Tuesday, September 13, 2016

FYI: Fla Court Holds Original Creditor Records Inadmissible in Debt Buyer's Collection Action

The County Court of the Twelfth Judicial Circuit Court for Monroe County Florida recently held that a debt buyer could not use the original creditor's credit card statements to try to collect on the underlying debts, as the debt buyer failed to present evidence that it independent verified the accuracy of the credit card statements.  A copy of the opinion is attached.


The plaintiff debt buyer presented the sworn testimony of a senior legal specialist and records custodian for the debt servicing entity affiliated with the plaintiff.  The records custodian testified as to the methods and processes employed by the plaintiff debt buyer when verifying debt that was purchased from a third party creditor.  However, the Court noted that the plaintiff debt buyer was unable to  testify whether the policies were implemented with regard to the account associated with this action.


The plaintiff debt buyer sought to introduce the original creditors business records, including a collection of credit card statements addressed to the defendant consumer, documents purporting to relate to the plaintiff debt buyer's purchase of the debt, and a series of letters addressed to the defendant consumer.


For the admissibility of the original creditor's business records, the plaintiff debt buyer relied on a number of rulings relating to the admissibility of prior servicer's records in mortgage foreclosure actions, including Sas v. Federal Nat l Mortgage Assoc., 65 So.3d 849 (Fla. 2d DCA 2015) citing WAMCO xxviii Ltd. V. Integrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2d DCA 2005) and Bank of N.Y. v. Calloway, 157 So.3d 1064 (Fla. 4th DCA 2015). 


The Court here distinguished those cases because the custodian testified that she did not receive any ledger, account history or payment history from the predecessor of the debt buyer or its servicer.  The Court concluded that the plaintiff debt buyer and its servicer could not have completed any independent verification of the accuracy of the credit card statements.


The Court also noted that the plaintiff debt buyer and its servicer did not have a copy of the consumer's cardholder agreement, and therefore could not establish the basis for any interest, late fees, or other charges.


Therefore, the Court held the credit card statements addressed to the defendant consumer were inadmissible.


The Court also excluded the documents purporting to relate to the plaintiff debt buyer's purchase of the debt.  These documents, the Court noted, were redacted including as to identifying information that would connect the documents to the debt.  Without that information, the Court found these documents to be irrelevant.


Lastly, the letters addressed to the defendant were sent by a third party vendor and not by the debt servicing entity.  The court concluded the testimony provided by the plaintiff debt buyer was insufficient to establish that the defendant consumer did not object to any of the statements received. 


Accordingly, the court entered judgment in favor of the defendant consumer and against the plaintiff debt buyer.





Ralph T. Wutscher
Maurice Wutscher LLP
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Email: rwutscher@MauriceWutscher.com


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