Plaintiff Generating Documents to substantiate claim

[Knox]

I am new here so I hope someone might be able to help as I have just a general question.

I am inquiring whether or not a Debt Buyer/ Plaintiff can create documentation and use them as exhibits to corroborate an Original Creditors Billing Statement?

The Plaintiff in my case made a statement in their pleading that Plaintiff's Affidavit, Statement of Accounts and billing Statement have identical balances, see exhibits. To further corroborate Defendant's balance, Plaintiff is including a detailed schedule A, a bill of Sale, and a terms and conditions page, see exhibits."

The Plaintiff's Affidavit, Statement of Accounts and Schedule A was generated by the Plaintiff's themselves.

My thinking on this and of course can be completely off base is, well the Plaintiff has the burden of Proof so it's not surprising that the Exhibits generated by the Plaintiff match that of the Original Creditor.

Does anyone know of any case law that tackles this issue?

[1stStep]

Yes - it's called hearsay. Look into that.

[BrunoTheJDBkiller]

The billing statements come from the OC. They send whatever they feel like sending to the JDB, usually a few months worth if that. The rest is their paperwork with their affidavit. Usually all of it is crap hearsay. They swear in their affidavit that their own records are true. Sure. Like we'd believe you.

[BTO429]

How do you know and can you prove that they created those documents.

If they created a doc and tried to enter it into evidence saying it was from the OC then you can argue perjury.

Now if that same fraudulent doc is presented by an attorney, knowing it is fake,. that constitutes fraud upon the court.

Edited November 20, 2012 by BTO429

[BV80]

If the billing statement was a copy of a credit card statement, copies are allowed.

However, you can attack the affiant's ability to testify to the authenticity of documents created by another company. The JDB didn't create the billing statement. It's a copy of a statement that created by another business.

[Knox]

Here are what the exhibits are:

1. An affidavit from an employee of Plaintiff.

2. Statement of Account which is on the Plaintiff's letterhead.

3. Billing Statement from Original Creditor when the Account was Charged off so no transactions are listed other than a late fee from Original Creditor. It was a two 2 page Billing Statement but the second page was missing ( Not sure if that matters?).

4. Schedule A which is a piece of paper with a list of information regarding the account. I'm not sure who it is even from

5. Bill of Sale from the Original Creditor which doesn't not specifically identify my account

6. A Terms and Conditions page, which is page two of a statement from 2008 and the first page is missing.

[BV80]

What was the cause of action? Account stated? Breach of contract?

To prove either one of those, they need to show more than a billing statement that doesn't show any charges or payments made by you. Read your court's rules of civil procedure regarding discovery. You can request more documentation. If they can't provide billing statements showing charges and payments, they should have a hard time proving either cause of action.

The statement of account was created by the JDB. It's their word and nothing else. Schedule A is allegedly from the portfolio of sales to try to prove the account was included in the sale. Again, it's just their word.

The affidavit is their word. Judges take an affidavit seriously, but depedning upon how your courts have ruled, it's possible to discredit it.

The cardmember agreement page proves nothing. BTW, what year was the account opened? When was the date of default?

[Knox]

BV80,

The Cause of Action is based on an "account or agreement"

The account was opened in 2005

Last time payment was made was in August 2008

They list the First Delinquent date in October 2008

Last pay amount they report as 100.00

Edited November 20, 2012 by Knox

[BV80]

I'm not sure if "on account" is the same as "account stated" or not. By "agreement", they have to show there was an agreement. The cardmember agreement they attached is not evidence that YOU had an agreement with the OC because it doesn't show your name or signature.

Indiana does have some interesting case law regarding affidavits that are used to authenticate business records under Rule of Evidence 803(6).

In this state, it is plain that the witness through which a business record is to be admitted must have personal knowledge of the various elements of the foundation. Baker v. Wagers (1984), Ind. App., 472 N.E.2d 218, 221.

In order for a document to be admitted into evidence under the business records exception to the hearsay rule, the party offering the document into evidence must show that it is an original or first permanent entry made in the routine course of business at or near the time of the recorded transaction by one having both a duty to so record and personal knowledge of the transaction represented by the entry. Wilson v. Jenga Corp. (1986), Ind. App., 490 N.E.2d 375, 376.

This court reached the same result in Wilson v. Jenga Corp., 490 N.E.2d 375, 377 (Ind.Ct.App.1986), in which we held that a business could not lay the proper foundation to admit the records of another business because the requesting business lacked the personal knowledge required to ensure reliability. Speybroeck v. State, 875 N.E.2d 813, 821 (Ind. Ct. App. 2007).

The 2nd citation points out that, for business records, there needs to be testimony (or an affidavit) from someone who has the duty of recording transactions. A JDB affiant could not have recorded any transactions on an OC credit card statement.

The 3rd citation shows that a JDB would have difficulty authenticating the records of the OC because the JDB doesn't have the personal knowledge to ensure the reliability of any OC documents.

Edited November 20, 2012 by BV80

[Flyerfan]

There is no affidavit at all from the OC? If that's the case then you're in great shape. They authenticated nothing from the OC who now wants nothing to do with this.