admin Posted February 5, 2009 Report Share Posted February 5, 2009 Just a general question: Is it a general practice of law for the plaintiff to have the burden of proof when suing a consumer? If so, case law? Link to comment Share on other sites More sharing options...
nascar Posted February 5, 2009 Report Share Posted February 5, 2009 The standard of proof in a civil action, regardless of the nature of the dispute is a preponderance of the evidence. There is no "burden of proof" per se, as in criminal law where the defendant is not required to present a defense. In civil matters, both parties are responsible for providing evidence to substantiate allegations or defenses. The judge then applies the law to the facts as established by the evidence and reaches a conclusion. Whichever side is able to present the most compelling or believable case based upon the evidence and the applicable law wins. Link to comment Share on other sites More sharing options...
admin Posted February 5, 2009 Author Report Share Posted February 5, 2009 What if they are asking to "prove a negative" - if records just simply don't exist? Or if the records were lost?Just a debate I am having. Link to comment Share on other sites More sharing options...
henry1018 Posted February 5, 2009 Report Share Posted February 5, 2009 http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=292176Kristi, this was a good disscussion a little while back that might help. (although it left me a little confused- but that's not the first time that's happened!) Link to comment Share on other sites More sharing options...
Tex_Tea Posted February 5, 2009 Report Share Posted February 5, 2009 Gee, I wish you would not have asked that question (Just Kidding). Now you have me back on my eternal quest to figure out what "strict proof" means?Pleadings are always demanding "strict proof' for a claim, but there is no real definition of it readily available.I was reading this article: Of Speaking Documents and Talking Clams: A Proper Answer Under Federal and State Rules http://www.dcba.org/brief/novissue/2002/art21102.htmThe article notes that in State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001) Judge Shadur points out that the concept of "strict proof," so often demanded in responsive pleadings, "is nowhere to be found in the [federal] Rules," or in any other set of pleading rules. 16 Therefore, any such demand is "impermissible."The best I can determine is that "Strict Proof" is a concise way of saying: a preponderance of admissible and authenticated evidence.Anyway, sorry to derail the thread with my sort of related comment. The thread does pose a great question. Link to comment Share on other sites More sharing options...
admin Posted February 5, 2009 Author Report Share Posted February 5, 2009 I'd still like to see how they can expect someone to prove a negative. If someone says "yes, the debt is this", and the defendant responds with "How did you get this number" or "no documents exist" - what would be the outcome?Is it "fair" (using the word loosely) that a consumer is sued and can't prove they didn't pay because the debt is so old and they don't have the any documentation? Link to comment Share on other sites More sharing options...
Tex_Tea Posted February 6, 2009 Report Share Posted February 6, 2009 A wrongly sued defendant who faced proving a negative would have to go after the plaintiff's claim in discovery and demonstrate either through the lack of documentation or through the defects of the documentation that the claim has no merit. Now, that is not proving a negative, certainly not easy and puts a wrongly sued party on the spot.A person sued on a very old debt could really be on the spot. In my state, SOL is an affirmative defense that must be stated and proved by a defendant. Many people may not have the documentation to do that, making them SOL. A lot of consumers probably do not realize they can be sued on old time-barred debts and may not keep the documentation. Fair? No! The solution or at least the easy answer when one does not have a better one: better consumer education about debt issues like collections and arbitration clauses.One thing many people never realize, though, is that the Credit Industry, JDBs and Collection Attorneys all conduct extensive and intense lobbying of State Officials and the Judiciary to make the laws easier for them to collect. In my state, their dream goal is to change the law to allow garnishment of pay for consumer debt. But, since it is in the state constitution, a change like that would draw a lot of attention and is not likely. Link to comment Share on other sites More sharing options...
nascar Posted February 6, 2009 Report Share Posted February 6, 2009 Is it "fair" (using the word loosely) that a consumer is sued and can't prove they didn't pay because the debt is so old and they don't have the any documentation?What you are describing is a situation where the equity defense of laches might be applicable. When Party A sits on its rights for so long that Party B is prejudiced to the point where it cannot defend itself, then Party A can be estopped from bringing the old claim. Link to comment Share on other sites More sharing options...
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