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At a time when bankruptcies, foreclosures and credit card balances are hitting record highs, the subject of debt-collection and lawsuits seems unavoidable. A purported debtor, who has been sued by a creditor, is usually served with a complaint alleging that the creditor lent the debtor money that has not been repaid. For many novice debtors, a complaint is an intimidating legal document containing language that is distracting to some of the savviest non-lawyers. Most debtors who have been served with complaints, concede to owing their creditors money, believing that the debt itself is the most important issue. For many lawyers and courts however, the sufficiency of the complaints and evidence are equally important issues in this type of lawsuit.
I have handled cases where a credit card company assigns a delinquent account to another company, who ultimately files a lawsuit as the plaintiff. This plaintiff, as an assignee of the original creditor, acquires the right to sue the defaulting debtor, the defendant. However, the plaintiff is not always in possession of the documentation needed to prove its case under Florida law. In fact, the plaintiff’s inability to produce key documentation has often provided me with a solid basis for dismissal of the lawsuit.
I have never gotten the impression that the plaintiff merely overlooked this evidentiary fatality. After all, many collection attorneys in South Florida specialize in this area almost exclusively. Rather, the plaintiff’s prompt acknowledgement when challenged about insufficient documentation, suggests that the plaintiff knew the significance of the missing documentation. It would seem therefore that the plaintiff was counting on a defendant-debtor who would not understand the importance of this type of evidence.
In the county courts, which address smaller debts, the attorneys for the plaintiffs generally arrive for hearings prior to the judge taking the bench. Many of these attorneys have an impressive list of collection cases to be addressed by the court on that day and attempt to negotiate settlements with the defendants before court starts. Many of the defendants are unrepresented, resigned to the fact that they are indebted to the plaintiffs and as such, are willing to settle and conclude their cases that day.
When the judge takes the bench, the plaintiffs’ attorneys announce any settlements negotiated with the various defendants and moves for default judgments with respect to the defendants that did not show up for the hearing. A default judgment entitles a plaintiff to the full amount sought in the complaint, uncontested.
None of the unrepresented defendants is likely to know that missing or insufficient documentation may be grounds for dismissal of the lawsuit. Remember, most unrepresented debtors are focused upon the debt that he or she admittedly owes. Most unrepresented debtors are focused on the allegations of the complaint in which creditors are ostensibly trustworthy and entitled to relief and in which recklessness or irresponsibility seems to be imputed to the debtors. Unrepresented debtors are not focused on whether the plaintiffs can meet their burden of proof in an impartial court of law.
Plaintiffs in these types of cases have every reason to pursue these lawsuits, despite obvious evidentiary shortcomings. The chance of missing documents becoming an issue for the unrepresented and uninformed debtor is almost as slim as the chance of a defaulting debtor justifying the expense of legal counsel capable of identifying the technical fatalities of the creditor lawsuit.
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