Expert: Regan Shinski - 5/3/2010

Question
I received a phone call about a month ago stating I owed $57 to Hawthorne Collectibles for something that was supposedly ordered in 2006 and sent to an address that I have not lived at since 2002. I asked them if they had the proof that this was indeed my debt because I never received anything at my old address and this is the first I'm hearing of this debt in 4 years. I tired to explain that to whom I was talking to, but they kept saying that the burden of proof was on me to prove I was no longer living at that address, the woman even said that I should've kept my lease from my old apartment 8 years ago to prove that I was living there. So, my question is, who has the burden of proof? Does Hawthorne have to prove that I ordered whatever it is that I'm being put into collections for or am I to show that I was not living there in 2006? I asked the lady on the phone what would stop me from putting anyone into collections if the burden of proof falls on the defendant. Any help would be great, thank you.

Answer
Hi Melissa:

If push came to shove, they would have the burden of proof but you have to stay vigilant with them.  There is nothing preventing them from turning it over to a collection agency or reporting it negatively on your credit reports.  One of three things will happen:

1.)  Nothing.  They drop it and don't report it or turn it over to collections.

2.#  They sue to collect on it.  If they try and sue you #unlikely due to amount) you would have to countersue against them.  In that case, they would have to prove you ordered the item through an online signature, delivery confirmation, or other evidence.  You could greatly enhance your chances if you can prove you lived elsewhere.  Otherwise, you are leaving it in the hands of a judge or jury if the evidence they provide makes it more reasonable than not that you ordered and received the item.  There is no guarantee at this point unless you have the proof.

3.)  The turn it over to a collection agency or report it to the credit bureaus but don't actively collect or sue you.  In this case, you would likely have to initiate legal action to clean up your credit report and collect damages from them.  Since you would be bringing the action, it would be incumbent upon you to prove you did not live there.  There would still be a burden on them to counter your evidence and a judge or jury would render a decision.  This is very similar to #2 above except you are initiating action and it would be more expected that you have some type of evidence to refute their accusations.

Good luck, I hope this helps.

Regan