Legal Precedents (Decisions) to Use When Fighting Junk Debt Collector

[Prosay]

Legal Precedents (Decisions) to Use When Fighting Junk Debt Collector Lawsuits

31. March 2010

QUOTE: ALLEN HARKLEROAD( FMD CONSUMER BLOG)

DISCLAIMER: I'm not an attorney and this isn't legal advice. It is for informational purposes only. Legal information is not legal advice. ~ Allen Harkleroad

I’ve been receiving a lot of email regarding Junk Debt Buy collection lawsuits. In nearly all cases the junk debt buyer seems to be manufacturing documents to use in court, or creating questionable affidavits and filing them. In nearly all cases these affidavits of account or record are hearsay be default. However if it were me I would file a sworn graduated denial with the court (read my book), to in effect make all affidavits filed by the junk debt collector heresy. If you do not contest the affidavits or questionable exhibits many times a judge won’t rule on them and by default allow the documents. You must question them all in court so that a judge will exclude or not allow them.

Below are several legal precedents (legal decisions) that may cite as objections, and/or motions or briefs that you may in the course of defending yourself in court.

Affidavits are often submitted to prove default that are conclusory and insufficient. Manufacturers & Traders Trust Co. v. Medina, 01 C 768, 2001 WL 1558278, 2001 U.S. Dist. LEXIS 20409 (N.D.Ill., Dec. 5, 2001); Cole Taylor Bank v. Corrigan, 230 Ill.App.3d 122, 129, 595 N.E.2d 177, 181-82 (2nd Dist. 1992) (where bank officer's "affidavit essentially consisted of a summary of unnamed records at the bank," unaccompanied by records themselves and unsupported by facts establishing basis of officer's knowledge, foundation was lacking for admission of officer's opinion

regarding amount due on loan); Asset Acceptance Corp. v. Proctor, 156 Ohio

App. 3d 60; 804 N.E.2d 975 (2004). Computer-generated bank records or

testimony based thereon are often offered without proper foundation, or are

summarized without being introduced. Manufacturers & Traders Trust Co.

v. Medina, supra; FDIC v. Carabetta, 55 Conn.App. 369, 739 A.2d 301

(1999), leave to appeal denied, 251 Conn. 927; 742 A.2d 362 (1999).

A witness cannot “testify” by regurgitating the content of business records

that a witness has reviewed when the witness has not seen or heard the

events in question. Such regurgitation is hearsay, plain and simple. Wahad

v. Federal Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In

re McLemore, 2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio

App. 2004); Nebraska v. Ward, 510 N.W.2d 320, 324 (Neb. App. 1993)..

“There is no hearsay exception . . . that allows a witness to give hearsay

testimony of the content of business records based only upon a review of

the records.” Grant v. Forgash, 1995 Ohio App. LEXIS 5900, *13 (Ohio

App. 1995). See generally, Trujillo v. Apple Computer, 578 F. Supp. 2d 979

(N.D.Ill. 2008), condemning the inclusion in an affidavit of information

supplied by others.

A good case (from the debtor’s perspective) involving debt buyer affidavits

is Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 Tex.App. LEXIS

7096 (2nd Dist. Ft. Worth Aug. 31, 2007).

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.

Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt

buyer “assignment” that does not refer to specific accounts does not

establish ownership by the plaintiff, nor is testimony based on a computer

screen sufficient

National Check Bureau v. Ruth, No. 24241, 2009 Ohio 4171 (Ct. App., 9th

Dist., Aug. 19, 2009) (document referring to transfer of accounts on Exhibit

1, without Exhibit 1, not sufficient to “prove the assignment”).

“Generic” contracts that cannot be identified as pertaining to the specific account sued upon, Velocity Investments, LLC v. Alston, 2-08-746 (2nd Dist., Jan. 15, 2010), supra.

Filing a single lawsuit without having in hand the means of proving it is not a violation of the FDCPA (Harvey v. Great Seneca Financial Corp., 453 F.3d 324, 330 (6th Cir. 2006)), but a practice of filing lawsuits with the intent of dismissing them if they are contested may be a violation of the FDCPA (Mello v. Great Seneca Financial Corp., 526 F.Supp.2d 1020 (C.D.Cal. 2007)).

Source: Collection Defense February 2010 PDF, this document written by attorney Daniel A. Edelman has a large amount of debt buyer defenses, legal citations and other collection case information including examples of FDCPA violations. Anyone that is fighting debt collectors, especially junk debt buyers should review the document and consider making use of the legal precedents contained in it.

For more information on how to fight debt lawsuits yourself (Pro Se) and beating debt collectors, be sure to read (Allen Harkleroad) book, “Stick it to Sue Happy Debt Collectors”.

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[Xcalibar]

Thanks Prosay for posting attorney Daniel A. Edelman's digest of cases on Affidavits...i have been sing his research for quite some time and it is excellent. i was not aware of his works having so many cases from Ohio 9where I happen to live), most of the work that i have read of his focused on the Illinois Courts and more specifically, Chicano.

Once again, thanks for posting this information, I never thought of posting it.

Finally, I previously came across a testimonial for Allen Harkleroad's book, “Stick it to Sue Happy Debt Collectors” and purchased the same. I must say that the book is not very well written. it is 75% fluff and self puffery. it does however provide some pretty good insight to the Discovery process both from the plaintiff's standpoint and the Defendant's standpoint, but I would not in good conscious promote it to the uninitiated...just my opinion.

Again the Affidavit information that you posted is excellent.