LibertyGroup Posted October 2, 2004 Report Share Posted October 2, 2004 In anyone's experience - are "Affidavits of Indebtedness" routinely accepted in court as sufficent validation of debt?Also - does it matter if the affidavit is sworn out by someone (allegedly) from OC - or is some document cooked up by a CA or law firm? Link to comment Share on other sites More sharing options...
willingtocope Posted October 3, 2004 Report Share Posted October 3, 2004 If you do a search on "Affadavit" you'll find several topics related to this. The consensus seems to be NO...an affadavit of debt is not validation. I recall that there was an actual court case mentioned here somewhere (I can't seem to find it now) where the judge actually ruled that it fell under the FDCPA guidelines for "overshadowing"...making a non-binding document appear to carry more legal weight than it actually does...and therefore the CA was liable for damages.However...be warned...not all judges are up on the FDCPA and if you go to court over this, be prepared with a copy of the law and pertinent sections highlighted so that you can "educate" the judge if you have to. Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 6, 2004 Report Share Posted October 6, 2004 what exactly are your circumstances? Link to comment Share on other sites More sharing options...
LibertyGroup Posted October 6, 2004 Author Report Share Posted October 6, 2004 Was served complaint and "Arbitration Case Summons" to appear from attorney on behalf of OC along with Affidavit of Indebtedness sworn out by someone who "an employee/agent" for OC. Affiant name is not spelled out, and lists Title as "Attorney MGT Specialist." Also on the affidavit is listed OC name, Acct #, and simple summary of Principal, Interest, Adjustments, Payments, and Total (not an itemized account statement).I showed up in court - judge asked if account was mine - I didn't affirm - but said I had offered settlement to law firm and was still discussing with them. Judge handed me order to reappear for status review in 28 days.FYI - I offered 50% settlement (in writing) - they countered (verbally) with 80%. I'm attempting to get my home refinanced so I can settle this and other accounts, but there won't be enough cash to settle all for more than about 40%. Any suggestions? Link to comment Share on other sites More sharing options...
willingtocope Posted October 6, 2004 Report Share Posted October 6, 2004 I'm sure recovering will jump back in here with some advice, but just for my own education...Have you actually requested validation of this debt? The "employee/agent" may be more agent (i.e., CA) then employee. If this is a CA, I would assume then you're still entitled to your rights under the FDCPA regardless of whether its in arbitration or not.And, IMHO, if you're not going to be able to settle more than 40% of your debts, I wouldn't offer more than 40% to any of them. OCs and CAs will find out what you settled for, and if they see you paid one 60% that's what they're going to want. (Just as an aside, I learned my lesson the hard way about refinancing to pay off CCs. Trading secured for unsecured debt is NEVER a good idea unless you're certain it will stop whatever got you in that position in the first place). Link to comment Share on other sites More sharing options...
LibertyGroup Posted October 6, 2004 Author Report Share Posted October 6, 2004 No - haven't DV'd yet - that's why I asked if Affidavit is suficient.(Just as an aside, I learned my lesson the hard way about refinancing to pay off CCs. Trading secured for unsecured debt is NEVER a good idea unless you're certain it will stop whatever got you in that position in the first place).Thanks for the input WTC - we have learned our lesson - have been and will continue to be on "cash basis" - but I do want to be as honorable as possible and pay as much as we can. However - I'd rather pay OC's directly instead of attorney/CA - but they won't deal with me and say to call atty or CA. Link to comment Share on other sites More sharing options...
willingtocope Posted October 6, 2004 Report Share Posted October 6, 2004 I keep preaching this, so I'm sorry if you've heard it before...but...While it is admirable to want to assume responsibility for debts you've incurred, realize this: If the OC has charged off the debt and turned it over to a CA, then the US Taxpayer has compensated the OC for their "loss" on their income taxes. The CA paid pennies on the dollar for the right to continue to hassle you...that's all, if anything, you owe the CA.Paying the CA anything only funds their efforts to continue to make other's lives miserable... Link to comment Share on other sites More sharing options...
DocPC Posted October 6, 2004 Report Share Posted October 6, 2004 General consensus is that the Affidavit is NOT sufficient validation. All it is is a notorized statement from some dumb-a$$ that saw a piece of paper with some information on it.If they had proper validation, they would not have sent the Affidavit.DV them CMRRR with a limited C&D. Tell them thanks but the Affidavit won't cut it. Link to comment Share on other sites More sharing options...
LibertyGroup Posted October 6, 2004 Author Report Share Posted October 6, 2004 General consensus is that the Affidavit is NOT sufficient validation. All it is is a notorized statement from some dumb-a$$ that saw a piece of paper with some information on it.If they had proper validation, they would not have sent the Affidavit.DV them CMRRR with a limited C&D. Tell them thanks but the Affidavit won't cut it.Doc, does it matter that they've already taken me to court? Can I still DV them - and if so what effect will that have when I need to reappear in cour t for status review? Link to comment Share on other sites More sharing options...
DocPC Posted October 6, 2004 Report Share Posted October 6, 2004 You should have made a motion to dismiss the Affidavit. I really don't know if it still possible in your Court.You can DV them at any time, but it may be too late. On the other hand having a paper trail will look better to the Court.Is this debt yours or not? Link to comment Share on other sites More sharing options...
LibertyGroup Posted October 6, 2004 Author Report Share Posted October 6, 2004 You should have made a motion to dismiss the Affidavit. I really don't know if it still possible in your Court.You can DV them at any time, but it may be too late. On the other hand having a paper trail will look better to the Court.Is this debt yours or not?Yes - it's mine. (Don't know if you read my case BG Doc - it's my 2nd post in this thread.)I'm not that savvy with legal maneuvers - but is the affidavit automatically admitted as evidence if I don't make a motion to dismiss it? In my original appearance - I was given order by judge granting 28 days to "file appearance or answer." What are my options? Link to comment Share on other sites More sharing options...
DocPC Posted October 6, 2004 Report Share Posted October 6, 2004 I would ask Kristy (admin) to move this to the Lawyer forum. Better chance of legal help there. Link to comment Share on other sites More sharing options...
Guest Posted October 13, 2004 Report Share Posted October 13, 2004 well it appears that the judge has given you time to file an answer...At this point you can move to dismiss the affadavit and ask for accounting history .I would ask over in the lawyers board but I hink you could use the "I lack sufficient evidence to admit or deny the claims"Ask the legal eagles though.. they will know better Link to comment Share on other sites More sharing options...
Recovering Attorney Posted October 13, 2004 Report Share Posted October 13, 2004 You have to answer the complaint. The affidavit is part of the pleading, but it is hearsay, even if sworn, as it is not live testimony subject to corss examination and, as has been pointed out, it gives you little in the way of determining if it is indeed your debt, or if the amount is correct, etc.Deny the allegations in the complaint, and add the following defenses:1. Plaintiff lacks legal capacity to bring this action2. Court lacks subject matter juridiction ( if they sued you in the wrong place)3. The action is barred by teh applicable SOL4. The action is barred by the applicable Statute of FraudsYou will send a copy to the plaintiff's lawyers and the original to the Court under the index number. Send, under separate cover, the plainitff's lawyers a demand that they produce the person who signed the affiadvit before you by November 15 so you can depose them, and that they provide you with the following:1. Any paper or writing singed by you that they intend to offer in a trial of the matter;2. Any statement you have made to the plaintiff, orally or in writing, that they intend to ofer in a trial of the matter3. Any other documentary evidence they intend to offer at trial as evidence that you owe teh plainitff money;4. A list of all witnesses the plaintiff intends to call at a trial of the matter.Tell them you expect the answers to your discovery demand within 30 days, or within the time your state practice law provides. Send the orignal to the court, copy to the lawyers. This is the way you can get behind the affidavit and show the other side you mean to defend yourself Link to comment Share on other sites More sharing options...
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