Question regarding code of evidence

[creditcrunched]

Just want to make sure I am interpreting this correctly. The statues for my state say:

Art. 1003. Admissibility of duplicates

A duplicate is admissible to the same extent as an original unless:

(1) A genuine question is raised as to the authenticity of the original;

(2) In the circumstances it would be unfair to admit the duplicate in lieu of the original; or

(3) The original is a testament offered for probate, a contract on which the claim or defense is based, or is otherwise closely related to a controlling issue.

So does this mean that if a JDB were to sue someone they would be required to provide the original contract between debtor and lender? Would the contract between OC and JDB supercede it? Or would it depend on the grounds of the suit?

[BV80]

It appears the original contract would be required if the claim (cause of action) is based on the contract...such as Breach of Contract. If the claim is Account Stated, then the rule would not apply.

[creditcrunched]

Thank you for the reply as always, BV80.

It is my understanding that an account stated must meet certain elements, such as prior business transactions or not objecting to statements or bills ect.

If someone was being sued by a JDB for a non-CC account, what legal standing could they purport to claim AS as a CoA?

I have read elsewhere that when the debt is sold the JDB retains the rights granted to OC which is why they can and do claim AS. Any idea if this is true or where I could find this info?

Nascar, (in case you read this thread!)

When doing a google search for "account stated", a thread which you replied in came up and you told OP to do a search on the boards for threads you posted concerning AS defenses. When I try to search I keep getting a fatal error msg. Is there any way you could point me to thread names, posts, or any other info you consider helpful concerning this matter?

[BV80]

I don't know what state you're from, but here's some case law:

An "`assignment operates to transfer to the assignee all of the assignor's right, title or interest in the thing assigned. [Citations.] The assignee, by acquiring the same rights as the assignor, stands in the shoes of the assignor.'" PRA III, LLC v. Hund, 846 NE 2d 965 - Ill: Appellate Court, 3rd Dist. 2006

("[A]n assignee is the real party in interest ... if he has some title, legal or equitable, to the thing assigned. The consideration paid, the purpose of the assignment, the use to be made of any proceeds collected, is immaterial.")

APCC Services, Inc. v. AT & T CORP., 281 F. Supp. 2d 41 - Dist. Court, Dist. of Columbia 2003

It has long been held that a valid assignment of a debt or contract conveys the entire interest of the assignor to the assignee, and thereafter the assignor has no interest therein. In this State this has been held true, even when the debtor might not have notice of the assignment.

International Harvester Co. v. Peoples Bank & Trust Co., 402 So. 2d 856 - Miss: Supreme Court 1981

The JDB still must prove they own the debt. Some states have a law that says debt buyers can only recover the amount they paid for the debt. See if your state has that law.

They must also prove the amount, and they must prove the debt is within the SOL. What do your court rules say about authenticating documents?

[creditcrunched]

I live in Louisiana whose private law is based on civil instead of common law.

A. General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

B. Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this Article:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

Art. 902. Self-authentication

Extrinsic evidence of authenticity as a condition precedent to admissibility is not required with respect to the following:

8) Authentic acts, acknowledged acts, and other instruments attested by witnesses. (a) Authentic acts, acts under private signature duly acknowledged, and instruments attested by witnesses and accompanied by affidavits, as provided by Louisiana law, whether executed in Louisiana or elsewhere. ( Documents executed in a jurisdiction other than Louisiana accompanied by a certificate of acknowledgment executed in the manner provided by the laws of that jurisdiction by a notary public or other officer authorized by law to take acknowledgments.

The CA has an ungodly amount of files pertaining to the debt, much more than I would have thought even the OC would retain in its records, esp being so old. However, the debt itself is valid, and I have no issue paying it, but I haven't rec'd any actual proof of ownership from CA. When questioned the CSR mentioned an affidavit. I couldn't get an answer as to whether the affiant was an employee of the JDB or the OC.

I just want to be certain of the law and have all my bases covered before further contact.