Process Clause.
The Massachusetts court did point a way forward for the banks: valid assignments. Well, obviously. Unfortunately, the court also said the banks cannot go back and get retroactive assignments, so banks that kept similarly shoddy paperwork may be SOL for the mortgages they think they hold now.
Of course, my guess is that, rather than adopt the court’s reasonable, legal suggestion, the banks will spend millions of dollars lobbying Congress to overturn the Due Process Clause, or something.
Some debt buyers take more extreme measures. Thomas Labeaux, owner of Debt Equities, apparently trapped a consumer in her driveway, pretending he was a sheriff and threatening to take her newborn into protective custody if she did not pay a debt.
I sometimes wonder why debt buyers bother to actually buy anything. Since the paper they purchase is basically worthless:
Debt buyers’ ability to obtain additional documentation from the original creditor is extremely limited: they may purchase the right to request such documentation in a limited number of cases, or they may not have access to any supporting documentation at all. If the debt is resold to another debt buyer, obtaining such documentation becomes even more difficult, as most second and subsequent sales of debt portfolios do not include any direct access to the additional documentation from the original creditor, which means that those debt buyers almost certainly lack the documentation needed to support lawsuits filed against people whose names appear in their portfolios.
When you realize that most debt buyers are filing lawsuits without even the ability to get competent evidence to prove their claims, regulations like the proposed Minnesota bill make more sense. Debt buyers are not special, and they should have to prove their cases like everyone else. Since they are getting away with doing so—regularly, in fact—they should have to meet some basic requirements before they are allowed to take advantage of the courts.
Minnesota Representative Joe Mullery and Senator Ron Latz recently introduced a bill that would prevent debt buyers from filing a lawsuit without the ability to prove they have the right to collect a debt.
Why the need for the rule? Debt buyers and collectors file tens of thousands of lawsuits against Minnesota consumers every year, and probably serve at least as many that never get filed. But debt buyers should lose most of their lawsuits, if challenged.
Sometimes the court system actually works. The AP has an interesting article on homeowners who are forcing lenders to <gasp> produce the note—the proof the lender issued a mortgage. Apparently some people are having some success in delaying or stopping foreclosure by simply asking whomever is trying to foreclose to produce the original mortgage note. In these days of selling and reselling mortgages paperwork tends to get lost, so how does one prove they have the right to foreclose on anything?
I don’t know how good a strategy this really is and it likely would take a sympathetic judge, but hey it can’t hurt to ask!
National Arbitration Forum basically offers a rubber stamp to debt collectors already, and they argue that courts should turn their awards into court judgments without looking too closely.
Are courts unreasonably tossing out arbitration awards? Nope. NAF is just advocating for its clients, the debt collectors, who have no proof of the debts on which they are trying to collect.
Following up on this post (In the event of a lawsuit, please head for the nearest lawyer), I thought I would talk a little bit about what to do after you are sued and after you answer the debt collection complaint. (If none of that made sense to you, go ahead and find yourself a consumer attorney.
More on combating debt collection lawsuits after the jump.