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 § 8.01-28 gives a creditor a fast track to judgment in debt collection cases. If the creditor files an affidavit of the amount due along with the motion for judgment or civil warrant, and the defendant fails to respond with a counter-affidavit, the court can enter judgment on the affidavit alone, without taking live testimony. The statute says the affidavit must be made "by [the plaintiff] himself or his agent."

The Executive Director of the Virginia State Bar asked the Attorney General whether the plaintiff's lawyer counts as that "agent." Acting Attorney General William Mims said yes. The statute does not define "agent," and absent a definition the plain meaning controls. An "agent," from Black's Law Dictionary, is "[o]ne who is authorized to act for or in place of another." An "attorney" is "one who is designated to transact business for another; a legal agent." Putting those together, an attorney is, by default, the agent of the client. Section 8.01-28 does not say attorneys are excluded, and the general principle of Virginia law (citing Va. Elec. & Power Co. v. Bowers) is that an attorney has authority to take all lawful steps for the protection of the client's interest.

There is one obvious caveat the opinion flags in a footnote: the attorney must actually know the amount owed to sign the affidavit. The trial court has discretion to decide whether the affidavit is acceptable in the specific case, which is a polite way of saying that a lawyer who signs an affidavit with no real knowledge of the underlying account is not safe from a credibility challenge or a sanction.

Currency note

This opinion was issued in 2009. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Background and statutory framework

Section 8.01-28 is part of Virginia's expedited-judgment mechanism for actions on notes and contracts. Where the plaintiff sues to recover money due, the statute allows the plaintiff to bundle the complaint with an affidavit of amount due and a copy of any account. If the defendant does not file an opposing affidavit, the court can enter judgment for the plaintiff on the affidavit and account, without further proof. The statutory text:

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[.]

The statute is silent on whether "agent" includes the plaintiff's attorney. That is the question the Virginia State Bar raised.

Virginia's general rule of statutory construction is that, absent a statutory definition, courts apply the plain and ordinary meaning of a term. Dictionaries supply that meaning. Black's Law Dictionary, eighth edition, defines "agent" as one authorized to act for or represent another, and "attorney" as one designated to transact business for another (a legal agent).

The broader Virginia agency principle is the one the AG quotes from Va. Elec. & Power Co. v. Bowers: "[A]n attorney is the agent of his client, and has authority to take all lawful steps for the protection of his client's interest." The default agency relationship the statute requires is already present in the attorney-client relationship.

What the AG concluded

The plain meaning of "agent" and "attorney" overlap. An agent is one authorized to act for another, and an attorney by definition is a legal agent designated to transact business for the client. The two terms are not mutually exclusive.

Section 8.01-28 does not exclude attorneys. The statute is silent on attorneys, neither expressly authorizing nor expressly prohibiting them. Silence, in this context, leaves the default agency principle in place. An attorney has authority to take all lawful steps for the protection of the client's interest, and that authority extends to filing an affidavit on the client's behalf when authorized by the client.

The trial court still has discretion over acceptability. In a footnote, the AG noted that "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." This signals that the AG's conclusion is a green light at the general statutory level, but trial judges retain the case-by-case role of evaluating the affidavit's reliability.

Common questions

Why would a creditor want the lawyer to sign the affidavit instead of the creditor?
Speed and logistics. In high-volume collection practices, especially institutional creditors with national or regional operations, getting an authorized employee to swear out an affidavit for each Virginia case adds time. Letting local counsel sign streamlines the filing.

Does the lawyer have to personally know the debt is owed?
The statute requires the affiant to swear "to the best of the affiant's belief" what the plaintiff's claim is, that it is justly due, and the interest start date. An attorney signing such an affidavit needs a good-faith basis for the belief, which usually means reviewing the client's records, statement of account, and any contractual documentation. Signing on blind reliance on the client's say-so creates risk under the ethical rules and exposure to court sanctions.

Can a debtor block the affidavit-judgment process?
Yes. Section 8.01-28 requires the affidavit to be served on the defendant, and if the defendant files a counter-affidavit denying the claim or any portion of it, the case proceeds normally to a contested hearing or trial. The affidavit shortcut works only when the defendant does not respond.

Does this opinion authorize attorneys to sign other types of client affidavits?
The opinion is limited to § 8.01-28 affidavits in debt collection cases. The general principle (an attorney is the client's agent and can take lawful steps for the client's interest) is broader, but other statutes that require an affidavit may have their own language and case law. For example, statutes requiring an affidavit of personal knowledge from a particular witness may not permit attorney substitution.

Is the trial court likely to reject an attorney-signed affidavit?
The opinion leaves that to case-by-case judgment. Courts generally accept affidavits from attorneys who have reviewed the underlying records and can attest to the amount on belief. Affidavits that look like blanket lawyer assertions without specific knowledge are vulnerable.

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.