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Affidavits or Business Records


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Are Affidavits just that or can they be considered Business Records? From what I have read documents that have been created just for litigation are not business records. The Affidavit I received from A$$et shows A$$et v. Me (Defendant) and it was created two months before suit was filed, obviously to give weight to the complaint.

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Asset Acceptance does that as a claim to account stated. They send the notarized affidavit (allegedly authenticated by a phony notary) and the statements package 30 - 60 days in advance of filing a Complaint to prove an account exists, they have stated a claim, and you have 30 days to validate or deny. It's pretty sneaky because the law see's it as if you don't DENY then you agree. (So don't agree EVER) To further state their claim AA usually will provide a copy of your last statement and sometimes a record of charges on the alleged account. Read up on Account stated and your States Rules of Civil Procedure and Rules of Evidence.  You could be SOL unless:

 

You send your affidavit countering everything and file IMMEDIATELY.

 

Here is one I used. It worked for me, there could be better examples but the idea is the same.   Deny or accept the claim as true. It would be best to make this an affidavit and get it notarized. It's hard to find notaries at midnight so I used the statutory declaration and filed electronically. Be sure to certificate of mailing via usps to the court and plaintiff. Lastly find out if you State Rules require a memorandum of points and authorities to accompany the counter affidavit.

 

 

HUEY PILOT

100 Airport Ave

Cirrus, OR 97000

 

 

 

THE CIRCUIT COURT OF THE STATE OF OREGON

FOR WASHINGTON COUNTY

 

Professional Bureau of Collections

  of Maryland, Inc.

                        Plaintiff,

            vs.

Huey Pilot,

                        Defendant

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Case No.: C12-3448CV

 

STATUTORY DECLARATION

IN LIEU  OF AFFIDAVIT

STATING FACTS OPPOSING

PLAINTIFFS AFFIDAVIT OF SALE

 

STATUTORY DECLARATION

I, Huey Pilot, under "penalty of perjury" pursuant to the laws of the State or Oregon and Oregon Rules of Civil Procedure 1E, herein after “Declarant”, “Defendant”, “Alleged Borrower”, “Alleged Account Holder”, depose and declare, that the declaration used in lieu of affidavit, allowed by these rules, avers that the submittal of the following statements, made herein, are true and correct to the best of my knowledge, and not meant to mislead.

 

DENIAL OF DEBT

Defendant denies the affidavits of debt and all other affidavits and allegations

supplied by Plaintiff in this action and refuses to accept any alleged balance 

 claimed as agreed balance due in full satisfaction of liability.

Plaintiff’s affidavit's and complaint are legally insufficient.

 

Absent any alleged account information to the contrary Defendant denies receiving or using any such credit account, and that Defendant has no reasonable basis for anything other than a general denial. Plaintiff is allegedly the assignee of the assignee of the original creditor. Plaintiff alleges that "Pursuant to the Affidavit of the Assignment of Rights dated April 13, 2012 it is the assignee of value". However, since the assignor had no personal knowledge or actual business records of the original creditor, plaintiff is seeking judgment based on double hearsay. Its “affidavit of assignment” is therefore worthless as evidence in this action. Neither the affidavit nor the complaint sets forth a cause of action for either an account stated or a breach of contract. Defendant has no reasonable basis for anything other than a general denial.

 

Plaintiffs Subject Affidavit lacks Propriety or Trustworthiness.

1.

Plaintiff's Affidavit of sale, Bill of Sale, and Assignment's finds that they fail to sufficiently identify any accounts that were assigned or sold to the Plaintiff. Neither the Bill of Sale nor the Assignment indicates the account numbers or names of account holders.  They do not provide any information that would allow the Court to determine if the alleged account of the Defendant was one of the accounts sold or assigned to the Plaintiff. Without any indicia of ownership that would sufficiently identify the true owner of the account at the time that Plaintiff filed this action and the Plaintiff is unable to prove that it has standing to bring the action.  Plaintiff's standing to invoke the processes of the Court is missing an essential element of proof and it therefore lacks foundation and renders the litigation a nullity.

 

2.

Plaintiff has provided no proof that the Affidavit of Sale is an original document other than a

a high volume reproduction of a "Robo-signed" form letter, without any logo or header branding it not a true copy of a Wells Fargo Bank, N.A. document, and therefore is unauthentic and a inadmissible “facsimile” record, which are computer-generated, non-image documents. Records that are generated by computer require testimony from a person familiar with the computer system who can testify that the output is an accurate reflection of the input in order to lay a foundation. In this post robo-signing world the burden is on the debt collector to show it owns the debt and to show the consumer is liable for the amount the debt collector asserts. The debt collector's (Professional Bureau of Collections of Maryland, Inc.) say-so is not enough.

3.

Plaintiff relies on an affidavit executed by  [Affiant's], (who identifies herself as the Loan Servicing Specialist of Original Creditor). She does not claim to have any personal knowledge of the transactions underlying this complaint but rather states Affiant acknowledges that, in making this affidavit, Buyer is now the owner of the account and Creditor has no further interest in the account or the debt underlying the account for any purpose.  Any such affidavit is not made sufficient by omitting the fact that it is based on a review of loan records, and if it appears that the affiant did not personally receive or observe the reception of all of the borrower's alleged payments then her statement is of no probative value and Plaintiff has no standing to collect the debt.

4.

Ms. [Affiant] claims that with her sworn statement buyer is now the owner and by best of Affiants knowledge, information, and belief there is no un-credited payments. There is no mention as to Ms. [Affiant's] being a witness who possesses first hand knowledge of bank's record-keeping practices. There is absolutely no testimony to authenticate the documents by "laying a foundation" to show that:

1) the documents were created in the regular course of business;

2) the banks' regular course of business included making those documents;

3) the creator of the documents had a business duty to create them; and

4) the documents were created at the time that the transactions reflected took place, or a reasonable time thereafter. 

Records are required to be made on or at the time of occurrence therein by, or from information transmitted by, a person" having knowledge of those matters, and kept in the ordinary course of Wells Fargo's business".

 

Authenticated documents are missing and "person having knowledge" remains unidentified. Business records are Wells Fargo's and not Plaintiffs." Business records” must be prepared in the regular course of business, where there is little or no motive to falsify. There is no evidence that there was any relationship between Wells Fargo and plaintiff at the time that the records were created.

5.

Plaintiff has failed to provide a witness with day to day personal knowledge of business

record entries kept in the ordinary course of Wells Fargo's record keeping therefore affidavit is based on double hearsay of Original Creditor and an Assignee of an Assignee, both Junk Debt buyers. Through Ms. [Affiant] affidavit she seeks to establish five facts on which to ground plaintiff's claim:

a)     that defendant used, or authorized the use of, the credit account which established the alleged debt.

b )     that defendant was mailed statements from original creditor and failed to object or dispute charges.

c)      that the account was sold and transferred to Professional Bureau of Collections, Inc.

d)     that there was an amount due and plaintiff is entitled to sue as an assignee.

e)     that Wells Fargo has no further interest in account for any purpose

Ms. [Affiant']s conclusory and insufficient affidavit is not adequate to establish any of these facts. Affidavit essentially consists of a summary of unnamed records at the bank, unaccompanied by records themselves, and unsupported by facts establishing basis of "Loan Serving Specialist's" personal knowledge.

6.

Affidavit fails to allege all the material facts on which the liability of the Defendant depends. There is no contract action that exists between Plaintiff and Defendant, there has never been an express of implied agreement between the parties as to amount due, no express or implied promise from the alleged debtor to pay any alleged amount due or "mutual assent" has ever been made, calculated, or audited for accuracy on any alleged balances claimed due and correct, no prior transactions between Defendant and Plaintiff which established a debtor-creditor relationship exist. No breach of promise to pay on a contract has caused damages and no issues exist requiring compromise an/or settlement by Defendant other than dismissal of complaint. Defendant had never had an open account with Plaintiff that has been allegedly converted to account stated by application, payments, account usage, or mutual assent. 

7.

Testimony, whether live or in the form of an affidavit, to the effect that the witness has "made  sworn statements" regards origination of Wells Fargo documents and that the records show that the alleged debtors alleged account has been charged off. "Loan serving specialist", Ms. [Affiants], claims having some connection with the origination of the alleged account, and by the making of affidavit averring "the buyer is the owner" of the alleged account is hearsay and incompetent; rather, the records must be introduced after a proper foundation is provided.

8.

Ms [Affiant's] affidavit summarizing Wells Fargo Bank's "forward Flow" account records, listing names, accounts, and amounts from a large pool of data is insufficient where it did not show the officer's familiarity with the amounts disbursed or collected or provide the

documents upon which she relied as to her conclusion as to the amount due.

 

9.

Ms [Affiant's] descriptions of the documents mentioned in her affidavit are unsubstantiated leaving nothing for the Court to rely on. Since the documents are out-of-court statements offered for their truth, Ms  [Affiant's]  must establish that they fall within an exception to the hearsay rule in order for them to be admissible.... Presumably, Ms  [Affiant's] asking the Court to treat them as business records since she describes herself as being a "loan servicing specialist" familiar with Plaintiff's business records ... However, no records were attached and any later provided were created not by plaintiff but by Plaintiffs assignor, Wells Fargo Bank N.A. USA. In order to establish a business records foundation, the witness must be familiar with the entity's day to day record keeping practices. Ms  [Affiant's]  does not claim to be familiar with Wells Fargo Bank's record keeping practices, but only with a sale to a buyer of information electronically transferred or stated by others which plaintiff allegedly purchased.

 

 

 

10.

The mere fact that plaintiff obtained the records from Wells Fargo Bank N.A. and then retained them is an insufficient basis for their introduction into evidence. Therefore, the Court cannot rely on any affidavit by Ms  [Affiant's]  or account statements which were later proffered by Plaintiff in attempt to establish defendant's default and should strike affidavits.

 

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“I hereby declare that the above statement is true to the best of my knowledge and belief, and that I understand it is made for use as evidence in court and is subject to penalty for perjury.”

 

Dated this 29th day of January, 2013

 

 

 

 

 

 

HUEY PILOT

100 Airport Ave

Cirrus, OR 97000

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