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kooldude

sworn affidavit by OC, any chance to strike it?

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Received a summons by local attorney with sworn affidavit from an officer of plantiff that is original creditor.

does the attorney for the plantiff still need to prove that they have a legal standing or was legally assigned to sue and collect?

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No one will be able to give a thorough analysis without reading the affidavit. It would depend upon what the affiant's title is and what they are specifically attesting to as to whether it is strikeable.

If the affiant has, as a regular job, bookkeeping duties with the OC concerning the accounts and they say that the debt has been assigned then the attorney would appear to have assignment.

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Received a summons by local attorney with sworn affidavit from an officer of plantiff that is original creditor.

does the attorney for the plantiff still need to prove that they have a legal standing or was legally assigned to sue and collect?

I'm not sure what you're asking.

If the Plaintiff is the OC, they have standing. If you're asking about the attorney...the attorney is not the Plaintiff. The attorney is merely representing the Plaintiff. Therefore, the attorney doesn't have to prove standing to sue.

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The op is probably talking about a collection attorney...it isn't very often that the attorney suing for a creditor is not. The question is, who is the creditor? Is it an actual OC or is it a JDB?

It's pretty common that JDB's hire collection attorneys and those collection attorneys generally produce an affidavit from the JDB, not the OC. It's less likely that the OC hired a collection attorney and that the collection attorney has proffered an affidavit from the OC.

If it's the former, the collection attorney would not be providing assignment because an affidavit from the JDB about the OC's record keeping would be hearsay. If it's the latter, the collection attorney probably would have assignment, depending upon the wording of the affidavit.

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its the actual OC and its fia card services.

however, when i called them, they said that they charged off and sold it and it went legal and now the account belongs to trak america.

however, the attorney still lists fia card service as the plantiff.

i dont get that part.

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You may still be able to strike the affidavit. It would depend upon the wording.

If you will be doing Discovery then you can ask for the resume of the affiant to see if she is qualified to have personal knowledge. You could also subpoena the affiant to appear in court. You could go to the clerk's office and grab a blank subpoena, put their name on it, and have the affiant served.

If you won't be doing Discovery, you can still send subpoenas for the affiant to appear and for them to bring their resume.

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Check your credit report. If the debt has been sold, the OC's entry should state "sold/transferred", or "sold to another lender"...something along those lines.

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i checked my credit report. it only shows status as charged off. however, I reconfirmed the status by calling fia card services and they said its already charged off, they no longer own the account, and sold it to trak america so to contact them

Edited by kooldude

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You may never know for sure who owns the debt. The OC could send it to a JDB which is really a front for the OC, an in house JDB, or they could sell the debt to the collection law firm, yet the debt is still reported as owned by the OC, and that's how they like it, to hide who owns the debt.

They also pass the debt back and forth between each other as well. What it states on the credit report doesn't matter.

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Thats why you have to prove the chain of custody.

Proof of a chain of custody is required when the evidence that is sought to be introduced at trial is not unique or where the relevance of the evidence depends on its analysis after seizure. A proper chain of custody requires three types of testimony: (1) testimony that a piece of evidence is what it purports to be; (2) testimony of continuous possession by each individual who has had possession of the evidence from the time it is seized until the time it is presented in court; and (3) testimony by each person who has had possession that the particular piece of evidence remained in substantially the same condition from the moment one person took possession until the moment that person released the evidence into the custody of another person.

"The purpose of testimony concerning chain of custody is to prove that evidence has not been altered or changed from the time it was collected through production in court. Gallego v. United States of America, 276 F.2d 914 (9th Cir. 1960) (citing United States v. S.B.

Panicky & Co., 136 F.2d 413, 415 (2d Cir. 1943)). Chain of custody testimony would include documentation on how the data was gathered, transported, analyzed, and preserved for production. This information is important to assist in the authentication of electronic data since it can be easily altered if proper precautions are not taken."

For evidence to be considered reliable, the party entering the evidence must be able to prove that the source of the evidence is itself reliable.

If documents are entered as evidence, the side that presents the evidence must be able to prove that it is authentic and must be able to show the chain of custody from the original document creator to the person who now holds it.

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Who is named as the Plaintiff on the Complaint?

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You may never know for sure who owns the debt. The OC could send it to a JDB which is really a front for the OC, an in house JDB, or they could sell the debt to the collection law firm, yet the debt is still reported as owned by the OC, and that's how they like it, to hide who owns the debt.

They also pass the debt back and forth between each other as well. What it states on the credit report doesn't matter.

The OC could send it to a JDB which is really a front for the OC, an in house JDB,

OCs do not have "in house" JDBs.

or they could sell the debt to the collection law firm, yet the debt is still reported as owned by the OC, and that's how they like it, to hide who owns the debt.

If the OC sells the debt, but continues to update their CR entry and show a balance, they are in violation of the FCRA.

They also pass the debt back and forth between each other as well.

No...OCs and JDBs do not pass debts back and forth between each other.

A JDB (junk debt buyer) buys defaulted debts. They are not affiliated with an OC. Once the OC sells the debt, the OC no longer has anything to do with it.

What it states on the credit report doesn't matter.

It does matter what is stated on your CR. If a debt is reported as sold/transferred, then yiou know the OC no longer owns the debt. If a JDB attempts to use the OC's name as the Plaintiff, the JDB is in big trouble.

Edited by BV80

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my CR still shows it as only charged off status and not sold. but fia card services said its already been charged off and sold to trak america.

now some collection attorney is using fia card services as the plantiff and himself as the attorney for plantiff.

fia card services told me they charged off and sold the debt to trak america back in december of 2010.

the sworn affidavit attached to the complaint was dated after that, in May 2011.

can they still do that? even if the OC no longer owns the debt?

Edited by kooldude

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How new is your CR? Creditors are adding updates daily. Even if you are getting a monthly report, your report is outdated the next day. If you are getting a yearly report then it is probably really outdated.

Since you have called the OC and they have told you that the debt is sold, I would assume this to be true and that you have an old CR.

There's been discussion on this board about a JDB using the OC's name when suing. I forget the reasoning but it has apparently happened in the past. You could research threads which deal with "real party in interest" because this is what you want to find out.

By the way, if you only got a summons and no dunning letter before that, then I would send a DV to the attorney. In the DV letter, I would address the DV to the attorney and the "creditor" of the account.

What may be happening here is that the "creditor" has decided to sue before making initial contact. They can do this. However, if you contact the "creditor" yourself, this would be considered the initial communication and the "creditor" would then have to come forward with who they are. They would also have to cease collections activities, including court proceedings, until they give you that information.

Edited by Downto0

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the credit report is a few days old.

after receiving the summons, i panicked and called the attorney wanting to settle out of court without even researching it.

is it too late to deny the allegation on my answer after i called them wanting to settle out of court?

or can i still deny the allegation that i entered into contract with plantiff or plantiff's assignor?

Edited by kooldude

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By the way, if you only got a summons and no dunning letter before that, then I would send a DV to the attorney. In the DV letter, I would address the DV to the attorney and the "creditor" of the account.

Useless at this point. Once suit is filed they do not have to answer a DV.

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is it too late to deny the allegation on my answer after i called them wanting to settle out of court?

You can be sure that the attorney would attest to anything you said to him but it is not the same as you said it to the judge. You could always realized that you were thinking about a different account when you were talking with them.

Your Answer is a court proceeding which requires a written response and is not an affidavit where you swear to the truth. If you haven't answered already, then you can say whatever you want. If you have already answered with the same story you told the attorney then you could make some sort of amendment. Check your Rules on amending a proceeding.

If you have not received your mini-Miranda then I would send for DV. It has little effect over the court proceedings except that it gives the attorney a chance to goof up and give you some claims against them.

If the attorney has not sent your mini-Miranda then your contact with them would trigger the requirement that they do. Once you trigger this requirement, the attorney must cease collection activities, including court proceedings, send to the creditor for dv, and send that dv to you.

It's basically a delay tactic that can give you some claims against the attorney.

Actually, on a side note, if you've already called the attorney then start counting the days since that phone call. They have five days to send the mini-Miranda. If they don't then this is your first violation against the attorney.

Also, you should first send in your Answer because there is usually a 20, or so, day deadline to have this filed. The 20 days starts from the date of service.

You should be looking for affirmative defenses. One of them could be that the Plaintiff is not the real party in interest, since you were told that the debt was sold.

Edited by Downto0

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actually, when i called, i didnt speak to the attorney but some girl that is assigned to my case.

haven't answered my complaint yet, but will very soon.

Edited by kooldude

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actually, when i called, i didnt speak to the attorney but some girl that is assigned to my case.

haven't answered my complaint yet, but will very soon.

In my opinion, this case is a little strange. You called the OC, and they told you they sold the debt, but you're CR doesn't show the debt has been sold. The OC is named as the Plaintiff. I'm wondering if the representative you spoke to on the phone knew what they were talking about.

If it were me, I'd speak to an attorney. In my state, the SC Bar Assoc. has a lawyer referral service. If I call them and ask for the name of a consumer attorney, they'll provide a name. As a result, that attorney will give me a free consultation. Some attorneys even give that consultation over the phone. It wouldn't hurt to see if your state's bar association might offer the same service.

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