Debt collection can be a tricky business, particularly when it involves credit cards. When an account has been delinquent for some time, it's not uncommon for the original company to decide it's not worth the time and effort required to keep chasing the debtor for the money owed. They'll write off the debt, but they may try to recoup some of what the debtor owes by selling the account to a debt collector for a few cents per dollar of the balance. Debt collectors usually devote more time and effort to collections, often filing lawsuits against debtors.
If a debt collector buys your credit card debt, it's unlikely that the original company is going to turn over your entire account file, if the company even still has it. Debt collectors usually receive basic information regarding you and your account in exchange for their money. The information may be just enough for them to begin harassing you for payment and to file a lawsuit against you for collection if you don't respond favorably. But this is rarely enough to enable them to win a lawsuit if you defend yourself properly.
Proof of Debt
You can often stop a debt collector in his tracks by demanding proof that you contracted for the debt in the first place. This requires at least a copy of the contract you signed with the original company when you accepted the credit card, and it's the collector's burden of proof to produce it. If the credit card company sues you itself without selling the debt to a collector, that company must also provide the court with a copy of the original contract -- and they often don't have access to it anymore either. If you demand a copy as soon as you start receiving collection calls, most scrupulous lenders and collectors won't file a lawsuit against you, knowing they can't offer the contract to the court. However, not all credit card companies and debt collectors are scrupulous.
Debt Collectors' Substitutions
You could conceivably find yourself in court with the plaintiff -- either the original lender or a debt collector -- offering the judge everything but the original contract you signed. The documentation might include an account statement or several statements, or a standard, unsigned agreement that applies to all cardholders. This sort of documentation typically doesn't meet the legal standard of proof, but exceptions do exist. If the credit card company still has a comprehensive file that includes itemized bills over a multiyear period, as well as calculations of interest, at least one court has held that this constitutes proof of the debt owed.
Statute of Limitations
Even if a credit card company or debt collector is able to provide enough substitute proof to convince the court that you owe the debt, this may not be good enough. Statutes of limitation apply to all such lawsuits, usually beginning with the date that you last used the credit card. The statute of limitations for enforcing unwritten contracts can be shorter than that which applies to written contracts. If you signed a contract with the lender and the lender can produce it, this is a written contract. If the lender or collector offers other extensive documentation, but the original contract is not included, this is an unwritten contract because no document bears your signature. In this case, the statute of limitations for unwritten contracts may have expired by the time the creditor gets around to suing you.
Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.