Mazie Green v. Portfolio Recovery Associates, LLC

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, PUBLISHED

Ortiz, Causey, Friedman, Chaney, Raphael, Lorish, Callins, White and Frucci Argued at Richmond, Virginia

MAZIE GREEN OPINION BY v. Record No. 0144-22-3 JUDGE MARY BENNETT MALVEAUX DECEMBER 17, 2024 PORTFOLIO RECOVERY ASSOCIATES, LLC

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY Edward K. Stein, Judge

Matthew G. Rosendahl (Kristi C. Kelly; Kelly Guzzo, PLC, on briefs), for appellant.

Monica Taylor Monday (L. Steven Emmert; James K. Trefil; Jonathan P. Floyd; Sykes, Bourdon, Ahern & Levy, PC; Troutman Pepper Hamilton Sanders LLP, on brief), for appellee.

Amici Curiae: Legal Services of Northern Virginia, Virginia Poverty Law Center, Legal Aid Society of Eastern Virginia, Legal Aid Justice Center, Legal Aid Works, Central Virginia Legal Aid, Virginia Legal Aid Society, Legal Aid Society of Roanoke Valley, Virginia Trial Lawyers Association, and Blue Ridge Legal Services (Thomas Domonoske; Drew D. Sarrett; Brandon L. Ballard; Consumer Litigation Associates, P.C.; Legal Aid Society of Eastern Virginia, on brief), for appellant.

Amicus Curiae: Virginia Creditors’ Bar Association (John P. O’Herron; Ronald S. Canter; ThompsonMcMullan, P.C.; The Law Offices of Ronald S. Canter, LLC, on brief), for appellee.

Portfolio Recovery Associates, LLC (“PRA”) filed a warrant in debt against Mazie

Green. The circuit court found that PRA was entitled to recover from Green and entered a

judgment order in PRA’s favor. Green appealed to this Court, arguing in part that the circuit

court erred “because PRA lacked standing to sue” and “because her counterclaim was never heard.” The majority of a three-judge panel reversed and vacated the circuit court’s judgment

and remanded for the court to consider Green’s claim. Green v. Portfolio Recovery Assocs., LLC,

80 Va. App. 119, mandate stayed upon grant of reh’g en banc, 80 Va. App. 472 (2024). Upon

PRA’s petition for a rehearing en banc, we affirm the circuit court’s judgment, except for the

court’s ruling on Green’s claim which we reverse based on lack of subject matter jurisdiction.

I. BACKGROUND1

Because “[t]he details of the evidence adduced at trial are not pertinent to the dispositive

issue[s] before us”—standing and the hearing of Green’s claim against PRA—“we will recite

only those facts relevant to th[ose] issue[s].” Roberts v. CSX Transp., Inc., 279 Va. 111, 114-15

(2010). We recite the relevant facts in the light most favorable to PRA, because “[t]he party who

successfully persuades the factfinder ‘is entitled [on appeal] to have the evidence viewed in the

light most favorable to [them], with all conflicts and inferences resolved in [their] favor.’”

McCants v. CD & PB Enters., LLC, 303 Va. 19, 22 (2024) (second alteration in original) (quoting

Chacey v. Garvey, 291 Va. 1, 8 (2015)). “Viewing the facts through this evidentiary prism, we

retell the story of this conflict.” Id.

In December 2020, PRA filed a warrant in debt against Green in the general district court

(“GDC”). In its bill of particulars, PRA alleged Green had defaulted on a CIT Bank credit

account labeled “Paypal,” with an account number ending in 7068, and asserted PRA was the

“successor-in-interest to CIT Bank.” PRA’s bill of particulars was supported by a number of

documents, including:

(a) a September 1, 2010 bill of sale for unspecified “[a]ccounts,” between CIT Bank and WebBank, as seller and buyer, respectively;

1 Pursuant to Rule 5A:8(c), Green submitted a written statement of facts in lieu of a transcript of the proceedings in the circuit court. Where a statement of facts that satisfies Rule 5A:8(c)’s procedural requirements is filed in lieu of a transcript, there is a “presumption that [it] is binding upon this Court as an accurate recitation of the incidents at trial.” Smith v. Commonwealth, 59 Va. App. 710, 722 (2012). -2- (b) an August 29, 2013 bill of sale for unspecified “[a]ccounts,” between WebBank as seller and Comenity Capital Bank as buyer;

(c) a bill of sale and assumption agreement for unspecified “[a]ssets,” dated July 2, 2018, between Comenity Capital Bank and Synchrony Bank, as seller and purchaser, respectively;

(d) a June 27, 2019 bill of sale for unspecified “[a]ccounts,” between Synchrony Bank, “formerly known . . . as GE Capital Retail Bank,” as seller, and PRA, as buyer;

(e) a July 2, 2019 affidavit of sale of account by original creditor, signed by Synchrony Bank’s “Media Representative,” attesting to Synchrony’s June 27, 2019 sale to PRA of “charge-off accounts,” and stating that electronic and other business records associated with those accounts had been “transferred on individual [a]ccounts” to PRA;

(f) a “data sheet” pertaining to a “former GE account number,” listing Green’s name, address, and birth year, an account number ending in 7068 with a 2010 “contract date” and a “current balance” of “891431”;

(g) an August 6, 2020 declaration by PRA’s custodian of records attesting that, “based upon a review of the business records of . . . CIT Bank/PayPal and those records transferred [to PRA] from Synchrony Bank,” PRA now owned Green’s account “ending in 7068” and was owed “the sum of $8,914.31”;

(h) monthly PayPal Credit billing statements, from July 2017 through September 2018, bearing Green’s name and address and reflecting an account number ending in 8616;

(i) a February 14, 2020 collection letter from PRA’s attorneys to Green, listing CIT Bank as the “[o]riginal [c]reditor” of an “[o]riginal [a]ccount [n]umber” ending in 7068, and stating that “the amount owed on the [a]ccount is $8,914.31.”

Acting pro se, Green disputed the debt, filing a grounds of defense challenging PRA’s

chain of title and arguing that PRA “has lack of standing.” She also “allege[d] a [c]ounterclaim

that [PRA] violated . . . the Fair Debt Collection Practices Act” (“FDCPA”). See 15 U.S.C.

§ 1692-1692p.

-3- Three days before the case was scheduled for trial, the GDC contacted Green “and told

[her] that she had to file a [warrant in debt] for her [c]ounterclaim to be heard.” The record

contains a copy of Green’s warrant in debt against PRA, which indicates Green was “[f]iling

lawsuit in violation [of the] Fair Debt Collections Practice Act [sic].”

The parties appeared for trial on PRA’s warrant in debt on September 13, 2021. The

GDC ruled in PRA’s favor, and awarded PRA a judgment in the amount of $8,914.31 plus $63.00

in fees.

Green’s FDCPA claim in her action against PRA was “dismissed without being heard” by

the GDC.

Green filed a motion for a new trial in PRA’s claim. The GDC denied the motion, and

Green noted her appeal to the circuit court.

Acting pro se in the circuit court, Green filed a motion to amend her grounds of defense

in which she repeated her allegation that PRA “has lack of standing.” Further, she argued that

her FDCPA claim against PRA had been dismissed by the GDC “without being heard.”2

Green also filed a motion for summary judgment, alleging that PRA “has/had no standing

to sue.” She noted that although PRA claimed to be the assignee of the original creditor, the

“original account ending number was 7068, but [PRA] provided the [c]ourt with a Pay[P]al

Credit statement account number ending in 8616.” Accordingly, Green argued, since PRA had

not provided a “valid proof of assignment,” “proof that the original account number ending in

7068 changed to account number ending in 8616,” and a “contract for [the] C[IT] Bank account

ending in 7068,” it lacked standing to sue. The circuit court heard argument on the motion on

November 17, 2021, and found that Green was “not entitled to [j]udgment in this matter.”

2 The record does not include a ruling on Green’s motion to amend. -4- Immediately following the hearing, the circuit court conducted a trial on the merits. In a

January 3, 2022 order, the circuit court memorialized its ruling on summary judgment from the

pre-trial hearing, stated that Green’s “counterclaim fails and she is not entitled to judgment on

same,” and held that PRA was entitled to recover $8,914.31 against Green plus costs of $63.00.

Green appealed, pro se, to this Court, arguing among other things that:

The trial court erred as a matter of law by finding that PRA was entitled to judgment against Ms. Green. That finding was error because PRA lacked standing to sue and this violated due process.

The trial court erred as a matter of law by finding that Ms. Green’s FDCPA counterclaim failed because her counterclaim was never heard violating due process.3

With one judge dissenting, a panel of this Court held that “the assignment of rights

alleged here created a standing issue,” and then considered PRA’s evidence in the circuit court—

including evidence only adduced at trial—and concluded PRA had failed to “prove that [it] owns

Green’s debt through a chain of title tracing back to CIT Bank.” Green, 80 Va. App. at 136, 146.

The majority then further held that “because PRA failed to establish its ownership of a debt owed

by Green,” it “had no legally cognizable interest in the alleged controversy”—i.e., no standing to

sue. Id. at 136-37. Based on this holding, the majority held that the circuit court abused its

discretion “by finding the debt was valid and dismissing Green’s counterclaim.” Id. at 149. The

majority reversed and vacated the circuit court’s judgment and mandated that on remand, the

circuit court “enter final judgment that Green does not owe a debt to PRA and . . . further

consider [her] counterclaim.” Id. at 150-51.

The dissenting judge concluded that under Virginia law, “[w]hether PRA owned Green’s

debt was a matter for the circuit court to consider on the merits and did not create a standing

3 Green’s two additional assignments of error concerned the circuit court’s disposition of her appeal bond and a recognizance she was required to sign by the GDC. -5- issue, because proof of PRA’s ownership of the debt went to the ultimate success or failure of

PRA’s claim” rather than its status as a party alleging injury. Id. at 154. Additionally, the

dissenting judge would not have reached the merits of PRA’s alleged ownership of the debt

because Green’s articulation of her assignment of error limited the issue before the Court to that

of standing. Id. at 155-56. Respecting Green’s FDCPA claim, the dissenting judge would have

affirmed the circuit court’s denial of the claim. Id. at 156-57.

We granted PRA’s petition for en banc review, which alleged the panel majority had

“mistakenly equated standing and the merits of the case” and “erroneously evaluated [Green’s]

counterclaim.” Green v. Portfolio Recovery Assocs., LLC, No. 0144-22-3, at *3, 7. Green

subsequently moved this Court for leave to amend her first two assignments of error, and the

motion was denied.4 Green v. Portfolio Recovery Assocs., LLC, No. 0144-22-3 (Va. Ct. App.

June 10, 2024) (order).

4 Judge Ortiz’s concurrence attempts to portray the proposed amendments as mere “non- substantive” alterations that would have left “the ‘substance of the error[s] alleged’ . . . unchanged.” Infra at 23 and 25 (quoting Whitt v. Commonwealth, 61 Va. App. 637, 656 (2013) (en banc)). But this is not the case. The assignments of error Green originally placed before the Court, which the panel ruled on and were the assignments of error upon which PRA relied in electing to petition for rehearing, are stated in full below, together with the alterations requested by Green:

(1) The trial court erred as a matter of law by finding that PRA was entitled to judgment against Ms. Green. That finding was error because PRA lacked standing to sue and this violated due process, and because PRA failed to establish that it had a legal right to the debt it sought to enforce.

(2) The trial court erred as a matter of law by finding that Ms. Green’s FDCPA counterclaim failed because her counterclaim was never heard on the merits based on its finding that PRA’s affirmative claim succeeded, violating due process.

Green v. Portfolio Recovery Assocs., LLC, No. 0144-22-3. The amended first assignment of error thus would have eliminated a due process issue while adding a new issue following the coordinating conjunction “and.” See Bruesewitz v. Wyeth LLC, 562 U.S. 223, 236 (2011) (noting

-6- II. ANALYSIS

A. Standing

PRA sought rehearing en banc on Green’s first assignment of error, alleging the panel

majority erred in its resolution of the standing issue by erroneously equating standing and the

merits of the case.

As our Supreme Court recently reiterated, “standing to maintain an action is a

preliminary jurisdictional issue having no relation to the substantive merits of an action.”5

Morgan v. Bd. of Supervisors of Hanover Cnty., 302 Va. 46, 58 (2023) (quoting McClary v.

Jenkins, 299 Va. 216, 221 (2020)). “The concept of standing concerns itself with the

characteristics of the person or entity who files suit,” id. (quoting Anders Larsen Tr. v. Bd. of

Supervisors of Fairfax Cnty., 301 Va. 116, 120 (2022)), and “as ‘a preliminary jurisdictional

issue,’ the standing doctrine asks only whether the claimant truly has ‘a personal stake in the

outcome of the controversy,’” id. at 59 (quoting McClary, 299 Va. at 221-22). Accordingly,

“courts must not ‘conflate the threshold standing inquiry with the merits of [a litigant’s] claim.’”

Id. at 63 (alteration in original) (quoting Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308, 312 (4th

that “linking independent ideas is the job of a coordinating conjunction like ‘and’” (cited with approval in Vlaming v. W. Point Sch. Bd., 302 Va. 504, 545 n.16 (2023))). The amended second assignment of error would have eliminated an allegation of procedural due process error by the trial court and replaced it with an allegation of error in a merits finding. The concurrence’s argument in favor of granting these substantive amendments is grounded in the claim that the replacement amendments “sought to simply state explicitly what Green had already clearly intended”; yet if Green’s intentions in her assignments of error had been “already clear[],” there would have been no need to amend them. Infra at 24-25. 5 Although Green contends in her en banc briefing that the circuit court was required to “review the intertwined merits issues” in its standing analysis, that argument is based on mere dicta. See Seymour v. Roanoke Cnty. Bd. of Supervisors, 301 Va. 156, 166 n.3 (2022). Further, even assuming, without deciding, that PRA’s evidence was insufficient to prove its ownership of the debt on the merits at trial, that would not be dispositive in the instant case, because standing was challenged pre-trial by Green’s motion for summary judgment. As discussed above, PRA adduced sufficient evidence to survive that preliminary, gatekeeping challenge. -7- Cir. 2009)). For “[n]early every form of judicial relief . . . requires proof of a specific legal right

that was infringed and that is capable of being remedied by a court.” Id. at 58-59. Thus, “[i]f the

standing analysis simply tracked th[e] decisional sequence on the merits,” the result could be “an

absurdity: A court would never be able to decide the merits of a claim against a claimant because

that would mean the court never had jurisdiction to address the merits in the first place.” Id. at

59. Based on this guidance, we conclude that the panel majority’s consideration of evidence that

was only presented at trial in this case, and its on-the-merits analysis of the ownership of the

debt, was inappropriate.

Upon the record before us, standing was properly argued and ruled on as a threshold

matter consequent to Green’s pre-trial motion for summary judgment. The question we must

therefore address is limited to whether the circuit court erred in denying Green’s motion for

summary judgment based on standing.6

“In an appeal from a circuit court’s decision to grant or deny summary judgment, we

review the application of the law to undisputed facts de novo.” Stahl v. Stitt, 301 Va. 1, 8 (2022).

“A trial court may appropriately grant summary judgment only in cases in which no material

facts are genuinely in dispute.” Klaiber v. Freemason Assocs., 266 Va. 478, 484 (2003); see also

Rule 3:20. It is therefore “not appropriate” to grant a request for entry of summary judgment

when “the evidence is conflicting on a material point or if reasonable persons may draw different

6 As noted above, in her first assignment of error, Green asserted the trial court erred “by finding that PRA was entitled to judgment against [her]. That finding was error because PRA lacked standing to sue and this violated due process.” This language necessarily limited the scope of Green’s assignment of error solely to the issue of standing, and not the merits of the ownership of the debt. See Moison v. Commonwealth, 302 Va. 417, 420 (2023) (noting that “the syntax of [an] assignment of error cabins the error that this Court can consider”). And while not unsympathetic to Green as a pro se appellant, we note that under our controlling Virginia law, a party “who represents h[er]self is no less bound by the rules of procedure and substantive law than a [party] represented by counsel.” Hammer v. Commonwealth, 74 Va. App. 225, 236 (2022) (quoting Townes v. Commonwealth, 234 Va. 307, 319 (1987)). -8- conclusions from the evidence” on the motion. Fultz v. Delhaize Am., Inc., 278 Va. 84, 88

(2009). “Moreover, ‘the decision to grant a motion for summary judgment is a drastic remedy.’”

Klaiber, 266 Va. at 484 (quoting Turner v. Lotts, 244 Va. 554, 556 (1992)). Its “purpose is to

expedite litigation,” but “not [to] substitute a new method of trial where an issue of fact exists.”

Turner, 244 Va. at 557 (quoting Leslie v. Nitz, 212 Va. 480, 481 (1971)). “[O]ur review of the

record is limited to the parties’ pleadings, requests for admissions, and interrogatories,” Klaiber,

266 Va. at 484, and according to “well-settled principles, we review . . . [them] applying the

same standard a trial court must adopt in reviewing a motion for summary judgment, accepting

as true those inferences from the facts that are most favorable to the nonmoving party, unless the

inferences are forced, strained, or contrary to reason,” Stahl, 301 Va. at 8 (quoting Fultz, 278 Va.

at 88).

For purposes of summary judgment, “[t]he materiality of a fact depends upon whether it

is ‘a matter that is properly at issue in the case,’ a determination requiring the court to view the

putative factual dispute through the prism of the controlling legal principles.” AlBritton v.

Commonwealth, 299 Va. 392, 403 (2021) (citation omitted) (quoting Commonwealth v. Proffitt,

292 Va. 626, 635 (2016)). And “[a] factual issue is genuinely in dispute when reasonable

factfinders could ‘draw different conclusions from the evidence,’ not only from the facts asserted

but also from the reasonable inferences arising from those facts.” Id. (citation omitted) (quoting

Fultz, 278 Va. at 88).

Here, the controlling legal principles raised by Green’s motion for summary judgment

concerned standing to sue on a warrant in debt. PRA’s standing in this case—its legal right to

pursue a warrant in debt against Green and seek a disposition affecting its rights—turned on its

claim that it was the assignee of the debt and that Green was a party to the contract by which the

debt arose. See, e.g., Pollard & Bagby, Inc. v. Pierce Arrow, L.L.C., 258 Va. 524, 528 (1999).

-9- By moving for summary judgment alleging lack of standing, Green necessarily contended that

there were no material facts genuinely in dispute respecting PRA’s claim that it was the assignee

and Green was liable for the debt. But based on the pleadings and documents that were before

the circuit court at the summary judgment hearing, as viewed in the light most favorable to PRA,

there were such facts genuinely in dispute. PRA asserted that it was the successor-in-interest of a

CIT Bank credit account, and submitted bills of sale, an assumption agreement, an affidavit of

sale, and a declaration by its custodian of records that it claimed demonstrated its chain of title to

the account. In her motion for summary judgment and accompanying memorandum, Green

alleged shortcomings in these documents to support her assertion that PRA lacked “valid proof of

assignment.” But reasonable fact-finders could draw different conclusions about whether these

documents sufficed to advance PRA’s claim. Likewise, PRA contended that Green was the

person who had “utilized” the account and that she was thus liable for the defaulted “amount that

is due and owing,” i.e., $8,914.31. In support of its argument, PRA provided a “data sheet” and

account billing statements bearing Green’s name, address, and a certain account number.

Green’s motion and supporting memorandum noted that the “original account number” and the

billing statement account number differed, and alleged that there was no “proof” that the

numbers referred to the same account or that she had been a party to the contract on the

“original” account. But again, reasonable fact-finders could arrive at different conclusions about

whether PRA’s chain of title documents, taken together with the account holder’s identifying

information, were sufficient to advance PRA’s claim.

Because material facts concerning the alleged assignment of the debt and Green’s alleged

contractual obligation to satisfy the debt were in dispute, entering summary judgment in favor of

Green would have been inappropriate. Fultz, 278 Va. at 88. The circuit court therefore did not

err in denying Green’s motion for summary judgment based on an alleged lack of standing.

- 10 - B. The FDCPA Claim

PRA also sought rehearing en banc with respect to Green’s FDCPA claim. Green

assigned error to the circuit court on the ground that it erred by denying her FDCPA claim,

because the claim “was never heard violating due process.” We hold that the circuit court did

rule on Green’s FDCPA claim, but that doing so was error because based on the record before us,

the circuit court never had jurisdiction over that claim.

“Subject matter jurisdiction ‘can be acquired only by virtue of the Constitution or of

some statute.’” Afzall v. Commonwealth, 273 Va. 226, 230 (2007) (quoting Bd. of Supervisors v.

Bd. of Zoning Appeals, 271 Va. 336, 344 (2006)). Relevant here, Code § 17.1-513 provides that

circuit courts “shall have appellate jurisdiction of all cases . . . in which an appeal . . . may, as

provided by law, be taken . . . from or to the judgment or proceedings of any inferior tribunal.”

But where a party fails to perfect an appeal from the GDC to the circuit court, “the circuit court

does not obtain jurisdiction” over the matter; “[i]ndeed, we consistently have held that the failure

to comply with rules governing appeals precludes ‘the exercise of the jurisdiction of the circuit

court over the proceedings.’” Hurst v. Ballard, 230 Va. 365, 367 (1985) (quoting The Covington

Virginian v. Woods, 182 Va. 538, 548 (1944)); see also Code §§ 16.1-106 and -107 (providing

procedural requirements for appealing an order or judgment of the GDC to the circuit court).

“[T]he lack of subject matter jurisdiction can be raised at any time in the proceedings, even for

the first time on appeal by the [reviewing] court sua sponte.” Watson v. Commonwealth, 297 Va.

347, 352 (2019) (quoting Morrison v. Bestler, 239 Va. 166, 170 (1990)). “We review the trial

court’s jurisdiction de novo.” Jackson v. Jackson, 69 Va. App. 243, 247 (2018).

Here, the record reflects that PRA filed its warrant in debt against Green on December

18, 2020, and the GDC designated the matter Case No. GV20-670. Green filed her grounds of

defense in that case on March 10, 2021, in which she “allege[d] a [c]ounterclaim” that PRA had

- 11 - violated the FDCPA. Three days prior to the case being heard in the GDC, the court informed

Green that she had to file a warrant in debt for her FDCPA claim to be considered. The record

contains a copy of Green’s warrant in debt against PRA, which indicates Green was “[f]iling [a]

lawsuit in violation [of the] Fair Debt Collections Practice Act [sic].” The warrant in debt was

filed September 10, 2021, and the GDC designated the action Case No. GV21-462.

The record also indicates that at a hearing on September 13, 2021, the GDC ruled in

PRA’s favor on the credit account debt but that “Green’s FDCPA counterclaim was dismissed

without being heard. See GV21-462 Record.”7 The record before us contains a copy of the

completed warrant in debt form filed by PRA in Case No. GV20-670, signed by the GDC judge

on September 13, 2021, and indicating a disposition of judgment against Green. The form

contains no mention of any FDCPA claim or a ruling thereon.

On September 20, 2021, Green filed a motion for a new trial in the GDC, but only in

Case No. GV20-670, i.e., only in the case on PRA’s warrant in debt against her. Neither in her

motion nor her accompanying affidavit did Green assert or allege any FDCPA violations by

PRA. And when Green filed her appeal from the GDC to the circuit court, she appealed only

Case No. GV20-670. Indeed, the circuit court’s order of January 3, 2022 states that the parties

appeared before it “on [Green’s] appeal of the [GDC’s] decision in the matter of [PRA] v. Mazie

Green, Case No: GV20000670-00,” i.e., only on PRA’s warrant in debt against Green. The

record lacks any documentation that Green filed an appeal of her FDCPA claim in Case No.

GV21-462.

7 The record before us includes a screen capture of a webpage from the Virginia Judiciary Online Case Information System for the Alleghany County GDC. The document reflects that Case No. GV21-462, a warrant in debt against PRA filed by Green on September 10, 2021, was dismissed following a September 13, 2021 hearing date, at which the “Result” of the matter was “Other.” - 12 - Accordingly, the record reflects that Green appealed only the case concerning PRA’s

claim against her, and did not appeal her FDCPA claim from the GDC to the circuit court.8 And

because Green’s FDCPA claim was never appealed to the circuit court, the circuit court never

acquired subject matter jurisdiction over that claim and it was error for the circuit court to rule on

on it.9 See Miller v. Potomac Hosp. Found., 50 Va. App. 674, 684 (2007) (“[A]ny judgment

rendered without [subject matter jurisdiction] is void ab initio.” (quoting Nelson v. Warden, 262

Va. 276, 281 (2001))).

C. Recognizance

The panel unanimously held that this Court lacks jurisdiction to consider Green’s

argument respecting her recognizance in the GDC. Green, 80 Va. App. at 150-51. Green neither

petitioned nor cross-petitioned for rehearing en banc on that issue, and the Court did not grant

rehearing on that issue on its own motion. That issue is thus not before us for en banc review,10

and the panel’s holding as to that issue remains undisturbed. See Rule 5A:35(b)(1).

8 To the extent Green attempted to place her FDCPA claim before the circuit court by moving to amend her grounds of defense in PRA’s claim, that motion sought only to “amend her GROUNDS OF DEFENSE from appealed case GV20000670-00,” which case, as noted above, did not encompass her claim against PRA. And also as noted above, the record contains no ruling by the circuit court on Green’s motion, and where there is no ruling on the matter by the circuit court, there is nothing for us to review on appeal. See Forest Lakes Cmty. Ass’n v. United Land Corp. of Am., 293 Va. 113, 131 (2017). 9 This error is not subject to harmless error analysis, because only errors that “do[] not implicate the trial court’s subject matter jurisdiction [are] subject to harmless-error analysis.” Spruill v. Garcia, 298 Va. 120, 127 (2019). 10 Likewise, Green’s assignment of error respecting the circuit court’s disposition of her appeal bond, which the panel did not reach, was not the subject of a petition or cross-petition for rehearing en banc and the Court did not grant rehearing on that issue on its own motion. Because the panel never ruled on the issue and the issue is not before the Court for rehearing en banc, it is waived. - 13 - III. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s judgment, with the exception of

its ruling on Green’s FDCPA claim. We reverse that ruling, based on our holding that the circuit

court lacked jurisdiction to consider that claim. Additionally, because it was not subject to en

banc rehearing, that portion of the panel opinion holding that this Court lacks jurisdiction to

consider Green’s recognizance argument (Analysis Section III) remains undisturbed and the

panel’s mandate as to that issue is reinstated. We vacate the remainder of the panel’s mandate.

Affirmed in part, and reversed in part.

- 14 -

I am pleased to join the majority opinion. I write separately to highlight the

jurisprudential flaw in appellant Mazie Green’s position and the practical problems that would

result from adopting it.

In fairness to Green, one could reasonably view a creditor’s failure to prove that it bought

the debt as both a failure to prove the claim on the merits and a failure to prove an injury-in-fact

that confers standing. After all, if a putative creditor never acquired the debt, how could it claim

injury from not being paid? Yet Green asks that we do more than acknowledge that a failure of

proof can be viewed through both lenses. She insists that a plaintiff’s failure to prove injury

must always be viewed as a failure to prove standing, thus requiring the claim to be dismissed for

lack of standing even after a full trial on the merits. That novel theory lacks merit.11

Although Green relies heavily on federal standing doctrine, even federal cases do not

adopt the rule she advocates. Green repeatedly invokes Lujan v. Defenders of Wildlife, 504 U.S.

555 (1992), but Lujan does not stand for that proposition. The environmental group there

challenged an Endangered Species Act regulation. Id. at 557-58. Noting that standing is “an

indispensable part of the plaintiff’s case, each element [of which] must be supported . . . at the

11 As Judge Ortiz shows in his separate opinion, Green’s novel theory of standing is the byproduct of our denying her counsel’s motion for leave to amend her assignment of error to let her argue simply that PRA failed to prove that it bought the debt. I empathize with the challenge Green faced as an unrepresented litigant in the trial court and before the three-judge panel here. She acquitted herself remarkably well. Still, I joined the majority in denying leave to modify the assignment of error because granting it would have sidestepped the important question about the law of standing that we found worthy of en banc consideration. It would have converted this case into a run-of-the-mill sufficiency-of-the-evidence appeal that does not normally warrant the involvement of all 17 appellate judges. In other words, amending the assignment of error would have distorted the function of en banc review. Since then, the Supreme Court has amended Rule 5A:35(b)(2), effective November 25, 2024, to make clear that such substantive changes are not allowed: the “appellant may not change an assignment of error from the one assigned before the panel but may seek leave of Court to make technical corrections or non-substantive changes that do not prejudice the appellee.” Order (Va. Sept. 26, 2024) (emphasis added). - 15 - successive stages of the litigation,” id. at 561, the Court held that the environmental group failed

on summary judgment to prove standing, id. at 578. But Lujan did not involve a case like this

one, where the merits are inextricably intertwined with whether the plaintiff has standing.

“Proof of damages is an essential element of a breach of contract claim, and failure to

prove that element warrants dismissal of the claim.” Sunrise Continuing Care, LLC v. Wright,

277 Va. 148, 156 (2009). If a trial on the merits shows that the breach-of-contract plaintiff

cannot prove any injury, must the case be dismissed for lack of standing instead of on the merits?

Green says yes.

But federal caselaw counsels that district courts proceed to decide the case on the merits

when standing and the merits are inextricably intertwined. For instance, the Fourth Circuit has

said that “[n]o purpose is served by indirectly arguing the merits in the context of federal

jurisdiction. Judicial economy is best promoted when the existence of a federal right is directly

reached and, where no claim is found to exist, the case is dismissed on the merits.” Kerns v.

United States, 585 F.3d 187, 193 (4th Cir. 2009) (quoting Williamson v. Tucker, 645 F.2d 404,

415 (5th Cir. 1981)). In other words, when “the jurisdictional facts ‘are so intertwined with the

facts upon which the ultimate issues on the merits must be resolved,’ [then] ‘the entire factual

dispute is appropriately resolved only by a proceeding on the merits.’” United States ex rel.

Vuyyuru v. Jadhav, 555 F.3d 337, 348 (4th Cir. 2009) (quoting Adams v. Bain, 697 F.2d 1213,

1219-20 (4th Cir. 1982)).

Green is mistaken that a different conclusion is compelled by Anders Larsen Trust v.

Board of Supervisors, 301 Va. 116 (2022). The Court held that the complaint there alleged

sufficient facts at the demurrer stage to prove the neighbors’ standing to challenge the county’s

land-use decision to allow by-right development of a residential treatment center. Id. at 123. But

while proof of injury is needed for standing to challenge a local land-use decision, it is not an

- 16 - element of the underlying claim against the local governing body. Thus, the failure to prove

standing at any stage of such litigation would require that the court “dismiss the case for lack of

standing.” Id. at 123 n.5. The Court did not purport to apply that rule to cases like this one,

where proof that the plaintiff was injured is required both to show standing and to win on the

merits.

Our Supreme Court has given its nod of approval to the federal approach to resolving

intertwined cases. See Seymour v. Roanoke Cnty. Bd. of Supervisors, 301 Va. 156, 168 n.3

(2022). The Court in Seymour explained that a finding at the demurrer stage that a plaintiff has

pleaded enough facts to allege standing does not prevent revisiting the standing question later “at

an ore tenus hearing prior to trial.” Id. But the Court added, quoting the Fourth Circuit, that

“when the ‘jurisdictional facts and the facts central to [the underlying] claim are inextricably

intertwined, the trial court should ordinarily assume jurisdiction and proceed to the intertwined

merits issues.’” Id. (quoting Kerns, 585 F.3d at 193). To be sure, that language was dictum.

Accord ante at 7 n.5. But Green has not cited any caselaw holding that when standing and the

merits are inextricably intertwined, the plaintiff’s failure at trial to prove injury requires the case

to be dismissed for lack of standing, rather than on the merits.

Accepting Green’s novel theory would lead to odd results. Suppose, for instance, that the

trial court here had found that PRA’s claim against Green failed on the merits because PRA never

proved its chain of title in acquiring the debt. Green’s counsel told us at oral argument that the

trial court in that instance would have committed reversible error by not dismissing the case for

lack of standing.

Such a result would be counterintuitive and bizarre. “If the standing analysis simply

tracked . . . the merits, it could create an absurdity: A court would never be able to decide the

merits of a claim against a claimant because that would mean the court never had jurisdiction to

- 17 - address the merits in the first place.” Morgan v. Bd. of Supervisors of Hanover Cnty., 302 Va. 46,

59 (2023). See also Green v. City of Raleigh, 523 F.3d 293, 299 (4th Cir. 2008) (“‘[A] plaintiff’s

standing to bring a case does not depend upon his ultimate success on the merits underlying his

case,’ because otherwise ‘“every unsuccessful plaintiff will have lacked standing in the first

place.”’” (quoting Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 429 (4th

Cir. 2007)); CHKRS, LLC v. City of Dublin, 984 F.3d 483, 489 (6th Cir. 2021) (“Yet just because

a plaintiff’s claim might fail on the merits does not deprive the plaintiff of standing to assert it.

‘If that were the test, every losing claim would be dismissed for want of standing.’” (citation

omitted) (quoting Initiative & Referendum Inst. v. Walker, 450 F.3d 1082, 1092 (10th Cir. 2006)

(en banc))).

The oddity of that result would be even stranger if a dismissal for lack of standing had to

be without prejudice to refiling. A dismissal “with prejudice” means “an adjudication on the

merits[] and final disposition, barring the right to bring or maintain an action on the same claim.”

Reed v. Liverman, 250 Va. 97, 99 (1995) (quoting Black’s Law Dictionary 469 (6th ed. 1990)).

Federal courts consistently hold that it is error to dismiss a case “with prejudice” for lack of

standing, for if a federal court lacks jurisdiction to decide the claim, it cannot render a binding

decision on the merits.12 In light of federal practice, Green’s counsel ventured at oral argument

12 “Dismissal for lack of subject matter jurisdiction is not a judgment on the merits, and it therefore has no claim preclusive or res judicata effect.” 2 Daniel R. Coquillette et al., Moore’s Federal Practice—Civil § 12.30 (2024). On that rationale, every federal circuit has held that a dismissal for lack of standing should be “without prejudice.” See, e.g., Xavier v. Evenflo Co., 54 F.4th 28, 42 & n.7 (1st Cir. 2022), cert. denied, 144 S. Ct. 93 (2023); Harty v. W. Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022); Cottrell v. Alcon Lab’ys, 874 F.3d 154, 164 & n.7 (3d Cir. 2017); S. Walk at Broadlands Homeowner’s Ass’n, Inc. v. OpenBand at Broadlands, LLC, 713 F.3d 175, 185 (4th Cir. 2013); Ass’n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med., 104 F.4th 383, 396 (5th Cir. 2024); Ward v. Nat’l Patient Acct. Servs. Sols., 9 F.4th 357, 363 (6th Cir. 2021); White v. Ill. State Police, 15 F.4th 801, 808 (7th Cir. 2021); Dalton v. NPC Int’l, Inc., 932 F.3d 693, 696 (8th Cir. 2019); Barke v. Banks, 25 F.4th 714, 721-22 (9th Cir. 2022); Santa Fe All. for Pub. Health & Safety v. City of Santa Fe, 993 F.3d 802, 817 n.7 (10th

- 18 - that PRA’s claim would also have to be dismissed without prejudice here. If so, PRA would get

another chance to sue Green, perhaps coming up with better chain-of-title evidence the next

time.13

It takes little imagination to see the inefficiency of that approach. Green’s proposal

would create a zombie-like doctrine of standing—claims judicially killed after a trial on the

merits for failure to prove injury could be revivified the next day for the plaintiff to try again.

The Court wisely declines to breathe life into that peculiar theory here.

Cir. 2021); Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1235 (11th Cir. 2021); Jibril v. Mayorkas, 20 F.4th 804, 813 (D.C. Cir. 2021); Fieldturf, Inc. v. Sw. Rec. Indus., 357 F.3d 1266, 1269 (Fed. Cir. 2004). But see Fieldturf, 357 F.3d at 1269 (“On occasion, however, a dismissal with prejudice is appropriate, especially where ‘it [is] plainly unlikely that the plaintiff [will be] able to cure the standing problem.’” (alterations in original) (quoting H.R. Techs., Inc. v. Astechnologies, Inc., 275 F.3d 1378, 1385 (Fed. Cir. 2002))).

Our appellate courts have sometimes affirmed a with-prejudice dismissal for lack of 13

standing without addressing whether the dismissal should have been without prejudice instead. See Platt v. Griffith, 299 Va. 690, 691-93 (2021) (per curiam); Layla H. v. Commonwealth, 81 Va. App. 116, 140 (2024). The parties have not briefed that question here. And the Court’s affirmance of the judgment against Green makes it unnecessary to decide if Virginia should follow federal law in requiring that dismissals for lack of standing be without prejudice. - 19 - Ortiz, J., concurring, with whom Lorish, J., joins, concurring as to Part II.

I reluctantly concur in the Court’s analysis because I agree that PRA had standing to

bring a claim against Green and therefore that the trial court should be affirmed. I also agree that

the trial court lacked subject matter jurisdiction to hear Green’s FDCPA claims. But I write

separately to emphasize first, the prior actions by this Court that prevented a self-represented, or

“pro se,”14 litigant from having the opportunity to be meaningfully heard by the en banc Court.

And, second, I write to note my concern with the Court’s reliance on a line of criminal cases in

strictly interpreting pleadings filed by a self-represented civil litigant.

I. Because the Court erred in denying Green’s motion to amend her assignments of error, today’s decision should not have turned on standing.

The Court’s decision today did not occur in a vacuum. For the bulk of these proceedings,

Mazie Green was unrepresented. Green argued two trials—including filing motions, entering

evidence, and cross-examining witnesses—and a panel appeal before this Court completely on

her own. It was not until after the Court granted PRA’s motion for rehearing en banc that Green

obtained counsel.15 Counsel for Green subsequently filed a motion to amend her assignments of

error, which she had written at the panel appeal stage while unrepresented. The Court denied

Green’s motion in an order, cabining her arguments en banc to her original assignment of error.

Green v. Portfolio Recovery Assocs., No. 0144-22-3 (Va. Ct. App. June 10, 2024) (order). Joined

by several of my colleagues, I authored a dissent. Id., slip op. at 4-11 (Ortiz, J., dissenting).

14 I use the term “self-represented” rather than “pro se” because, as today’s case shows, among the manifold obstacles facing self-represented parties are legal terms of art that could easily be described with more common vernacular. 15 Counsel for Green served in a pro bono capacity at the en banc proceeding. As the Chief Judge noted at oral argument, the entire Court appreciates their willingness to serve in such a capacity. - 20 - The Court’s decision was based on language in 5A:35 that has since been amended as of

November 25, 2024. See Order (Va. Sept. 26, 2024). As I explain below, however, the

amendments do not alter the logic of either the Court’s order or my dissent. Because I continue

to believe the Court’s order denying Green’s motion to amend was in error and led to today’s

outcome, I reiterate my disagreement with that decision here.

Green’s arguments in her defense were consistent throughout the time that she remained

unrepresented, focusing on the merits of PRA’s claim and its failure of proof. In her amended

grounds for defense before the trial court, Green “denie[d] that [PRA] [wa]s entitled to recovery

in this action” because PRA “fail[ed] to show a valid chain of title . . . for any specific debt or

proof of ownership.” She noted that, while PRA “alleged that the [o]riginal [c]reditor is C[IT]

Bank with original account ending number 7068,” the account ending number on the PayPal

statement “that they are demanding money for is 8616.” In a motion styled “motion for

summary judgment plaintiff lacks standing,” Green asserted that PRA “has (1) no valid proof of

assignment, (2) no proof that the original account number ending in 7068 changed to account

number ending in 8616, and (3) . . . no contract for C[IT] Bank account ending in 7068.” Green

asserted that, because of these evidentiary failures, PRA “lack[ed] standing,” but she focused on

the gaps in PRA’s evidence that it owned the debt.

On appeal, consistent with Green’s earlier terminology, she raised the following

assignment of error: “The trial court erred as a matter of law by finding that PRA was entitled to

judgment against Ms. Green. That finding was error because PRA lacked standing to sue and

this violated due process.” But, despite framing the issue as one of “standing,” on brief and at

oral argument, she challenged PRA’s failure on the merits to prove that it owned the debt. Green

challenged the mismatch of account numbers, and she challenged the lack of evidence showing

which accounts were sold under each bill of sale, arguing that “PRA’s [bill of sale documents]

- 21 - lack the attachments that identify any names and account numbers sold to them” and asserting

several other defects in the evidence. Though she conflated the issue of failing to prove

assignment or ownership with the legal doctrine of standing, her arguments were clear to the

panel and to PRA, who noted her use of the term “standing” in her assignment of error but

replied on the merits, asserting that the trial court’s factual findings were not “plainly wrong.”

At the en banc stage, counsel for Green filed a motion to amend the assignments of error.

The new first assignment would have read: “The trial court erred as a matter of law by finding

that PRA was entitled to judgment against Ms. Green. That finding was error because PRA

lacked standing to sue and because PRA failed to establish that it had a legal right to the debt

that it sought to enforce.” (Emphasis added). Thus, although Green had always understood the

word “standing” to refer to the merits of her case, her new assignment, edited by counsel, would

have explicitly separated legal standing from the merits of her case.

Denying Green’s motion, the Court opined that Rule 5A:35(b)(1) “dispositively”

determined “whether a party may amend assignments of error at the en banc stage.” Green, slip

op. at 1 (majority). Rule 5A:35(b)(1) stated at the time:

Issues Considered Upon Rehearing En Banc. Only issues raised in the petition for rehearing en banc and granted for rehearing or included in the grant by this Court on its own motion are available for briefing, argument, and review by the en banc Court. This Court may grant a petition in whole or in part.16

The Court held that “[w]here . . . a party to a panel decision has petitioned for rehearing en banc,

the issues considered by the Court are limited to those ‘issues raised [by the party] in [its]

16 Our Supreme Court has since amended Rule 5A:35(b)(1). Order (Va. Sept. 26, 2024). The slightly altered language now reads in relevant part: “Review by the en banc Court is limited to those matters raised in the petition for rehearing en banc for which the Court granted rehearing and those matters included in the grant by this Court on its own motion.” Id. (emphasis added). Although the amended language now refers to “matters,” rather than “issues,” it does not appear that this change would have impacted the Court’s reasoning had the order been decided today. - 22 - petition’ and then granted by the Court.” Green, slip op. at 1 (alterations in original) (quoting

Rule 5A:35(b)(1)). Thus, the Court reasoned, because in its petition for rehearing PRA framed

the issue as the panel “mistakenly equat[ing] standing and the merits of the case,” under “the

plain language of Rule 5A:35(b)(1),” Green’s amendment would impermissibly exceed the scope

of the substantive issues raised for rehearing. Id., slip op. at 2.

In dissent, I noted my disagreement with the majority’s conclusion that Green sought “a

substantive revision of the issues on appeal before the full Court.” Id., slip op. at 2 n.2. Rather,

Green was merely making a non-substantive amendment to “correct a formal defect and to

remedy an error of oversight,” which we had the authority to allow under Whitt v.

Commonwealth, 61 Va. App. 637, 648 (2013) (en banc). In Whitt, this Court laid out the proper

analysis for evaluating when an assignment of error may be amended. The Court began with the

understanding that “under the common law, courts, including appellate courts, can permit

amendments to pleadings.” Whitt, 61 Va. App. at 649. “[B]oth this Court and the Supreme Court

of Virginia routinely have permitted or ordered litigants to file amended briefs to correct a range

of deficiencies . . . .” Id. As to assignments of error, “an appellate court may entertain a motion

to amend an assignment of error once a timely notice of appeal and petition for appeal have been

filed.” Id. at 656. So long as an amendment “does not change the substance of the error

alleged,” this Court may grant it. Id. (quoting Allstate Ins. Co. v. Gauthier, 273 Va. 416, 418

(2007)). Further, the issues raised in the amended assignment must have been presented to the

trial court, and the Court may consider any prejudice inherent in the amendment in determining

whether to grant it. Id. at 659.

As Judge Raphael notes, our Supreme Court has since amended Rule 5A:35(b)(2) to

formally codify the distinction set forth in Whitt between “formal defect[s]” and substantive

amendments. The Rule now includes the following language: “The appellant may not change an

- 23 - assignment of error from the one assigned before the panel but may seek leave of Court to make

technical corrections or non-substantive changes that do not prejudice the appellee.” Order (Va.

Sept. 26, 2024); see supra at 15 n.11 (Raphael, J., concurring). So, because the rule is merely a

restatement of Whitt’s principle, my disagreement with the Court’s order would today be

grounded in the Rules rather than in Whitt, but the substance and logic of my dissent remains

unchanged.

Returning to the Court’s order, while the majority correctly pointed out that our en banc

review is restricted to “issues” (now “matters”) “raised in the petition for rehearing,” Rule

5A:35(b)(1), I believe it erred by failing to exercise its authority under Whitt to permit a non-

substantive amendment to an assignment of error after a petition for en banc review has been

granted. This is because Green consistently argued the same issues throughout the trial and

appeal.

While “standing” has a known legal meaning, when used in a pro se assignment of error,

and in context with Green’s arguments at trial and on brief, it is clear that Green meant to use the

ordinary meaning of the word “standing”—“a position from which one may assert or enforce

legal rights and duties.” Standing, Merriam-Webster, https://www.merriam-

webster.com/dictionary/standing (last visited Dec. 16, 2024). Substituting this dictionary

definition in Green’s original assignment of error, it asserts that the trial court’s judgment in

favor of PRA “was error because PRA lacked a position from which it could enforce the contract

and this violated due process.” This meaning is remarkably similar to her proposed amended

assignment. In other words, when Green’s counsel sought to simply state explicitly what Green

had already clearly intended, the “substance of the error alleged” remained unchanged.17

The Court responds to this assertion in a footnote, stating, “[Y]et if Green’s intentions 17

in her assignments of error had been ‘already clear[],’ there would have been no need to amend

- 24 - Additionally, Green’s challenge to PRA’s proof had been raised throughout trial, and PRA

responded to the merits of Green’s defense at all stages of proceedings, showing that it, too,

understood Green’s argument. Thus, even though the self-represented Green had preserved and

argued the merits of her claims time and again while using the word “standing,” with no

prejudice to PRA, the Court prevented Green from continuing to argue the merits en banc

because of a technical failure to say “magic words.”

Today, the Court arrives at the logical result of its decision to view Green’s proposed

amendment as a “substantive revision” rather than a “formal defect” or technical failure. Green

has been forced to shape her defense—in a way she never did at trial—around the legal doctrine

of standing, which, for the reasons correctly articulated by the Court’s opinion, is an unavailing

argument. This is an unjust and unnecessary result. Green should have had her day in court on

an argument she bravely championed, unrepresented, throughout this case. In finding otherwise

on her motion to amend, my colleagues closed the doors to litigants who lack the resources

necessary to precisely and clearly articulate the legal terms of art necessary to win in court.

Neither the rules nor our case law compelled such a result.

II. In future litigation, clarification is needed on the standards governing the interpretation of self-represented litigants’ pleadings.

Because of the Court’s decision to cabin Green’s first assignment of error to PRA’s

“standing,” legal standing was the only issue, under this assignment, that the parties argued.

Counsel for Green did not argue that this Court should interpret her assignment to encompass the

merits of her defense, and, therefore, it would have been inappropriate for the Court to reach the

them.” See supra at 6 n.4 (majority opinion). But this reasoning is circular. As I have demonstrated, it is exactly because Green’s intentions were “already clear[]” that her proposed amendment would have been merely technical, and thus wholly permissible under both Whitt and the now-updated Rule 5A:35(b)(2). My colleagues’ comment, in fact, demonstrates exactly why Green’s motion to amend should have been granted. - 25 - merits under that legal theory today. See Commonwealth v. Brown, 279 Va. 235, 241 (2010)

(“The Court of Appeals can only consider issues properly brought before it by the litigants.”); cf.

Rule 5A:20(e) (requiring preservation of legal arguments on brief by including “the standard of

review and the argument (including principles of law and authorities) relating to each assignment

of error”). Had counsel for Green advanced such a legal theory, however, or had our standards

for interpreting self-represented pleadings been clearer to start, the result today may very well

have been different.

Although the parties did not advance arguments on how to construe Green’s pleading

while unrepresented, in a footnote above, the Court discusses its interpretation of Green’s first

assignment of error. See supra at 8 n.6 (majority opinion). Again, the assignment reads: “The

trial court erred as a matter of law by finding that PRA was entitled to judgment against

Ms. Green . . . because PRA lacked standing to sue and this violated due process.” The Court

notes that, while “not unsympathetic” to Green as a self-represented litigant, “under our

controlling Virginia law, a party ‘who represents h[er]self is no less bound by the rules of

procedure and substantive law than a [party] represented by counsel.’” Supra at 8 n.6

(alterations in original) (quoting Hammer v. Commonwealth, 74 Va. App. 225, 236 (2022)).

Thus, because “the syntax of [an] assignment of error cabins the error that this Court can

consider,” (and because this Court denied Green the opportunity to change it) Green’s choice of

language “necessarily limited the scope of Green’s assignment of error solely to the issue of

standing, and not the merits of the ownership of debt.” Id. (alteration in original) (quoting

Moison v. Commonwealth, 302 Va. 417, 420 (2023)).

The Court arrives at its strict construction of Green’s assignment through reliance on

Hammer v. Commonwealth, 74 Va. App. 225 (2022), a criminal case descending from a line of

criminal cases beginning with Faretta v. California, 422 U.S. 806 (1975). In Faretta, the

- 26 - Supreme Court held that, as a corollary to the Sixth Amendment right to counsel, a court could

not constitutionally override a criminal defendant’s knowing and voluntary waiver of that right.

Id. at 832-34. In so holding, the Court stated in a footnote that “[t]he right of self-representation

is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with

relevant rules of procedural and substantive law.” Id. at 834 n.46. Relying on this footnote in

Faretta, the Virginia Supreme Court subsequently held that “[a] defendant who represents

himself is no less bound by the rules of procedure and substantive law than a defendant

represented by counsel.” Church v. Commonwealth, 230 Va. 208, 213 (1985) (emphasis added).

Similar to Faretta, this statement in Church emanated from the issue of whether a criminal

defendant had knowingly and voluntarily waived his right to counsel. Id. at 215-16. Today, the

majority quotes this language via Hammer, which quotes Townes v. Commonwealth, 234 Va. 307,

319 (1987), which in turn quotes Church. See supra at 8 n.6; Townes, 234 Va. at 319 (quoting

Church, 230 Va. at 213).

Although we have never expressly stated that the Faretta line is applicable to civil

appeals in which a self-represented litigant is a party, I believe the Court is correct that self-

represented civil litigants must comply with the “rules of procedure” and advance arguments

with a basis in substantive law.18 But today’s opinion suggests that Faretta also requires the

imposition of a strict construction rule for self-represented litigants—something federal courts

applying Faretta have rejected.

The Court’s reliance on this criminal line of cases in cabining the scope of Green’s civil

appeal raises several concerns, starting with the fact that Green is not a criminal defendant.

See, e.g., Francis v. Francis, 30 Va. App. 584, 591 (1999) (quoting Townes, 234 Va. at 18

319); Morris v. Elias, No. 0261-22-2, slip op. at 4, 2022 Va. App. LEXIS 567, at *6 (Nov. 9, 2022) (same); Sowers v. Walker, No. 2339-10-3, slip op. at 5, 2011 Va. App. LEXIS 155, at *7 (May 10, 2011) (same); Chastain v. Bedford Reg’l Water Auth., No. 0233-22-3, slip op. at 6 n.4, 2022 Va. App. LEXIS 618, at 9 n.4 (Dec. 6, 2022) (quoting Hammer, 74 Va. App. at 236). - 27 - When quoting Hammer, the majority alters the original quotation, replacing the word

“defendant” with “party” without explanation. Supra at 8 n.6. While seemingly inconsequential,

this alteration overrides the critical distinction between Green’s case and the Faretta/Church line

of cases: a criminal defendant has a constitutional right to counsel and must consciously reject

that opportunity to become self-represented, whereas civil defendants receive no such guarantee.

Because of the individual liberty interest at stake, the United States Constitution ensures

that every criminal defendant, regardless of socioeconomic status, is guaranteed representation.

See U.S. Const. amend. VI; Gideon v. Wainwright, 372 U.S. 335, 343-45 (1963). Thus, a

criminal defendant—theoretically—need not worry about the financial impact of retaining a

lawyer.19 Faretta and its Virginia progeny emphasize that such unrepresented criminal

defendants are bound by the rules of “procedure and substantive law” because they made the

conscious and unpressured (even discouraged) choice to go unrepresented.

Civil litigants, however, face a remarkably different calculus. Of course, there is no civil

right to counsel, which means that civil litigants face an enormous disincentive to retaining a

lawyer that criminal defendants do not—namely, hefty counsel fees. Further, more often than

not, money is what is at issue in a civil claim. Indigent civil litigants may be able to retain a

legal aid attorney, but only if they meet certain criteria, such as being in an area with legal aid

coverage, meeting financial stress requirements, and having subject matter the attorneys can

handle. And, as relevant here, in 90% of cases concerning debt buyers, the debt buyer obtains

default judgment against an unrepresented party. Br. Amici Curiae in Support of Appellant at 35.

19 Although such defendants, if convicted, are often required to pay attorney’s fees as part of their court fines. See Code § 19.2-163(2) (“If the defendant is convicted, the amount allowed by the court to the attorney appointed to defend him shall be taxed against the defendant as a part of the costs of prosecution . . . .”). - 28 - It is thus increasingly likely that we will see more litigation by unrepresented parties in this

context, specifically.

Next, having substituted “defendant” for “party,” the Court injects this principle of

criminal law into its interpretation of Green’s assignment of error. Relying on Moison, 302 Va.

417, for the relevant “rule[] of . . . substantive law,” Hammer, 74 Va. App. at 236, the Court

states that Green’s choice of words “necessarily limited the scope of Green’s assignment of error

solely to the issue of standing, and not the merits of the ownership of debt.” Supra at 8 n.6

(citing Moison, 302 Va. at 420). But Faretta/Church does not demand that the Court apply

Moison’s rule of strict construction. While Church requires that self-represented criminal

defendants not be excused from the fundamental “rules of procedure and substantive law,” it

does not address how reviewing courts should construe those pleadings. As an example, while

Church would require an unrepresented criminal defendant to comply with Rule 5A:20 by listing

her assignments of error, neither Church nor our rules provide guidance for how this Court

should interpret them or which rules of construction to apply. In fact, while federal courts and

numerous other state courts have established rules of liberal construction for self-represented

litigants’ pleadings,20 Virginia courts have not precedentially spoken on the topic.

Federal caselaw demonstrates that the United States Supreme Court’s admonition in

Faretta was about compliance with court procedures and never intended to open the door for a

rule of strict construction, let alone in civil cases. In federal courts, notwithstanding Faretta,

20 See, e.g., Minshall v. Johnston, 417 P.3d 957, 961 (Colo. App. 2018); State v. Redding, 444 P.3d 989, 993 (Kan. 2019); Nabelek v. Bradford, 228 S.W.3d 715, 717 (Tex. Ct. App. 2006); Wirtz v. Glanz, 932 P.2d 540, 541 (Ok. Civ. App. 1996), overruled on other grounds by Pellegrino v. State ex rel. Cameron Univ. ex rel. Bd. of Regents, 63 P.3d 535 (Okla. 2003); Kozicki v. Unemployment Comp. Bd. of Rev., 299 A.3d 1055, 1063 (Pa. Commw. Ct. 2023); Simms v. State, 976 A.2d 1012, 1018 (Md. 2009); Elmore v. Stevens, 824 A.2d 44, 46 (D.C. 2003); Amek Bin-Rilla v. Israel, 335 N.W.2d 384, 388 (Wis. 1983); Oldham v. Tenn. Dep’t of Correction, No. M1998-00852-COA-RC-CV, 2000 Tenn. App. LEXIS 162, at *4 (Mar. 16, 2000). - 29 - self-represented pleadings are “liberally construed.” Estelle v. Gamble, 429 U.S. 97, 106 (1976);

see Am. Jur. 2d Pleading § 91 (2021). This is an outgrowth of the requirement in the Federal

Rules that “[p]leadings must be construed so as to do justice,” a reflection of broader due process

principles. Fed. R. Civ. P. 8(e); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citing Federal

Rule 8(e)’s predecessor as support for liberal construction of pro se pleadings). Federal courts of

appeals do the same in their review. See Pleading, supra, § 92; e.g., Abdulhaseeb v. Calbone,

600 F.3d 1301, 1311 (10th Cir. 2010) (“[T]his court construes a pro se party’s pleadings

liberally.” (quoting Hammons v. Saffle, 348 F.3d 1250, 1254 (10th Cir. 2003))). In fact, federal

courts carefully distinguish this rule of liberal construction from Faretta’s requirement that self-

represented litigants comply with the rules of procedure and substantive law.21 Thus, to the

extent that Faretta is perfectly consistent with—and distinct from—federal courts’

“understanding eye” when interpreting self-represented pleadings, Kiebala v. Boris, 928 F.3d

680, 684 (7th Cir. 2019), we should assume that, when our Supreme Court incorporated Faretta

into its analysis in Church, it similarly did not intend for Church to be applied to the construction

of self-represented-litigant pleadings.

As discussed, the Supreme Court of Virginia has only ever relied on Faretta to hold self-

represented criminal defendants to our procedural rules; it has never implied that Faretta

extended to the interpretation of pleadings in civil cases. See Church, 230 Va. at 213-14 (relying

21 See Parkell v. Danberg, 833 F.3d 313, 324 n.6 (3d Cir. 2016) (“Although courts liberally construe pro se pleadings, unrepresented litigants are not relieved from the rules of procedure and the requirements of substantive law.” (citing Faretta, 422 U.S. at 834 n.46)); Green v. Dep’t of Educ. of N.Y., 16 F.4th 1070, 1074 (2d Cir. 2021) (“[W]hile ‘we liberally construe pleadings and briefs submitted by pro se litigants . . .’ pro se appellants must still comply with [the Federal Rules of Appellate Procedure] . . . .” (quoting McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017))); e.g., Asilonu v. Asilonu, 550 F. Supp. 3d 282, 301 (M.D.N.C. 2021) (affording self-represented litigant a “liberal construction of h[er] pleadings” but denying litigant’s attempt to amend her counterclaim through her response to a motion to dismiss). - 30 - on Faretta in holding that criminal defendant failed to preserve issue under Rule 5:25); Townes,

234 Va. at 319 (citing Church and Faretta for the same). This is unsurprising considering that

Virginia courts have consistently held that “regard is given to substance rather than form” when

analyzing pleadings. Pittman v. Pittman, 208 Va. 476, 478 (1968); see also Gologanoff v.

Gologanoff, 6 Va. App. 340, 348 (1988) (requiring only “substantial compliance” with statutory

pleading requirements because “[t]o hold otherwise would be to put form over substance”). And,

although the Virginia Rules do not contain a direct Federal Rule 8(e) analog, our Rules similarly

bend in favor of “do[ing] justice.” See, e.g., Rule 1:8 (allowing for liberal amendment to “any

pleading” “in furtherance of the ends of justice”); Rule 5A:18 (establishing “ends of justice”

exception to requirement that appellate issues be preserved at trial level). In sum, our Supreme

Court has never implied that Faretta/Church governs how we interpret self-represented

pleadings, and it is likely that, consistent with the United States Supreme Court, Virginia courts

should interpret such pleadings liberally.22

I emphasize again that, in this case, neither counsel for Green nor amici argued that

Green’s assignments of error should be liberally construed,23 therefore the proper standard for

interpreting self-represented litigant pleadings was not an issue before the Court. As I noted

22 To be sure, although self-represented litigants are entitled to a forgiving reading in federal court, “the court cannot take on the responsibility of serving as the litigant’s attorney in constructing arguments and searching the record.” Garrett v. Selby, Connor, Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005); cf. Wilson v. Astrue, 249 Fed. App’x 1, 5 (10th Cir. 2007) (refusing to liberally construe self-represented brief that stated merely “go over the case from the begin[ning] to end. Thank you ‘Back Pay’”). In this case, Green has gone far and above in constructing her own legal arguments, diligently arguing her case, and providing clear record citations to support her assignments of error. Courts have accepted far less. E.g., Parkell, 833 F.3d at 324 n.6 (allowing claim to proceed after litigant retained counsel even though it “was not clearly pled or argued while [litigant] was pro se”). 23 This is perhaps understandable in light of the Court’s prior order, discussed above. Although nothing in the order expressly limited counsel from advancing the argument that “standing” in this case, liberally construed, referred to PRA’s failure of proof, counsel may have felt that such an argument was strategically unavailing. - 31 - above, however, it is abundantly clear that, when Green wrote her assignments of error while

unrepresented, she intended for the word “standing” to refer to the merits of PRA’s claim; thus,

this case may have resulted in a different judgment had the parties sought a more forgiving

construction. Additionally, given the increasing prevalence of cases like these involving debt

buyers, I note that nothing under our Rules or caselaw seems to prevent a liberal construction of

self-represented litigants’ assignments of error in future cases that come before us.24 But,

because we were presented with only a legal theory attacking PRA’s legal standing, I am

compelled to join the Court’s analysis today.

24 To the extent that a liberal rule of construction would apply to interpreting trial-level pleadings, such a rule would logically extend to the interpretation of assignments of error in this Court. See Whitt, 61 Va. App. at 648 (“[A]n assignment of errors is in the nature of a pleading, . . . it performs the same office as a declaration or complaint in a court of original jurisdiction.” (quoting First Nat’l Bank of Richmond v. William R. Trigg Co., 106 Va. 327, 341 (1907))); cf. Green, 16 F.4th at 1074 (“We liberally construe pleadings and briefs submitted by pro se litigants . . . .” (emphasis added) (quoting McLeod, 864 F.3d at 156)). - 32 - Causey, J., with whom Chaney, J. joins, dissenting.

I respectfully dissent from the en banc majority opinion. PRA did not have standing to

sue Ms. Mazie Green.

Binding Virginia precedent establishes when one can sue and collect on a debt. For any

purported assignee to sue or collect on a debt, they must show sufficient relations with, dealings

with, or interactions with the defendant. PRA has not shown any connection to Ms. Green nor

her account with CIT Bank, and, therefore, has failed to show the proper connection to

Ms. Green. PRA cannot and has not produced any evidence showing the transfer of Ms. Green’s

alleged CIT Bank account. In Virginia, the burden rests on PRA to show that they have the right

to sue Green. In other words, that PRA is the assignee of Green’s account. Rather, PRA must

provide documentation showing the chain of ownership of the sued-on account from the original

creditor.

PRA is a debt buyer. Virginia has not adopted a definition of “debt buyer,” we may rely

on other jurisdictions’ definitions as persuasive authority. See Thorne v. Commonwealth, 66

Va. App. 248, 255 (2016) (relying on out-of-state cases as persuasive authority). A debt buyer is

a person or entity that engages in the business of purchasing charged-off consumer debt

(“charge-off means the act of a creditor that treats an account receivable or other debt as a loss or

expense because payment is unlikely,” Md. Rule 3-306) for collection purposes, whether it

collects the debt itself, hires a third party for collection, or hires an attorney-at-law for collection

litigation. Cal. Civ. § 1788.50.

In 2022, when Green appealed the judgment against her, she argued that PRA had failed

to prove its ownership of her account. Green’s pro se appeal demonstrated that PRA had sued

her without account-specific proof of the debt’s chain of title, and thus failed to show ownership

of the account. A panel of this Court agreed that PRA had failed to prove its assignment and,

- 33 - thus, lacked standing to sue and failed to prove its case. And it held that the circuit court had

erred by failing to permit her to be heard on her Fair Debt Collection Practices Act counterclaim.

I wholeheartedly disagree with the approach that the en banc majority has taken to this

case. Rather than directly reviewing a pro se litigant’s challenge to a debt buyer pegged as a

“repeat offender” by our federal government, we have allowed technical and procedural matters

to obfuscate the arguments. Meanwhile, Green has been strictly held to having written the word

“standing” in her assignments of error, relegated to a deferential procedural posture for not

writing “standing” in a different document, and denied the chance to have her FDCPA

counterclaim heard because she allegedly wrote the wrong number on her appeal notice in the

general district court. I disagree with these analyses, but either way, the truth is that we have

always understood Green’s argument, from the general district court to en banc, and nothing

prevents us from interpreting pro se litigants’ arguments liberally.

Even strictly construed as a challenge to standing, Green’s argument should prevail.

Standing is defined as “A party’s right to make a legal claim or seek judicial enforcement of a

duty or right based on the party’s having a sufficient interest in a justiciable controversy.”

Standing, Black’s Law Dictionary (12th ed. 2024). Our Supreme Court has said that “The

concept of standing concerns itself with the characteristics of the person or entity who files suit.”

Anders Larsen Tr. v. Bd. of Supervisors, 301 Va. 116, 120 (2022) (quoting Cupp v. Bd. of

Supervisors, 227 Va. 580, 589 (1984)). In assessing standing, “we ask, in essence, whether [the

claimant] has a sufficient interest in the subject matter of the case so that the parties will be

actual adversaries and the issues will be fully and faithfully developed,” Cupp, 227 Va. at 589,

or, in other words, “whether the claimant truly has ‘a personal stake in the outcome of the

controversy,’” Morgan v. Bd. of Supervisors of Hanover Cnty., 302 Va. 46, 59 (2023) (quoting

McClary v. Jenkins, 299 Va. 216, 221 (2020)). “The point of standing,” our Supreme Court has

- 34 - said, “is to ensure that the person who asserts a position has a substantial legal right to do so and

that his rights will be affected by the disposition of the case.” Cupp, 227 Va. at 589. Here, PRA

asserted a position without showing any legal right to do so.

A plaintiff must meet several requirements to have standing. For one, the injury alleged

must be causally related (“fairly traceable”) to the conduct of the person sued, rather than the

actions of a third party. See Mattaponi Indian Tribe v. Commonwealth, 261 Va. 366, 376 (2001)

(“[T]here [must] be a causal connection between the injury and the conduct complained of, that

is, the injury must be fairly traceable to the challenged action of the defendant, and not the result

of independent action of some third party not before the court . . . .”). So, here, PRA’s alleged

injury (not having been paid a debt) must be causally connected to an action taken by Green, not

some other accountholder. PRA must have some causal connection (fairly traceable

interactions/dealings) to an account of Green that is allegedly not paid in full. In other words, if

PRA sued the wrong person, it lacks standing.

Additionally, to have standing, a plaintiff must have a “direct, immediate, pecuniary, and

substantial interest in the decision” and allege “facts demonstrating a particularized harm . . .

different from that suffered by the public generally.” Morgan, 302 Va. at 59 (quoting Anders

Larsen Tr., 301 Va. at 121). In contract law cases, the “legal interest” in the decision that a

plaintiff must possess to have standing belongs only to those who are party or privy to the

contract sued on. See Cemetery Consultants, Inc. v. Tidewater Funeral Dirs. Assocs., 219 Va.

1001, 1003 (1979) (“The general rule at common law is that an action on a contract must be

brought in the name of the party in whom the legal interest is vested, and this legal interest is

ordinarily vested only in the promisee or promisor; consequently, they or their privies are

generally the only persons who can sue on the contract.”); Cottrell v. General Sys. Software

Corp., 248 Va. 401, 403 (1994); APAC-Virginia, Inc. v. Va. Dep’t of Highways & Transp., 9

- 35 - Va. App. 450, 452 (1990). So, here, for PRA to sue Green on her alleged CIT Bank account, it

must have been assigned contractual rights to an account Green had with CIT Bank.

The “merits” of a case, on the other hand, are “The elements or grounds of a claim or

defense; the substantive considerations to be taken into account in deciding a case, as opposed to

extraneous and technical points, esp. of procedure . . . .” Merits, Black’s Law Dictionary, supra.

In a suit on a contract, the merits are not simply whether the plaintiff is party or privy to the

contract, but whether there is “(1) A legally enforceable obligation of a defendant to a plaintiff;

(2) the defendant’s violation or breach of that obligation; and (3) injury or damage to the plaintiff

caused by the breach of obligation.” Navar, Inc. v. Fed. Bus. Council, 291 Va. 338, 344 (2016)

(quoting Ulloa v. QSP, Inc., 271 Va. 72, 79 (2006)). So, in addition to proving it was the right

party to the case as a matter of standing, PRA had to prove the merits of its case by showing

breach and damages.

When Green challenged PRA to prove its assignment—that it, PRA, was the assignee of

her particular account—she made a classic standing argument: Prove who you are to me. PRA

has shown no connection and has not done so, up to and including en banc. There was no

evidence that the debt it allegedly owed was fairly traceable to Green, and it failed to show that it

had a legal interest in the decision, as party or privy to the contract, because it failed to show or

prove that it was the assignee of an account Green held with CIT Bank, the alleged, sued-on

account.

The Morgan decision should not be read to bar our courts from assessing whether a

plaintiff has proven that it is a proper party to the case as a matter of standing when that question

has some overlap with the case in chief. Morgan should be read to state that standing is narrowly

focused on a plaintiff’s “personal stake in the outcome,” and thus does not concern other issues

- 36 - critical to winning in a lawsuit. Whether a plaintiff has proven that it is a party or privy to a

sued-on contract is a quintessential “personal stake” standing question.

Our review here should not be confined to the summary judgment phase. As our

Supreme Court noted in two 2022 decisions, standing can be challenged at any time during trial.

See Anders Larsen Tr., 301 Va. at 123 n.4; Seymour v. Roanoke Cnty. Bd. of Supervisors, 301 Va.

156, 166 n.3 (2022). And Green sufficiently preserved her standing objection at the end of trial.

Significantly, the circuit court had jurisdiction over Green’s FDCPA counterclaim, and should

have permitted Green to argue.

Green’s challenge to PRA’s standing should prevail. The circuit court erred by granting

judgment to PRA where its proof of assignment contained a gaping hole. A debt buyer must

prove that it has acquired the account on which it has sued to have standing; it cannot do so when

it has failed to provide evidence of the alleged sued-on account’s transfer between at least four

prior alleged owners. When a debt buyer, just like every other contractual party or assignee in

the Commonwealth, sues to collect a debt, it must show that it is not a legal stranger to the

contract on which it has sued—having “a direct, immediate, pecuniary, and substantial interest in

the decision”—and that its alleged harm is “fairly traceable” to the actions of the defendant. See

Morgan, 302 Va. at 59, 64 (first quoting Anders Larsen Tr., 301 Va. at 121; and then quoting

Mattaponi Indian Tribe, 261 Va. at 376). If, when challenged, it cannot prove chain of title,25 it

lacks standing.

I: PRA’s Lack of Standing

Green should prevail in her argument that the circuit erred in granting judgment against

her because PRA lacked standing to sue her. PRA must show that it has some relationship with,

25 Chain of title is admissible documentation establishing that the debt buyer is the owner of the specific debt at issue. The chain of title must be unbroken. - 37 - some dealings with, or some interaction with Green’s alleged CIT Bank account. The question is

not whether Green owes a debt, which goes to the merits of the case. Standing is about owning

the account. Because PRA lacked evidence that it owned her alleged CIT Bank account, it

lacked evidence that it had a “direct, immediate, pecuniary, and substantial interest in the

decision” as a contractual “party or privy” to the account. See Morgan, 302 Va. at 59 (quoting

Anders Larsen Tr., 301 Va. at 121); Cemetery Consultants, 219 Va. at 1003. And it lacked

evidence that the harm it alleged was fairly traceable to any action taken by Green. See id.

(quoting Mattaponi Indian Tribe, 302 Va. at 64). It was plainly wrong26 for the court to find that

PRA had proved, by a preponderance of evidence, that it was the assignee of her account

throughout and by the end of trial. PRA thus failed to prove standing.27

What does it mean to have standing to sue on an account? Clearly, the question is not

whether an assignee is owed a debt on the merits. Standing is simply about owning the account.

The merits of the case would also require PRA showing that the debt is remaining and unpaid,

and showing, for instance, that PRA was not beyond the statute of limitations. Those are

examples of what is required for the merits of a debt collection case. We do not have those

things here. We simply have the standing question, which is whether PRA bought Green’s

26 This issue was not briefed, but it is worth noting that our review could be understood as a de novo standing review, or as assessing whether the trial court was “plainly wrong” in finding a fact on which standing depended. See Platt v. Griffith, 299 Va. 690, 692 (2021) (de novo review of standing); Malbrough v. Commonwealth, 275 Va. 163, 168 (2008) (we are “bound by the trial court’s factual findings unless those findings are plainly wrong or unsupported by the evidence . . .”). I assess the case in terms of the “plainly wrong” standard. 27 The same reasons why PRA failed to prove standing are reasons why its failed to prove its case in chief. We should construe pro se documents broadly to convey the strongest arguments they suggest. Infra at 34. Green argued at trial and in her pro se brief that PRA failed to prove its assignment. So, Green should also prevail on appeal because PRA, in failing to prove assignment, also had insufficient evidence to prove its case in chief. - 38 - account that it sued on. It is possible that the account was paid in full along the way of being

sold—that issue goes to the merits of the case.

We must not get the two confused, as the majority has done. The merits include whether

the account was paid or unpaid, but standing is whether PRA owns the account to begin with.

We know that PRA is a debt buyer that bought an account. Here is where it gets muddy. What

account(s) did it buy and to whom, specifically, did the individual account belong? The merits

are not only whether PRA owns an account, but whether it owns an unpaid account. At trial, the

proof on the merits goes to whether this account is an unpaid account. PRA has to prove that.

Most account buyers do not have evidence that the account was unpaid.

We know PRA is an assignee; that is its characteristic. But it has to show more than it is

an assignee of a bunch of accounts; it must show that it is an assignee of Mazie Green’s account,

which gives it the right to recover from Mazie Green. PRA must show some reason why it is

suing this particular individual; it must show that it owns something that allows it to recover

from her. The en banc majority treats standing as if one looks only at the plaintiff, and does not

consider the relationship between the plaintiff and the defendant. This idea produces the

outcome of randomly suing people. I state that there must be more to standing than just the

characteristics of the plaintiff, in a literal sense. There must be some relationship with, dealings

with, or interaction between the plaintiff and the alleged harm by the defendant.

A. Proving the Right to Collect a Debt

PRA asserts ownership—that it is the assignee—of Green’s account through a series of

assignments. When pursuing an action on a contract or instrument assigned, an assignee “stands

in the shoes” of the assignor, obtaining all the assignor’s rights and remedies. Union Recovery

Ltd. P’ship v. Horton, 252 Va. 418, 423 (1996) (quoting Mountain States Fin. Res. Corp. v.

Agrawal, 777 F. Supp. 1550, 1552 (W.D. Okla. 1991)). Our Supreme Court has long held that a

- 39 - party seeking to prove ownership of a contractual right by assignment bears the burden of

proving that the assignment occurred. See Tennent’s Heirs v. Pattons, 33 Va. (6 Leigh) 196, 207

(1835) (Carr, J.) (“The Pattons sue as assignees of their father: the answers call for proof of such

assignment, and there is none in the record. . . . Yet this will not excuse the failure to file the

proof when expressly called for.”).

Although Virginia courts have not outlined precisely how to prove a legal assignment

occurred, other courts have held that “there must be evidence of an intent to assign or transfer the

whole or part of some specific thing, debt, or chose in action and the subject matter of the

assignment must be described sufficiently to make it capable of being readily identified.” 29

Williston on Contracts § 74:1 (4th ed. 2022) (collecting cases). And to recover a debt from a

purported debtor, a party must prove that it owns the right to the specific debt at issue. See

Lewis’s Ex’r v. Bacon’s Legatee, 13 Va. (3 Hen. & M.) 89, 114 (1808) (Fleming, J.). A debt

buyer who alleges a right to a debt by assignment thus must trace the chain of its title to the

specific debt it seeks to recover. The trace of the chain of title may not be broken. It must be

continuous to establish the assignment.

A debt buyer (or any purported owner of the right to recover a debt) may introduce

several forms of evidence to prove ownership of the specific account at issue. PRA sought

recovery on breach of contract and account stated theories. For a debt based on a written

contract, the best-evidence rule requires that “where the contents of a writing are desired to be

proved, the writing itself must be produced or its absence sufficiently accounted for before other

evidence of its contents can be admitted.” Brown v. Commonwealth, 54 Va. App. 107, 115

(2009) (quoting Bradshaw v. Commonwealth, 16 Va. App. 374, 379 (1993)). If the original

contract is unavailable, Code § 8.01-32 provides that a plaintiff may still bring suit on “any past-

due lost . . . contract . . . or other written evidence of debt, provided the plaintiff verifies under

- 40 - oath either in open court or by affidavit that said . . . contract . . . or other written evidence of

debt has been lost or destroyed.” For a debt based on an account stated, the plaintiff must prove

that “the accounts between the parties have been either actually settled, or are presumed to be so

from the circumstance of a party’s retaining, for a long time, without objection, the account of

the other party, which has been presented to him, showing a balance against him.” Ellison v.

Weintrob, 139 Va. 29, 35 (1924) (quoting Watson v. Lyle’s Adm’r, 31 Va. (4 Leigh) 236, 249

(1833)). Relevant evidence for an account stated includes documentation or sworn testimony

that a balance is final and definite and that the plaintiff sent account statements received by the

defendant without the defendant’s objection within a reasonable time. See id. at 31, 35-36;

Radford v. Fowlkes, 85 Va. 820, 852 (1889).

A debt buyer must then introduce evidence to prove that it has been assigned that original

contract or account between creditor and debtor. For debt buyers, available documentation

typically includes the purchase and sale agreements between each assignor and assignee in the

chain of title, along with files listing information on the specific accounts transferred from

assignor to assignee. See New Century Fin. Servs., Inc. v. Oughla, 98 A.3d 583, 591 (N.J. Super.

Ct. App. Div. 2014). Under Virginia Rules of Evidence 2:803(6) and 2:902(6), a debt buyer can

produce a live witness or affidavit of a custodian of record if the testimony or certification can

show that someone with personal knowledge produced a reliable record of the debt and its

transfer in the ordinary course of business. And the debt buyer can present live witness

testimony about the ownership of the debt more generally, so long as “evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the matter.” Va. R.

Evid. 2:602.

Again, whatever admissible evidence the plaintiff chooses to present must meet its

burden of proof to show it owns the specific debt at issue. See Lewis’s Ex’r, 13 Va. (3 Hen. &

- 41 - M.) at 114. Whoever is trying to collect on an account has the burden of showing that they are

the owners of the account and have an expressed or apparent authority to receive such payment.

Lambert v. Barker, 232 Va. 21, 25 (1986). To trace a series of assignments back to the original

creditor-debtor contract and prove the plaintiff owns the defendant’s debt, evidence of each

assignment must contain, at minimum, the debtor’s name and account number associated with

the debt.

B. PRA’s Failure to Prove Ownership of the Account

PRA must show ownership of the account. PRA has never shown ownership of the

account. This should be a simple showing. Similar to the showing that you have a valid driver’s

license, you should be able to show you have a valid right to collect on an account as an

assignee. PRA could not, and made many excuses for not showing ownership, including that it

was confidential to do so.

Sadly, the en banc majority sets a poor precedent that fails to meet century-old standards.

PRA has not provided proof of transfer or ownership. There is no proof of the assignment in the

record. The record contains mismatched account numbers, bills of sales without attachments,

and no account of Green that is due and owning. Additionally, no witness with personal

knowledge could attest to any of the transfers. Courts must and should base their decisions on

clear evidence, avoiding overreaching and unwarranted speculation.

PRA’s witnesses admitted that the account was not identifiable in the documentary

evidence it provided. PRA stated that the account was listed on a random spreadsheet of

numbers. Due to confidentiality, it said, that was all it could show to the court or to Green. This

is unacceptable. Readily identifiable account information only requires showing one account in

this case. The other account numbers could be easily redacted. Green was hauled into court and

- 42 - was told she could not be shown proof as to why. The majority has set this as the prevailing

standard of standing.

This case’s facts are analogous to Green v. Ashby, 33 Va. (6 Leigh) 135 (1835). In Ashby,

the trial court found that the plaintiff, who alleged he had been assigned the right to payment of a

judgment debt against the debtor, could recover from the defendant, who was the purported

assignor’s attorney and had been paid the judgment debt. Id. at 135. The plaintiff presented the

following evidence that a purported assignor had assigned him the right to collect: bills for fees

that the purported assignor owed the plaintiff; a “mutilated paper, of which no sense c[ould] be

made” which the plaintiff testified was authority to prosecute and recover the judgment from the

debtor; and testimony from a witness who said the plaintiff had told him the plaintiff had an

interest in the claim, but that he “never saw any assignment.” Id. at 144 (Carr, J.). Our Supreme

Court reversed. Justice Carr found that even “allowing [the evidence] the utmost weight that in

fairness can be claimed for it, it proves no transfer of th[e] debt . . . from [the purported assignor]

to the [purported assignee].” Id. While the assignee said the debt was his, “surely, this, without

assent or even knowledge of the claim by [the assignor], could prove nothing.” Id. The scant

evidence could not “create that privity which is necessary to support an action” by the plaintiff

against the defendant. Id. at 145. Consequently, there is no evidence here that could create

privity of the parties to support an action by PRA against Green. Given the utmost weight PRA

proves no transfer of the account (debt).

As in Ashby, to prove it had been assigned Green’s debt, PRA introduced several pieces

of documentary evidence along with testimony supporting those documents. And, as in Ashby,

PRA needed more evidence to meet its burden to prove it owned the right to recover on Green’s

specific account.

- 43 - In other words, who owes the account (debt) and who legally can collect the debt must be

stated clearly in the documentary evidence. Random spreadsheets with numbers do not meet the

burden to prove who owns the right to recover an account (debt). A bill of sale must contain all

the information and attachments to authenticate the account (debt). At a minimum, the bill of

sale must identify the debtor and the amount of debt owed. The debt cannot be authenticated if

there is no information in the bill of sale that identifies the person or company regarding the

details of the account (debt). First, the documents PRA produced include no evidence that

Green’s account traced back from PRA to CIT Bank. PRA sought to trace its ownership of

Green’s debt back to CIT Bank through four bills of sale: from CIT Bank to WebBank in

September 2010, from WebBank to Comenity Capital Bank in August 2013, from Comenity

Capital Bank to Synchrony Bank in July 2018, and from Synchrony Bank to PRA in June 2019.

The first three bills of sale are one-page documents that mention only “accounts” or “assets”

transferred between the companies; no attachments are mentioned in the bills of sale, and no

documents introduced to the record list the specific account numbers transferred in each sale.

The final bill of sale from Synchrony Bank to PRA mentions “the Accounts as set forth in the

Notification Files,” but PRA did not produce the “notification files.” PRA did produce a two-

column spreadsheet with data for an account number ending in 7068 with Green’s name, but the

spreadsheet lacked a date, creditor name, and any means of tying the spreadsheet to a specific

bill of sale or otherwise identifying the source or purpose of the document.28 It also produced a

Synchrony Bank “pricing information addendum” for an account ending in 7068, which PRA

28 PRA argues it could not produce further documentation of the accounts sold because doing so would result in other customers’ confidential account information being included. We agree that other customers’ confidential account information has no relevance and should not be produced. But PRA’s argument neither explains why a spreadsheet or other documentation could not be produced for each bill of sale for Green’s account specifically, nor why the spreadsheet produced includes no headings or other information that tie it back to a specific bill of sale. - 44 - points to on brief as the “underlying PayPal account agreement,” but the addendum lacked

Green’s name, signature, and the date of the agreement.29 And the monthly PayPal billing

statements from July 2017 through September 2018 listing customer name Mazie Green list a

different account number ending in 8616 and fail to cover the first 7 years of the alleged

account’s history. We find this jumble of documents, without more, akin to the mutilated paper

in Ashby that purported to show the plaintiff had been assigned the account it sought to recover

on.

With the documents unable to support chain of title or even the existence of the initial

agreement, that leaves the affidavits and testimony through which PRA sought to tie the

documents together. PRA introduced as a trial exhibit an affidavit signed and dated November

16, 2021—the day before trial—by Castillo, “[s]enior [m]edia [a]ffidavit [r]epresentative” at

Synchrony Bank. Castillo attested that, based on his review of Synchrony Bank’s records, Green

was issued a credit card account ending in 8616 on September 16, 2018, that account was

changed to a number ending in 7068 on June 24, 2019, and the account was sold to PRA on June

27, 2019.30 Castillo’s statement, which relayed what he had learned from reading documents not

29 In addition to being evidence that PRA did not own Green’s account, we note that this could also be evidence that PRA failed to produce an underlying contract or agreement. See Brown, 54 Va. App. at 115; Bradshaw, 16 Va. App. at 379. Code § 8.01-32 outlines the procedures for lost written evidence of a debt, but the record does not include evidence that PRA “verifie[d] under oath either in open court or by affidavit that said . . . contract . . . or other written evidence of debt has been lost or destroyed.” That said, Green did not assign error to the trial court on this point. 30 This document was not available at the summary judgment stage. Therefore, at that stage, PRA had provided no evidence that attempted to explain why the account it was suing on had the wrong ending account number. Thus, while I disagree that this case should be reviewed at the summary judgment phase, Green should have won on summary judgment. To create a “genuine dispute,” PRA had to do something more to suggest it could connect the dots. No evidence, even viewed in the light most favorably to PRA, permitted a factfinder to infer the fact that a CIT Bank account had been assigned, or infer why the account PRA was suing on had the wrong account number. See Klaiber v. Freemason Assocs., 266 Va. 478, 484 (2003) (“forced” and “strained” inferences will not defeat summary judgment). - 45 - in the record, was a statement not based on personal knowledge, and therefore not entitled to

weight under the Virginia rules. See Bowman v. Commonwealth, 28 Va. App. 204, 210-11 (1998)

(Executor of estate did not have “personal knowledge,” and his statements were hearsay, when

his testimony that a decedent’s account had been closed was based on his review of bank

statements not in evidence.); Va. R. Evid. 2:602 (personal knowledge requirement). PRA also

presented Stacy, a PRA custodian of records, as a trial witness. Stacy testified that the two-

column spreadsheet with account number ending 7068 was produced near the time of the sale

from Synchrony to PRA.31 She did not testify that Green’s specific name and account number

were part of each assignment in the alleged chain of title—which, of course, she could not,

because as custodian of records at PRA, she could at most have personal knowledge, required by

Rules 2:602 and 2:803(6), of the transaction between Synchrony Bank and PRA. She testified

only that, for each of the four bills of sale, the transfer agreement that would presumably list the

specific account numbers transferred could not be produced because “they contained the names

and account numbers of others” and were thus “confidential.” On balance, in the light most

favorable to PRA, Castillo’s affidavit and Stacy’s testimony show only that the Synchrony

information for an account ending in 8616 in Green’s name was changed to one ending in 7068

just before sale, and that account was sold to PRA. Castillo and Stacy said nothing from which

the circuit court could conclude that the chain of title for an account in Green’s name passed

from CIT Bank to WebBank, WebBank to Comenity Capital Bank, or Comenity Capital Bank to

Synchrony Bank. For those first three assignments, as in Ashby, testimony purporting to tie the

31 Stacy also testified on cross-examination that the account number on the PayPal credit billing statements ended in 8616, and when asked by Green “if the account ending number of 7068 was the same as the account ending number 8616,” Stacy said, “no.” This response could reasonably be interpreted as an admission that the two accounts were different. But viewing the facts in the light most favorable to PRA, we assume Stacy was making the equally reasonable observation that 7068 and 8616 are two different numbers. - 46 - documents to the chain of assignments showed no knowledge of the assignment. Thus, without

proof of ownership, PRA lacked standing to sue Green.

O’Toole’s affidavit states that PRA owned Green’s account “based upon a review of the

business records of the Original Creditor CIT BANK/PAYPAL and those records transferred to

[PRA] from SYNCHRONY BANK . . . , which have become a part of and have integrated into

[PRA]’s business records, in the ordinary course of business.” But O’Toole, as custodian of

records at PRA, could not have had personal knowledge of the business practices of Synchrony,

Comenity Capital Bank, WebBank, or CIT Bank. And his statement about PRA’s ownership of a

debt (account) owed by a “Mazie Green,” based on his review of records not in evidence, was a

statement for which O’Toole lacked personal knowledge. See Bowman, 28 Va. App. at 210-11

(“The information upon which [the witness] relied to make his statement that the account was

closed was information supplied by others and was hearsay.”). Thus, without more evidence that

Green’s account number was included in each transfer along the alleged chain of title, the circuit

court was plainly wrong to find that PRA proved ownership of Green’s account. O’Toole’s

testimony is unsupported by any documentary evidence or other testimony. And even accepting,

in the light most favorable to PRA, that Castillo’s affidavit and Stacy’s testimony established that

the accounts ending in 8616 and in 7068 were the same, no evidence links either account number

back to CIT Bank, WebBank, or Comenity Capital Bank.

The same conclusion follows when compared with the debt validation requirements of

the Federal Debt Collection Practices Act. The Federal Debt Collection Practices Act32 sets forth

32 Additionally, in determining the amount of liability under the FDCPA in an individual action, courts are required to consider the following factors: the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional. 15 U.S.C. § 1692k. PRA has a history of violating FDCPA, which is a factor this Court “shall consider” in determining its liability. See 15 U.S.C. § 1692k(b); see also Wiley v. Portfolio Recovery Assocs., LLC, 594 F. Supp. 3d 1127 (D. Minn.

- 47 - specific requirements for proving ownership of a consumer’s debt: the requirement of

“validation.” The FDCPA requires debt collectors to validate consumers’ debts within five days

of the initial communication33 with a consumer. 15 U.S.C. § 1692g(a). The validation

information must be clear and conspicuous. Per 15 U.S.C. § 1692g(a), a debt collector must

provide the following information to validate a debt:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Once the validation information is provided, the consumer has 30 days to dispute the

validity of the debt and/or request the information about the original creditor. 15 U.S.C.

§ 1692g(b). “If the consumer notifies the debt collector” within this thirty-day period, the debt

collector must:

cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a

2022); Pantoja v. Portfolio Recovery Assocs., LLC, 852 F.3d 679 (7th Cir. 2017); Bowse v. Portfolio Recovery Assocs., LLC, 218 F. Supp. 3d 745 (N.D. Ill. 2016); Litt v. Portfolio Recovery Assocs., LLC, 146 F. Supp. 3d 857 (E.D. Mich. 2015). 33 A formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). 15 U.S.C. § 1692g(d). - 48 - judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

Id.

Here, Green repeatedly asked that her debt be validated by PRA and it was not. The debt

is required to be validated prior to the legal proceeding, but even if this Court considers Stacy’s

testimony at trial, PRA still did not provide the proper information to validate the debt. At trial,

Stacy testified that (i) none of the bills of sale listed Green’s name or account number, (ii) the

data sheet listing an account number ending in 7068 included with the bill of particulars lacked

the creditor’s name, and (iii) the account number on the PayPal credit billing statement ended in

8616 was not the same account as the account ending number of 7068. PRA largely bases its

sufficiency argument on inadequate spreadsheets and testimony that fails to verify that the debt

was owed by Green. Additionally, at oral argument, both Green and PRA were asked if the debt

was validated and neither party could point to any evidence to answer that question affirmatively.

PRA asks this Court to draw an inference, based on the circuit court’s statement of facts,

Castillo’s affidavit, and Stacy’s testimony at trial, that PRA established that the debt belonged to

Green. However, none of these pieces of evidence, considered individually or collectively, are

enough to satisfy PRA’s burden of verifying or validating the debt, and the circuit court was

plainly wrong in determining that the debt was valid. Verifying and validating a debt are critical

parts of the debt collection process that ensures fairness in debt collections.

Other jurisdictions have reached the same conclusion when debt buyers present similar

evidence of ownership of a debt as what PRA presented here. The Ohio Court of Appeals

reversed a trial court finding that the plaintiff debt buyer owned a debt through two assignments,

holding that even if an affiant could properly authenticate “an uncertified Bill of Sale and an

unconnected sheet of paper consisting of a single entry which purported to show the specific note

- 49 - was transferred from [the intermediate assignee] to [the plaintiff],” the plaintiff would still need

to produce documentation for each account “referenc[ing] the specific account number of the

debtor’s account.” Premier Cap., LLC v. Baker, 972 N.E.2d 1125, 1133, 1134 (Ohio Ct. App.

2012). The Wisconsin Court of Appeals similarly found that, for a debt allegedly assigned three

times, bills of sale that “did not specifically reference any individual accounts or debts” or

include any referenced attachments were not “evidence indicating that [the plaintiff] own[ed]

[the defendant’s] specific debt.” Gemini Cap. Grp., LLC v. Jones, 904 N.W.2d 131, 136-38

(Wis. Ct. App. 2017) (also finding that “nothing in [the plaintiff’s custodian of records’] affidavit

reasonably implies that [the custodian] would have had personal knowledge of the prior

assignments of [the defendant’s] debt); see also Wirth v. Cach, LLC, 685 S.E.2d 433, 435

(Ga. Ct. App. 2009) (reversing the trial court finding that the debt buyer owned the defendant’s

debt because the affidavit of the plaintiff’s custodian of records “fail[ed] to refer to or attach any

written agreements which could complete the chain of assignment from [the original creditor] to

[the plaintiff]” and there was “no contract or [appendix] appended to the Bill of Sale which

identifie[d] [the defendant]’s account number as one of the accounts [the original creditor]

assigned to [the plaintiff]”); Kenny v. Portfolio Recovery Assocs., LLC, 464 S.W.3d 29, 34

(Tex. App. 2015) (finding no evidence of ownership of debt where bills of sale offered to prove

assignments “d[id] not identify which accounts were transferred” and instead “identifi[ed]

another document that contains the information” that “[was] not a part of the record”). In sum, a

plaintiff who asserts ownership of a debt by assignment must produce evidence, for each and

every assignment, showing the chain of title for the debt passed from the original assignor to the

plaintiff. At minimum, such evidence must show that the defendant’s account number, along

with other relevant identifying information, was included in the assignment (e.g., an attachment

to a bill of sale listing account numbers and other identifying information that traces back to the

- 50 - bill of sale by affidavit). If the claim is based on a written contract, the plaintiff must produce

evidence that the defendant signed and dated that agreement, or otherwise follow the lost

document affidavit procedures at Code § 8.01-32. If documentary evidence is unavailable for a

given assignment, the plaintiff must produce, by witness testimony or an affidavit, evidence from

a custodian of record or other qualified individual with personal knowledge that the defendant’s

specific account was assigned. See Va. R. Evid. 2:602; 2:803(6); 2:902(6).

Even viewed in the light most favorable to PRA, the scanty and incomplete evidence in

the record cannot prove that PRA owns Green’s debt (account) through a chain of title tracing

back to CIT Bank. The circuit court was plainly wrong in finding otherwise.

II: The Circuit Court Erred by Failing to Consider Green’s Counterclaim

I also dissent from the en banc majority’s holding that the circuit court lacked jurisdiction

to hear Green’s counterclaim. It is not our role to scour the general district court record. We

must take the circuit court record as the record. See Barnes v. Newport News, 9 Va. App. 466,

468-69 (1990) (“One purpose for a de novo appeal from a court not of record is the assurance of

the right to a jury trial; however, the de novo appeal serves other functions as well. A true

appellate review must be based on the record made in the trial court.”). The en banc majority has

simply based its holding here on its review of the general district court record.

A statement of facts that has been signed by the judge becomes part of the record. See

Rule 5A:8(c)-(d). Here, the certified statement of facts states that the court never ruled on

Green’s motion to amend her grounds of defense to include her counterclaim, and contains no

mention of evidence presented or argument on the counterclaim. Additionally, a circuit court

speaks through its orders. See Va. Fuel Corp. v. Lambert Coal. Co., 291 Va. 89, 107 (2016).

Here, the circuit court order states that Green’s counterclaim “fails.” Thus, from the order, the

- 51 - circuit court did have jurisdiction over Green’s claim and ruled on it, but from the record, the

court did not permit Green to present argument on it.

However, because the en banc majority emphasized and belabored this point during oral

argument and in the opinion, I must address the general district court issue. The record shows

that the counterclaim was part of the original case, not a separate case. The G.D.C. record shows

that Green asserted her counterclaim as part of her grounds of defense to G.D.C. Case No.

# GV20000670-00, and attached, as Exhibit 3, a memorandum detailing her counterclaim, also

labeled with the same case number. PRA filed a response to Green’s counterclaim and marked it

with the same record number, GV20000670-00. The G.D.C. then told Green that she would need

to file a warrant in debt in order for her counterclaim to be heard. Green filed that warrant in

debt, and the warrant in debt was marked with a different case number. After PRA’s trial, the

G.D.C. gave Green her money back on the warrant in debt, noting that she “did not have to pay

for counterclaim filed.” Green’s counterclaim in her grounds of defense nor PRA’s response to

the grounds of defense was never withdrawn. Evidently, the G.D.C. realized that Green was not

required to file a warrant in debt for her counterclaim to be heard. Thus, the warrant in debt

marked with a different case number was a nullity. The G.D.C. never dismissed Green’s

counterclaim; it remained with the main case, the one that Green specifically appealed to the

circuit court, filed in and with her grounds of defense. It is unclear why the majority has focused

on this point as an excuse to dismiss her counterclaim.

Virginia’s law of appeals to circuit court is broad enough to grant the circuit court

jurisdiction. In 2020, prior to Green’s assertion of her counterclaim, the General Assembly

amended the law governing appeals of G.D.C. orders and judgments to the circuit court, Code

§ 16.1-106(B), to officially permit the automatic “piggyback” appeal of judgments on

counterclaims asserted in the case. See 1 Friend’s Virginia Pleading and Practice § 9.01 (“[I]n

- 52 - 2020 the General Assembly has provided that when any party appeals any portion of the case as

pled in the general district court to the circuit court for review, that step brings the entire action

before the [circuit] court, including any counterclaims that may have been pled in general district

court.” (emphasis added)). While the statute creating this right only literally mentions automatic

appeal for other parties subject to related orders in the same case, the legislative intent of the rule

is clearly to permit de novo circuit court review on all related matters on which a G.D.C. has

entered judgment. See id. The circuit court had jurisdiction over Green’s counterclaim and erred

by ruling on it without permitting her to present argument. The circuit court should have heard

Green’s arguments that PRA had violated the FDCPA by “not reviewing their business records or

ones they have been allegedly assigned,” “robo-signing” an affidavit, and by attaching “a

deceptive, misleading, and undated letter” to the warrant in debt.

III: Proof of Standing and the Morgan Decision

While the en banc majority does not dispute the debt collector’s burden to prove each link

in an alleged chain of assignments,34 nor our settled law that a plaintiff’s status as a party or

privy to a contract on which it has sued is a question of standing,35 this Court finds that PRA had

standing pursuant to its interpretation of our Supreme Court’s recent opinion, Morgan v. Board of

Supervisors of Hanover County, 302 Va. 46 (2023). The majority’s interpretation of Morgan

would require a new, constrained approach to the standing question that is unjustified. First,

standing is a robust doctrine that often requires an assessment of proof, even on issues

overlapping with the case in chief; second, the Morgan opinion does not require a reversal of this

34 See Ashby, 33 Va. (6 Leigh) 135. 35 See Cemetery Consultants, 219 Va. at 1003; APAC-Virginia, 9 Va. App. at 452 (treating assignee status, per Code § 8.01-13, as a stand-in for “party or privy” status, under Cemetery Consultants); see ante at 9-10 (“PRA’s standing . . . turned on its claim that it was the assignee of the debt and that Green was a party to the contract by which the debt arose.”). - 53 - approach; third, dicta in two 2022 Supreme Court opinions is supportive of this approach.

Finally, Morgan is not only not harmful to Green’s case, but helpful to it.

A. Virginia Courts and Proof of Standing

The standing doctrine provides defendants with important protection. It concerns

“whether the claimant truly has ‘a personal stake in the outcome of the controversy.’” Morgan,

302 Va. at 59 (quoting McClary v. Jenkins, 299 Va. 216, 221 (2020)). The plaintiff’s “personal

stake” must consist of a “direct, immediate, pecuniary, and substantial interest in the decision,”

and the plaintiff must allege “facts demonstrating a particularized harm . . . different from that

suffered by the public generally.” Id. (quoting Anders Larsen Tr., 301 Va. at 121). Standing also

requires that a plaintiff be able to trace the harm it alleges to the defendant. See id. at 65

(quoting Mattaponi Indian Tribe, 261 Va. at 376) (a “fairly traceable” harm). Overall, “[t]he

point of standing is to ensure that the person who asserts a position has a substantial legal right to

do so and that his rights will be affected by the disposition of the case.” Anders Larsen Tr., 301

Va. at 120 (quoting Cupp, 227 Va. at 589).

We have adopted the principle that “[a]s a general rule, the party seeking relief ‘bears the

burden of showing that he has standing for each type of relief sought.’” Damon v. York, 54

Va. App. 544, 552 (2009) (quoting Summers v. Earth Island Inst., 555 U.S. 488, 493 (2009)).

Accordingly, analyses of plaintiffs’ proof of standing are far from alien to our courts. See, e.g.,

id. at 552-57; Kelley v. Griffin, 252 Va. 26, 28-29 (1996); Wilkins v. West, 264 Va. 447, 458-60

(2002). To be sure, standing is often challenged with a demurrer. See, e.g., Morgan, 302 Va. at

59. But nothing about standing is incompatible with matters of proof. The majority cites no case

when our courts have ever declined to assess a post-pleadings challenge to proof of standing.

Our contract law standing cases demonstrate that our courts assess proof of standing even

when the same matter could have, alternatively, been challenged as a plaintiff’s failure to prove

- 54 - its case in chief. It is settled law that only contractual parties and their privies have standing to

sue on a contract. See Cemetery Consultants, 219 Va. at 1003 (“The general rule at common law

is that an action on a contract must be brought in the name of the party in whom the legal interest

is vested, and this legal interest is ordinarily vested only in the promisee or promisor;

consequently, they or their privies are generally the only persons who can sue on the contract.”);

Cottrell, 248 Va. at 403; APAC-Virginia, 9 Va. App. at 452. Of course, proving that status is also

necessary to prevail in the case in chief.

Nonetheless, our Supreme Court has conducted multiple party-or-privy standing analyses

by assessing plaintiffs’ proof. See Cemetery Consultants, 219 Va. at 1002-03 (plaintiff did “not

have standing to maintain [the] suit” because at the ore tenus hearing, “there was no evidence

offered which established . . . privity of contract . . . ); Kelley, 252 Va. at 28-29 (plaintiff lacked

standing because he “was a stranger to the contract, and there [wa]s no evidence [at the ore tenus

hearing] that the parties considered or even knew about [the plaintiff] when the contract was

executed”); Cottrell, 248 Va. at 403 (judgment after trial reversed for standing because “the

record is clear that General Systems, the plaintiff in this suit, is not a party to the contract of

purchase”). These defendants could have argued the sufficiency of the evidence. But, like

Green, they argued standing, and our Supreme Court reviewed their challenges directly.

Our contract law standing doctrine governs standing in debt collection cases.36 Two

1830s Virginia Supreme Court debt collection cases show the same analysis in a debt collection

context, using language that is the functional equivalent of the modern standing analysis. See

Pattons, 33 Va. (6 Leigh) at 207 (Plaintiffs attempted to “sue as assignees of their father” but

36 American Jurisprudence 2d, Accounts and Accounting § 7 (2016) (“An action on an account is an action based in contract. Thus, an action on an account must be founded on a contract, either express or implied.”).

- 55 - lacked “proof of assignment.”); Ashby, 33 Va. (6 Leigh) at 145 (scant evidence of assignment did

not “create that privity which is necessary to support an action,” and the plaintiff lacked any

“legal right . . . to call upon [the defendant] for the money”). Additionally, today, many states

evaluate debt collectors’ failure to prove assignment as a standing question.37

37 See, e.g., CACH, LLC v. Askew, 358 S.W.3d 58, 62 (Mo. 2012) (“[E]very link in the chain between the party to which the debt was originally owed and the party trying to collect the debt must be proven by competent evidence in order to demonstrate standing.”); Unifund CCR Partners v. Zimmer, 144 A.3d 1045, 1051 (Vt. 2016) (“Here, Unifund has failed to establish standing to pursue a claim of unjust enrichment against defendant because it cannot show that it suffered any injury fairly traceable to defendant. Because Unifund provided no proof that it was connected to these transactions other than through the purported assignments, and because the assignments were not substantiated, there is nothing connecting Unifund to the charged-off account.”); Palisades Collection, L.L.C. v. Graubard, 2009 N.J. Super. App. Div. Unpub. LEXIS 1025, at *3, *7 (Apr. 17, 2009) (per curiam) (“On appeal, defendant argues that the trial court incorrectly . . . determine[d] that plaintiff had the standing to prosecute this claim . . . . We agree . . . . Purged of this inadmissible material, plaintiff has not produced sufficient evidence to show it has the right to collect this claim from defendant.”); Pasadena Receivables, Inc. v. Parker, No. 13-C-10-084673, at 6-7 (Md. Cir. Oct. 13, 2011) (mem. opinion) (“The question of whether the Appellant had standing to sue wholly depends on whether there was a valid assignment of the Appellee’s debt to the Plaintiff. Appellant bears the burden to establish by a preponderance of the evidence that a valid assignment has been made thereby establishing standing.”); United States Bank Nat’l Ass’n v. Cataldo, 2014 Pa. Dist. & Cnty. Dec. LEXIS 18049, at *44 (Feb. 4, 2014) (“In Pennsylvania, a number of Courts have wrestled with the question of standing to seek a judgment on a credit card debt. In those cases, the Courts have allowed a Defendant to challenge the collection complaint by challenging the validity or proof of the assignments.”). Accord Western Ethanol Co., LLC v. Midwest Renewable Energy, LLC, 938 N.W.2d 329, 342 (Neb. 2020) (An alleged assignee of a judgment “can establish that he is the real party in interest and has standing to execute the judgment if he can prove by a preponderance of the evidence the existence of a written assignment of the . . . judgment.”); PNC Mortg. v. Romero, 377 P.3d 461, 467 (N.M. Ct. App. 2016) (“It remains clear that a party seeking to prove standing must show that it had the right to enforce the note at the time it filed its complaint.”); Elsman v. HSBC Bank USA, 182 So. 3d 770, 772 (Fla. Dist. Ct. App. 2015) (“At trial, HSBC attempted to prove its standing as a holder with additional evidence. . . . HSBC’s evidence failed to establish its status as the holder of the note at the time of filing the foreclosure complaint against Elsman, and thus failed to establish standing. . . . Therefore, we reverse[.]”). But see Cap. Prop. Mgmt. Corp. v. Nationwide Prop. & Cas. Ins. Co., 757 Fed. App’x 229, 232 n.1 (4th Cir. 2018) (noting that although the lower court “framed its analysis [of whether the plaintiff proved assignment] as [the plaintiff]’s failure to establish standing . . . , the proper inquiry is whether [the plaintiff] failed to state a claim for breach of contract”); Nyankojo v. N. Star Cap. Acquisition, 679 S.E.2d 57, 58, 61 (Ga. Ct. App. 2009) (holding that debt buyer lacking proof of assignment failed to establish the elements of its case, despite defendant framing question as one of standing). - 56 - B. The Meaning of the Standing-Merits Distinction in Morgan

The Supreme Court’s 2023 Morgan decision stated that standing “is a preliminary

jurisdictional issue having no relation to the substantive merits of an action.” 302 Va. at 58

(quoting McClary, 219 Va. at 221). In this statement, our Supreme Court clearly reaffirmed

some kind of distinction between standing and the merits. My colleagues in the majority appear

to read this distinction in a highly literal manner, reading “no relation to the substantive merits”

to mean that there must be no conceptual overlap whatsoever between standing and the

plaintiff’s case in chief—and that if such overlap exists, the standing challenge must be ignored.

I am not persuaded that Morgan states such a rule.

For one thing, the Morgan Court presented its distinction as the logical outgrowth of

standing’s narrow focus on the “personal stake in the outcome” question. This can be seen by its

use of the phrase “[a]s such,” omitted from the en banc majority’s quotation, with which the

Morgan Court prefaced the quoted clause on the standing-merits distinction. The full quote from

Morgan reads, “As such, ‘standing to maintain an action is a preliminary jurisdictional issue

having no relation to the substantive merits of an action.’” 302 Va. at 58 (quoting McClary, 299

Va. at 221). The “such” in “[a]s such” is a pronoun that links the standing-merits distinction to

the fact that “[t]he concept of standing concerns itself with the characteristics of the person or

entity who files suit.” Id. The Morgan Court proceeded to explain that these “personal

characteristics” are the requirements of the “personal stake” inquiry, which are that a plaintiff

have a “direct, immediate, pecuniary, and substantial interest in the decision” and to “allege facts

demonstrating a particularized harm.” Id. at 59 (quoting Anders Larsen Tr., 301 Va. at 121). As

we have seen, standing’s focus on the presence of a viable legal interest can sometimes lead to a

direct overlap with the facts that a plaintiff must prove to win. See Cemetery Consultants, 219

Va. at 1002-03; Kelley, 252 Va. at 28-29; Cottrell, 248 Va. at 403. It is hard to see how the

- 57 - Morgan Court, aware of this dynamic, could have meant to suggest that standing’s personal-stake

focus implies a lack of conceptual overlap with the case in chief.

Second, the original source of Morgan’s quote on a standing-merits distinction was a case

in which the court did inquire into the presence of a contractual right to sue as a matter of

standing. In that case, Andrews v. American Health & Life Insurance Co., 236 Va. 221, 226 n.2

(1988), the Supreme Court had no problem reviewing a defendant’s argument that a plaintiff was

not an assignee, lacked other contractual rights to sue, and therefore lacked standing. Though it

is unclear at what stage of litigation the contract was argued over (the trial court invited post-trial

memoranda on the question of standing), it should raise our concern that this was the source of

the distinction now cited to decline to review a proof-of-assignment standing challenge.

Morgan’s standing-merits distinction must be read in accordance with another statement

from Morgan: “As important as the standing doctrine is, it can be satisfied without the necessity

of asserting a plausibly successful claim on the merits.” Morgan, 302 Va. at 58 (citing Anders

Larsen Tr., 301 Va. at 120). This sentence does not state that shared territory must be banished

from the standing inquiry; it merely states that having standing does not guarantee the success of

a plaintiff’s case. Understanding Morgan’s distinction this way harmonizes it with our contract

jurisprudence and with the Andrews case in which it originated: Having standing will not

necessarily mean that one is likely to win—for instance, a contractual party may have subpar

proof of breach.

There are multiple other reasons why we should adopt this moderate reading of the

Morgan opinion. The fact that Morgan was a demurrer-phase case makes it an unlikely source of

a rule on whether a post-pleadings standing challenge can require providing proof. See Robert &

Bertha Robinson Fam., LLC v. Allen, 295 Va. 130, 149-50 (2018) (“It is a maxim not to be

disregarded, that general expressions, in every opinion, are to be taken in connection with the

- 58 - case in which those expressions are used.” (quoting Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,

399-400 (1821))). Similarly, we should hesitate to infer a rule that restricts our review of a

plaintiff’s “direct, immediate, substantial, and pecuniary interest” in the outcome—from a case in

which that point was not at issue; in Morgan, no one disputed that the plaintiffs owned homes

nearby. See Morgan, 302 Va. at 52, 59-60. And the Morgan Court’s concern about standing

makes sense in terms of the moderate reading. An “absurdity” would not result if in certain

occasional cases, issues overlapping with the plaintiff’s case in chief were resolved as standing

questions. But it would create an absurdity to convert the standing analysis into an estimation of

the plaintiff’s overall likelihood of prevailing in the lawsuit—that situation would indeed take

too many cases from the jury. In other words, while “[p]roof of a specific legal right . . . that is

capable of being remedied by a court” is within the purview of a standing analysis, whether a

right “has been infringed” is another question entirely—and subsuming it into the standing

doctrine would indeed bring about an absurdity. Morgan, 302 Va. at 58-59.

Similarly, when the Morgan Court said courts must not “conflate the threshold standing

inquiry with the merits of [a litigant’s] claim,” id. at 63 (quoting Pitt Cnty. v. Hotels.com, L.P.,

553 F.3d 308, 312 (4th Cir. 2009)), it meant that questions outside the “personal stake” analysis

should not be brought into the standing inquiry. The “conflat[ion]” the Court was discussing was

the argument that plaintiffs lacked standing because they should have sued back in 1995. Id. at

62-63. It was not saying that timeliness is normally a personal-stake issue but, that if proof is

required, it impermissibly overlaps with the case in chief—rather, it was saying that a statute-of-

limitations-style challenge does not raise a “personal stake” issue. See id. at 63 (“Whether the

homeowners have asserted timely claims does not turn on standing principles . . . .”).

Finally, I address the Morgan Court’s description of standing as a “preliminary . . . issue.”

Id. at 58 (quoting McClary, 299 Va. at 221). This word must describe a logical, not temporal,

- 59 - preliminariness. This rule was first stated by a Court that unflinchingly reviewed a standing

determination reached at the end of a trial. See Andrews, 236 Va. at 226.

The best reading of the Morgan Court’s distinction between standing and the merits

would not require ignoring late-stage contract law standing challenges. What Morgan means is

that the highly specific “personal stake” standing inquiry can be resolved in a plaintiff’s favor

without the plaintiff necessarily being likely to prove its case in chief—not that when standing

and the case in chief share a question, that question must be banished from the standing inquiry.

C. The Virginia Supreme Court’s 2022 Opinions

Two 2022 Virginia Supreme Court opinions lent support, in dicta, for the practice of

assessing proof of standing, even when the issues overlap. First, in Anders Larsen Trust, the

Court stated that a plaintiff has a duty that is ongoing, throughout each stage of litigation, to

prove standing. After finding certain allegations of standing sufficient for the demurrer phase,

the Court added a footnote with instructions for the circuit court:

To the extent there is a factual contest concerning the allegations that purport to establish standing, the circuit court may hear evidence to resolve the factual dispute, either pre-trial or during the course of the trial. If the court resolves the factual contest against the complaining party, the court must dismiss the case for lack of standing.

301 Va. at 123 n.4.

The Court’s instructions were very clear: The defendants might continue to challenge

facts on which the standing determination depended. Id. If they did so, the circuit court would

“hear evidence to resolve” standing “during the course of” trial. Id. (emphasis added).

Next, in Seymour v. Roanoke County Board of Supervisors, 301 Va. 156 (2022), the Court

reaffirmed that while “[a] plaintiff can survive a demurrer with well-pleaded allegations of

standing . . . it cannot survive thereafter without proof of standing.” Id. at 167 n.3 (emphasis

added). Then, the Court specified the amount and type of proof necessary: - 60 - Because the constraints of the standing doctrine “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case, each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation.”

Id. (emphasis added) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). For the

Seymour Court, the burden of proof for standing challenges mirrors that generally required at

that stage of litigation.

Finally, Seymour quoted Kerns v. United States, 585 F.3d 187, 193 (4th Cir. 2009),

discussing the resolution of jurisdictional issues “inextricably intertwined” with the merits. It

stated, “Nonetheless, when the ‘jurisdictional facts and the facts central to the [underlying claim]

are inextricably intertwined, the trial court should ordinarily assume jurisdiction and proceed to

the intertwined merits issues.’” Id. (alteration in original) (quoting Kerns, 585 F.3d at 193). I

disagree with the concurrence that this calls for the resolution of all overlapping questions as

“merits” issues.

Permitting certain issues to proceed past a pleadings-stage challenge is minimally

relevant to a court’s approach to standing challenges at the end of a trial. In Kerns, the question

was whether a plaintiff’s case should be dismissed on jurisdictional grounds without the

opportunity for further evidentiary development through discovery. See 585 F.3d at 191. Kerns

held that such a claim required denying the motion to dismiss and offering the protections of

discovery. Id. at 196. On the other hand, when a late-stage standing challenge is lodged, the

most important “procedural safeguard” for the Kerns court has already been afforded to the

plaintiff. Id. at 193. At that stage, the only question is whether to consider or ignore the standing

challenge based on the proof before it. In Seymour and in Morgan, when this language was

quoted, the Court was considering not how to respond to a challenge to standing lodged at the

end of trial, but the consequences of sustaining a demurrer to a standing challenge. - 61 - Nothing in the Kerns opinion stated that the jurisdictional issues disappear permanently

upon the issues being recognized as “intertwined.” In the context of a footnote that began by

recognizing that standing can be challenged at any time, with the “manner and degree of

evidence required at the successive stages of litigation,” 301 Va. at 167 n.3, the Seymour Court’s

inclusion of the Kerns standard is more reasonably read as an explanation for its decision not to

dismiss the case on a demurrer—not the elimination of the possibility of a late-stage standing

challenge.

D. The Morgan Decision, Ownership, and the Requirement of Traceability

Morgan does not only discuss a distinction between standing and the merits. Morgan

emphasizes two aspects of the standing doctrine that are crucial to Green’s argument. In

Morgan, first, the plaintiffs were homeowners in Hanover County, within 1,200 feet of the

proposed Wegmans facility. Morgan, 302 Va. at 52. This fact was undisputed, but absolutely

crucial, to their standing in that case. Id. at 59 (The first requirement for standing in zoning

cases is that “the complainant must own or occupy real property within or in close proximity to

the property.” (quoting Anders Larsen Tr., 301 Va. at 121)). Similarly, here, PRA must show

something that it owns (i.e., the account) is an account of the defendant. It could not do so.

Second, Morgan shows the importance of looking at the defendant, and the plaintiff’s

relationship with that defendant, for the standing inquiry. Otherwise, how does the court

determine whether the claimant has a personal stake in the outcome of the controversy? There

must be some tie-in, relationship, dealings, interactions that show that the plaintiff or claimant

may have suffered some harm from or because of the defendant. True, Morgan says that

standing concerns the plaintiff’s personal characteristics. But that is not all it says about

standing. Morgan also states that standing requires that the alleged harm be “fairly traceable” to

the actions of the defendant. Id. at 64-65 (quoting Mattaponi Indian Tribe, 261 Va. at 376). And

- 62 - its “personal stake” inquiry is about a personal stake in the outcome of the case—meaning that

the plaintiff’s standing inquiry requires looking at the relationship of the plaintiff to the

defendant. Morgan is a good example of the Court not purely considering only the plaintiff’s

characteristics, divorced from the plaintiff’s relationship with the defendant. The Court shows

that you must look at the plaintiff and some relationship to the defendant. The Morgan plaintiffs

had to show that they were landowners near enough to where the defendant was planning to put a

distribution center to show that they were going to be harmed. The plaintiffs had to show more

than that they were just landowners in Hanover County; they had to show that they were

landowners close enough to where the defendant was going to put a distribution center, which

was going to harm them. This is the relationship, the dealings, the tie-in, with the defendant.

This is why the plaintiffs had standing to sue Wegmans. For example, the Morgan plaintiffs,

assuming another distribution center was going up 10 to 20 miles away, probably would not have

standing and could not sue defendants because they would not be affected. Here, PRA cannot

only be an assignee or owner of some accounts that it obtained from someone—PRA must own

an account of this defendant.

This is what the Court must do here to find standing for PRA. PRA must connect the

alleged harmed back to the person it is suing. How could the person (Green) potentially harm

you? This is not going to a question reserved for the merits. This is not saying Green owes

money to PRA—that’s for trial. Similarly, this is not saying that the Morgan landowners could

prove that the zoning provision was invalid. Rather, this is about the connection between the

plaintiff and the defendant. Morgan clearly shows that this is a question of standing; standing is

not just who the plaintiff is; it is more. This relationship, and these dealings, require strict proof

thereof.

- 63 - IV: The Procedural Posture of the Case

PRA’s evidence did not show an assignment of any individually identifiable CIT Bank

account or any account connected to Green. One need not be aware of PRA’s track record of

suing to collect debts it was not owed38 to spot the dangers of a suit predicated on such evidence.

But the en banc majority reviews PRA’s evidence in a summary judgment procedural posture,

softening the question presented. The en banc Court should have engaged Green’s arguments

directly. Green preserved her challenge at the end of the case, and PRA should not have been

permitted to bring a waiver argument for the first time en banc, after declining to make the

argument before the panel.

A. Green’s Preservation of Her Standing Argument

Green’s written objections to the final order preserved her arguments. Under Rule 5A:18,

an objection must be stated with “reasonable certainty” so that trial courts can “rule intelligently

on [a] matter” before it is considered on appeal. Hannah v. Commonwealth, 303 Va. 106, 126

(2024). Green’s written objections made her standing objection “reasonably certain.”

In Green’s written objections to the final order, Green provided a specific link to her

summary judgment motion, writing, “Defendant asks that the Court retain her ability to appeal

this decision, her motion for summary judgment and her right to stay judgment until after an

appeal.” Green also wrote, “Plaintiff has failed to provide the Court with the complete Bills of

Sale specifying account ending number sued upon to prove assignment. None of the bills of sale

included documents specifying Defendant’s name or account ending numbers.” (Emphasis

added). Green had previously made the same substantive argument in her “Motion for Summary

Judgment Plaintiff Lacks Standing,” writing, “Plaintiff has (1) no valid proof of assignment, (2)

no proof that the original account number ending in 7068 changed to account number ending in

38 See infra § V. - 64 - 8616, and (3) has no contract for Cit Bank account ending in 7068. Plaintiff lacks standing.”

(Emphasis added). The same judge had ruled on this earlier motion. The only difference was

that Green, a pro se litigant, had omitted a legal term of art (“standing”) in her written objections.

The judge should have known that Green was not altering her arguments in her written

objections when they were substantively identical. Even if a liberal reading of Green’s

objections were necessary to reach this conclusion, this should be permitted.39 “A document

filed pro se is ‘to be liberally construed . . . .’” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). “[A] pro se complaint, ‘however inartfully

pleaded,’ must be held to ‘less stringent standards than formal pleadings drafted by lawyers.’”

Estelle, 429 U.S. at 106 (quoting Haines v. Kerner, 404 U.S. 519, 520 (1952)). “In practice, this

liberal construction allows courts to recognize claims despite various formal deficiencies, such as

incorrect labels or lack of cited legal authority.” Wall v. Rasnick, 42 F.4th 214, 218 (4th Cir.

2022). Pro se pleadings should be “interpreted ‘to raise the strongest arguments that they

suggest.’” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis

added) (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)). The “policy of liberally

construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right of self-

representation is an obligation on the part of the court to make reasonable allowances to protect

pro se litigants from inadvertent forfeiture of important rights because of their lack of legal

training.’” Id. at 475 (alteration in original) (emphasis added) (quoting Traguth v. Zuck, 710 F.2d

90, 95 (2d Cir. 1983)).

39 The concurrence discusses self-represented litigants. It is important to acknowledge the difference between self-represented and unrepresented litigants. Litigants like Green, who lack legal training, are referred to as unrepresented litigants. - 65 - B. PRA’s Waiver of its Waiver Argument

The en banc Court should not have permitted PRA to argue that Green did not preserve

her standing arguments at the end of trial because PRA omitted this argument before the panel.

Knowing that Green’s challenge concerned its trial evidence, PRA never suggested that the panel

apply a summary judgment procedural posture40; it introduced the argument only in its second

submission to the en banc court. The irony of the situation can be pinpointed: a wealthy

corporation structures its case against a pro se alleged debtor on the admonition that being

without an attorney is no excuse for failing to preserve her argument; the company itself omitted

to make this waiver argument at the prior stage of litigation.

PRA’s late amendment is not compatible with our en banc rehearing system. The Fifth

Circuit has considered this question multiple times and held that arguments not made to the panel

will not be addressed en banc. See Lucio v. Lumpkin, 987 F.3d 451, 478 (5th Cir. 2021) (quoting

Miller v. Tex. Tech Univ. Health Science Ctr., 421 F.3d 342, 349 (5th Cir. 2005)). Adopting this

approach for represented litigants would permit a better use of this Court’s resources and time.

There is good reason to permit unrepresented litigants leeway,41 but there is no reason not to

require litigants like PRA to preserve their arguments for en banc review at the panel level, much

as appellants must preserve their objections for three-judge panel review. Further, as PRA

maintained to the panel that its trial witness solved its chain of title problems, its attempt to

40 Green’s pro se opening brief stated that she had preserved her standing argument in her objections to the draft final order. Green’s brief critiqued the trial testimony of PRA’s Custodian of Records, Lecinda Stacy. PRA’s appellee’s brief argued that the circuit court judge did, in fact, have sufficient evidence to make a “finding, by a preponderance of the evidence” for PRA. And PRA stated, in oral argument before the three-judge panel, that its nameless bills of sale could be linked to Green’s account by the PRA custodian’s trial testimony. PRA’s short supplemental authority brief only suggested limits of the standing doctrine; so, neither the panel majority nor the dissent analyzed the case at the summary judgment phase. 41 But see Green v. Portfolio Recovery Assocs., LLC, No. 0144-22-3 (Va. Ct. App. June 10, 2024) (order) (denying Green’s request to amend her pro se assignments of error). - 66 - introduce, en banc, a procedural posture that would have us disregard this testimony appears to

be an impermissible approbate/reprobate scenario. See, e.g., Nelson v. Commonwealth, 71

Va. App. 397, 403 (2020).

V: Access to Justice

In many ways, the effects of the en banc majority decision will be confined to the case at

bar. The majority does not lessen the debt collector’s burden to prove, by a preponderance of the

evidence, every step in a chain of title before it may prevail in a suit on an account or underlying

contract. See Pattons, 33 Va. (6 Leigh) at 207; Ashby, 33 Va. (6 Leigh) at 135. The decision

does not prevent ownership of a debt from being challenged on the grounds of standing—it

acknowledges that it may be so challenged. Ante at 9-10. (“PRA’s standing . . . turned on its

claim that it was the assignee of the debt and that Green was a party to the contract by which the

debt arose.”).

Still, this case provides an opportunity to discuss the debt collection industry and the

impacts of this industry on access to justice. The debt buying industry has exploded over the

past twenty years. See Fed. Trade Comm’n, The Structure and Practices of the Debt Buying

Industry 12-14 (2013)), https://perma.cc/FLV2-FTQ4 [hereinafter Structure and Practices]. The

growth in this industry has inevitably led to litigation. Courts around the country have been

compelled to confront their practices. Virginia courts have little precedent related to debt

buying, so we rely on cases from other jurisdictions and secondary sources to provide a

framework and backdrop to better understand the industry. Thorne v. Commonwealth, 66

Va. App. 248, 255 (2016) (relying on out-of-state cases as persuasive authority).

The debt-buying industry works in the following manner: first, a creditor and a consumer

enter a contract by which the creditor (i.e., a bank) extends credit to the consumer—often

through a credit card—in exchange for a promise to be repaid later. Structure and Practices,

- 67 - supra, at 11, 13. When a consumer falls behind on repaying a creditor, the creditor often

“charge[s] off” the debt as unrecoverable and sells the rights to recover the debt to a debt buyer

who specializes in collecting delinquent debts. Taylor v. First Resol. Inv. Corp., 72 N.E.3d 573,

578 (Ohio 2016); Consumer Fin. Prot. Bureau, Fair Debt Collection Practices Act: CFPB

Annual Report 2013, at 9 (2013),

https://files.consumerfinance.gov/f/201303_cfpb_March_FDCPA_Report1.pdf (last visited Dec.

16, 2024). The debts sold are usually “bundled” into portfolios of many accounts, which the

debt buyer purchases at cents on the dollar compared to the face value of the collective debt

owed. Taylor, 72 N.E.3d at 578; Structure and Practices, supra, at 7-8, app. D (study showing

that between 2006 and 2009, the nine largest debt buyers—including PRA—collectively

purchased consumer debt with face value of $143 billion for $6.5 billion). The debt buyer then

either attempts to collect the debt or sells the debt to another debt buyer. Structure and Practices,

supra, at 19. “Many debts are purchased and resold several times over the course of years before

either the debtor pays the debt or the debt’s owner determines that the debt can be neither

collected nor sold.” Id. at 1.

To be sure, debt buying has a role to play in the consumer lending industry. “Debt buying

can reduce the losses that creditors incur in providing credit, thereby allowing creditors to

provide more credit at lower prices.” Id. But the business model depends on debt buyers using

the legal process (or the threat of a lawsuit) to collect on enough of the many debts they have

bought to generate a profit. See Taylor, 72 N.E.3d at 578. And that is when problems can arise.

In the course of a debt being sold several times, “documentation of information about the

debt is often lost.” Id. In a 2013 study, the Federal Trade Commission (FTC) found that while

buyers receive some information about the debt they are purchasing, “[f]or most portfolios,

buyers did not receive any documents at the time of purchase” and “[o]nly a small percentage of

- 68 - portfolios included documents, such as account statements or the terms and conditions of credit.”

Structure and Practices, supra, at ii-iii. Without adequate documentation, debt buyers can have

trouble proving in court that they own the debts they seek to collect. Some debt buyers get

around this by having employees sign affidavits for hundreds or thousands of debts per day,

attesting personal knowledge of the facts of each case despite the impossibility of verifying the

information for that many accounts that quickly (a practice called “robo-signing”). Peter A.

Holland, The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and

Lack of Proof in Debt Buyer Cases, 6 J. Bus. & Tech. L. 259, 268-69 (2011). But even for debt

buyers acting in good faith, documentation is only a problem if the debt buyer is in fact forced to

prove it owns a debt. “Empirical evidence shows that many debt buyers using a high volume of

lawsuits as a component of their recovery strategy rely heavily on the assumption that consumers

often fail to show up to contest the case,” allowing debt buyers to win default judgments. Taylor,

72 N.E.3d at 578-79 (quoting Note, Improving Relief from Abusive Debt Collection Practices,

127 Harv. L. Rev. 1447, 1449 (2014)) [hereinafter Improving Relief]); see also id. at 578

(observing that the debt buying industry is “dependent in large part on the acquiescence,

ambivalence, or ignorance of consumers”); Brief of Amici Curae Legal Services of Northern

Virginia, et al. at 25 (“[O]f course, if a debt buyer wanted to pay more money for debt portfolios

that contained the full evidence necessary to prove . . . alleged debts . . . the debt buyer could

always choose to limit its purchases to those creditors selling such information; but this would

also mean less potential profit.”).

Lack of adequate documentation leads to mistakes. “A predictable result of debt buyers

filing a high volume of lawsuits based on imperfect information is that lawsuits are regularly

filed after the right to collect debts has expired or that seek to collect a debt that is not owed.”

Taylor, 72 N.E.3d at 579; see also Structure and Practices, supra, at i (because debt buyers “may

- 69 - have insufficient or inaccurate information when they collect on debts,” debt buyers can end up

“seeking to recover from the wrong consumer or recover the wrong amount”). The FTC found

that from 2006 to 2009, debt buyers “sought to collect about one million debts [per year] that

consumers asserted they did not owe.” Structure and Practices, supra, at iv. That rate of

disputed debts alone “is a significant consumer protection concern” to the FTC. Id. at 39.

But the number of debts disputed likely understates the lack of information problem

because consumers often do not challenge debts. Id. at 38. Ninety percent or more of consumers

sued in debt collection actions do not appear in court to defend themselves, resulting in many

default judgments. Id. at 45. Some consumers do not receive the validation notices that debt

collectors are required to send before collecting on the debt; others “may not read or understand

the validation notice because it does not identify the original creditor, they may assume it is junk

mail, or they find writing a letter to be unduly burdensome.” Id. at 38. And “many consumers

may not respond due to a misunderstanding of the legal procedures required to avoid default.”

Taylor, 72 N.E.3d at 579 (quoting Improving Relief, supra, at 1449).

In Virginia, a helpful study conducted by amici curae in support of Green in this case

reveals that large debt collectors including PRA employ this same predatory business model in

Virginia. Of the $30,610,707.37 in debts that PRA collected from Virginians from March 11,

2020 to March 11, 2024, 89.27% of its judgments were obtained by default. See Brief of Amici

Curiae, supra at 36. By contrast, according to the data of a Virginia provider of free legal

services, when alleged debtors appeared in court and received legal representation, the large debt

buyers ultimately succeeded at trial in only 3.1% of cases in which alleged debtors obtained

counsel.42 Id. at 6-8, 36 (of 65 clients to whom Blue Ridge Legal Services provided

42 Matthew G. Rosendahl and Kristi Kelly represented Green pro bono on her en banc appeal. Their dedication and generosity highlight just how vital pro bono work is in ensuring access to justice for those in need. Their efforts make a meaningful difference. - 70 - representation, 87.7% of cases were nonsuited before trial and 9.2% were dismissed at a

hearing). In particular, PRA nonsuited twelve of fourteen suits once defendants obtained

representation, had their claim dismissed in one case, and obtained judgment in one case. Id. It

is fair to tie this low success rate to widespread, poor recordkeeping practices.

In PRA’s case, whether because of these recordkeeping practices or otherwise, a similar

tendency to bring unsubstantiated lawsuits is clear. In 2015, the Consumer Financial Protection

Bureau cited PRA for engaging in numerous “deceptive acts and practices” under the Consumer

Financial Protection Act and “false, deceptive, or misleading representation[s] or means” under

the Fair Debt Collection Practices Act. Portfolio Recovery Assocs., LLC, No. 2105-CFPB-0023,

at 17-18, 22, 24 (Sept. 9, 2015) (consent order). PRA had repeatedly made false representations

that consumers owed them time-barred debt, filed affidavits in which affiants falsely claimed to

have reviewed “account-level documentation from the original creditor,” and falsely told

consumers that they had a reasonable basis for believing that consumers owed them debts. Id. at

18.

As redress, the CFPB ordered PRA to pay over twenty million dollars. Id. at 44-49. It

also placed PRA under a federal order: PRA was prohibited from “collecting debts without a

reasonable basis,” a basis that could be “substantiated” at the time of the representation, and

broadly prohibited from “deceptively collecting time-barred debt.” Id. at 28, 38. And PRA was

specifically “prohibited from” bringing “any Debt Collection Lawsuit unless” it possessed,

reviewed, and offered to provide certain documentation to the alleged debtor. Id. at 33-35. This

required documentation included

Original Account-Level Documentation reflecting, at a minimum, the Consumer’s name, the last four digits of the account number associated with the Debt at the time of Charge-off, the claimed amount excluding any post Charge-off payments . . . and, if Respondent is suing under a breach of contract theory, the contractual terms and conditions applicable to the Debt. - 71 - Id. at 33. The required documentation also included “properly authenticated . . . bills of sale or

other documents evidencing the transfer of ownership of the Debt, at the time of Charge-off, to

each successive Owner.” Id. Each such document, the order said, “must contain a specific

reference to the particular Debt being collected upon, which can be done by referencing an

exhibit attached to each” document. Id. at 33-34.

PRA did not comply with the terms of the 2015 order. It sent “millions” of letters that

failed to even offer the required chain of title documentation, and falsely claimed, hundreds of

other times, that it could provide other required documents, such as Original Account-Level

Documentation. Complaint at 7-8, Consumer Fin. Prot. Bureau v. Portfolio Recovery Assocs.,

LLC, No. 2:23-CV-110 (E.D. Va. Mar. 23, 2023). Therefore, the Eastern District of Virginia

placed PRA under a renewed order with substantially the same terms, again requiring them to

possess and offer to provide Original Account-Level Documentation and account-specific chain

of title documentation. And it ordered them to pay $12 million. Stipulated Final Judgment and

Order at 14, 24, Consumer Fin. Prot. Bureau v. Portfolio Recovery Assocs., LLC, No.

2:23-CV-110 (E.D. Va. Apr. 13, 2023). In this case, Green’s challenge to PRA’s standing was a

response to PRA’s failure to provide the documentation that the federal government has on

multiple occasions cited PRA for failing to provide.

In short, the practices of the debt buying industry often result in documentation problems.

Green’s suit has raised these problems. These observations about the observed practices of PRA

and other large debt buyers emphasize the importance of adhering to our evidentiary principles in

debt collection lawsuits in Virginia. No litigant should be permitted to shrug off the burden of

proving their case because it is more profitable to do so.

- 72 - Conclusion

The en banc majority’s decision broadens the ability for individuals or debt buyers to sue

the citizens of Virginia without requiring them to demonstrate standing or rights to collect. Thus,

the majority has widely opened the doors and given permission to the world the legal ability to

sue or collect debts from the citizens of Virginia without sufficient evidence of standing. PRA

lacked standing to sue Green, and the circuit court erred by dismissing Green’s counterclaim.

For all the reasons stated throughout the dissent, I would reverse and vacate the circuit court’s

judgment against Green and remand for the court to enter final judgment that PRA does not have

standing to sue Green, that Green does not owe a debt to PRA, and to further consider Green’s

counterclaim against PRA, over which the circuit court had jurisdiction.

- 73 - VIRGINIA: In the Court of Appeals of Virginia on Tuesday the 19th day of March, 2024. PUBLISHED

Mazie Green, Appellant,

against Record No. 0144-22-3 Circuit Court No. CL21000587-00

Portfolio Recovery Associates, LLC, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Decker, Judges Beales, Huff, O’Brien, AtLee, Malveaux, Athey, Fulton, Ortiz, Causey, Friedman, Chaney, Raphael Lorish, Callins and White

On March 1, 2023 came the appellee, by counsel, and filed a petition requesting that the Court set aside

the judgment rendered herein on February 20, 2024, and grant a rehearing en banc on the issue(s) raised in the

petition.

On consideration whereof and pursuant to Rule 5A:35 of the Rules of the Supreme Court of Virginia,

the petition for rehearing en banc is granted and the appeal of those issues is reinstated on the docket of this

Court. The mandate previously entered herein is stayed pending the decision of the Court en banc.

The parties shall file briefs in compliance with the schedule set forth in Rule 5A:35(b). The appellant

shall attach as an addendum to the opening brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. An electronic version of each brief shall be filed with the Court and

served on opposing counsel.1

A Copy, Teste: A. John Vollino, Clerk

original order signed by a deputy clerk of the By: Court of Appeals of Virginia at the direction of the Court Deputy Clerk

1 The guidelines for filing electronic briefs and appendices can be found at www.courts.state.va.us/online/vaces/resources/guidelines.pdf. COURT OF APPEALS OF VIRGINIA

Present: Judges Malveaux, Ortiz and Causey PUBLISHED

Argued at Lexington, Virginia

MAZIE GREEN OPINION BY v. Record No. 0144-22-3 JUDGE DORIS HENDERSON CAUSEY FEBRUARY 20, 2024 PORTFOLIO RECOVERY ASSOCIATES, LLC

FROM THE CIRCUIT COURT OF ALLEGHANY COUNTY Edward K. Stein, Judge

Mazie Green, pro se.

L. Steven Emmert (James K. Trefil; Jonathan P. Floyd; Sykes, Bourdon, Ahern & Levy, PC; Troutman Pepper Hamilton Sanders LLP, on brief), for appellee.

Mazie Green, pro se, appeals the circuit court order ruling for Portfolio Recovery

Associates, LLC (“PRA”) in a debt-collection action. The circuit court granted judgment to PRA in

the amount of $8,914.31. On appeal, Green argues that PRA did not have standing to sue, that the

court erred by failing to consider her counterclaim alleging PRA violated the Fair Debt Collections

Practices Act (“FDCPA”), and that by releasing her cash bond to PRA, the General District Court of

Alleghany County violated the Fourteenth Amendment and FDCPA by issuing a recognizance on

PRA’s behalf. Finding that PRA failed to prove it owned Green’s debt, we reverse the circuit

court’s decision. BACKGROUND1

In December 2020, PRA, a debt buyer,2 filed a warrant in debt against Green in Alleghany

County General District Court,3 “alleging that she had defaulted on a [CIT] Bank credit card debt,

with an original account ending number of 7068 and a balance due of $8,914.31.” PRA asserted

that it was the assignee of the debt. In support of its claim, PRA filed a bill of particulars, which

had the following documents attached as exhibits:

• A February 2020 letter from PRA to Green, listing the original creditor as CIT Bank and an “[o]riginal [a]ccount [n]umber” ending in 7068, and demanding payment on a balance due of $8,914.31

• A September 2010 document labeled “bill of sale” from CIT Bank to Webbank

• An August 2013 document labeled “bill of sale” from Webbank to Comenity Capital Bank

• A July 2018 document labeled “bill of sale” from Comenity Capital Bank to Synchrony Bank

1 Because PRA prevailed at trial, “we recite the relevant facts in the light most favorable” to PRA and presume the factfinder accepted any reasonable inferences from those facts. See Nichols Constr. Corp. v. Va. Mach. Tool Co., 276 Va. 81, 84 (2008). The record contains a written statement of facts in lieu of a transcript from trial, as permitted by Rule 5A:8(c). The statement of facts was prepared by Green and adopted by the circuit court over PRA’s objection. Accordingly, we accept the court’s signed statement of facts as the established facts of the case. See Rule 5A:8(d) (“The judge’s signature on a transcript or written statement, without more, constitutes certification that the procedural requirements of this Rule have been satisfied.”). 2 Although Virginia has not adopted a definition of “debt buyer,” we may rely on other jurisdictions’ definitions as persuasive authority. Thorne v. Commonwealth, 66 Va. App. 248, 255 (2016) (relying on out-of-state cases as persuasive authority). A debt buyer is a person or entity that engages in the business of purchasing charged-off (charged-off means the act of a creditor that treats an account receivable or other debt as a loss or expense because payment is unlikely, Md. Rule 3-306) consumer debt for collection purposes, whether it collects the debt itself, hires a third party for collection, or hires an attorney-at-law for collection litigation. Cal. Civ. § 1788.50. 3 This case involved a de novo appeal from the Alleghany County General District Court. The filings of the general district court are those relied upon in the circuit court. -2- • A June 2019 document labeled “bill of sale” from Synchrony Bank to PRA

• A two-column spreadsheet for an account number ending in 7068 with Green’s name, but no creditor name, headings identifying the source or purpose of the document, or means of tying the record to any of the bills of sale

• An August 2020 declaration of James O’Toole, custodian of records for PRA, stating: “According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from Mazie Green . . . to the Account Seller the sum of $8,914.31 with respect to the account number ending in 7068.” The affidavit stated that this finding was “based upon a review of the business records of the Original Creditor CIT BANK/PAYPAL and those records transferred to [PRA] from SYNCHRONY BANK . . . , which have become a part of and have integrated into [PRA]’s business records, in the ordinary course of business.”

• A Synchrony Bank pricing information addendum for “PayPal credit account ending in 7068”

• Monthly PayPal billing statements, spanning July 2017- September 2018, listing customer name Mazie Green and an account number ending in 8616.

The “bills of sale” did not mention any specific debtor names or account numbers or include

any attachments with that information. None of the bills of sale listed Green’s name or account

number. Additionally, transfer agreements identifying which specific accounts were sold were not

attached to any bill of sale. PRA’s custodian of records claimed that such records (which perhaps

identified Green, or any accounts/agreements) were confidential. The PayPal billing statements

showed that someone named Mazie Green last used the account on March 3, 2018, and that the last

payment on the account was on February 12, 2018.

-3- In response to the complaint, Green filed a grounds of defense asserting that PRA lacked

standing to sue her because it had not produced evidence of chain of title4 to prove its ownership of

the debt. Prior to this, Green had asked repeatedly for the debt to be validated. Green also filed a

counterclaim for $1,000 under the Fair Debt Collection Practices Act (FDCPA). She argued that

PRA violated the FDCPA by “not reviewing their business records or ones they have been allegedly

assigned,” “robo-signing” the affidavit of James O’Toole, and attaching “a deceptive, misleading,

and undated letter” to the warrant in debt informing her that a lawsuit had been filed. Green also

sought a declaratory judgment that PRA violated the FDCPA.

In April 2021, Green sent a request for a continuance to the general district court. Green

“received no response to her request and appeared, prepared for trial on May 24, 2021.” At trial,

PRA “said they were not prepared for trial because of . . . Green’s letter and their witness was not

there.” Green signed a recognizance, promising to appear for a hearing in July 2021.

Following an agreed-upon continuance, the general district court conducted a hearing in

September 2021. The general district court ruled for PRA and dismissed Green’s FDCPA

counterclaim. The general district court set an appeal bond of $8,977.31, which Green posted when

she appealed the ruling to the circuit court.

Green moved for summary judgment in the circuit court, asserting that PRA lacked

standing. Green informed the circuit court that “[t]he original account ending number was 7068, but

[PRA] provided the [c]ourt with a Pay[P]al Credit statement account number ending in 8616.”

Green argued that PRA had “(1) no valid proof of assignment [validation of the debt], (2) no proof

that the original account number ending in 7068 changed to account number ending in 8616, and

4 Chain of title is admissible documentation establishing that the debt buyer is the owner of the specific debt at issue. The chain of title must be unbroken. -4- (3) ha[d] no contract for C[IT] Bank account ending in 7068.” She claimed that she was therefore

entitled to judgment as a matter of law. The circuit court denied Green’s motion.

The circuit court held a bench trial in November 2021. At trial, PRA called Lecinda Stacy, a

PRA custodian of records, as a witness. On cross-examination, Stacy testified that the account

being sued upon ended with 7068. Stacy testified that each bill of sale was accurate and complete,

but also that no bill of sale included any attachments. When asked why the transfer agreements

identifying which specific accounts were sold were not attached to each bill of sale, Stacy said that

the specific accounts were confidential because they contained other individuals’ names and

account numbers. Stacy also testified that none of the bills of sale listed Green’s name or account

number. Stacy further testified that the data sheet listing an account number ending 7068 included

with the bill of particulars lacked the creditor’s name and was created at or near the time that

accounts were sold to PRA. Finally, Stacy testified that the account number on the PayPal credit

billing statement ended in 8616 and when asked by Green “if the account ending number of 7068

was the same as the account ending number 8616,” Stacy said, “no.” Overall, Stacy did not provide

any information that Green was the debtor or articulate why PRA was suing this particular Mazie

Green. Other than having the same name, PRA was unable to provide any other identifying

information connecting Green to the alleged debt owed.

Green submitted into evidence PRA’s notice of filing of a warrant in debt. She also

submitted an email conversation with a PRA attorney from September 2021. In the email exchange,

Green asked the attorney why the account number in the billing statements differed from the

original CIT Bank account number and the attorney responded, “[s]ince the account was sold to

other creditors numerous times since originally opened in 2010, I do not have a record of the exact

time the original account number was changed.” The attorney recommended Green contact CIT

Bank for more information.

-5- PRA sought to introduce an affidavit from Oscar Castillo, an “Affidavit Documentation

Specialist” at Synchrony Bank, dated November 16, 2021. Castillo’s affidavit stated that Green was

“issued a credit card account with account number ending in 8616” on September 16, 2018, and

then the “account number was changed from account ending in 8616 to account ending in 7068” on

June 24, 2019. The affidavit also attested that the account was sold to PRA on June 27, 2019, and

that Synchrony Bank’s records documented the sale. PRA also introduced all the exhibits to its bill

of particulars.

After hearing the parties’ evidence and arguments, the circuit court ruled for PRA. The

circuit court held that PRA could recover $8,914.31 from Green and ordered the circuit court clerk

to release the appeal bond to PRA to satisfy the judgment. The court also found that Green’s

counterclaim failed. This appeal follows.

ANALYSIS

I. Ownership of the Debt

Green argues PRA could not recover from her because PRA failed to prove it owned her

debt. We agree.

A. The Debt Buying Industry

PRA is a debt buyer. The debt buying industry has exploded over the past twenty years.

See Fed. Trade Comm’n, The Structure and Practices of the Debt Buying Industry 12-14 (2013)

http://www.ftc.gov/sites/default/files/documents/reports/structure-and-practices-debt-buying-

industry/debtbuyingreport.pdf [hereinafter Structure and Practices]. The growth in this industry

has inevitably led to litigation. Courts around the country have been compelled to confront their

practices. Virginia courts have little precedent related to debt buying, so we rely on cases from

other jurisdictions and secondary sources to provide a framework and backdrop to better

-6- understand the industry. Thorne v. Commonwealth, 66 Va. App. 248, 255 (2016) (relying on

out-of-state cases as persuasive authority).

The debt-buying industry works in the following manner: first, a creditor and a consumer

enter a contract by which the creditor (i.e., a bank) extends credit to the consumer—often

through a credit card—in exchange for a promise to be repaid later. Structure and Practices,

supra, at 11, 13. When a consumer falls behind on repaying a creditor, the creditor often

“charge[s] off” the debt as unrecoverable and sells the rights to recover the debt to a debt buyer

who specializes in collecting delinquent debts. Taylor v. First Resol. Inv. Corp., 72 N.E.3d 573,

578 (Ohio 2016); Consumer Fin. Prot. Bureau, Fair Debt Collection Practices Act: CFPB Annual

Report 2013, at 9 (2013), https://files.consumerfinance.gov/f/201303_cfpb_March_FDCPA_

Report1.pdf. The debts sold are usually “bundled” into portfolios of many accounts, which the

debt buyer purchases at cents on the dollar compared to the face value of the collective debt

owed. Taylor, 72 N.E.3d at 578; Structure and Practices, supra, at 7-8, app. D (study showing

that between 2006 and 2009, the nine largest debt buyers—including PRA—collectively

purchased consumer debt with face value of $143 billion for $6.5 billion). The debt buyer then

either attempts to collect the debt or sells the debt to another debt buyer. Structure and

Practices, supra, at 19. “Many debts are purchased and resold several times over the course of

years before either the debtor pays the debt or the debt’s owner determines that the debt can be

neither collected nor sold.” Id. at 1.

Debt buying has a role to play in the consumer lending industry. “Debt buying can reduce

the losses that creditors incur in providing credit, thereby allowing creditors to provide more credit

at lower prices.” Id. at i. But the business model depends on debt buyers using the legal process (or

the threat of a lawsuit) to collect on enough of the many debts they have bought to generate a profit.

See Taylor, 72 N.E.3d at 578. And that is when problems can arise.

-7- In the course of a debt being sold several times, “documentation of information about the

debt is often lost.” Id. In a 2013 study, the Federal Trade Commission (FTC) found that while

buyers receive some information about the debt they are purchasing, “[f]or most portfolios,

buyers did not receive any documents at the time of purchase” and “[o]nly a small percentage of

portfolios included documents, such as account statements or the terms and conditions of credit.”

Structure and Practices, supra, at ii-iii. Without adequate documentation, debt buyers can have

trouble proving in court that they own the debts they seek to collect. Some debt buyers get

around this by having employees sign affidavits for hundreds or thousands of debts per day,

attesting personal knowledge of the facts of each case despite the impossibility of verifying the

information for that many accounts that quickly (a practice called “robo-signing”). Peter A.

Holland, The One Hundred Billion Dollar Problem in Small Claims Court: Robo-Signing and

Lack of Proof in Debt Buyer Cases, 6 J. Bus. & Tech. L. 259, 268-69 (2011). But even for debt

buyers acting in good faith, documentation is only a problem if the debt buyer is in fact forced to

prove it owns a debt. “Empirical evidence shows that many debt buyers using a high volume of

lawsuits as a component of their recovery strategy rely heavily on the assumption that consumers

often fail to show up to contest the case,” allowing debt buyers to win default judgments.

Taylor, 72 N.E.3d at 578-79 (quoting Note, Improving Relief from Abusive Debt Collection

Practices, 127 Harv. L. Rev. 1447, 1449 (2014)) [hereinafter Improving Relief]); see also id. at

578 (observing that the debt buying industry is “dependent in large part on the acquiescence,

ambivalence, or ignorance of consumers”).

Lack of adequate documentation leads to mistakes. “A predictable result of debt buyers

filing a high volume of lawsuits based on imperfect information is that lawsuits are regularly

filed after the right to collect debts has expired or that seek to collect a debt that is not owed.”

Id. at 579; see also Structures and Practices, supra, at i (because debt buyers “may have

-8- insufficient or inaccurate information when they collect on debts,” debt buyers can end up

“seeking to recover from the wrong consumer or recover the wrong amount”). The FTC found

that from 2006 to 2009, debt buyers “sought to collect about one million debts [per year] that

consumers asserted they did not owe.” Structures and Practices, supra, at iv. That rate of

disputed debts alone “is a significant consumer protection concern” to the FTC. Id. at 39.

But the number of debts disputed likely understates the lack of information problem

because consumers often do not challenge debts. Id. at 38. Ninety percent or more of consumers

sued in debt collection actions do not appear in court to defend themselves, resulting in many

default judgments. Id. at 45. Some consumers do not receive the validation notices that debt

collectors are required to send before collecting on the debt; others “may not read or understand

the validation notice because it does not identify the original creditor, they may assume it is junk

mail, or they find writing a letter to be unduly burdensome.” Id. at 38. And “many consumers

may not respond due to a misunderstanding of the legal procedures required to avoid default.”

Taylor, 72 N.E.3d at 579 (quoting Improving Relief, supra, at 1449).

In short, debt-buying industry practices often result in documentation problems. These

very problems are presented in this action. Green raised these issues, and we now address her

argument that PRA failed to prove it owned her debt.

B. PRA Lacked Standing

Green frames her argument as a question of PRA’s standing to sue her. She argues that

because PRA failed to prove it owned a debt she owed, it lacked a personal stake in the outcome,

and thus lacked standing, rendering PRA’s suit against her “a legal nullity.” See Kocher v.

Campbell, 282 Va. 113, 119 (2011). Green presents a relatively unsettled question on appeal—

whether a plaintiff attempting to collect on a delinquent obligation without proof that it owns the

debt raises a question of standing or a defect in the plaintiff’s case-in-chief. Courts in other

-9- jurisdictions are split on the issue,5 and Virginia has only considered the matter in the context of real

property.6 We hold that the assignment of rights alleged here created a standing issue.7 Further,

because PRA failed to establish its ownership of a debt owed by Green,8 we hold that PRA had no

legally cognizable interest in the alleged controversy.

5 Compare Unifund CCR v. Ayhan, 146 Wash. App. 1026 (Wash. Ct. App. 2008) (treating insufficient proof of ownership of debt as a question of standing), and Deutsche Bank Nat’l Tr. Co. v. Mitchell, 27 A.3d 1229, 1234-35 (N.J. Super. Ct. App. Div. 2011) (“As a general proposition, a party seeking to foreclose a mortgage must own or control the underlying debt. In the absence of a showing of such ownership or control, the plaintiff lacks standing to proceed with the foreclosure action and the complaint must be dismissed.” (internal punctuation and citations omitted)), with Nyankojo v. N. Star Cap. Acquisition, 679 S.E.2d 57, 58, 61 (Ga. Ct. App. 2009) (holding that debt buyer lacking proof of assignment failed to establish the elements of its case, despite defendant framing question as one of standing), and Cap. Prop. Mgmt. Corp. v. Nationwide Prop. & Cas. Ins. Co., 757 Fed. App’x 229, 232 n.1 (4th Cir. 2018) (noting that although the lower court “framed its analysis [of whether the plaintiff proved assignment] as [the plaintiff]’s failure to establish standing . . . , the proper inquiry is whether [the plaintiff] failed to state a claim for breach of contract”). 6 Morgan v. Board of Supervisors of Hanover County, ___ Va. ___, ___ (Feb. 2, 2023), established that a defense to liability does not implicate standing in Virginia merely because it “requires proof of a specific legal right that was infringed and that is capable of being remedied by a court.” In Morgan, the Virginia Supreme Court considered whether the plaintiffs had standing to challenge a zoning exception issued by the local board that authorized the construction of a 1.7 million square foot grocery distribution center. Id. at ___. Roderick Morgan, a property owner whose land was located within a thousand feet of the proposed facility, was among the many neighbors that disputed approval of the project and brought action. Id. at ___. Although none of the class members held an ownership interest in the subject property, the Court held they had standing to challenge the zoning determination after the plaintiffs (1) proved ownership of property in close proximity to the subject property and (2) alleged facts of a particularized harm arising out of the board’s approval of the plan. Id. at ___. In its reversal of the circuit court’s decision that the plaintiffs did not have standing, the Court reiterated that the actual controversy requirement protects courts from issuing advisory opinions—an essential concern of the standing doctrine—and cautioned courts to avoid “conflat[ing] the threshold standing inquiry with the merits of [a litigant’s] claim.” Id. at ___ (second alteration in original) (quoting Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308, 312 (4th Cir. 2009)). 7 See discussion infra Section I.C. 8 The Consumer Financial Protection Bureau has enjoined PRA from collecting the type of debt Green has disputed without offering to provide Original Accounting Level Documentation. Filing lawsuits for unsubstantiated debt is also prohibited. In the Matter of:

- 10 - Whether a litigant has standing is subject to de novo review. Platt v. Griffith, 299 Va. 690,

692 (2021) (“We review de novo the question of whether the appellants’ factual allegations were

sufficient to establish standing, as this issue presents a question of law.”).

“[S]tanding to maintain an action is a preliminary jurisdictional issue having no relation to

the substantive merits of an action.” McClary v. Jenkins, 299 Va. 216, 221 (2020) (quoting

Andrews v. Am. Health & Life Ins. Co., 236 Va. 221, 226 (1988)). “The point of standing is to

ensure that the person who asserts a position has a substantial legal right to do so and that his rights

will be affected by the disposition of the case.” Anders Larsen Tr. v. Bd. of Supervisors of Fairfax

Cnty., 301 Va. 116, 120 (2022) (quoting Cupp v. Bd. of Supervisors of Fairfax Cnty., 227 Va. 580,

589 (1984)). Here, PRA did not provide or identify any information that showed that it had any

“substantial legal rights” that would be affected—namely, that PRA owned a debt owed by Green.

“[S]tanding requires particularized harm to ‘be fairly traceable to the challenged action of

the defendant.’” Morgan v. Bd. of Supervisors of Hanover Cnty., ___ Va. ___, ___ (Feb. 2,

2023) (quoting Mattaponi Indian Tribe v. Va. Dep’t of Env’t Quality, ex rel. State Water Control

Bd., 261 Va. 366, 376 (2001)). A plaintiff must “[allege] that [the particular] defendant [engages

in the type of activity] that causes or contributes to the kinds of injuries alleged.” Chesapeake

Bay Found., Inc. v. Commonwealth, ex rel. Va. State Water Control Bd., 52 Va. App. 807, 825

(2008) (alterations in original) (emphasis omitted) (quoting Friends of the Earth, Inc. v. Gaston

Copper Recycling Corp., 204 F.3d 149, 161 (4th Cir. 2000)).

Similarly, here, we must determine whether Green took actions that were fairly traceable to

the injury of which PRA complains. The FDCPA requires debt collectors to validate consumers’

Portfolio Recovery Assocs., LLC, CFPB No. 2015-CFPB-0023 (Sept. 9, 2015), https://files. consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf. - 11 - debts within five days of the initial communication9 with a consumer. 15 U.S.C.A. § 1692g(a).

The validation information must be clear and conspicuous. Per 15 U.S.C.A. § 1692g(a), a debt

collector must provide the following information to validate a debt:

• the amount of the debt;

• the name of the creditor to whom the debt is owed;

• a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

• a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

• a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

Once the validation information is provided, the consumer has 30 days to dispute the validity of

the debt and/or request the information about the original creditor. 15 U.S.C.A. § 1692g(b). “If

the consumer notifies the debt collector” within this thirty-day period, the debt collector must

cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

Id.

PRA asserts ownership of Green’s debt through a series of assignments. When pursuing an

action on a contract or instrument assigned, an assignee “stands in the shoes” of the assignor,

9 A formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). 15 U.S.C.A. § 1692g(d). - 12 - obtaining all the assignor’s rights and remedies. Union Recovery Ltd. P’ship v. Horton, 252 Va.

418, 423 (1996) (quoting Mountain States Fin. Ress. Corp. v. Agrawal, 777 F. Supp. 1550, 1552

(W.D. Okla. 1991)). Our Supreme Court has long held that a party seeking to prove ownership of a

contractual right by assignment bears the burden of proving that the assignment occurred. See

Tennent’s Heirs v. Pattons, 33 Va. (6 Leigh) 196, 207 (1835) (Carr, J.) (finding trial court erred in

allowing plaintiffs to sue as assignees where no proof of assignment was in the record). Although

Virginia courts have not outlined precisely how to prove a legal assignment occurred, other courts

have held that “there must be evidence of an intent to assign or transfer the whole or part of some

specific thing, debt, or chose in action and the subject matter of the assignment must be described

sufficiently to make it capable of being readily identified.” 29 Williston on Contracts § 74:1 (4th

ed. 2022) (collecting cases). And to recover a debt from a purported debtor, a party must prove that

it owns the right to the specific debt at issue. See Lewis’s Ex’r v. Bacon’s Legatee, 13 Va. (3 Hen.

& M.) 89, 114 (1808) (Fleming, J.). A debt buyer who alleges a right to a debt by assignment thus

must trace the chain of its title to the specific debt it seeks to recover. The trace of the chain of title

may not be broken. It must be continuous to establish the assignment.

A debt buyer (or any purported owner of the right to recover a debt) may introduce

several forms of evidence to prove ownership of the specific account at issue. PRA sought

recovery on breach of contract and account stated theories. For a debt based on a written

contract, the best-evidence rule requires that “where the contents of a writing are desired to be

proved, the writing itself must be produced or its absence sufficiently accounted for before other

evidence of its contents can be admitted.” Brown v. Commonwealth, 54 Va. App. 107, 115

(2009) (emphasis omitted) (quoting Bradshaw v. Commonwealth, 16 Va. App. 374, 379 (1993)).

If the original contract is unavailable, Code § 8.01-32 provides that a plaintiff may still bring suit

on “any past-due lost . . . contract . . . or other written evidence of debt, provided the plaintiff

- 13 - verifies under oath either in open court or by affidavit that said . . . contract . . . or other written

evidence of debt has been lost or destroyed.” For a debt based on an account stated, the plaintiff

must prove that “the accounts between the parties have been either actually settled, or are

presumed to be so from the circumstance of a party’s retaining, for a long time, without

objection, the account of the other party, which has been presented to him, showing a balance

against him.” Ellison v. Weintrob, 139 Va. 29, 35 (1924) (quoting Watson v. Lyle’s Adm’r, 31

Va. (4 Leigh) 236, 249 (1833)). Relevant evidence for an account stated includes documentation

or sworn testimony that a balance is final and definite and that the plaintiff sent account

statements received by the defendant without the defendant’s objection within a reasonable time.

See id. at 31, 35-36; Radford v. Fowlkes, 85 Va. 820, 852 (1889).

A debt buyer must then introduce evidence to prove that it has been assigned that original

contract or account between creditor and debtor. For debt buyers, available documentation

typically includes the purchase and sale agreements between each assignor and assignee in the

chain of title, along with files listing information on the specific accounts transferred from

assignor to assignee. See New Century Fin. Servs., Inc. v. Oughla, 98 A.3d 583, 591 (N.J. Super.

Ct. App. Div. 2014). Under Virginia Rules of Evidence 2:803(6) and 2:902(6), a debt buyer can

produce a live witness or affidavit of a custodian of record if the testimony or certification can

show that someone with personal knowledge produced a reliable record of the debt and its

transfer in the ordinary course of business. And the debt buyer can present live witness

testimony about the ownership of the debt more generally, so long as “evidence is introduced

sufficient to support a finding that the witness has personal knowledge of the matter.” Va. R.

Evid. 2:602.

Again, whatever admissible evidence the plaintiff chooses to present must meet its

burden of proof to show it owns the specific debt at issue. See Lewis’s Ex’r, 13 Va. (3 Hen. & M.)

- 14 - at 114. To trace a series of assignments back to the original creditor-debtor contract and prove the

plaintiff owns the defendant’s debt, evidence of each assignment must contain, at minimum, the

debtor’s name and account number associated with the debt.

This case’s facts are analogous to Green v. Ashby, 33 Va. (6 Leigh) 135 (1835). In Ashby,

the trial court found that the plaintiff, who alleged he had been assigned the right to payment of a

judgment debt against the debtor, could recover from the defendant, who was the purported

assignor’s attorney and had been paid the judgment debt. Id. at 135. The plaintiff presented the

following evidence that a purported assignor had assigned him the right to collect: bills for fees that

the purported assignor owed the plaintiff; a “mutilated paper, of which no sense c[ould] be made”

which the plaintiff testified was authority to prosecute and recover the judgment from the debtor;

and testimony from a witness who said the plaintiff had told him the plaintiff had an interest in the

claim, but that he “never saw any assignment.” Id. at 144 (Carr, J.). Our Supreme Court reversed.

Justice Carr found that even “allowing [the evidence] the utmost weight that in fairness can be

claimed for it, it proves no transfer of th[e] debt . . . from [the purported assignor] to the [purported

assignee].” Id. While the assignee said the debt was his, “surely, this, without assent or even

knowledge of the claim by [the assignor], could prove nothing.” Id. The scant evidence could not

“create that privity which is necessary to support an action” by the plaintiff against the defendant.

Id. at 145.

As in Ashby, to prove it had been assigned Green’s debt, PRA introduced several pieces of

documentary evidence along with testimony supporting those documents. And, as in Ashby, PRA

needed more evidence to meet its burden to prove it owned the right to recover on Green’s specific

account.

In other words, who owes the debt and who legally can collect the debt must be stated

clearly in the documentary evidence. Random spreadsheets with numbers do not meet the burden to

- 15 - prove who owns the right to recover a debt. A bill of sale must contain all the information and

attachments to authenticate the debt. At a minimum, the bill of sale must identify the debtor and the

amount of debt owed. The debt cannot be authenticated if there is no information in the bill of sale

that identifies the person or company regarding the details of the debt.

First, the documents PRA produced include no evidence that Green’s account traced back

from PRA to CIT Bank. PRA sought to trace its ownership of Green’s debt back to CIT Bank

through a series of four bills of sale: from CIT Bank to Webbank in September 2010, from

Webbank to Comenity Capital Bank in August 2013, from Comenity Capital Bank to Synchrony

Bank in July 2018, and from Synchrony Bank to PRA in June 2019. The first three bills of sale are

one-page documents that mention only “accounts” or “assets” transferred between the companies;

no attachments are mentioned in the bills of sale, and no documents introduced to the record list the

specific account numbers transferred in each sale. The final bill of sale from Synchrony Bank to

PRA mentions “the Accounts as set forth in the Notification Files,” but PRA did not produce the

“notification files.” PRA did produce a two-column spreadsheet with data for an account number

ending in 7068 with Green’s name, but the spreadsheet lacked a date, creditor name, and any means

of tying the spreadsheet to a specific bill of sale or otherwise identifying the source or purpose of

the document.10 It also produced a Synchrony Bank “pricing information addendum” for an

account ending in 7068, which PRA points to on brief as the “underlying PayPal account

10 PRA argues it could not produce further documentation of the accounts sold because doing so would result in other customers’ confidential account information being included. We agree that other customers’ confidential account information has no relevance and should not be produced. But PRA’s argument neither explains why a spreadsheet or other documentation could not be produced for each bill of sale for Green’s debt specifically, nor why the spreadsheet produced includes no headings or other information that tie it back to a specific bill of sale. - 16 - agreement,” but the addendum lacked Green’s name, signature, and the date of the agreement.11

And the monthly PayPal billing statements from July 2017 through September 2018 listing

customer name Mazie Green list a different account number ending in 8616 and fail to cover the

first 7 years of the account’s alleged history. We find this jumble of documents, without more, akin

to the mutilated paper in Ashby that purported to show the plaintiff had been assigned the claim he

sought to recover on.

With the documents unable to support chain of title or even the existence of the initial

agreement, that leaves the affidavits and testimony through which PRA sought to tie the documents

together. PRA introduced as a trial exhibit an affidavit signed and dated November 16, 2021—the

day before trial—by Castillo, “[s]enior [m]edia [a]ffidavit [r]epresentative” at Synchrony Bank.

Castillo attested that, based on his review of Synchrony Bank’s records, Green was issued a credit

card account ending 8616 on September 16, 2018, that account was changed to a number ending

7068 on June 24, 2019, and the account was sold to PRA on June 27, 2019. PRA also presented

Stacy, a PRA custodian of records, as a trial witness. Stacy testified that the two-column

spreadsheet with account number ending 7068 was produced near the time of the sale from

Synchrony to PRA.12 She did not testify that Green’s specific name and account number were part

11 In addition to being evidence that PRA did not own Green’s debt, we note that this could also be evidence that PRA failed to produce an underlying contract or agreement. See Brown, 54 Va. App. at 115; Bradshaw, 16 Va. App. at 379. Code § 8.01-32 outlines the procedures for lost written evidence of a debt, but the record does not include evidence that PRA “verifie[d] under oath either in open court or by affidavit that said . . . contract . . . or other written evidence of debt has been lost or destroyed.” That said, Green did not assign error to the trial court on this point. 12 Stacy also testified on cross-examination that the account number on the PayPal credit billing statements ended 8616, and when asked by Green “if the account ending number of 7068 was the same as the account ending number 8616,” Stacy said, “no.” This response could reasonably be interpreted as an admission that the two accounts were different. But viewing the facts in the light most favorable to PRA, we assume Stacy was making the equally reasonable observation that 7068 and 8616 are two different numbers. - 17 - of each assignment in the alleged chain of title—which, of course, she could not, because as

custodian of records at PRA, she could at most have personal knowledge, required by Rules 2:602

and 2:803(6), of the transaction between Synchrony Bank and PRA. She testified only that, for

each of the four bills of sale, the transfer agreement that would presumably list the specific account

numbers transferred could not be produced because “they contained the names and account numbers

of others” and were thus “confidential.” On balance, in the light most favorable to PRA, Castillo’s

affidavit and Green’s testimony show only that Synchrony information for an account ending 8616

in Green’s name was changed to one ending 7068 just before sale, and that account was sold to

PRA. Castillo and Stacy said nothing from which the circuit court could conclude that the chain of

title for an account in Green’s name passed from CIT Bank to Webbank, Webbank to Comenity

Capital Bank, or Comenity Capital Bank to Synchrony Bank. For those first three assignments, as

in Ashby, testimony purporting to tie the documents to the chain of assignments showed no

knowledge of the assignment.

However, O’Toole’s affidavit that PRA owned Green’s debt “based upon a review of the

business records of the Original Creditor CIT BANK/PAYPAL and those records transferred to

[PRA] from SYNCHRONY BANK . . . , which have become a part of and have integrated into

[PRA]’s business records, in the ordinary course of business,” is a single document that supports the

debt owed. But O’Toole, as custodian of records at PRA, could not have had personal knowledge

of the business practices of Synchrony, Comenity Capital Bank, Webbank, or CIT Bank. Thus, we

hold that without more evidence that Green’s account number was included in each transfer along

the alleged chain of title, the circuit court was plainly wrong to find PRA proved ownership of

Green’s debt. O’Toole’s testimony is unsupported by any documentary evidence or other

testimony. And even accepting, in the light most favorable to PRA, that Castillo’s affidavit and

- 18 - Stacy’s testimony established that the accounts ending 8616 and 7068 were the same, no evidence

links either account number back to CIT Bank, Webbank, or Comenity Capital Bank.

Other jurisdictions have reached the same conclusion when debt buyers present similar

evidence of ownership of a debt as what PRA presented here. The Ohio Court of Appeals reversed

a trial court finding that the plaintiff debt buyer owned a debt through two assignments, holding that

even if an affiant could properly authenticate “an uncertified Bill of Sale and an unconnected sheet

of paper consisting of a single entry which purported to show the specific note was transferred from

[the intermediate assignee] to [the plaintiff],” the plaintiff would still need to produce

documentation for each account “referenc[ing] the specific account number of the debtor’s

account.” Premier Cap., LLC v. Baker, 972 N.E.2d 1125, 1133, 1134 (Ohio Ct. App. 2012). The

Wisconsin Court of Appeals similarly found that, for a debt allegedly assigned three times, bills of

sale that “did not specifically reference any individual accounts or debts” or include any referenced

attachments were not “evidence indicating that [the plaintiff] own[ed] [the defendant’s] specific

debt.” Gemini Cap. Grp., LLC v. Jones, 904 N.W.2d 131, 136-38 (Wis. Ct. App. 2017) (also

finding that “nothing in [the plaintiff’s custodian of records’] affidavit reasonably implies that [the

custodian] would have had personal knowledge of the prior assignments of [the defendant’s] debt);

see also Wirth v. Cach, LLC, 685 S.E.2d 433, 435 (Ga. Ct. App. 2009) (reversing trial court finding

that the debt buyer owned the defendant’s debt because the affidavit of the plaintiff’s custodian of

records “fail[ed] to refer to or attach any written agreements which could complete the chain of

assignment from [the original creditor] to [the plaintiff]” and there was “no contract or [appendix]

appended to the Bill of Sale which identifie[d] [the defendant]’s account number as one of the

accounts [the original creditor] assigned to [the plaintiff]”); Kenny v. Portfolio Recovery Assocs.,

LLC, 464 S.W.3d 29, 34 (Tex. App. 2015) (finding no evidence of ownership of debt where bills of

- 19 - sale offered to prove assignments “d[id] not identify which accounts were transferred” and instead

“identifi[ed] another document that contains the information” that “[was] not a part of the record”).

In sum, we hold that a plaintiff who asserts ownership of a debt by assignment must produce

evidence, for each and every assignment, showing the chain of title for the debt passed from the

original assignor to the plaintiff. At minimum, such evidence must show that the defendant’s

account number, along with other relevant identifying information, was included in the assignment

(e.g., an attachment to a bill of sale listing account numbers and other identifying information that

traces back to the bill of sale by affidavit). If the claim is based on a written contract, the plaintiff

must produce evidence that the defendant signed and dated that agreement, or otherwise follow the

lost document affidavit procedures at Code § 8.01-32. If documentary evidence is unavailable for a

given assignment, the plaintiff must produce, by witness testimony or an affidavit, evidence from a

custodian of record or other qualified individual with personal knowledge that the defendant’s

specific account was assigned. See Va. R. Evid. 2:602; 2:803(6); 2:902(6).

Even viewed in the light most favorable to PRA, the scanty and incomplete evidence in the

record cannot prove that PRA owns Green’s debt through a chain of title tracing back to CIT Bank.

The circuit court was plainly wrong in finding otherwise.13

C. PRA’s Failure to Prove Ownership of Green’s Debt

Even if PRA did have standing to sue Green, the circuit court erred in ruling in favor of

PRA because there is no reliable evidence in the record to support its claim.14 PRA failed to take

13 Because we reverse and vacate the judgment against Green, we need not reach her third assignment of error, which argued that the court’s decision to pay PRA the cash bond in the amount of the alleged debt violated Green’s right to due process and right to be free from illegal seizure. 14 In her brief, Green’s arguments focus on the lack of evidence presented by PRA. Further, she argues that “The absence of specific documents mentioned in the [bills of sale] make an assignment unclear.” These are arguments about the merits of the case, specifically,

- 20 - any reasonable steps to substantiate the accuracy and validity of the debt, and it did not provide any

meaningful accounting to explain how Green’s purported debt was assigned. Thus, to the extent she

intended to challenge the merits of PRA’s claim rather than its standing, we hold that Green should

have prevailed. PRA failed to provide a reasonable level of documentary proof that it held legal

title to a debt belonging to Green.

The warrant in debt lacked documentation supporting the full chain of the assignment and

failed to establish that PRA owned the debt. Compounding the problem were the multiple layers of

assignment. Evidence of transfer must establish an unbroken chain of ownership. Each assignment

or other writing evidencing transfer of ownership must contain the debtor’s name and the account

number associated with the debt.

PRA’s claim was based on a written instrument—a contract between PayPal and Green.

But the original document was not produced, and its omission was not excused by the court for

good cause or by statute. Rule 7B:5. Nor was there any indication that the original document was

lost. A lost document affidavit should have been submitted, pursuant to Code § 8.01-32. Without

this documentation, proof of the amount owed was not established or validated. The affidavits and

various other documents did not provide proof of the debt nor the amount of the debt.

II. Green’s Counterclaim15

Green filed a counterclaim for $1,000 under the FDCPA, 15 U.S.C. §§ 1692-1692p. Her

counterclaim alleged that PRA violated the FDCPA by “not reviewing their business records or

ones they have been allegedly assigned,” “robo-signing” the affidavit of O’Toole, and attaching “a

arguments that PRA has not sufficiently established that it owned any debt owed by Green. These arguments sufficiently contest the circuit court’s ruling for PRA on the merits. 15 In her brief, Green argues that “[t]he trial court erred as a matter of law by finding that . . . Green’s FDCPA counterclaim failed.” This statement sufficiently raises the argument that the trial court erred in ruling for PRA on Green’s counterclaim. - 21 - deceptive, misleading, and undated letter” to the warrant in debt informing her that a lawsuit had

been filed. The circuit court entered judgment against Green on her counterclaim.

As stated above in Section I.B., the FDCPA requires debt collectors to validate

consumers’ debts within five days of the initial communication with a consumer. The

requirements of the FDCPA are laid out in that section, above. See generally 15 U.S.C.A.

§ 1692g.

A debt collector who fails to comply with any provision of the FDCPA with respect to

any person is liable to such person in an amount set by law.16 15 U.S.C.A. § 1692k. In

determining the amount of liability under the FDCPA in an individual action, courts are required

to consider the following factors: the frequency and persistence of noncompliance by the debt

collector, the nature of such noncompliance, and the extent to which such noncompliance was

intentional. Id.

Here, the circuit court abused its discretion by finding the debt was valid and dismissing

Green’s counterclaim. As evidenced by the record, Green repeatedly asked that her debt be

validated by PRA and it was not. Although the debt is required to be validated prior to the legal

proceeding, even if this Court considers Stacy’s testimony at trial, PRA still did not provide the

proper information to validate the debt. As outlined above, at trial Stacy testified that (i) none of

the bills of sale listed Green’s name or account number, (ii) the data sheet listing an account number

ending 7068 included with the bill of particulars lacked the creditor’s name, and (iii) the account

number on the PayPal credit billing statement ended in 8616 was not the same account as the

16 This includes amounts equal to the sum of “any actual damage sustained by such person as a result of” the violations; in a case filed by an individual, damages up to $1,000 in the discretion of the court; or in a class action case, individual damages for named class members up to $1,000 and a collective recovery up to $500,000 or one percent of the net worth of the offending debt collector. 15 U.S.C.A. § 1692k(a). Claimants may also recover attorney fees and costs. Id. - 22 - account ending number of 7068. PRA largely bases its sufficiency argument on inadequate

spreadsheets and testimony that fails to verify that the debt was owed by Green. Additionally, at

oral argument, both Green and PRA were asked if the debt was validated and neither party could

point to any evidence to answer that question affirmatively.

PRA asks this Court to draw an inference, based on the circuit court’s statement of facts,

Castillo’s affidavit, and Stacy’s testimony at trial, that PRA established that the debt belonged to

Green. However, none of these pieces of evidence, considered individually or collectively, are

enough to satisfy PRA’s burden of verifying or validating the debt, and the circuit court was

plainly wrong in determining that the debt was valid. Verifying and validating a debt are critical

parts of the debt collection process that ensures fairness in debt collections.17 Because PRA has

not validated the debt here, we remand the case for the circuit court to re-examine whether PRA

violated the FDCPA.

17 Considering the factors laid out in 15 U.S.C.A. § 1692k, PRA’s failure to validate the debt clearly demonstrated their noncompliance with the FDCPA. The “evidence” PRA presented at trial is questionable at best and fails to validate the debt as required by the FDCPA. Additionally, Green’s allegations that PRA was engaged in “robo signing” the affidavit of O’Toole, and attaching “a deceptive, misleading, and undated letter” would also violate the FDCPA and flies in the face of the very behavior against which the federal legislature is trying to protect. The nature of PRA’s noncompliance not only comes at a significant financial detriment to Green but is also in violation of one of the most basic and fundamental requirements under the FDCPA, to validate and verify the debt. Finally, in addition to the aforementioned factors, PRA has history of violating FDCPA, which is a factor this Court “shall consider” in determining the amount of liability in this action. See 15 U.S.C.A. § 1692k(b); see also Wiley v. Portfolio Recovery Assocs., LLC, 594 F. Supp. 3d 1127 (D. Minn. 2022); Pantoja v. Portfolio Recovery Assocs., LLC, 852 F.3d 679 (7th Cir. 2017); Bowse v. Portfolio Recovery Assocs., LLC, 218 F. Supp. 3d 745 (N.D. Ill. 2016); Litt v. Portfolio Recovery Assocs. LLC, 146 F. Supp. 3d 857 (E.D. Mich. 2015). - 23 - III. General District Court Recognizance

Next, Green seeks to challenge the general district court’s issuance of a recognizance to her

when trial was continued from May 2021 to July 2021. She argues that Code § 8.01-40818 violates

the Fourteenth Amendment and the FDCPA as applied to “the issuance of a [r]ecognizance on

behalf of a debt collector.”

Green’s argument is waived. Her appeal challenges the general district court’s decision to

issue her a recognizance. But Code § 17.1-405 states that “any aggrieved party may appeal to the

Court of Appeals from . . . any final judgment, order, or decree of a circuit court in a civil matter.”

Code § 17.1-405(A)(3) (emphasis added). This Court lacks jurisdiction to review a general district

court’s order.

CONCLUSION

For all these reasons, we reverse and vacate the circuit court’s judgment against Green and

remand for the court to enter final judgment that Green does not owe a debt to PRA and to further

consider Green’s counterclaim against PRA.

Reversed, vacated, and remanded.

18 Code § 8.01-408 provides:

Upon the continuance of any civil case in a court, the court shall at the request of any party litigant require such party’s witnesses then present to enter into recognizance in such penalty as the court may deem proper, either with or without security, for their appearance to give evidence in such case on such day as may then be fixed for the trial thereof. - 24 -

I join my colleagues in holding that this Court lacks jurisdiction to review the general

district court’s decision to issue a recognizance to Green. But I respectfully dissent from the

majority’s holding “that the assignment of rights alleged here [by PRA] created a standing

issue.” And I also respectfully dissent from the majority’s holding with respect to Green’s

counterclaim.

A. Standing

In her assignment of error relevant to this issue, Green asserts that the trial court erred

“by finding that PRA was entitled to judgment against [her] . . . because PRA lacked standing to

sue.” In her argument developing this issue, Green contends that PRA lacked standing to sue

because it failed to prove that it owned the debt it sought to collect from her. Green thus

conflates an evidentiary sufficiency issue comprising part of PRA’s case-in-chief with the issue

of PRA’s standing to bring that case in the first place, an error replicated by the majority in its

opinion.19 But as our Supreme Court makes clear in its recent decision in Morgan, “courts must

not ‘conflate the threshold standing inquiry with the merits of [a litigant’s] claim.’” Morgan v.

Bd. of Supervisors of Hanover Cnty., ___ Va. ___, ___ (Feb. 2, 2023) (alteration in original)

(quoting Pitt Cnty. v. Hotels.com, L.P., 553 F.3d 308, 312 (4th Cir. 2009)).

19 Compare McClary v. Jenkins, 299 Va. 216, 221 (2020) (“[S]tanding to maintain an action is a preliminary jurisdictional issue having no relation to the substantive merits of an action.” (quoting Andrews v. Am. Health & Life Ins. Co., 236 Va. 221, 226 (1988))), with Little v. Cooke, 274 Va. 697, 718 (2007) (“Generally, the appropriate way to test the sufficiency of evidence” during or after a trial on the merits “is by a motion to strike or by a motion to set aside a verdict.”), and Gabbard v. Knight, 202 Va. 40, 43 (1960) (noting that “a motion to strike is an appropriate way of testing the sufficiency of relevant evidence to sustain an adverse verdict” on the merits and that “a motion to set aside the verdict [i]s an equally appropriate method of testing the sufficiency of the evidence” following a trial on the merits). - 25 - In Morgan, a number of homeowners challenged their county board of supervisors’

approval of rezoning and special use permits authorizing construction of a large commercial

facility near their homes. Id. at ___. The homeowners brought an action against the board,

alleging that it had violated Virginia law and seeking declaratory and injunctive relief. Id. at

___. To support their standing to pursue their claims against the board, the homeowners alleged

that the approved commercial facility would have a disproportionate effect on them beyond the

effect experienced by the larger public and proffered “various likely scenarios of th[eir]

particularized harm.” Id. at ___. The circuit court dismissed the case on demurrers,20 holding,

among other things, that the homeowners’ pleadings failed to allege a sufficient factual basis to

establish standing. Id. at ___, ___. The Supreme Court reversed the circuit court and remanded

the matter for further proceedings, after determining that the homeowners in fact had standing to

assert all their claims. Id. at ___, ___.

In reversing the circuit court, the Supreme Court availed itself of the opportunity to

engage in a thorough discussion of the fundamental distinction between standing and decision on

the merits, noting that the standing requirement “can be satisfied without the necessity of

asserting a plausibly successful claim on the merits” and that “‘standing . . . is a preliminary

jurisdictional issue having no relation to the substantive merits of an action.’” Id. at ___ (quoting

McClary v. Jenkins, 299 Va. 216, 221 (2020)). This was so because fundamentally, “[t]he

concept of standing concerns itself with the characteristics of the person or entity who files suit,”

rather than their likelihood of ultimate success. Id. at ___ (quoting Anders Larsen Tr. v. Bd. of

20 The circuit court initially sustained demurrers to all counts of the complaint, holding that the homeowners lacked standing but granting leave to amend several counts. Morgan, ___ Va. at ___. The homeowners filed an amended complaint alleging additional details to support their assertion of standing, to which the circuit court also sustained demurrers. Id. at ___. - 26 - Supervisors of Fairfax Cnty., 301 Va. 116, 120 (2022)). The Court further observed that “[t]his

distinction, though subtle, plays an important role in the judicial process,” because

[n]early every form of judicial relief (damages, specific performance, injunctive remedies, extraordinary writs, etc.) requires proof of a specific legal right that was infringed and that is capable of being remedied by a court. If the standing analysis simply tracked this decisional sequence on the merits, it could create an absurdity: A court would never be able to decide the merits of a claim against a claimant because that would mean the court never had jurisdiction to address the merits in the first place.

Id. at ___. “Instead,” the Court noted, “as ‘a preliminary jurisdictional issue,’ the standing

doctrine asks only whether the claimant truly has ‘a personal stake in the outcome of the

controversy.’” Id. at ___ (quoting McClary, 299 Va. at 221-22); see also McClary, 299 Va. at

222 (noting the “personal stake” requirement and that “[t]ypically, to establish standing a

plaintiff must allege a particularized injury that is separate from the public at large”).21

Considering the “personal-stake factors” germane to the specific context before it, the Court

ultimately concluded that “[t]he homeowners’ factual allegations in this case, when assumed to

be true,” satisfied the injury requirement “for purposes of standing.”22 Id. at ___.

21 Reinforcing the fundamental standing/merits distinction, the Court in Morgan further “agree[d] that standing requires particularized harm to ‘be fairly traceable’” to a defendant’s actions, but noted that “the ‘fairly traceable’ concept ‘does not mean that “the defendant’s actions are the very last step in the chain of causation.”’ If it did, then the standing analysis would be no different from a merits analysis that turned upon causation principles.” Morgan, ___ Va. at ___ (emphasis added) (citations omitted) (quoting Mattaponi Indian Tribe v. Va. Dep’t of Env’t Quality, 261 Va. 366, 376 (2001)). 22 The majority attempts to distinguish Morgan as irrelevant to Green’s appeal, noting that “whether a plaintiff attempting to collect on a [debt]” where “proof that it owns the debt” is contested “raises a question of standing or a defect in the plaintiff’s case-in-chief” has “only [been] considered” by Virginia courts “in the context of real property.” But it is of no consequence that Morgan addresses this question in resolving a real property dispute. As noted above, the Supreme Court in Morgan engaged in a broad discussion of the analytical distinction between standing and decision on the merits and it made no representation that its holding about this fundamental distinction is limited to the real property context or lacks general applicability to all civil litigation. See Morgan, ___ Va. at ___; see also id. at ___ (noting that “[i]n zoning

- 27 - I conclude that Morgan is controlling on the issue raised by Green’s assignment of error

and developed in her argument on brief. Whether PRA owned Green’s debt was a matter for the

circuit court to consider on the merits and did not create a standing issue, because proof of

PRA’s ownership of the debt went to the ultimate success or failure of PRA’s claim and not

PRA’s “characteristics” as a creditor facing harm if a debt to it were not repaid. Id. at ___

(quoting Anders Larsen Tr., 301 Va. at 120); see also Howell v. McAuliffe, 292 Va. 320, 330

(2016) (“Standing concerns itself with the characteristics of the individuals who file suit and

their interest in the subject matter of the case.”). As noted by the Court in Morgan, to have

required PRA to prove ownership of the debt in order to establish standing could potentially have

led to an absurd result, because “[i]f the standing analysis simply tracked th[e] decisional

sequence on the merits,” the circuit court “would never [have] be[en] able to decide the merits of

[PRA’s] claim against [it] because that would mean the court never had jurisdiction to address

the merits in the first place.” Morgan, ___ Va. at ___. Thus, to establish standing, PRA needed

only to plead sufficient facts that, “when assumed to be true,” would satisfy standing’s “personal

stake” or particularized harm requirement. Id. at ___ (emphasis added); see also Howell, 292

Va. at 330 (“[S]tanding can be established if a party alleges he or she has a ‘legal interest’ that

has been harmed by another’s actions.” (emphasis added) (citation omitted)). Accordingly, I

respectfully dissent from the majority’s holding “that the assignment of rights alleged here [by

PRA] created a standing issue.”

Further, I do not reach the merits of the issue whether PRA proved it owned Green’s debt

and the circuit court erred in ruling in favor of PRA. As noted above, Green’s assignment of

error asserts that the circuit court erred “by finding that PRA was entitled to judgment against

cases, no less than all others, allegations of standing” require assertions of injury (emphasis added)). - 28 - [her] . . . because PRA lacked standing to sue.” Green’s assignment of error is thus limited

solely to the issue of standing; it does not encompass the question of whether PRA’s evidence at

trial was sufficient to prove its ownership of Green’s debt and thus to support the circuit court’s

judgment in favor of PRA. Although I am not unsympathetic to Green’s circumstances, and her

status as a pro se litigant in the circuit court and before this Court, I conclude that the limits of

Green’s assignment of error do not allow us to address any issue beyond standing. It is well

established in Virginia, and recently has been reiterated by our Supreme Court, that “[t]he

purpose of assignments of error is to point out the errors with reasonable certainty in order to

direct [the] court and opposing counsel to the points on which appellant intends to ask a reversal

of the judgment, and to limit discussion to these points.”23 Moison v. Commonwealth, ___ Va.

___, ___ (Oct. 19, 2023) (alterations in original) (quoting Yeatts v. Murray, 249 Va. 285, 290

(1995)). “In this way, ‘[a] properly aimed assignment of error must “point out” the targeted error

and not simply take “a shot into the flock” of issues that cluster around the litigation.’” Stoltz v.

Commonwealth, 297 Va. 529, 534 (2019) (alteration in original) (quoting Forest Lakes Cmty

Ass’n v. United Land Corp. of Am., 293 Va. 113, 122 (2017)). An assignment of error thus

“cabins the error that th[e] Court can consider.” Moison, ___ Va. at ___; see also Rule 5A:20(e)

(requiring an appellant’s assignments of error to clearly frame the issues raised before the Court).

And Virginia case law makes clear that a party “who represents h[er]self is no less bound by the

rules of procedure and substantive law than a [party] represented by counsel.” Hammer v.

Commonwealth, 74 Va. App. 225, 236 (2022) (quoting Townes v. Commonwealth, 234 Va. 307,

319 (1987)); see also Townes, 234 Va. at 319 (“[T]he ‘right of self-representation is not a

license’ to fail ‘to comply with the relevant rules of procedural and substantive law.’” (quoting

23 And even more recently, our Supreme Court made clear its disapproval of this Court addressing issues that were neither briefed nor argued by the parties. See Commonwealth v. Puckett, ___ Va. ___, ___ (Nov. 22, 2023). - 29 - Faretta v. California, 422 U.S. 806, 834 n.46 (1975))). Accordingly, I do not reach the merits of

whether or not PRA proved it owned Green’s debt and the circuit court erred by ruling for

PRA.24

B. Green’s Counterclaim

Green assigns error to the circuit court for “finding that [her] FDCPA counterclaim failed

because her counterclaim was never heard[,] violating due process.”25 Here, the circuit court’s

final order of January 3, 2022, clearly indicates that Green’s counterclaim was heard: “Green

was present at this Circuit Court appeal and represented herself. . . . Whereupon the Court heard

the evidence presented on behalf of both parties and the argument of counsel . . . and . . . finds

and determines that [Green]’s counterclaim fails and she is not entitled to judgment on same.” It

is well-established that a “circuit court speaks through its orders,” Roe v. Commonwealth, 271

Va. 453, 458 (2006), and that “such orders are presumed to reflect accurately what transpired,”

Temple v. Mary Wash. Hosp., Inc., 288 Va. 134, 141 (2014). Accordingly, because the circuit

court heard Green’s counterclaim against PRA, I would reject Green’s due process argument and

affirm the circuit court’s judgment on the counterclaim.26

24 Because I do not reach the merits of whether the circuit court erred by entering judgment on the debt in favor of PRA, I also do not reach the merits of Green’s third assignment of error, which alleges that the circuit court erred by paying her cash bond to PRA. 25 On brief, Green explicitly invokes only her due process rights under the Fourteenth Amendment to the Constitution of the United States. Her argument, however, appears also to implicate her due process rights under Article I, Section 11 of the Constitution of Virginia. 26 See my discussion, supra, of the controlling Virginia case law on the role of assignments of error in shaping and limiting an appellate court’s analyses. - 30 -