"Authorized Agent" vs. "Custodian of the Records"?

[yarnaholic]

In Tex. R. Evid. 902(10), the rule says that the affiant must be a "custodian of the records". However, the prerequisites of rule 803(6) may be provided by the custodian of records or a "qualified witness." Tex. R. Evid. 803(6). Rule 803(6) does not require a witness who is laying the predicate

for introduction of a business record to be the creator of the document or even an employee of the company keeping the subject record. Houston Shell & Concrete Co. v. Kingsley Constructors, Inc., 987 S.W.2d 184, 186 (Tex. App.-Houston [14th Dist.] 1999, no pet.). Rather, an affiant may qualify

as a "qualified witness" by demonstrating personal knowledge of the facts contained within the business record. Id. (citing Duncan Dev., Inc. v. Haney, 634 S.W.2d 811, 813-14 (Tex. 1982)).

"Determining admissibility of business records affidavits involves deciding whether `the source of information or the method or circumstances of preparation indicate a lack of trustworthiness.'" Simien v. Unifund CCR Partners, 321 S.W.3d 235, 246 (Tex. App.-Houston [1st Dist.] 2010, no

pet.) (citing Tex. R. Evid. 803(6)). The admission or exclusion of evidence rests within the sound discretion of the trial court. State v. Bristol Hotel Asset Co., 65 S.W.3d 638, 647 (Tex. 2001).

So my question is, if the affiant testifies that she's an "authorized agent" and does not in any way explain how she has personal knowlege of the business records, can I use this as a way to strike the affidavit? As someone else on this board said (I believe it was LeagleEagle), "a ham sandwich (or maybe it was bologna) could be an authorized agent".

[BrunoTheJDBkiller]

It's going to depend on the language in the affidavit. What he or she calls themself is fairly irrelevant, the affidavit will be treated as someone authenticating the business records of another party. It could be from the OC or the JDB, 2 different methods of attack are used. JDB is hearsay, OC is an interested witness. I posted on this a few times in the last couple of days.

[yarnaholic]

It's going to depend on the language in the affidavit. What he or she calls themself is fairly irrelevant, the affidavit will be treated as someone authenticating the business records of another party. It could be from the OC or the JDB, 2 different methods of attack are used. JDB is hearsay, OC is an interested witness. I posted on this a few times in the last couple of days.

Here is the Business Records Affidavit that was included with Cap 1's MSJ.

Business Record Affidavit

Account Number ************1234

Before me, the undersigned notary, on this day personally appeared Karen Yarbrough (this underlighting represents that this was a fill in the blank on the form), the affiant, a person whose identity is known to me. After I administered an oath to affiant, affiant testified:

1) "My name is Karen Yarbrough. I am over 18 years of age, of sound mind and capable of making this affidavit. The facts stated in this affidavit are within my personal knowledge and are true and correct.

2) I am an authorized agent of CAPITAL ONE BANK (USA), N.A.

3) Attached to this affidavit are 116 pages of records from CAPITAL ONE BANK (USA), N.A. Said statements are based upon my personal review and knowledge of the books and records of Plaintiff which contain information of the account referenced below.

4) Those records were kept in the course of a regularly conducted business activity, and I know from my experience in reviewing such records that it was the regular practice of that business activity to make records which were made at or near the time of transactions reflected therein.

5) I am similarly aware by personal experience and by common knowledge that the records are made either by a person having personal knowledge of the information contained herein or based on information conveyed by a person having personal knowledge of the information contained herein.

6) The business records show that defendant opened account number ***********1234 on June 12, 2007.

7) The record was made at or near the time or reasonably soon after that, event, condition, opinion, or diagnosis that was recorded. The records attached to this affidavit are the originals or exact duplicates of the originals.

Karen Yarbrough

Karen Yarbrough, Affiant

Sworn and subscribed before me by Karen Yarbrough on Oct. 1, 2012

Diane P. Trittipoe

Notory Public in and for Chesterfield County

The State of VA

And of course there's the notary stamp.

My question is, HOW is this qualified?

[Flyerfan]

Is the number 116 a fill-in-the blanks as well? If so, attack the fact that no specific document is mentioned.

Also, she does not affirm that they are correct or have been properly checked for accuracy. In your opposition to the MSJ, state these facts and that you wish to question her at trial to ascertain these facts.

Did she check for accuracy?

She mentions no amount due?

She doesn't mention a default date?

All this affidavit says is that you opened an account. Are you even disputing that?

[yarnaholic]

Is the number 116 a fill-in-the blanks as well? If so, attack the fact that no specific document is mentioned.

Also, she does not affirm that they are correct or have been properly checked for accuracy. In your opposition to the MSJ, state these facts and that you wish to question her at trial to ascertain these facts.

Did she check for accuracy?

She mentions no amount due?

She doesn't mention a default date?

All this affidavit says is that you opened an account. Are you even disputing that?

Yes, the 116 pages is a fill-in-the-blank, as is her name. I didn't think I could dispute opening the account. How would I do this?

[Flyerfan]

Yes, the 116 pages is a fill-in-the-blank, as is her name. I didn't think I could dispute opening the account. How would I do this?

If you opened the account and they question you, you need to tell the truth.

You can dispute the document as being unauthenticated. For authentication, a document must be referred to in an affidavit. Again, at the MSJ they are not weighing the evidence. The judge is simply seeing if a trial is necessary. By disputing the qualifications of the affiant and attacking the lack of foundation for what measures were taken to validate the correctness of the documents you are telling the judge "there is a need for a trial". Do this with all of there evidence.

You are being sued by the original creditor correct? This is way harder to do than defeating a JDB. If that's the case, there are people way more qualified than me to help you. Good luck.

[yarnaholic]

If you opened the account and they question you, you need to tell the truth.

You can dispute the document as being unauthenticated. For authentication, a document must be referred to in an affidavit. Again, at the MSJ they are not weighing the evidence. The judge is simply seeing if a trial is necessary. By disputing the qualifications of the affiant and attacking the lack of foundation for what measures were taken to validate the correctness of the documents you are telling the judge "there is a need for a trial". Do this with all of there evidence.

You are being sued by the original creditor correct? This is way harder to do than defeating a JDB. If that's the case, there are people way more qualified than me to help you. Good luck.

Yes, it's the OC I'm wondering if when I dispute the qualifications of the affiant, I can and/or should bring up the issue of robo-signing and therefore my concerns about the affiant. Or is that not proper to mention in a MOSJ?

[racecar]

1.One who agrees and is authorized to act on behalf of another, a principal, to legally bind an individual in particular business transactions with third parties pursuant to an agency relationship.

2.A person who is authorized to act for another (the agent's principal) through employment, by contract or apparent authority. The importance is that the agent can bind the principal by contract or create liability if he/she causes injury while in the scope of the agency. Who is in agent and what is his/her authority or often difficult and crucial factual issues.

West's Encyclopedia of American Law, edition 2.

Consumer Complaint Search Results

See Charles Fratz vs. Capital One for robo signed documents.

Edited November 15, 2012 by racecar

[Flyerfan]

Is all of their evidence attached to this one affidavit? Is it the only "authentication" of the documents? Are there any other affidavits?

[yarnaholic]

Is all of their evidence attached to this one affidavit? Is it the only "authentication" of the documents? Are there any other affidavits?

No other affidavits, no other evidence.

[Flyerfan]

No other affidavits, no other evidence.

Is all 116 pages monthly billing statements or is there more? The original contract, terms and conditions, etc?

[yarnaholic]

Is all 116 pages monthly billing statements or is there more? The original contract, terms and conditions, etc?

After each month's statement is a page of "something" printed so small that I cannot even read it. I believe that it starts out with "How to Avoid a Finance Charge". There are some promotional pages thrown in there but there is no contract, and no Customer Agreement. On every statement though, the account numbers have been marked out (apparently with a black marker). I'm not sure if this matters or not. Another issue that I've been told doesn't matter is that statements do not start with a 0 balance. The first statement that they provided starts with over $7K balance.

[Flyerfan]

After each month's statement is a page of "something" printed so small that I cannot even read it. I believe that it starts out with "How to Avoid a Finance Charge". There are some promotional pages thrown in there but there is no contract, and no Customer Agreement. On every statement though, the account numbers have been marked out (apparently with a black marker). I'm not sure if this matters or not. Another issue that I've been told doesn't matter is that statements do not start with a 0 balance. The first statement that they provided starts with over $7K balance.

Is the entire account number blacked out or did they leave the last 4 digits?

[yarnaholic]

Is the entire account number blacked out or did they leave the last 4 digits?

They left the last 4 digits :-/

[Flyerfan]

They left the last 4 digits :-/

That is acceptable.

Start going through the statements and see if you can find errors and discrepancies. Any errors brings the amount due into question but be careful. Pointing to one specific error may make everything else seem more credible.

Going against the OC without a statute of limitations defense is tough. Search threads about being sued by an OC. There may be more helpful information there.

Good luck.

[BV80]

Yes, it's the OC I'm wondering if when I dispute the qualifications of the affiant, I can and/or should bring up the issue of robo-signing and therefore my concerns about the affiant. Or is that not proper to mention in a MOSJ?

You can raise the issue of robo-signing but you need more than concerns about it to get the judge's attention. Yes, certain banks have been caught robo-signing affidavits. Is Cap1 one of them? Was it proven?

Take apart 803(6).

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by affidavit that complies with Rule 902(10), unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

1. "made at or near the time". That was stated in #4.

2. "by, or from information transmitted by, a person with knowledge". That was stated in #5.

3. "kept in the course of a regularly conducted business activity". Also stated in #4.

4. "it was the regular practice of that business activity to make the memorandum, report, record, or data compilation". Stated in #4.

5. "by affidavit that complies with Rule 902(10)". Here's an example of an affidavit shown in Rule of Evidence 902(10).

Before me, the undersigned authority, personally appeared _________, who, being by me duly sworn, deposed as follows:

My name is _________, I am of sound mind, capable of making this affidavit, and personally acquainted with the facts herein stated:

I am the custodian of the records of _________. Attached hereto are _____ pages of records from ______. These said ____ pages of records are kept by ________ in the regular course of business, and it was the regular course of business of __________ for an employee or representative of ________, with knowledge of the act, event, condition, opinion, or diagnosis, recorded to make the record or to transmit information thereof to be included in such record; and the record was made at or near the time or reasonably soon thereafter. The records attached hereto are the original or exact duplicates of the original.

Nothing in that affidavit mentions accuracy of the records. You would have to cast doubt on the accuracy by showing they are or could be inaccurate.

The affidavit submitted by Cap1 is probably sufficient to authenticate the cc statements. An affiant does not have to be a custodian of records. He/she just has to attest that the records are what the Plaintiff claims them to be and the affidavit must contain the required. In this case the Plaintiff claims the records are cc statements. The affidavit confirms that claim and contains the required language.

However, if I were in your shoes and wanted to fight this to the end, I'd bring up 2 issues. (continued in the next post).

[BV80]

2 Issues

1. Authorized Agent. There's nothing in the affidavit that describes her capacity as an "Authorized Agent". Does she work for Cap1? We don't know because she didn't claim to be their employee. If she's a Cap1 employee, why didn't she just say so?

What is her capacity as an "Authorized Agent"? What does she do exactly?

In #3, she stated that she personally reviewed the records. That doesn't mean she's an employee of Cap1. It just means that she claims to have reviewed the records.

In #4, she states she has experience reviewing such records. How does she have that experience? Again, we don't know. Does she review records strictly for Cap1, or does she do so for multiple businesses?

I could review records for businesses every day, but it doesn't mean I understand what I'm reviewing.

Rule 803(6) specifically states that an affidavit provided to authenticate documents must be made by the custodian of records or qualifed witness. How is she an authorized agent for Cap1, and what about being an authorized agent makes her a qualified witness?

You need supporting case law to cast doubt on that argument.

Will a judge agree that the affidavit is insufficient to authenticate the records? I don't know. But you can make the argument.

2. Although the affidavit might be sufficient for authentication of the records, if it's their affidavit to support judgment, I would claim it's insufficient to support that motion.

Take note. An affidavit to authenticate records and an affidavit for summary judgment are 2 different things. An affidavit simply to authenticate records doesn't have to be made on personal knowledge. An affidavit for summary judgment does.

She states that she has personal knowledge, but I would challenge it because she doesn't say how she has personal knowledge. Even though she claims her statements are made on personal knowledge and that she has experience reviewing records, it doesn't necessarily mean she's competent to testify about the allegations in Cap1's complaint.

"Rule 166-A, Texas Rules of Civil Procedure, authorizes a summary judgment with supporting affidavits, but requires that the affidavits 'shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein.'" Box v. Bates, Sup.Ct. (1961), 162 Tex. 184, 346 S.W.2d 317.

As an authorized agent who does not claim to be an employee of Cap1, how does she have personal knowledge of the facts of the case that would make her competent to testify to those matters? Again, she claims to have experience reviewing records but doesn't claim that she does so as an employee of Cap1. She doesn't state that Cap1 is the only company for which she reviews records.

For all we know, she could be an attorney who is an authorized agent for multiple companies.

In addition, I'd point out that, except for her word, there's nothing from Cap1 that evidences she's an authorized agent for that company. I could claim to be their authorized agent, but it doesn't make it true.

I don't know if the judge will buy these arguments, but at least it's something to argue.

[yarnaholic]

2 Issues

1. Authorized Agent. There's nothing in the affidavit that describes her capacity as an "Authorized Agent". Does she work for Cap1? We don't know because she didn't claim to be their employee. If she's a Cap1 employee, why didn't she just say so?

What is her capacity as an "Authorized Agent"? What does she do exactly?

In #3, she stated that she personally reviewed the records. That doesn't mean she's an employee of Cap1. It just means that she claims to have reviewed the records.

In #4, she states she has experience reviewing such records. How does she have that experience? Again, we don't know. Does she review records strictly for Cap1, or does she do so for multiple businesses?

I could review records for businesses every day, but it doesn't mean I understand what I'm reviewing.

Rule 803(6) specifically states that an affidavit provided to authenticate documents must be made by the custodian of records or qualifed witness. How is she an authorized agent for Cap1, and what about being an authorized agent makes her a qualified witness?

You need supporting case law to cast doubt on that argument.

Will a judge agree that the affidavit is insufficient to authenticate the records? I don't know. But you can make the argument.

2. Although the affidavit might be sufficient for authentication of the records, if it's their affidavit to support judgment, I would claim it's insufficient to support that motion.

Take note. An affidavit to authenticate records and an affidavit for summary judgment are 2 different things. An affidavit simply to authenticate records doesn't have to be made on personal knowledge. An affidavit for summary judgment does.

She states that she has personal knowledge, but I would challenge it because she doesn't say how she has personal knowledge. Even though she claims her statements are made on personal knowledge and that she has experience reviewing records, it doesn't necessarily mean she's competent to testify about the allegations in Cap1's complaint.

"Rule 166-A, Texas Rules of Civil Procedure, authorizes a summary judgment with supporting affidavits, but requires that the affidavits 'shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters therein.'" Box v. Bates, Sup.Ct. (1961), 162 Tex. 184, 346 S.W.2d 317.

As an authorized agent who does not claim to be an employee of Cap1, how does she have personal knowledge of the facts of the case that would make her competent to testify to those matters? Again, she claims to have experience reviewing records but doesn't claim that she does so as an employee of Cap1. She doesn't state that Cap1 is the only company for which she reviews records.

For all we know, she could be an attorney who is an authorized agent for multiple companies.

In addition, I'd point out that, except for her word, there's nothing from Cap1 that evidences she's an authorized agent for that company. I could claim to be their authorized agent, but it doesn't make it true.

I don't know if the judge will buy these arguments, but at least it's something to argue.

Thank you for this! I used much of the same argument in my MOSJ which I just posted and would love your input on.

[BrunoTheJDBkiller]

116 pages is close to ten years, how are you going to defeat that? See my posts for how to attack an OC affiant.

[BTO429]

That is acceptable.

Start going through the statements and see if you can find errors and discrepancies. Any errors brings the amount due into question but be careful. Pointing to one specific error may make everything else seem more credible.

Going against the OC without a statute of limitations defense is tough. Search threads about being sued by an OC. There may be more helpful information there.

Good luck.

Acceptable???? How many other account numbers end with those digits? The OC should have the complete account number. Without the complete account number how do we know they sued the right person?

What is their complaint,, is it breech, It would be nice to have breech of contract and no contract to prove it,,,it they try to bring up the contract later you object because it was not provided in the complaint.

[Flyerfan]

Acceptable???? How many other account numbers end with those digits? The OC should have the complete account number. Without the complete account number how do we know they sued the right person?

What is their complaint,, is it breech, It would be nice to have breech of contract and no contract to prove it,,,it they try to bring up the contract later you object because it was not provided in the complaint.

I can't speak for Texas but in Delaware, even with the last Administrative Directive, the last 4-digits of the account number is acceptable. I'm not saying it's right, I'm just saying it's accepted by the courts as long as it is accompanied with your name and address.

Again, not saying it's right.

"NOW, THEREFORE, IT IS DIRECTED that Administrative Directive 2011-1

is hereby rescinded and replaced in its entirety, as follows:

1. Pleading Requirements for Complaints in Consumer Debt Collection

Actions: Any Consumer Debt Collection Complaint must include an Affidavit of

Ownership and Amount Due which shall substantially conform to Form 1 appended hereto.

Additionally, the following information shall be set forth in the Complaint:

a. the caption shall include a sufficient description of the original creditor

to reasonably enable the defendant to identify the account, along with the

name of the plaintiff;

b. the last four digits of the original account number or the account

number that existed at the time of default; and

c. a breakdown of the Principal Amount Due and interest, fees and other

charges. "

Edited November 16, 2012 by Flyerfan

[BTO429]

Brown v. Columbus Stamping & Mfg. Co., 9 Ohio

To properly plead an action on account and to comply with Civ.R. 10(D), the creditor must attach a copy of the account to the complaint. The account must begin with a "balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum." (Emphasis added.)

Discover Bank vs Damico

To properly plead an action on account and to comply with Civ.R. 10(D), the creditor must attach a copy of the account to the complaint. The account must begin with a "balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum."

Discover Bank vs Damico

An "account stated" is "an agreed balance of accounts, expressed or implied, after admission of certain sums due or an adjustment of the accounts between the parties, striking a balance, and assent, express or implied. It has also been defined as an agreement between parties, express or implied, based upon an account balanced and rendered, and as an agreement between parties between whom there has been an account. An account stated is predicated upon prior transactions which create a debtor-creditor relationship between the parties to the account."

Discover Bank vs Damico

Creditrust is factually similar to the case before this court inasmuch as the creditor did not present a starting zero balance but rather a starting balance due of $6,065.73. The Second District determined that a beginning balance that was actually a balance brought forward could not qualify as an account stated based upon a provable sum established by the monthly statements, because the creditor failed to produce all of the monthly statements showing all charges and payments totaling the balance due. But, the court concluded that the balance stated on the final statement sent to the debtor constituted an "account stated" and, therefore, qualified as a "provable sum."

Great Seneca Financial v. Felty

In Felty, the Court set forth the requirements to establish a prima facie case for money owed on an account. “A Plaintiff must demonstrate the existence of an account, including that the account is in the name of the party charged, and it must also establish (1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permit the calculation of the amount claimed to be due

[yarnaholic]

Brown v. Columbus Stamping & Mfg. Co., 9 Ohio

To properly plead an action on account and to comply with Civ.R. 10(D), the creditor must attach a copy of the account to the complaint. The account must begin with a "balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum." (Emphasis added.)

Discover Bank vs Damico

To properly plead an action on account and to comply with Civ.R. 10(D), the creditor must attach a copy of the account to the complaint. The account must begin with a "balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum."

Discover Bank vs Damico

An "account stated" is "an agreed balance of accounts, expressed or implied, after admission of certain sums due or an adjustment of the accounts between the parties, striking a balance, and assent, express or implied. It has also been defined as an agreement between parties, express or implied, based upon an account balanced and rendered, and as an agreement between parties between whom there has been an account. An account stated is predicated upon prior transactions which create a debtor-creditor relationship between the parties to the account."

Discover Bank vs Damico

Creditrust is factually similar to the case before this court inasmuch as the creditor did not present a starting zero balance but rather a starting balance due of $6,065.73. The Second District determined that a beginning balance that was actually a balance brought forward could not qualify as an account stated based upon a provable sum established by the monthly statements, because the creditor failed to produce all of the monthly statements showing all charges and payments totaling the balance due. But, the court concluded that the balance stated on the final statement sent to the debtor constituted an "account stated" and, therefore, qualified as a "provable sum."

Great Seneca Financial v. Felty

In Felty, the Court set forth the requirements to establish a prima facie case for money owed on an account. “A Plaintiff must demonstrate the existence of an account, including that the account is in the name of the party charged, and it must also establish (1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permit the calculation of the amount claimed to be due

Do you happen to know of any Texas case law for this?

[theshelty]

Who is the Law firm that is suing you? I am being sued by Bowman, Heintz, Boscia and Vician P.C.  I am certain I am not being sued by the original creditor even though the complaint lists Capital One as the Plaintiff. I have called Capital One to verify this account and they say no such account is still in their records. Plus I was called by like five different junk debt collection agencies before these guys sued me. The subpoena they sent me said I had an innitial hearing scheduled today at 8:45 am. Guess what happened when I showed up? There was no such hearing. I could not get myself in front of a judge. What happened was at 8:45 the bailiff told everybody to go into the auditorium and the "hearing" would take place in there. Then the lawyers called out peoples names one at a time (there were about 200 people there all with the same summons). To every person they handed a piece of paper (a presentment/contract) and instructed them to fill it out and sign it. They even wanted people to write in a monthly ammount they were going to pay them. AND EVERYBODY DID IT! My fiance and I were the only people who refused. Still there was no Judge present and no court magistrate. The bailiff was no longer there either. Then I was called out into the hall by a lawyer who tried to get me to admitt I had this debt. I heard a guy whisper to her "make sure you write down everything they say". I told her I was not interested in talking to her and that I was here to be heard before a judge. She was very flustered and obviously had no idea what to do. I could tell she was pissed. She then instructed me to go back inside the auditorium. Then she went over to her other lawyer firends (who were dressed very very slutty) and started to make fun of me. We could hear them making jokes and watched them making immitations of me. There was one guy who was obviously new (he was being trained by one of the scantilly clad girls) who actually defended me and was confused why they were making fun. He was like "arn't they supposed to file a response? That makes sense." They made fun of him and acted like he was stupid. Then this lady with a court badge came over and told me I was not scheduled for a hearing and that I was confused and was scheduled for something else. She said I would recieve a letter from the court some time in the future (she would not say when) which would schedule another hearing (another hearing?? we didn't have one) again she couldn't say when. We asked for documentation that would prove that we had shown up for our hearing (the summons we recieved clearly stated it was a hearing). She said that was not possible and wasn't necessary. So we left. We went to the court room but court was in session and we couldn't get in. So we then went home. We typed up a motion stating what had happened, that we had shown up for the hearing but there was no hearing. When we went back to the clerk to file our motion I asked the clerk how they could have a hearing without a Judge. She replied "EXACTLY, EXACTLY" and nodded her head. She seemed to know what was up. She then told us we should file a motion to formally request to be heard in front of a Judge or else we probably never would. So we filed that motion. It seems these fraudulent lawyers, if you can call them that (I'm not even sure they have law degrees or passed the bar, they certainly don't act like it) are holding their own hearings being judge, jury, prosecution and plaintiff all at once all in some crazy attempt to defraud people all with the help of the court (who turns a blind eye, I wonder how much they had to pay him?). They had stacks and stacks and just dozens and dozens of stacks of papers they were filing. There had to have been thousands of them. All people they were defrauding and the court was allowing all of this, if not helping. We're going to be suing these sick Fu#$%&ers and getting them disbarred. The worst thing is I read on the internet that most people don't even show up to these things. Which means all those people got default judgements against them and there wasn't even a hearing for them to show up to. It must have been a lot of people that didn't show up considering the massive amount of paperwork they had. I'm talking thousands of papers they were filing.

 

Oh! and by the way.. here is a copy of the Affidavit of Debt they had sent me. Notice how the affiant and the notary are exactly the opposite of yours yarnaholic.

 

AFFIDAVIT OF DEBT

 

PERSONALLY APPEARED before the undersigned officer, duly authorized to administer oaths, Diane Trittipoe, who states under oath as follows:

1. I am over 18 years old and competent to testify to the matters set forth herein. I am an authorized agent of Plaintiff CAPITAL ONE BANK (USA), N.A. ("Capital One") for purposes of this affidavit. I am authorized by Capital One to testify to the matters set forth herein. As a result of the scope of my job resposibilities, I have personal knowledge of the manner an method by which Capital One creates and maintains certain business books and records, including computer records of defaulted accounts.

2. The Capital One books and records are made int eh couse of Capital One's regularly conducted business activity and it is a regular practice of Capital One to make these books and recods. Each of the Capital One books and records reviewed are made: (1) at or near the time the events they purport to describe occurred, by a person with knowledge of the acts and events; or, (2) by a computer or other similar digital means, which contemporaneously records an event as it occurs.

3. The books and records of Capital One show that Defendant(s) opened a credit card account with Capital One on 07/07/2000 for the purpose of obtaining an extension of credit and did thereafter use or authorize the use of the account for the acquisition of goods, services, or cash advances in accordance with the Customer Agreement governing use of that account. The last payment attempt in the amount of $69.00 on 08/11/2011 did not satisfy the ourstanding balance and thus created a default on the account.

4. The books and records of Capital One show that at the time Defendant's(s') account, *******1111, charged off in the ordianary course of business, the just and true sum of $3051.27 remained due and owing as of 03/23/2012. There have been no late fees assessed after 03/23/2012.

5. The books and records of Capital One show that credit has been given to Defendant(s) for all just and lawful offsets, payments, and credits as of the date hereof, and there now remains due and owing on account number *******1111 the just and true sum of $3051.27 as of 09/04/2012. This balance is comprised of Defendant's(s') outstanding debt on the date the account charged off 9including any pre-charge-off transactions, interest, and/or fees) less any offsets, payments, or credits applied to the account after the charge-off date.

6. The Customer Agreement entered into between the parties also authorizes Capital One to recover from Defendant(s) reasonable attorney's fees and costs to the extent permitted by law.

7. Nothing in the books and records I reviewed indicate or show that the Defendant(s) is/are a minor/minors, is/are mentally incompetent or is/are otherwise incapacitated.

8. I declare under penalty of perjury that the foregoing is true and correct and if called as a witness I would completely testify, under oath, thereto.

 

Given under my hand on:

 

Dated: 9-17-12

 

Diane Trittipoe

 

County of Chesterfield, to witt:

Commonwealth Virginia

 

SUBSCRIBED and sworn to before me, the undersigned Notary Public in and for the jurisdiction aforesaid, by Diane Trittipoe, who is personally known to me and who acknowledged before me his/her signature to the foregoing Affidavit.

 

GIVEN under my hand and seal this 17 day of Sept, 2012.

 

Karen E. Yarbrough

Notary Public

 

BOWMAN, HEINTZ, BOSCIA AND VICIAN, P.C.

 

 

 

A couple notes from me on this affidavit:

 

1. Why does it say the name of the law firm at the bottom of the affidavit? I never noticed that before. If this is from Capital One and "Dianne Trittipoe" works for Capital One (which she won't say but we are obviously supposed to think she does) then shouldn't it say Capital One at the bottom of the affidavit?

 

2. The Notary Public seal says the commission expires on 11/30/2012. It's already expired. Is that valid?

 

3. The only "Business Records" attached to this affidavit are a generic 'Capital One customer Agreement'. COME ON! Is that all you've got? That doesn't even have a name or social on it much less a signature and it isn't even a record of anything. Plus the Capital One logo with the date at the bottom of the last page is very fuzzy unlike the rest of the document which is crisp. This leads me to believe it was copy pasted there.

 

4. The date on the Customer Agreement doesn't mach the date the affiant claims the account was opened. The affiant says it was opened in 2000. The Capital One Customer Agreement is dated 2010. They are a decade apart. This is hardly "at or near the time".

 

5. She doesn't even mention my name in the affidavit. She just says Defendant. COME ON!!

[BV80]

Auditorium?  Are you talking about the courtroom?  Was this at the courthouse?  

 

I don't know how they do things your state, so I don't know if what happened today was normal procedure or not.  You need to find out.

 

First, though, I'd call the court and see if a case has actually been filed against you.  If it has, and if today's procedures were not normal or legal, I'd make notes of every single thing that happened today.  Then I'd send it to your state attorney general and the IN Bar Association.  Include a copy of the document that stated there was hearing at 8:45 and a copy of the court docket that shows there was no hearing for your case.