In a Virginia debt collection case, can the creditor's lawyer sign and file the affidavit stating the amount owed, or does the creditor have to sign it personally?

Plain-English summary

Virginia Code section 8.01-28 permits a plaintiff in an action on a note or contract for payment of money to file an affidavit stating the claim amount. The affidavit may be made by the plaintiff or an agent. The Virginia State Bar asked whether a plaintiff's lawyer can be that agent in a debt collection case.

The AG answered yes: the plaintiff's attorney is an agent within the meaning of section 8.01-28 and may sign and file the affidavit. The statute neither expressly authorizes nor prohibits an attorney from serving as agent. The opinion applies the ordinary meanings of "agent" and "attorney" and the general rule that a lawyer is the client's agent.

A footnote adds that the particular attorney-client relationship and the attorney's knowledge of the amount owed are relevant to whether a court would accept an affidavit filed by the lawyer. It does not set an independent knowledge threshold for the lawyer's authority to sign or give a categorical rule about a particular affidavit's acceptance.

Currency note

The opinion was issued in 2009. Check the current text of section 8.01-28 and the facts of the case before using it.

Background and statutory framework

For a qualifying action on a note or contract, section 8.01-28 describes an affidavit "made by [the plaintiff] himself or his agent" stating, to the affiant's best belief, the amount claimed, that it is justly due, and the time from which interest is claimed. The AG quoted dictionary definitions of an agent as one authorized to act for another and an attorney as a legal agent designated to transact business for another. The opinion also cites the Virginia rule that an attorney may take lawful steps to protect the client's interest.

What the opinion means for you

Plaintiffs and their lawyers

The client need not personally sign the section 8.01-28 affidavit merely because the statute says "himself or his agent." The attorney may sign and file it as the client's agent. The opinion's footnote leaves acceptance of a particular attorney-filed affidavit dependent in part on the attorney-client relationship and the lawyer's knowledge of the amount owed.

Defendants

The opinion resolves who may sign and file the plaintiff's affidavit. It does not decide whether an individual claim is correct or whether a particular affidavit is acceptable to the court.

Common questions

Q: Must the plaintiff sign the amount-due affidavit personally?
A: No. Section 8.01-28 permits an affidavit by the plaintiff or the plaintiff's agent, and the AG concluded that the attorney may act as that agent in a debt collection case.

Q: Must the attorney satisfy a specific knowledge test before signing?
A: The opinion states no separate test for signing. Its footnote says the attorney's knowledge of the amount owed and the particular attorney-client relationship are relevant to whether a court would accept the affidavit.

Q: Does this opinion decide whether a specific affidavit will be accepted?
A: No. It answers the general question of whether the plaintiff's lawyer qualifies as an agent under section 8.01-28.

Citations

• Va. Code Ann. § 8.01-28 (affidavit-judgment in actions on notes and contracts)
• Va. Elec. & Power Co. v. Bowers, 181 Va. 542 (1943) (attorney as agent of client)
• Sansom v. Bd. of Supvrs., 257 Va. 589 (1999) (plain meaning in absence of statutory definition)
• Commonwealth v. Orange-Madison Coop. Farm Serv., 220 Va. 655 (1980)
• Black's Law Dictionary (8th ed. 2004) (definitions of "agent" and "attorney")

Source

• Landing page: https://www.oag.state.va.us/annual-reports-opinions/official-opinions
• Original PDF: https://www.oag.state.va.us/files/Opinions/2009/08-100-Gould.pdf

Original opinion text

COMMONWEALTH of VIRGINIA
Office of the Attorney General
900 East Main Street
Richmond, Virginia 23219
804-786-2071
FAX 804-786-1991
Virginia Relay Services
800-828-1120
7-1-1

February 25, 2009

Ms. Karen A. Gould
Executive Director and Chief Operating Officer
Virginia State Bar
707 East Main Street, Suite 1500
Richmond, Virginia 23219-2800

Dear Ms. Gould:

I am responding to your request for an official advisory opinion in accordance with § 2.2-505 of the Code of Virginia.

Issues Presented

You ask whether the term "agent," as used in § 8.01-28, would include a plaintiff's attorney in a debt collection case and whether, as plaintiff's agent, he may sign and file an affidavit stating plaintiff's claim amount.

Response

It is my opinion that the plaintiff's attorney in a debt collection case is an agent as that term is used in § 8.01-28, and he may sign and file an affidavit stating plaintiff's claim amount.

Applicable Law and Discussion

Section 8.01-28 provides, in pertinent part, that:

In any action at law on a note or contract, express or implied, for the payment of money, … if (i) the plaintiff files with his motion for judgment or civil warrant an affidavit made by himself or his agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that such amount is justly due, and the time from which plaintiff claims interest, and (ii) a copy of the affidavit together with a copy of any account filed with the motion for judgment or warrant …, the plaintiff shall be entitled to a judgment on the affidavit and statement of account without further evidence[.]

Section 8.01-28 does not include a reference to an "attorney" and is silent regarding whether an attorney may serve as an agent. Although § 8.01-28 does not expressly authorize an attorney to serve as plaintiff's agent, it does not prohibit it.

Absent a statutory definition, the plain and ordinary meaning of the term is controlling.[1] "Agent" means "[o]ne who is authorized to act for or in place of another; a representative."[2] Further, "attorney" means "one who is designated to transact business for another; a legal agent."[3] Thus, as a general rule, "an attorney is the agent of his client, and has authority to take all lawful steps for the protection of his client's interest."[4]

Although § 8.01-28 does not specifically provide that an attorney may serve as the agent of a plaintiff,[5] the ordinary meanings of the terms "agent" and "attorney" do not prohibit application of the general principle that an attorney is the agent of his client and may be given authority by his client to file certain documents on the client's behalf.[6]

Conclusion

Accordingly, it is my opinion that the plaintiff's attorney in a debt collection case is an agent as that term is used in § 8.01-28, and he may sign and file an affidavit stating plaintiff's claim amount.

Thank you for letting me be of service to you.

Sincerely,

William C. Mims
Acting Attorney General
2:874; 1:941/08-100

1. See Sansom v. Bd. of Supvrs., 257 Va. 589, 594-95, 514 S.E.2d 345, 349 (1999); Commonwealth v. Orange-Madison Coop. Farm Serv., 220 Va. 655, 658, 261 S.E.2d 532, 533-34 (1980); Op. Va. Att'y Gen.: 2006 at 128, 132; 2003 at 137, 138; id. at 104, 106.
2. BLACK'S LAW DICTIONARY 68 (8th ed. 2004).
3. Id. at 138.
4. Va. Elec. & Power Co. v. Bowers, 181 Va. 542, 547, 25 S.E.2d 361, 363 (1943).
5. See supra notes 2 and 3 and accompanying text.
6. Of course, the particular attorney-client relationship and the attorney's knowledge concerning the amount owed are relevant to determine whether an affidavit filed by a plaintiff's attorney would be acceptable to a court.