Affidavit of Debt

[Pauly_Walnuts]

Today my wife received an affidavit of debt from Sherman Acquisitions, LP. (Sherman) representative filed this affidavit of debt within the State of South Carolina. We have not received any other correspondence from them concerning this debt. In the letter the Sherman representative states that this is a valid debt and a notary republic within the State of South Carolina has notarized it.

The letter was received from an unnamed business in South Carolina. I do not contain a Sherman letterhead or business address. The delivery envelope only includes a street address, city, and zip code. I have no idea who sent this document but I must assume that Sherman sent it. The letter was not mailed certified mail. How should I structure my response to this letter?

I thank all of you in advanced.

John

[DocDon]

Some shmuck stood with his hand in the air, swore that you owe a debt, gave the notary $5, and walked out the door. Whoopie. They still have to prove the debt is yours and that they acquired the debt and that they can legally collect it.

In fact, there's a whole number of things you can ask them to prove:

Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

How old is the debt? Has the SOL expired?

[Pauly_Walnuts]

DocDan:

Thanks, for the info. Can you please tell me the typical questions to ask. Also, the address on the envelope did not include a company name. It did include an suite number, address, state, city, and zip code. It the correct place to send a follow-up letter?

Thanks

J

[DocDon]

How old is the debt? Is it still within SOL. Sherman buys bad debts.

You ask them straightforward:

Who did you purchase the debt from?

How much did you pay for it?

How did you arrive at the total you claim I owe?

Prove you have the authority to collect on this debt.

State you know about Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002). I'm sure they do too.

Send it to the address that contacted you. They'll probably screw something up and put their corporate offices in deeper dog doo.

[Pauly_Walnuts]

Doc Man

Do you have a cite or a website that lists this decision

Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002)

Thanks again,

John

[DocDon]

Can't find a copy right off the bat - have to do a little searching. Anyone else feel like helping out?

[anti-something]

i got your back Doc!

http://www.ctd.uscourts.gov/Opinions/102902.PCD.Coppola.pdf

[DocDon]

So much for Google.... thanks A.S.!

I see you got a new "title".

[anti-something]

I see you got a new "title".

hehe i thought it fitting of my usual performances

[Recovering Attorney]

I love ya, Doc, but be careful with Coppola. It is a motion to decide discovery in a lawsuit, not answers to a DV. The obligations of parties to a lawsuit where issue has been joined are different than those a CA owes you in the DV scenario. Coppola might better be used as the subject of a sticky in the lawsuit section.

[DocDon]

I'm probably way off on this, but if the court rules the information has to be released upon request by the consumer, does it really matter at what stage or use of which procedure that info is released?

It took litigation to arrive at that decision, does it take litigation (discovery) every time you ask a JDB to provide the information as outlined in Coppola v. Arrow? The end result is they have to produce it if you ask for it. ??????

[Methuss]

In the DV letters I've written, I usually drop the Coppola v Arrow decision (Especially when it's Arrow getting the letter) and basically tell them they can produce it during DV or during discovery...their choice. Usually they go away after that.

[Recovering Attorney]

I think Methuss shows a practical application, and I'm not saying it's a wrong approach. If it works, it works. However, any lawyer who reads the decision will probably tell you to pound salt ( in the DV case). I would, anyway. Motions on discovery have little application beyond the case at hand. Coppola does not say that 809 requires a CA to give you everything you ask for, especially as it relates to their business. I guess I'm saying you can throw Coppola in as a follow-up to a lousy validation response, but it does not give you authority for suing a CA if they don't give the info to you in the DV phase.

[DocDon]

I see your point Recovering. However, I suggest using Coppola for JDB's - not for a "regular" CA who fails to validate properly (you can use the Wollman letter for that).

JDB's seemed to think they are a "new" OC on bad debts and didn't have to tell you how much they paid, and how they arrived at their grand total. Coppola changed all that. So like Methuss said, call the JDB out and quote Coppola - one way or another, they're going to give you that information.

[gdouglaslee]

He should send a response disputing the character, amount and legal status of the debt. This is one of Sherman's new tactics to faciliate their claim of an account stated when suing.

No contracts or signed applications are necessary to prevail using the account stated method, because the account stated is the contract.

While it's true that an account stated is an agreed upon amount between both parties, the failure of the debtor to dispute the amount within a reasonable amount of time constitutes tacit agreement or consent.

The amount of time considered "reasonable" will vary from state to state, but the minimum would probably be at least 30 days. The maximum could be as much as 180 days, but again it will vary from state to state.

For those who send a DV to Sherman and receive an "affidavit" in response, you must send a second DV to prevent the "affidavit" from establishing for an account stated. Besides, it's in your best interest since to send a second DV because Sherman usually reports accounts as installment accounts and this sets up an FCRA claim for willful non-compliance and FDPCA claim for misrepresentation.

[DocDon]

In searching for the definition of "tacit agreement", I saw a law book that contains a chapter:

E. The Tacit Agreement Test and the Uniform Commercial Code Test

1. Cases Rejecting the Tacit Agreement Test

2. Cases Accepting the Tacit Agreement Test

This means there is obviously many arguments / interpretations of tacit agreement is. So, could it be Sherman is mearly acting upon their own interpretation? I've never heard of a company regulated by the FDCPA that can override the "failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer" part in section 809.

[Methuss]

While it's true that an account stated is an agreed upon amount between both parties, the failure of the debtor to dispute the amount within a reasonable amount of time constitutes tacit agreement or consent.

Not true. The FDCPA specifically says in section 809:

© The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

So any court so ruling that the failure of the debtor to dispute is an admission of liability would be overturned upon appeal.

[gdouglaslee]

True, that would apply to the initial communication/dunning letter, but my point was that Sherman is now using this affidavit thing as "verification" and a basis to establish an account stated.

From Walters v PDI Management

All of the defenses raised by Ms. Walters are legally deficient. Ms.

Walters has failed to demonstrate that there is a genuine issue of

material fact to preclude summary judgment in favor of PDI.

PDI admits that the original credit card agreement [*37] between Ms.

Walters and Chase has been lost. Without evidence of the contract, PDI

is not entitled to judgment as a matter of law for breach of contract.

An account stated is an agreement between the parties that all items

of an account and balance are correct, together with a promise,

expressed or implied to pay the balance. It operates as a new

contract without the need for renewed consideration, and the

plaintiff does not need to plead and prove the creation and

performance of each contract underlying the account.

An agreement that the balance is correct may be inferred from

delivery of the statement and the account debtor's failure to object

to the amount of the statement within a reasonable amount of time. When the underlying facts are in dispute, the question of what

constitutes a reasonable amount of time is a question of fact and law.

The amount indicated on a statement is not conclusive, but it is

prima facie evidence of the amount owed on the account. Once a prima

facie case is made on an account stated, the burden of proof shifts

to the account debtor to prove that the amount claimed is incorrect. . . .

/B.E.I., Inc. v. Newcomer Lumber & Supply Co.,/ 745 N.E.2d 233, 236-37

(Ind. Ct. App. 2001) [*38] (internal quotations and citations omitted).

Ms. Walters made a final payment on the account in September 2000. The

last credit card statement sent to Ms. Walters by Chase was dated April

24, 2001. (Nestel 1st Supplemental Aff. P10, Ex. E.) Under IC §

24-4.6-1-103, an interest rate of 8% per annum is permitted "from the

date an itemized bill shall have been rendered and payment demanded on

an account stated." IC § 24-4.6-1-103. PDI's Motion for Summary Judgment for accounts stated will be *GRANTED.*

So that's why I said he should send a second dispute letter. If he disputes the affidavit, then it cannot be used as a basis for an account stated. If he doesn't dispute it, Sherman will used against him later. Since an account stated "operates as a new contract without the need for renewed consideration" does that restart the SOL? I don't know. Maybe someone else has a take on it.

[Pauly_Walnuts]

Could someone please describe the following items for me:

What is a DV letter?

What is a JDB?

What is the Wollman Letter?

Thanks

John

[anti-something]

Could someone please describe the following items for me:

What is a DV letter? DV = Debt Validation letter, where you ask the CA for information proving you owe the exact amount to whoever they said you owe it to

What is a JDB? Junk Debt Buyer, they buy old debts and then try to scare consumers into paying a lot of money, still a CA, but they dont think so

What is the Wollman Letter? its an opinion letter written by the FTC staff clarifying a part of the law, you can find it at the FTCs website

Thanks

John

[DocDon]

That sounds like an issue when dealing with a creditor, gdouglaslee. Not a CA.

[Leadhead]

Today my wife received an affidavit of debt from Sherman Acquisitions, LP. (Sherman) representative filed this affidavit of debt within the State of South Carolina. We have not received any other correspondence from them concerning this debt. In the letter the Sherman representative states that this is a valid debt and a notary republic within the State of South Carolina has notarized it.

The letter was received from an unnamed business in South Carolina. I do not contain a Sherman letterhead or business address. The delivery envelope only includes a street address, city, and zip code. I have no idea who sent this document but I must assume that Sherman sent it. The letter was not mailed certified mail. How should I structure my response to this letter?

I thank all of you in advanced.

John

So why not simply create your own affidavit denying the debt, sign it and have it notarized.

Oughtta have as much "power" as Sherman's.

[anti-something]

So why not simply create your own affidavit denying the debt, sign it and have it notarized.

Oughtta have as much "power" as Sherman's.

thats something i've wondered too. i must admit i really do not understand this 'affidavit' thing. how can that possibly be conclusive evidence (in a legal, court room sense) of anything?

i dont see how it is an 'account stated' wouldnt an 'account stated' need at least to have some kind of terms stated too? from the sherman affidavits i've seen they just have a total owed and an OC, no interest terms, no 'due date' etc.

[Leadhead]

Under basic contract law, certain elements must be spelled out, such as interest rate, repayment terms, etc.

I'm the plaintiff in an FCRA suit against a CA. Quick BG:

In April/2003 there was a CC account on my report that wasn't mine. Called CRA and got the CC issuer number. When I called them, I was told they sold it to a CA (not named due to legal action going on). Contacted the CA, submitted the necessary fraud paperwork, they looked into it and said they'd take care of it. Then, in August/2004, I see they reported the bogus account and pulled hards, twice. I called them...they've ignored me...so I filed suit for FCRA violations. Was denied credit due to their entry on my CR.

I've sent them discovery requesting documentation supporting the creation and existance of the debt...they can't provide anything (because none exist). I can't believe this CA is actually fighting me.