Motion to Strike Affidavit of Debt Fight Lawsuits

How to Write a Motion to Strike Affidavit of Debt
Last Updated: Sept 29, 2009

Many times when a consumer is sued by a collection agency, within the court paperwork, the Plaintiff (the collection agency) includes an Affidavit of Debt. The affidavit is usually in the form of an employee of the collection agency (CA) or junk debt buyer (JDB) stateing he or she is "intimately familiar/aware of the methods of record keeping at the original creditor" concerning the debt in question, and certifies the information in the complaint is true. They also usually state that they've examined the sale or assignment records which establishes the relationship between the original creditor selling/assigning to the CA or JDB.

Note: These affidavits are sometimes notarized, but their validity is unchanged whether or not this is the case.

If the defendant (you) does not object to this affidavit, the court will assume the debt is valid, the debt collector has the right to sue you, and the suit is proper. You will lose if this happens. Fortunately, most of the time these affidavits are fraudulent or contain false evidence, but you must file a "motion to strike" this evidence to get it thrown out of court.

Plaintiff's Affidavit of Indebtedness and Ownership of Account

I am an Authorized representative for Acme Collection Agency (hereafter the "Plaintiff") and hereby certify as follows:

I have personal knowledge regarding plaintiff’s creation and maintenance of its normal business records including computer records of its accounts receivables. This information was regularly and contemporaneously maintained during the course of the plaintiffs business. I am authorized to execute this affidavit on behalf of plaintiff and the information below is true and correct to the best of my knowledge, information and belief based on business records maintained with respect to the account.
The records provided to plaintiff have been represented to include information provided by the original creditor. Such information includes the debtors name, social security number, account balance, and identity of the original creditor and account number.
Based on the business records maintained on account XXXXXXXXXX (hereafter "account") which are a compilation of the information provided upon acquisition and information obtained since acquisition, the account is the result of the extension of credit to "name" by Original Creditor, on or about 6/16/03 ( the “date of the origination”). Said business records further indicate that the account was then owned by Acme Huge Bank. Acme Huge Bank later sold and/or assigned portfolio 8044 to plaintiff's assignor which included the defendant’s account on 7/3/2007 (the "Date of Assignment"). Thereafter, all ownership rights were assigned to, transferred to, and became vested in Plaintiff, including the right to collect the purchased balance owing $1487.64 plus any additional accrued interest.
To the best of my knowledge and belief, the defendant is not a minor or mentally incompetent.
Based on business records maintained in regard to the account, the above stated amounts is justly and duly owned by the defendant to the plaintiff and that all just and lawful offsets, payments, and credits to the account have been allowed. Demand for payment was made more than 30 days ago.

Signed,
Clueless Employee
Acme Collection Agency

Sounds scary? Nope. We will show you how this affidavit is nonsense and complete hearsay.

Think that a collection agency wouldn't file a document which technically doesn't hold up in court? In a report presented to the FTC, by Daniel A. Edelman "COLLECTION LITIGATION ABUSE", August 1,2009, Mr. Edleman listed numerous cases where documents submitted as evidence were false, misleading, and sometime manufactured by collection agencies and junk debt buyers.

List of Cases Where Affidavits were Determined to be False or Fraudulent

Debt buyers regularly submit affidavits which purport to be made on personal knowledge but in fact are based on reading a computer screen.

For example in Palisades Collection, LLC a/p/o AT&T Wireless v. Gonzalez, 10 Misc. 3d 1058A; 809 N.Y.S.2d 482 (N.Y.County Civ. Ct. 2005), an affidavit was submitted from a Ms. Bergman who claimed to be Vice President of Palisades and familiar with business record-keeping practices. Being familiar with records in the course of doing business is one way debt collectors can side-step the hearsay exception:

Ms. Bergmann does not claim to be familiar with AT&T's record keeping practices, but only with the method by which plaintiff maintains the accounts it purchases from others. The mere fact that plaintiff obtained the records from AT&T and then retained them is an insufficient basis for their introduction into evidence.... Therefore, the Court cannot rely on the account statements which Ms. Bergmann proffered to establish defendant's default.

How to Combat These False Affidavits Based on Hearsay Rules

Think this is all a trick to get off the hook with a techicality. Nope. This is real fraud. Take the following case:

A Sample Motion to Strike Affidavit of Debt

PLEASE DO NOT JUST CUT AND PASTE THIS - Every motion is different. One size DOES NOT fit all. If you merely cut and paste, you WILL LOSE. In addition, you need to review and UNDERSTAND your state/county Rules of Civil Procedures when filing your motion. Improper filing of your motion will cause it to be denied.

IN THE JUSTICE COURT OF (City Name)
County Name, STATE OF VIRGINIA

Case Number: XXXXXXX
ACME Collection Agency.
Plaintiff,

vs

John Q. Public
Defendant

MOTION TO STRIKE AFFIDAVIT OF DEBT IN SUPPORT OF PLAINTIFF'S CLAIMS

Comes now, Defendant Defendant Name and respectfully states the following:

1. Plaintiff has submitted into evidence an affidavit claiming that the affiant has personal knowledge of business records related to the aforementioned debt. AFFIDAVIT OF DEBT IN SUPPORT OF PLAINTIFF'S CLAIMS (hereinafter referred to as "EXHIBIT A").

2. The affiant writing the AFFIDAVIT OF DEBT (Exhibit A) does not explain how the business records came into her possession, only that to the best of her belief they "represent" the actual records from the original creditor, Gigantic Credit Card Company.

3. Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of how business records were kept at the original creditor.

4. Affiant of AFFIDAVIT OF DEBT does not claim to have personal knowledge of the sale or assignment of the debt from the original creditor to ACME Collection Agency.

WHEREFORE, the Defendant prays this Honorable Court that Plaintiff's "Exhibit A" be stricken from evidence in the above action.

I state under penalty of perjury that the foregoing is true and correct.

Defendant Name.

By: _______________________________ Date:____
Defendant Name, Defendant
Address
Phone

I CERTIFY that I mailed / delivered a copy of this MOTION to: ACME COllection Attorney
Address
Plaintiff's attorney at the above address or Defendant's attorney

By: _______________________________ Date:____
Defendant Name, Defendant

For information on how to handle other types of evidence which may be included with your summons and complaint, you can read our article on How to Write a Motion to Strike Documentation.

If you want more help or examples of how to handle your lawsuit, our legal discussion forums are an excellent source of information. It's free - visit them today!

Motion to Strike * Affidavit of Debt * Debt Lawsuits * Business Records * Case Law

List of Cases Where Affidavits were Determined to be False or Fraudulent

How to Combat These False Affidavits Based on Hearsay Rules

A Sample Motion to Strike Affidavit of Debt