Served without any initial contact

[parker]

Is is legal for a collection lawyer to have you served with a summons without ever calling or sending any notice? A friend was served and this is the first she has heard from Mann Bracken.

[Recovering Attorney]

yes, it is.

Is it an arbitration claim? If so, you must move fast!

[parker]

No, it is not an arbitration claim. It is a summons to answer with an Affidavit of Account as exhibit A.

[Southerngirl]

What is the debt and when was the last payment made. The SOL in SC is 3yrs so maybe that can be her defense if the debt is older. If you give more info their will be alot of helpful advice.

[parker]

1. Who is suing you?

Mann Bracken on behalf of HSBC Credit Card

2. For how much?

2300.00

3. Who is the original creditor?

HSBC

4. How do you know you are being sued?

Served with Summons

5. How were you served? Were you served?

In person by local deputy sheriff

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

none

7. Where do you live?

South Carolina

8. When is the last time you paid on this account?

Around July 2006

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

Checking on this today

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

No, this is first contact from Mann Bracken

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Requires her to answer to complaint in writing

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

Affadavit of Account notorized

14. What is the SOL on the debt?

3 years

[divemedic]

Who signed the affidavit? What does it say?

[hannah]

Are any Mann Bracken attorneys members of the bar in your state? If the last payment was in 2006, the debt is still within statute. Is this small claims court? MB loves to sue in small claims.

[LadynRed]

First contact CAN be a summons, that's not illegal, especially given the recent changes the bozos in Congress added to the FDCPA !

[Methuss]

Unless I am totally mistaken, the new changes in the FDCPA law do not include one major thing. If the first contact is a summons, they must still send a separate notice within 5 days notifying the consumer of their right to dispute and request validation of the debt. A Dv letter will not stop the legal machine, but it can give rise to violations that can be used to offset any liability.

[Osiris]

In addition, an attorney acting on behalf of an OC is considered to be a "third-party" collector and is subject to the FDCPA.

[LadynRed]

In this case, Mann-Bracken is already the 3rd party, the lawyer is just handling the legalities of the lawsuit.

[parker]

Who signed the affidavit? What does it say?

1. I am a representative of HSBC, Nevada and am authorized to Verify current balances due and owing to HSBC on credit card accounts.

2. As of the date of this affidavit I have reviewed the records of the above listed person and account, and that the amount due and owing on this account, over and above all known legal sets offs is $2287.51.

3. That reasonable inquiry has been made to determine if the defendant is in the military service of the U.S. of America, and to the best of my knowledge that defendant is not in such military service and is therefore not entitled to the rights and privileges provided under the Soldiers and Sailors Civil Relief Act of 1940, as amended.

That the above information is true to the best of my knowledge, information and belief, and based upon the books and business records of HSBC.

Signed by an Authorized Agent of HSBC

[parker]

Are any Mann Bracken attorneys members of the bar in your state? If the last payment was in 2006, the debt is still within statute. Is this small claims court? MB loves to sue in small claims.

Yes, two of MB attorneys from their Charlotte, NC office are members of the SC Bar.

I am not sure if it is small claims or not, the Summons states collection action non-jury.

[divemedic]

My advice: offer to settle. this case is not a winner. That affidavit is proper validation.

[Methuss]

My advice: offer to settle. this case is not a winner. That affidavit is proper validation.

Unless the affidavit breaks down all charges and what they are for (not just a total) then it is not proper validation.

Also an "authorized representative" of HSBC is not by definition the original creditor as required for validaiton under the law. The OC is not allowed to pawn off that responsibility to a collector, even if that collector is a lawyer they hired.

Lastly, the affidavit does not swear to first hand knowledge of the account and therefore is hearsay.

[divemedic]

The FDCPA states that if a debt is disputed, “the debt collector will obtain verification of the debt, or a copy of a judgment against the consumer and a copy of such verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector.”

The Federal Trade Commission, in its official commentary on 15 U.S.C. § 1692g(a) of the FDCPA, states that this section of the law is “… intended to assist the consumer when a debt collector inadvertently contacts the wrong consumer at the start of his collection efforts.”

The courts have adopted a similar interpretation, stating:

[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. See Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.), aff'd, 66 F.3d 342 (11th Cir.1995), cert. denied, 516 U.S. 1048, 116 S. Ct. 712, 133 L.Ed.2d 666 (1996). Consistent with the legislative history, verification is only intended to "eliminate the ... problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid." S. Rep. No. 95-382, at 4 (1977), reprinted in 1977 U.S.C.C.A.N. 1695, 1699. There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt.

Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999), cert. denied, 528 U.S. 891 (1999). As much as I feel that Chaudhry is misquoted, I thank this case is instructive here.

Thus, the general requirement is that the debt collector obtain verification from the creditor that the amount demanded is the amount owed by the consumer from whom the collector is attempting to collect. If a consumer disputes a certain portion of the debt, or if multiple debts are involved, an itemization may be required. That is not the case here.

The collector need not keep detailed files of the alleged debts, but should look to an outside source to verify the debt.

In this case, I think that the CA has met this requirement. The rep from the OC has signed an affidavit to the veracity of the CA's claim. The person signing the affidavit swears that they have reviewed documents kept in the ordinary course of business. Under the rules of evidence, this would be allowed, as long as the person signing is a custodian of those records (in other words, if the affiant is an employee of the OC and not the CA- which I think is the case here, going by how the affidavit is worded) I think this meets the standard.

This case is a loser. Settle. That is what I would do, and you all here know how I feel about paying CA's. I would rather lick a cow's rectum, but sometimes you can't win. Don't take my word, though- consult with an attorney.

[hannah]

If this is in small claims there is probably limited discovery and you would have to motion to conduct it. I can look up the rules if you post what court this is in. The complaint and/or summons should state what court level. If it does not, call the court and ask or you won't know what rules apply and you will lose if you don't answer and defend properly.

I respectfully disagree with divemedic that the affidavit is acceptable evidence. While it may be validation according to the caselaw he posted, that doesn't mean it can be held as prima fascia evidence of a debt if challenged in court. You can motion to strike the affidavit and the motion should be granted so the information contained therein can't be introduced unless the affiant testifies in court. In WV, for example,

In any action at law, whether in circuit court or magistrate court, on a note or contract, express or implied, for the payment of money, if: (1) The plaintiff files with the complaint an affidavit made by the plaintiff or an agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that the amount is justly due, and the time from which plaintiff claims interest; and (2) a copy of the affidavit together with a copy of any account filed with the complaint is served upon the defendant, the plaintiff is entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant files an answer denying the claim or otherwise makes an appearance before the court denying that the plaintiff is entitled to recover from the defendant on the claim. The affidavit must show the calculation of the amount sought. The calculation is to also include an itemization of the principal and any interest, insurance or other charges of the original obligation. The calculation is also to include an itemization of all credits to the original obligation including credits to principal, interest, insurance, any other charges, rebates of unearned interest, rebates of insurance, rebates of other charges and proceeds of sale of all collateral. If the defendant's pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due and the case will be tried as to the residue.

If OP has a statute similar, then all OP has to do to strike is to deny the claim and motion to strike based on what needs be in an affidavit of debt. Your second basis for having it struck is that it is hearsay evidence and that definition would be in your state's rules of evidence.

In addition, in certain circuits, districts, and states, the affidavit wouldn't be considered acceptable validation either but that's not what is in question in this instance.

[divemedic]

The South Carolina rules of evidence allow:

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

http://www.judicial.state.sc.us/courtReg/displayRule.cfm?ruleID=803.0&subRuleID=&ruleType=EVD

Since the affiant is a custodian of those records, and is testifying to the contents of those records, this is not heresay. 888edited to add: Now, we used to get affidavits from a CA, claiming that the CA was collecting the correct amount. THAT is heresay, since the CA is swearing that the OC's records are correct. Since the CA is not the custodian of the OC's records, that is heresay. In the OP's case, however, an employee of the OC is swearing as to the veracity of the OC's records, which is allowed.