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Validating Affidavits


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As I think about my court date on 1/20, I keep doing more research. I came across articles and forums that mention shady and illegal falsification of affidavits. Portfolio Recovery Associates was found guilty of using affidavits bearing the signature of a woman who has been deceased since 1995.

So far, PRA (via Forster and Garbus) has not presented any documentation beyond the few copies of statements that I mentioned. But this all makes me wonder...what if they present an affidavit in court? Is it taken at face value? How can they prove it's valid, and alternatively, how can I prove it isn't?

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Portfolio Recovery Associates was found guilty of using affidavits bearing the signature of a woman who has been deceased since 1995.

What's wrong with you? Haven't you read the US Supreme Court decision Discover Card v. Lizzie Borden? In this monumental, earth shattering decision, the Court stated: "The plaintiff has failed to provide any evidence to this court that establishes that dead people cannot sign affidavits. Indeed, any licensed mortuary operator is thoroughly within his rights to insert or otherwise introduce into the hand of any deceased individual any instrument of their choosing (no, not that one) for purposes of executing any otherwise legally allowed action thereafter or previously allowed under any applicable statute under which said deceased person would have been legally allowed to pursue or otherwise complete said action. This court finds no evidence to suggest that the affiant purported to represent the decedent Lizzie Borden has no legal authority to so do, or to serve the ice cream of Borden's Inc., or to otherwise impose, cause to happen, or to elicit any such response to said affidavit which would be contrary to the ruling set forth in Dracula v. Boris Karloff et al, or in any other such matter as which may be or may not be fully adjudicated in this court. Therefore, we find for the Defendant. Or maybe his brother, we really don't care as long as we get paid this month. Other justices from other states may or may not agree, but they probably will if they know what's good for them."

How can they prove it's valid, and alternatively, how can I prove it isn't?

Where do you think you are, in a free republic? This is the United States and we are Port-A-Potty Recovery, which means we're full of s--- and so are you. Don't give us a hard time or you'll pay the price. F--- you, pay us. That's out motto. Got it? My God, I'm so tired of people who don't understand the law.

Hey, you gotta lighten up once in a while. This is too stressful. Boo hoo, poor me.

"Or they think I'm faking it to draw a psycho pension, in which cased I'm F----ed and nobody wants to work with me.' Mel Gibson in Lethal Weaon

"Hey, I don't want to work with you either. Got no choice. Looks like we both are F----ed." Danny Glover in response.

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What's wrong with you? Haven't you read the US Supreme Court decision Discover Card v. Lizzie Borden? In this monumental, earth shattering decision, the Court stated: "The plaintiff has failed to provide any evidence to this court that establishes that dead people cannot sign affidavits. Indeed, any licensed mortuary operator is thoroughly within his rights to insert or otherwise introduce into the hand of any deceased individual any instrument of their choosing (no, not that one) for purposes of executing any otherwise legally allowed action thereafter or previously allowed under any applicable statute under which said deceased person would have been legally allowed to pursue or otherwise complete said action.

:LolPointUp::LolPointUp::LolPointUp:

This court finds no evidence to suggest that the affiant purported to represent the decedent Lizzie Borden has no legal authority to so do, or to serve the ice cream of Borden's Inc., or to otherwise impose, cause to happen, or to elicit any such response to said affidavit which would be contrary to the ruling set forth in Dracula v. Boris Karloff et al, or in any other such matter as which may be or may not be fully adjudicated in this court. Therefore, we find for the Defendant. Or maybe his brother, we really don't care as long as we get paid this month. Other justices from other states may or may not agree, but they probably will if they know what's good for them."

:roflmao::ROFLMAO2::roflmao::ROFLMAO2:

How can they prove it's valid, and alternatively, how can I prove it isn't?

Where do you think you are, in a free republic? This is the United States and we are Port-A-Potty Recovery, which means we're full of s--- and so are you. Don't give us a hard time or you'll pay the price. F--- you, pay us. That's out motto. Got it? My God, I'm so tired of people who don't understand the law.

::spew:: ::spew:: ::spew::::tp::

Hey, you gotta lighten up once in a while. This is too stressful. Boo hoo, poor me.

Oh Mio Dios!!! I have not laughed that hard in a long time!!! And I would lay off the egg nog legaleagle....:lagerlouts::lagerlouts::lagerlouts:... I think you've had enough!!! ;)

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Have you hit them with discovery? If not, they can spring it on you at trial. However, you can still object as hearsay. Better to have your attempt in obtaining the evidence in your back pocket.

Well, after receiving the summons I sent them a letter asking for:

* The amount you claim I owe

* Explain and show me how you have computed the amount, including a complete payment history on this account, and your process of validation of these amounts and payments in order to prove that the amount you wish to collect is accurate

* Send me the copies of any documents that prove I agreed to pay the alleged amount along with the agreement that bears signature of the alleged debtor where he promises to pay the original creditor

* Identify the original creditor and provide proof that this debt was purchased by you, your offices or representative of your office from the original creditor

* Provide alleged credit card number or account number

* Confirm that the account has not crossed the statute of limitations period

* Prove that you are a licensed debt collector, including a copy of the agreement with your client that authorizes you to collect on this alleged debt

* Provide proof of your license numbers and registered agent

And in my answer to the summons I used the following affirmative defenses:

Failure to state a claim upon which relief may be granted.

Failure to mitigate damages.

Lack of privity.

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing the Plaintiff injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

Failure to send the required 1692(g) notice so that the Defendant would be informed of their rights.

Failure to validate debt.

Failure to demonstrate legal right to collect alleged debt.

And, following all of that, all I received from Forster and Garbus was a packet of the few copies of statements that I've mentioned.

I've seen a bit of a difference of opinion here in terms of next moves- which have to come quickly now since we are nearing January 20. Some say to do nothing more- don't push them to come up with evidence that they have not already presented. Some say file a motion in Limine. Some say a motion for a Summary Judgment. I'm very confused. :confused:

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Let me respond the way I think they might respond if they even bother. Also, check NY rules for disclosure, I have posted it numerous times, I think it is Rule 31. A letter may not constitute proper procedure. You should send requests for production of documents and interrogatories separately. This stuff you sent mixes it all together.

The amount you claim I owe

* Explain and show me how you have computed the amount, including a complete payment history on this account, and your process of validation of these amounts and payments in order to prove that the amount you wish to collect is accurate

* Send me the copies of any documents that prove I agreed to pay the alleged amount along with the agreement that bears signature of the alleged debtor where he promises to pay the original creditor

OBJECTION improper as to form. This is a request for production of documents as is not set forth as such.

* Identify the original creditor and provide proof that this debt was purchased by you, your offices or representative of your office from the original creditor

This is the only thing you should pursue. They may provide a redacted bill of sale.

* Provide alleged credit card number or account number

Same as above

* Confirm that the account has not crossed the statute of limitations period

OBJECTION calls for a legal conclusion. SOL is a matter for the defendant to prove in the event he feels the SOL has expired.

* Prove that you are a licensed debt collector, including a copy of the agreement with your client that authorizes you to collect on this alleged debt

Plaintiff is a plaintiff, not acting as a debt collector. No license to sue is required.

* Provide proof of your license numbers and registered agent

Irrelevant as to previous question

Failure to state a claim upon which relief may be granted.

Forget it. Probably used account stated or breach of contract, perfectly acceptable

Failure to mitigate damages.

Highly unlikely. You have to support the defense and prove how.

Lack of privity.

Absolutely not.

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing the Plaintiff injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

Absolutely not. You've been reading too much junk on the internet. Also, you messed up the language and nearly admitted they they have standing to sue. Very bad.

Failure to send the required 1692(g) notice so that the Defendant would be informed of their rights.

Irrelevant, plaintiff is not acting as a debt collector in this action.

Failure to validate debt.

Validation was not requested. If it was, it was provided (don't really know)

Failure to demonstrate legal right to collect alleged debt.

Irrelevant, plaintiff has a legal right to bring suit.

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Let me respond the way I think they might respond if they even bother.

I doubt they will even bother, past what the did (surprised they did that much). I know I would not and bring it to the attention of the other party I was under no obligation to answer.

To the OP-

Sending a letter does not work. Your in a lawsuit. You have to make your request per the discovery rules of procedure. That means asking seperatly for production of documents and interrogatories.

Your also putting the burden on them by stating affirmative defenses (statute of limitations for example) The burden is on you if you use affirmative defenses. Plus the ones you used are worthless for this case.

I would expect they will go for a quick summary judgment motion, which I would expect to be granted.

If you still have time. I would do discovery right and cure your many "defects." You can get a lot of what you asked for in your letter, but it has to be asked for by the rules, if not they can ignore you, and then you have basically waved your right to demand their production.

You need to have material disputes you can show when they hit you with summary judgment. The best way to do that is with what you get in discovery and then point out to the judge a material fact that needs a trial. Right now your just a sitting duck for summary judgment.

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So, am I just screwed now? I have put together a request for production of documents...is ANY of this on target?

PLAINTIFF’S REQUEST FOR PRODUCTION OF DOCUMENTS

NOW COMES, the Plaintiff and propounds the following Request for Production upon Defendant, with the demand that Defendant provide for inspection and copying within thirty (30) days in accordance with The statutes governing disclosure are contained in Article 31 of the New York Civil Practice Law and

Rules (“N.Y. C.P.L.R.”)

REQUEST FOR PRODUCTION NUMBER 1:

ALL DOCUMENTS that refer or relate to the ACCOUNT including but not limited to contracts between Plaintiff and Defendant.

REQUEST FOR PRODUCTION NUMBER 2:

ALL DOCUMENTS that refer or relate to any investigation conducted regarding the disputed charges on the ACCOUNT.

REQUEST FOR PRODUCTION NUMBER 3:

ANY AND ALL DOCUMENTS that refer or relate to ANY COMMUNICATIONS between the PLAINTIFF and DEFENDANT including but not limited to letters, emails, recordings, and memos of phone calls made regarding the ACCOUNT.

REQUEST FOR PRODUCTION NUMBER 4:

ALL DOCUMENTS that support the PLAINTIFF’S allegations in PLAINTIFF’S COMPLAINT alleging the amount owed is $1887.06 (3) for credit extended for purchases and/or cash advances.

REQUEST FOR PRODUCTION NUMBER 5:

ALL DOCUMENTS in the possession, custody, and control of PLAINTIFF demonstrating the debits and credits involved in any transaction between PLAINTIFF and DEFENDANT

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Well, after receiving the summons I sent them a letter asking for:

* The amount you claim I owe

* Explain and show me how you have computed the amount, including a complete payment history on this account, and your process of validation of these amounts and payments in order to prove that the amount you wish to collect is accurate

* Send me the copies of any documents that prove I agreed to pay the alleged amount along with the agreement that bears signature of the alleged debtor where he promises to pay the original creditor

* Identify the original creditor and provide proof that this debt was purchased by you, your offices or representative of your office from the original creditor

* Provide alleged credit card number or account number

* Confirm that the account has not crossed the statute of limitations period

* Prove that you are a licensed debt collector, including a copy of the agreement with your client that authorizes you to collect on this alleged debt

* Provide proof of your license numbers and registered agent

A complete waste of your time...you need to request these as part of discovery.

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So, am I just screwed now?

Have no idea. Probably not, but depends on what the letter you sent them is considered by the court if they raise the issue. They might file for some b.s. protective order aruguing the way your costing them an undue burden by not complying with the rules.

Generally speaking, your able to cure most minor defects. I'd argue this is such a defect. It's not like they are not going to be required to come up with the stuff if you get a trial out of this.

I have put together a request for production of documents...is ANY of this on target?

Yes they are somewhat on target, however, it looks like a copy and paste job to me. Nothing necessiarly wrong with that but if it were me I'd get a ton more specific.

If they have a continuing duty to disclose and discovery is considered ongoing, as it is in my state, then some of your requests will suffice.

Why are you asking them to make the evidence available and you will come inspect and copy? Make them send it to you unless that is the law where you must go and copy and inspect. Once again, looks like a copy and paste and that is where you can get in trouble if you don't get what your copying specific to your case.

I'd be more inclined to ask something like.

- Please provide/produce the alleged written agreement for the alleged account between the Plaintiff and the Defendant, which the Plaintiff's lawsuit against the Defendant is based.

If there is no written contract then please state no such contract exists.

Also look at your second request. Not a good one in my opinion. You just flat out admitted there was an account. Not only that but you disputed the account.

The courts have ruled that the actions between the parties can establish a contract and no written contract is needed when that happens.

Your not kicking the chair out from under yourself, but your starting the process of putting the rope around your neck.

#3 needs to be alleged account.

This one, get more specific. They will have a legit objection.

REQUEST FOR PRODUCTION NUMBER 5:

ALL DOCUMENTS in the possession, custody, and control of PLAINTIFF demonstrating the debits and credits involved in any transaction between PLAINTIFF and DEFENDANT

- Please provide/produce a complete accounting of all debits for the alleged account.

- Please provide/produce a complete accounting of all credits for the alleged account.

- Please produce/provide all documents in the Plaintiff's custody and/or control which supports the amount provided in the request for an accounting of all debits for the alleged account.

- Please produce/provide all documents in the Plaintiff's custody and/or control which supports the amount provided in the request for an accounting of all credits for the alleged account.

And so forth on everything. Really spell it out and paint them in a corner. Don't give them the opportunity to act like they don't know what you specifically want. Demand they state when something does not exists, not just is not in their immediate custody in control.

You want them on the record stating certain records do or don't exist. If they don't exisit of course them producing at trial is not going to go over well. If you get them to admit there are documents and they don't produce them andthose documents are key to their case, another obvious problem.

In my opinion, you will win or lose the case during discovery. The trial, if any, will just be a formality or just a fun time if you enjoy such things.

Your discovery is better than nothing or sending a letter they don't have to answer, but I'd firm it up. Also if you are copying and pasting, that's fine, but get it specifically relevant to your exact issues.

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Yes, I am doing some copy and paste...but I have gone back through to add details and some other points based on some research. Not sure what else to ask for on #3, but this is what I have so far:

REQUEST FOR PRODUCTION NUMBER 1:

ALL DOCUMENTS that refer or relate to the alleged ACCOUNT including but not limited to contracts between PLAINTIFF and DEFEDNANT.

REQUEST FOR PRODUCTION NUMBER 2:

ALL DOCUMENTS evidencing proof that you have authority to collect on the alleged debt of the DEFENDANT or RESPONSD IN WRITING that such documents do not exist.

a. Provide ANT DOCUMNENTS including but not limited to ACTUAL CONTRACT of SALE/ASSIGNMENT from ORIGINAL CREDITOR to PLAINTIFF referencing this SPECIFIC ACCOUNT.

b. Provide ANY DOCUMENTS including but not limited to ACTUAL CONTRACT OF SALE/ASSIGNMENT evidencing continuous, unbroken chain of assignments SPECIFICALLY REFERENCING this alleged account

REQUEST FOR PRODUCTION NUMBER 3:

ANY AND ALL DOCUMENTS that refer or relate to ANY COMMUNICATIONS between the PLAINTIFF and DEFENDANT including but not limited to letters, emails, recordings, and memos of phone calls made regarding the alleged ACCOUNT or RESPOND IN WRITING that such documents do not exist.

REQUEST FOR PRODUCTION NUMBER 4:

ALL DOCUMENTS that support the PLAINTIFF’S allegations in PLAINTIFF’S COMPLAINT alleging the amount owed to PLAINTIFF is $1887.06 (3) for credit extended for purchases and/or cash advances or RESPOND IN WRITING that such documents do not exist.

a. ALL DOCUMENTATION evidencing PURCHASE PRICE of this SPECIFIC ALLEGED ACCOUNT from ORIGINAL CREDITOR or

b. AN ITEMIZATION of the amount sought including principal, finance charges, fees, and ALL OTHER ITEMS that PLAINTIFF plans to use in support of amount sought in COMPLAINT.

REQUEST FOR PRODUCTION NUMBER 5:

ALL DOCUMENTS in the possession, custody, and control of PLAINTIFF demonstrating the debits and credits involved in any transaction between PLAINTIFF and DEFENDANT or RESPOND IN WRITING that such documents do not exist.

a. Please provide/produce a COMPLETE ACCOUNTING of ALL DEBITS for the alleged account.

b. Please provide/produce a COMPLETE ACCOUNTING of ALL CREDITS for the alleged account.

c. Please produce/provide all documents in the Plaintiff's custody and/or control which supports the amount provided in the request for an accounting of all debits for the alleged account.

d. Please produce/provide all documents in the Plaintiff's custody and/or control which supports the amount provided in the request for an accounting of all credits for the alleged account.

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Provide ANY DOCUMNENTS including but not limited to ACTUAL CONTRACT of SALE/ASSIGNMENT from ORIGINAL CREDITOR

Alleged original creditor.

Don't concede anything !! Other than your name, everything is alleged by them and contrary to what you will read, in my opinion, it's always best to keep that burden on them. Make them prove every single element of their case, no help from you.

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*snipped*

REQUEST FOR PRODUCTION NUMBER 5:

ALL DOCUMENTS in the possession, custody, and control of PLAINTIFF demonstrating the debits and credits involved in any transaction between PLAINTIFF and DEFENDANT or RESPOND IN WRITING that such documents do not exist.

In line with Coltfan's "alleged" theme, should October also refer to the debt (or credits) as "alleged" also???

(and October, you need to spell check it too... saw a few typos... ;) )

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Wow, I did spell check and now I see all the things it didn't catch! Thank you both.

Does anyone know for certain how long they have to respond? I have seen 30 days (which i don't really have) and 10 days if they object to responding to any of it and 20 if they don't. I imagine this is clearly stated somewhere, but I can't find it.

Also, I was going to send this via certified mail with signature confirmation; one copy to Forster and Garbus, one to the Court...unless you all suggest something else?

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In line with Coltfan's "alleged" theme, should October also refer to the debt (or credits) as "alleged" also???

I always use alleged; contract, creditor (original creditor, or junk debt buyer), account, and debt.

I hit on the elements they must prove to win and attack those elements as alleged.

The debits and creditors are part of the account and amount of debt owed, which should be stated as alleged. Therefore, in my opinion, your covered because the debits and credits fall under the umbrella of the "alleged account," or "alleged amount due."

It's how they arrived at that alleged debt amount owed, so by default the accounting they used to obtain the amount due is also alleged and not proven or conceded.

By not saying alleged, you don't give up your right to dispute. However, junk debt buyers usually have to grasp at straws when one fights back. For that reason, you just want to destroy their arguments before they even have a change to plead them, no matter how frivilous those arguments they plead might be.

Edited by Coltfan1972
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So, today I come home and there's a packet from Portfolio Recovery Services (oddly, not from Forster and Garbus). Enclosed was information regarding the account they are already suing me for, including 3 of the same statements that Forster and Garbus sent me, and forms to fill out if I wanted to file a stolen identity claim. What in the world? Isn't it kind of late to be sending me that now? Do they not realize that they are already suing me?? They've also jacked up the amount that is on the summons by about $200.

Should I respond to it in any way?

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If I get these, here is what I would do to you. Don't take this the wrong way, I want to educate you. You're dealing with people who would carve your liver out and sell it for fifty bucks if they thought they could get away with it. Best you be prepared.

REQUEST FOR PRODUCTION NUMBER 1:

ALL DOCUMENTS that refer or relate to the ACCOUNT including but not limited to contracts between Plaintiff and Defendant.

OBJECTION Vague, compounded, and completely beyond the bounds of permissible discovery. The lack of specificity makes the request impossible to comply with, other than the reference to "contracts." Even though defendant has not requested a specific contract or identified same, a copy of the cardholder agreement binding plaintiff to the terms thereof is attached.

REQUEST FOR PRODUCTION NUMBER 2:

ALL DOCUMENTS that refer or relate to any investigation conducted regarding the disputed charges on the ACCOUNT.

OBJECTION Vague, argumentative, and lacking in specificity or foundation. The "investigation" to which defendant refers is neither identified or established as having taken place. Additionally, "disputed charges" are not a matter properly set forth as a request for production of documents unless defendant alleges same, in which case defendant has equal access to any such documents.

REQUEST FOR PRODUCTION NUMBER 3:

ANY AND ALL DOCUMENTS that refer or relate to ANY COMMUNICATIONS between the PLAINTIFF and DEFENDANT including but not limited to letters, emails, recordings, and memos of phone calls made regarding the ACCOUNT.

Plaintiff has or will produce statements and a cardholder agreement which satisfy the requirements of the cause of action in the complaint.

REQUEST FOR PRODUCTION NUMBER 4:

ALL DOCUMENTS that support the PLAINTIFF’S allegations in PLAINTIFF’S COMPLAINT alleging the amount owed is $1887.06 (3) for credit extended for purchases and/or cash advances.

Plaintiff will or has provided produce copies of monthly statements retained by the defendant for an unreasonable time without dispute, which establish the amount of the recovery sought.

REQUEST FOR PRODUCTION NUMBER 5:

ALL DOCUMENTS in the possession, custody, and control of PLAINTIFF demonstrating the debits and credits involved in any transaction between PLAINTIFF and DEFENDANT

Any offsets will be shown in the statements provided. If defendant has any information to the contrary, let him produce same.

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Legaleagle, I am not offended in the least- I came to you guys looking for help. I guess I am totally not sure what I should ask them to produce.

I did change #2 asking them to provide evidence that they have the authority to collect. And, yes, they have some statements, but how do i get at what THEY paid for it and NOT what they allege I owed the OC?

I'm just freaking out a bit because I need to send them something soon and I seem to not be able to hit the target on what I should be asking for. And I am feeling discouraged. It sounds as though they really aren't responsible to proving anything.

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, but how do i get at what THEY paid for it and NOT what they allege I owed the OC?

You can go one of two ways...

1. a request for production for all documents related to the sale that included your account

2. subpeona the original creditor for all unredacted documents regarding the sale of your account.

Either way, expect them to throw a fit.

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