DISCLAIMER: I'm not an attorney and this isn't legal advice. It is for informational purposes only. Legal information is not legal advice. ~ Allen Harkleroad
I’ve been receiving a lot of email regarding Junk Debt Buy collection lawsuits. In nearly all cases the junk debt buyer seems to be manufacturing documents to use in court, or creating questionable affidavits and filing them. In nearly all cases these affidavits of account or record are hearsay be default. However if it were me I would file a sworn graduated denial with the court (read my book), to in effect make all affidavits filed by the junk debt collector heresy. If you do not contest the affidavits or questionable exhibits many times a judge won’t rule on them and by default allow the documents. You must question them all in court so that a judge will exclude or not allow them.
Below are several legal precedents (legal decisions) that may cite as objections, and/or motions or briefs that you may in the course of defending yourself in court.
Affidavits are often submitted to prove default that are conclusory and insufficient. Manufacturers & Traders Trust Co. v. Medina, 01 C 768, 2001 WL 1558278, 2001 U.S. Dist. LEXIS 20409 (N.D.Ill., Dec. 5, 2001); Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 129, 595 N.E.2d 177, 181-82 (2nd Dist. 1992) (where bank officer's "affidavit essentially consisted of a summary of unnamed records at the bank," unaccompanied by records themselves and unsupported by facts establishing basis of officer's knowledge, foundation was lacking for admission of officer's opinion
regarding amount due on loan); Asset Acceptance Corp. v. Proctor, 156 Ohio
App. 3d 60; 804 N.E.2d 975 (2004). Computer-generated bank records or
testimony based thereon are often offered without proper foundation, or are
summarized without being introduced. Manufacturers & Traders Trust Co.
v. Medina, supra; FDIC v. Carabetta, 55 Conn.App. 369, 739 A.2d 301
(1999), leave to appeal denied, 251 Conn. 927; 742 A.2d 362 (1999).
A witness cannot “testify” by regurgitating the content of business records
that a witness has reviewed when the witness has not seen or heard the
events in question. Such regurgitation is hearsay, plain and simple. Wahad
v. Federal Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In
re McLemore, 2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio
App. 2004); Nebraska v. Ward, 510 N.W.2d 320, 324 (Neb. App. 1993)..
“There is no hearsay exception . . . that allows a witness to give hearsay
testimony of the content of business records based only upon a review of
the records.” Grant v. Forgash, 1995 Ohio App. LEXIS 5900, *13 (Ohio
App. 1995). See generally, Trujillo v. Apple Computer, 578 F. Supp. 2d 979
(N.D.Ill. 2008), condemning the inclusion in an affidavit of information
supplied by others.
A good case (from the debtor’s perspective) involving debt buyer affidavits
is Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 Tex.App. LEXIS
7096 (2nd Dist. Ft. Worth Aug. 31, 2007).
In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.
Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt
buyer “assignment” that does not refer to specific accounts does not
establish ownership by the plaintiff, nor is testimony based on a computer
National Check Bureau v. Ruth, No. 24241, 2009 Ohio 4171 (Ct. App., 9th
Dist., Aug. 19, 2009) (document referring to transfer of accounts on Exhibit
1, without Exhibit 1, not sufficient to “prove the assignment”).
“Generic” contracts that cannot be identified as pertaining to the specific account sued upon, Velocity Investments, LLC v. Alston, 2-08-746 (2nd Dist., Jan. 15, 2010), supra.
Filing a single lawsuit without having in hand the means of proving it is not a violation of the FDCPA (Harvey v. Great Seneca Financial Corp., 453 F.3d 324, 330 (6th Cir. 2006)), but a practice of filing lawsuits with the intent of dismissing them if they are contested may be a violation of the FDCPA (Mello v. Great Seneca Financial Corp., 526 F.Supp.2d 1020 (C.D.Cal. 2007)).
Source: Collection Defense February 2010 PDF, this document written by attorney Daniel A. Edelman has a large amount of debt buyer defenses, legal citations and other collection case information including examples of FDCPA violations. Anyone that is fighting debt collectors, especially junk debt buyers should review the document and consider making use of the legal precedents contained in it.