Fighting Collection Claims Using Evidentiary Objections

Did you know that most collection lawsuits can be defended by using evidentiary objections?

An evidentiary objection in layman’s terms means objecting to the evidence, or the lack thereof, that a creditor is relying upon in their lawsuit.  Here is an example of a typical allegation that will appear in a collection suit:

1.   ABC Generic Collections, Inc. is properly licensed in the State of Washington to collect debts.  ABC purchased the debt from the original creditor Bigbadbank, NA and therefore has standing to collect upon the debt.

Unless the lawsuit is accompanied by a purchase and sale agreement, assignment, or some other document to show the transfer of the debt, this is just an unfounded statement.

In your answer, you would want to deny that ABC has been assigned the debt and point out that the creditor has not attached any evidence to support this allegation.

If the creditor has the actual document, then they will need to produce the document.  If not, there is a good chance the judge will dismiss the case.

When reviewing a collection claim, be sure to object to everything that is logical to object to and let the judge sort it out.  However, do not object to everything blindly (such as claiming you are not married if you are or that you live at a certain address if you do).  The typical allegations that you will want to object to in a collection claim are: 1) assignment of the debt to the present creditor, 2) that the amount of the debt is correct, 3) that you owe this debt, 3) that service of the complaint upon you was proper.

Defending a collection using evidentiary objections can be a successful strategy if used properly.

How the Washington Foreclosure Fairness Mediation Act Can Help Homeowners

In 2011, the Washington State Legislature enacted the Foreclosure Fairness Mediation Act.

This Act was passed in part to combat Bank’s reluctance to deal fairly and directly with homeowner’s who are seeking loan modification, deed in lieu of foreclosure, and other loss mitigation options.

One of the requirements of the Act is that prior to starting the foreclosure process, the beneficiary (meaning the lender or bank/financial institution that owns the promissory note and deed of trust) must attempt to contact the homeowner regarding potential work outs as an alternative to foreclosure.

This contact is usually in the form of a letter also known as a notice of pre-foreclosure options letter.  If you respond to the letter within thirty days, you can elect to meet directly with the beneficiary.  The meeting is also known as a “meet and confer.”  Often times, it is possible to obtain a loan modification or other work out.

If the “meet and confer” is not successful, it is also possible to go to “mediation.”  The Washington Department of Commerce oversees the mediation program.  To request mediation, you need to speak with an attorney or authorized housing counselor.

Mediation differs from the “meet and confer” in that a Mediator is assigned by the Department of Commerce to assist both the homeowner and the beneficiary.  Often this process can be successful where the “meet and confer” was not because it is more guided and controlled.  Further, if the beneficiary does not negotiate in good faith, it can be a defense to the foreclosure.

The Foreclosure Fairness Mediation Act has been a positive development for homeowners in getting an opportunity to sit down with the beneficiary and determine if a loan modification or some other work out is possible.