I just got off the phone with a consumer attorney who is representing one of my clients. This client is being sued by one of the big collection agencies and they are throwing everything they can at this poor guy and his mother, interrogatories, discovery, etc. At my suggestion (although I always suggest this, but most clients cannot afford it), the client hired an attorney to represent them.

My client was actually in the lawyer’s office and called me from there. What the heck I thought? So next I’m talking to the attorney, who is mostly handles criminal cases but has done collections. We went over the case, and once again determined that the lawyers handling the case did an amazingly slip-shod job and had absolutely nothing in the way of documentation. I reminded her that any documentation presented needs to be authenticated, a clear chain of ownership between the credit card company needs to be shown. Another example of how easy it is to beat collection agencies in court.

I also suggested that she file a counter suit against them for violations of the FDCPA (misrepresenting the status of the debt as collectible, and other goodies).

Just for reference, here is some background on authentication and hearsay on documentation:

Admissibility of business records:
Evidence : Hearsay Rule & Exceptions : Business Records
Evidence : Writings & Real Evidence : Authentication
Under the Fed. R. Evid. 803(6), the custodian of business records may authenticate them by stating that: (1) the records have been made in the course of regularly conducted business activities; (2) they have been kept in the regular course of business; (3) the regular practice of that business is to make the records; and (4) the records have been made by a person with knowledge of the transaction or from information transmitted by a person with knowledge. Once they are properly qualified, business records fall under an exception to the hearsay rule.

Anyone else have any case law to back this up?

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