Talking to people about standing up to debt collectors is a hard sell. Most people are too afraid of the court systems and lawyers to stand up for themselves. Once someone realizes that the courts are mostly paperwork and that lawyers are not some super breed of human, they have taken the first steps in getting out from under collectors and credit scores.
The next step usually occurs when the person decides to fight. The next big mental hurdle is usually based on the debt collector filing or sending an Affidavit. This usually looks like a trump card played by the debt collector.
An affidavit is usually not a trump card, but an elaborate bluff to get you to fold. Once you realize that these affidavits are bluffs, you can take one of two courses. If the affidavit was mailed to you out side of any court action, you can reply to the collector in a simple letter. I have just told them that their Affidavit was flawed and leave it at that. I don’t want to show my hand if they later use the flawed affidavit in a court proceeding.
The other common scenario is that it is filed into a court. In this situation, I would file a Motion to Strike Affidavit. Point out all of the flaws in the Affidavit and ask the court to Strike the collector’s defective document.
Let’s start by looking at what an Affidavit is or should be:
An affidavit is a written sworn statement of fact voluntarily made by an affiant or deponent under an oath or affirmation administered by a person authorized to do so by law. Such statement is witnessed as to the authenticity of the affiant’s signature by a taker of oaths, such as a notary public or commissioner of oaths (Wikipedia)
An affidavit is a sworn testimony to a witnesses first hand, fact knowledge. It is sworn to in front of a notary or other officer.
If you get nothing else from this article, remember this:
Affidavits are Usually Not Admissible at Trial
(LHR INC. v Ayree MD – 2010)
When you first get an affidavit from a collector, be it in the mail as proof or in a court filing of proof, take a deep breath and read it. It is likely so flawed that you will feel relieved after you think about it.
One of the first things to check for are the notary’s signature. Is it notarized? Do the dates match? Do a search on the internet for the notary’s name and there name plus the term “robo signer”. What did you learn? It is not uncommon for the collectors to put in affidavits that aren’t notarized. Attack all flaws. For more insight on the collector’s bogus process read Midland vs. Brent.
Next look at the statements that the affiant is claiming. Are they all statements the affiant has first hand fact knowledge? Usually not. Let’s look at some common statements:
- My name is Joe Dirtbag and I am over 18 years old and am of sound mind. This is probably about the only statement that the collector will make that is sound.
- I work at Palisades Collection Company. Where is the proof of this? This is speaking to facts not in evidence unless proof is attached.
- Mike Smith owes $10679.98 to Acme Collection Company. How does the affiant know this? An affiant must show the source of their knowledge – Sherman Acquisition II LP v. Garcia (Tx Ap 2007).
- Chase Bank sold the account to Acme Collectors, who in turn sold it to Palisades Collection Company. How does the affiant know this? Were they there? All statements on an affidavit must be made on first hand factual knowledge that the affiant is competent to testify (Palisades Collection, LLC. v. Gonzalez (2005); Citibank v. Martin; Unifund CCR Partners v. Dover; Luke v. Unifund CCR Partners (Tx Ap 2007)) This person was clearly not at the sale of accounts from the first transaction from Chase to Acme as they never worked there. They have no first hand factual knowledge.
- Mike Smith opened the account on December 12th, 2004. Again, was the affiant there? If there is an application attached, was the affiant there? If the affiant was not there, this is hearsay.
- Mike Smith made a payment that posted to the account, therefore it is his account. This is a conclusory statement. it is not a fact, it is the affiant’s conclusion and is flawed.
I think you can see that almost all statements a collector uses in an affidavit are defective. You just need to stand up and put in your Motion to Dismiss or tell the collector that the affidavit is flawed depending on the situation.
Don’t let affidavits freak you out as they are generally not admissible in court and are also usually defective. You just need to know how to pick them apart and bring up the defects. If you don’t bring the case law that Affidavits aren’t admissible and/or that the Affidavit is defective no one will. That is your responsibility.
Fight the Essential Fight,
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