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Question about When to attack the affidavit


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Ok, I am a bit confused about something. I have received a summons that has the complaint and the affidavit.

My question is: Should I go ahead and attack the "hearsayness" of the affidavit when I answer, or should I wait.

If I should go ahead and address it, how do I do that? In one of the paragraphs of the complaint they reference the affidavit this way:

Plaintiff is the asignee of the issuer's right to be repaid by the Defendant for the balance due under the credit card account, and it is entitled to recover from defendant the sum of 8000.00, prejudgment interest in the amount of 2000.00 for a total of 10000.00, as is shown by the affidavit of account attached hereto.

My answer:

8. Defendant is without knowledge or information sufficient to form a belief as to the truth of paragraph (8) of Plaintiff's Complaint and thus denies this allegation and demands strict proof thereof.

So should I call this affidavit hearsay as well? Or do I need to prepare a motion to strike that affidavit?

I am also sending them a request for POD, Admissions, and Iterrogatories as well just to let them know I am not going to be pushed around! Thanks in advance for your help.

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I am sorry, but I am a little concerned that the law firm I am dealing with may be watching this forum. But I am answering as much as I can without giving away who I am.

1. Who is the named plaintiff in the suit?

CAVALRY SPV I LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) I don't want to give that info out.

3. How much are you being sued for?

8000.00

4. Who is the original creditor? (if not the Plaintiff)

Bank of America

5. How do you know you are being sued? (You were served, right?)

Served summons

6. How were you served? (Mail, In person, Notice on door)

certified mail

7. Was the service legal as required by your state?

Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None, I never even knew that they were collecting

9. What state and county do you live in?

Arkansas, sorry I can't give you my county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

I am not outside of SOL

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

NO

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

30 days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Affidavit

Like I said, I know how to answer the complaint, and I even know how to request discovery etc. I am just trying to decide WHEN to do these things.

I think I am going to send only a POD, and then decide what my next course of action will be from there. It looks like of all the cases that this firm has filed in our court NO ONE has won. I am just sickened that no one fights them. They sent a very long and wordy complaint that is meant to intimidate you. Thanks for any insight anyone may have for me!

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Hopefully, you're not going to throw in a laundry list of affirmative defenses. Affirmative defenses shift the burden of proof to you. Most don't apply in these cases anyway. Since the debt is within the SOL, the only valid defense would be Lack of Standing. However, I don't believe you have to raise that defense in your answer. You can raise it later at a hearing.

Read your Rules of Civil Procedure. If the rules allow, you can send your Request for Production of Documents with your answer. Also, read posts by Coltfan. He's from your state.

For allegation #8, I might add this to your response:

Plaintiff has provided no documentation supporting this allegation or the statements in Plaintiff's affidavit.

Edited by BV80
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Oh, I am NOT even using any affirmative defenses. That is typically not used in my county. I have done extensive research on civil cases in my county by going to the court house and looking at the files. I am a courthouse researcher, so I do this on a regular basis. I have not seen many affirmative defenses used except in some of the class action cases.

Thanks for the addition to my #8! That is what I was looking for.

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I would say that just about all CC debt cases in my county are default judgments. I have come across a precious few, and I have copies of those 5 files. (yes, only 5 since 1999)

I have no problem believing any of that. In fact, I would say your number of five might be a little high.

Not sure what time frame you're using for statute of limitations (it might be moot). I argued and won with three years, while the general consensus is five years from everything I was told or read.

The other side looked stunned when the judge ruled, but the judge did not even pause for a second when ruling three years. Like I said might be a non issue as it would be in statute no matter what, but if you're talking to attys in Arkansas, I can't imagine they are not advising you the SOL is five years.

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@coltfan1972 I am using 5 years as the SOL. It has been not quite 3 years since the alleged default.

What strikes me is that of the 5 cases that have been won, two of them were done by an attorney who became a circuit judge. (he has retired now) One of them is my case from two years ago that I won. The other two were dismissed without prej. after defendants filed answers.

I am sure this particular law firm has not been challenged at all in my county or any others I have access to. So I will be the first to challenge them.

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It has been not quite 3 years since the alleged default.

If it has not been three years since the official default, I would not try the SOL defense. FIA (Bank of America) uses Delaware law, which specifies a 3 year SOL. AR is 5, so either way you lose in my opinion. Concentrate on ownership of the account.

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Read your rules of trial procedure about motions. Some motions have to be filed before the court date and some can be made in court.

I myself use the approach of why give the enemy you battle plan. If at all possible I wait until the court date and make my motions verbally in court that gives them less time to defend any motions.

Look Im goin to tell you some thing.

Since 2001 I have been sued 15 times by creditors. I was on active duty most of the time but 7 of them I was not on deployment.

Even if they prov the debt is yours that means nothing they also have to prove that you owe the debt to them. I have beat 6 of them so far only one I did not beat. But later i did get the lawyer to agree to dismiss.

I could have paid the debts but i absolutely refuse to pay one red cent of my hard earned money to scum junk debt buyers.

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AR is 5, so either way you lose in my opinion.

Not so fast my friend. While it is totally moot for the purposes of what the OP should do, I argued a three year statute of limitations, under Arkansas law, and got the judge to agree with me and dismiss the JDB lawsuit.

I promptly turned around and hit them with the FDCPA violations. They tried to use the excuse that the judge was wrong. My response was, then appeal the decision.

I knew there was no way they were going to risk losing an appeal where a pro-se non-atty had beat them. They just wanted to beat their chest and say the judge was wrong. I cut that off real quick by daring them to appeal. Of course in true tuck tail and run JDB form, they declined my invitation and sent me a check.

They probably were not exactly used to a pro-se litigant that had just won daring and trying to goad them into an appeal. :twisted:

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