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Case law that would work in Utah that would support a plaintiff

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needs to prove standing....
Case law that would work in Utah that would support a plaintiff needs to prove standing.
Submitted: 6 years ago.Category: Business Law
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5/10/2011
Business Lawyer: Maverick, Attorney replied 6 years ago
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Customer reply replied 6 years ago
Being sued by a collection agency they say there is an assignment they submitted a MSJ they have an affirmation from he original creditor saying there is and assignment but neither of them summited any evidence of and assignment. I need case law that supports an argument that the collection agency needs to prove the assignment to prove standing in order to be able to sue me and ask for the MSJ
Business Lawyer: Maverick, Attorney replied 6 years ago

This case law is not something that you would expect to find. I previously told you that I would typically expect to see an assignment agreement attached to the affidavit saying that there is an assignment. However, even if such an assignment agreement is not attached to the affidavit, I suppose that an actual assignment could occur at anytime before the hearing or that the affidavit could actually serve as the assignment since assignments are basically a creature of contract law.

 

This is a slightly different scenario than a mortgage note assignment because a note is an official legal document like a check and without the plaintiff having possession of the original note, he may lack standing to sue.

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Customer reply replied 6 years ago
Ok so we will give them the benefit of the doubt lets say they prove or are given leeway by the judge. Can i use this and am I reading this right.

70A-2-210. Delegation of performance -- Assignment of rights.

(5) An assignment of "the contract" or of "all my rights under the contract" or an assignment in similar general terms is an assignment of rights and unless the language or the circumstances (as in an assignment of (for) security) indicate the contrary, it is a delegation of performance of the duties of the assignor and its acceptance by the assignee constitutes a promise by him to perform those duties. This promise is enforceable by either the assignor or the other party to the original contract.
(6) The other party may treat any assignment which delegates performance as creating reasonable grounds for insecurity and may without prejudice to his rights against the assignor demand assurances from the assignee (Section 70A-2-609).

I did send the collection agency a letter demanding if they are the assignee of the original creditor they finish the contract and provide the services of the original creditor. I added a disclaimer saying the letter was not admitting contractual obligation on my part. Does this constitute a breach on the collection agency's part ?
Business Lawyer: Maverick, Attorney replied 6 years ago

What the effect of 5 and 6 above is to allow you to force the assignee/collection agency to perform the same duties as the assignor had to you under the original contract. So if the assignee has not lived up to the terms of the contract, then, yes, this would be useful.

 

In a debt collection matter, however, they have already loaned you the money. Presumably the original creditor gave you a copy of the contract at the time you got the loan/credit. If there is any other obligation under the contract that they owed but have not fulfilled, you could demand assurances from the assignee that he is going to meet his end of the bargain.

 

I really do not see a clear breach here. You will need to see if there is something in the original contract that they have not met.

 

 

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I suppose that if you could show some aspect of the original contract that they have not fulfilled, and then they fail to comply, you could the make the argument that you would like to see a copy of the assignment to see what the scope of it was.

 

 

 

 

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Customer reply replied 6 years ago
I guess I should have clarified this is not a credit type debt.

The original creditor im speaking of is a Mental Health provider.
What im being sued for is non payment of a medical bill. So if they took assignment of this account could I ask the collection agency to continue services I believe were not performed from the original creditor.
Business Lawyer: Maverick, Attorney replied 6 years ago
Yes, they have the burden of proof to show that the services that they allege were rendered were actually rendered. On a summary judgment motion, you can get their SJ motion denied by creating an issue of fact. To do this, you simply need to sign and file an affidavit and response to the SJ motion that states that you never received the services that they are trying to collect on (assuming that is in fact a true statement).
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