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Hope someone can help me. I'm trying to find a case that involved a document from an Original Creditor, but an employee of the debt buyer had written an account number or something on it and the judge ended up throwing it out.

 

If you know of this case or one like it please let me know!!

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INDIANA
TORT OF SPOILATION:
First-party If an alleged tortfeasor negligently or intentionally destroys or discards evidence that is
relevant to a tort action, the plaintiff in the tort action does not have an additional independent
cognizable claim against the tortfeasor for spoliation of evidence. Gribben v. Wal-Mart Stores, Inc., 824
N.E.2d 349, 355 (Ind. 2005).
THIRD-PARTY TORT OF SPOILATION:
Negligent or intentional spoliation of evidence is actionable as a tort only if the party alleged to have lost
or destroyed the evidence owed a duty to the person bringing the spoilation claim to have preserved it.
Glotzbach, CPA v. Froman, 827 N.E.2d 105, 108 (Ind. App. 2005). To determine the existence of a duty
Indiana courts balance three factors: (1) the relationship between the parties; (2) the reasonable
foreseeability of harm to the person injured; and (3) public policy concerns. Id. This balancing test is to
be used only in those instances where the element of duty has not already been declared or otherwise
articulated. Id. Indiana Code § 35-44-3-4 provides that “a person who…alters, damages, or removes
any record, document, or thing, with intent to prevent it from being produced or used as evidence in any
official proceeding or investigation…commits obstruction of justice.” This is a class D felony.
SANCTIONS:
Indiana Courts may also sanction parties, but not third parties, for the spoilation of evidence through:
(1) evidentiary inferences that the spoilated evidence was unfavorable to the responsible party; (2)
sanctions for discovery violation under Indiana Trial Rule 37(B), which authorizes courts to respond
with sanctions which include among others, ordering that designated facts be taken as established,
prohibiting the introduction of evidence, dismissal of all or part of an action, rendering judgment by
default against a disobedient party, and payment of reasonable expenses including attorneys’ fees; and
(3) discipline for spoliating attorneys under Indiana Rules of Professional Conduct.

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Spoliation consists of "[t]he intentional destruction, mutilation, alteration, or concealment of evidence, usually a document. If proved, spoliation may be used to establish that the evidence was unfavorable to the party responsible." Black's Law Dictionary 1409 (7th ed.1999). Cahoon v. Cummings, 734 N.E.2d 535, 545 (Ind. 2000).

 

Just a note:  If you use the case law, note that the word is "spoliation".  The "i" comes after the "L", not the "o".  I used to think it was "spoil".

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Darn, so did I. I actually corrected the spelling, I thought it was related to the word "spoil." Although in this case, I don't think adding an account number to a document makes much of a case. The poster would have to prove some intent on the part of the JDB (whomever) to alter the evidence in such a way as to give them an unfair advantage, or to render the evidence unusable. I don't think this qualifies, if it does, it would be a really picky technicality. Does adding something as innocuous as an account number qualify as a material alteration designed to deceive the court? I don't see it.

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The case law I cited does include the word "intentional".   It appears it would have to be shown that the plaintiff was intentionally trying to alter a document in order to either conceal some part of the document that was not favorable to the plaintiff, OR to change the document in some way in order to add something that would make it more favorable to the plaintiff.

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It would be no different than accidentally taking a phone message on the document and thinking it was a scrap piece of paper and you just grabbed the wrong piece of paper.   It takes nothing away from the authenticity of the document.  It might show sloppy work and you could argue something broad like it's obvious they make such mistakes, but the problem would be everybody does.  

 

What I like to do in cases is make notes on the documents.   Usually something very favorable to my case.  I might even cite some case that does not even exisit.   Like, in Jones v xxxxx that got treble damages.   You know make notes all over my documents.  Then when the other side asks for them in discovery I give them the documents.   The actual document and subject matter has not been altered but now they have all kinds of notes all over it and I can send them on a wild goose chase.

 

In one case I keep writing "class action!!!" or "FDCPA violation" beside certain things on documents.  Then in discovery provided those documents with my notes on them.   Did it help?  Who knows, but it did not hurt.   What is funny is some of the documents I asked from them they provided the documents I gave them with my notes, so it proved they did not have documents because they were using my documents.   So if those documents would have had to be introduced with my notes on them that would have been favorable to my case I could have told the judge it's what they provided me in discovery and argued it was admissible with my notations on them even if they might skew an opinion.

 

Am I way over thinking it? Hell yes, but that's what I do.   I think of every possible angle and try to twist it to my advantage, I don't care how small it appears.   It's just part of out working the other side and being more determined to win at all costs than the other side.  

 

Imagine introducing a document at trial that might help the other side but that has "FDCPA violation" written on it but getting it from the other side and the only way the other side could introduce it was using that document because they did not have the document. 

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Am I way over thinking it? Hell yes, but that's what I do.   I think of every possible angle and try to twist it to my advantage, I don't care how small it appears.   It's just part of out working the other side and being more determined to win at all costs than the other side.  

 

 

Coltfan1972, I'm exactly the same way!! ::punk::

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I'm looking at this a little different than you guys.  It looks as if the op has an affidavit, or something similar, purportedly from an OC which was passed on to the JDB via a purchase of the debt. 

 

 

 

document from an Original Creditor, but an employee of the debt buyer had written an account number

 

 

The JDB apparently put their own account number on the OC's document.  What else did the JDB do to the document?  Once you can prove that the JDB has manipulated the document to their liking then there will always be a question as to what is original and what, exactly, was added to the document.

 

It's tainted and should be struck.

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I'm looking at this a little different than you guys.  It looks as if the op has an affidavit, or something similar, purportedly from an OC which was passed on to the JDB via a purchase of the debt. 

 

 

 

The JDB apparently put their own account number on the OC's document.  What else did the JDB do to the document?  Once you can prove that the JDB has manipulated the document to their liking then there will always be a question as to what is original and what, exactly, was added to the document.

 

It's tainted and should be struck.

 

Possibly, but only if no other account number was included in the affidavit.  If the account number for the account was included by the OC in the affidavit, then it would be difficult to prove the JDB was trying to alter the document in some way.

 

We actually need more info from Swatch.

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DownTo0, The actual document in question is the Schedule "A" which was attached to the Bill of Sale and Assignment of Loans.

 

Yes, the jdb hand wrote their own account number and added Schedule "A".

 

The jdb actually sent me this same document in my debt validation but it didn't have the Account Number or schedule "A"

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The question would be if they made a copy of the original then put their account number on that copy and sent that copy to you while retaining the original for themselves untainted.  No harm done at this point but if the JDB did put their account number on the original then the original is forever tainted.  You probably won't know for sure until they sue and proffer the original untainted...or tainted document.

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Schedule "A" is the document the OC attaches to the Bill of Sale and Assignment of Loans. The Bill of Sale it's self doesn't specifically identify any debtor they rely on the Loan Schedule (Schedule A) that has the debtors info.

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Okay. Others will disagree with me but I don't think the JDB sent you validation as they did not contact the OC after you asked for validation. There is FTC ruling that a JDB cannot send what it already has in their file for validation. The JDB has to send to the OC, after a request for validation from you, for documentation which verifies that the amount which is being demanded is the correct amount. It's complicated.

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I'm currently in the discovery phase with this case. The Plaintiff filed suit back in August.

 

BV80 - The document contains all of my information, information in regards to the account such as the cc #, date opened, default date, things of that nature.

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Okay. Others will disagree with me but I don't think the JDB sent you validation as they did not contact the OC after you asked for validation. There is FTC ruling that a JDB cannot send what it already has in their file for validation. The JDB has to send to the OC, after a request for validation from you, for documentation which verifies that the amount which is being demanded is the correct amount. It's complicated.

 

Yes, I do disagree.

 

The verification or validation must provide, in writing, that the amount being demanded is what the creditor is claiming is owed. Cannon v. MOUNTAIN STATES ADJUSTMENTS, Dist. Court, SD Indiana 2012.

For example, § 1692g, upon which the Schlossers' suit is based, requires debt collectors to notify the debtor that she may contest the debt in writing, and that if she does, the collector will obtain verification of the debt. 15 U.S.C. § 1692g(a).  This validation provision is aimed at preventing collection efforts based on mistaken information. Schlosser v. Fairbanks Capital Corp., 323 F.3d 534, 537 (7th Cir. 2003).

[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. See Azar v. Hayter, 874 F. Supp. 1314, 1317 (N.D. Fla.), aff'd, 66 F.3d 342 (11th Cir.1995).

[V]erification of a debt involves nothing more than the debt collector confirming in writing that the amount being demanded is what the creditor is claiming is owed; the debt collector is not required to keep detailed files of the alleged debt. . . . Consistent with the legislative history, verification is only intended to eliminate the problem of debt collectors dunning the wrong person or attempting to collect debts which the consumer has already paid. . . . There is no concomitant obligation to forward copies of bills or other detailed evidence of the debt. Chaudhry v. Gallerizzo, 174 F.3d 394 (4th Cir. 1999).

 

Other courts of appeals that have agreed with the above ruling are:

3rd Circuit

8th Circuit

9th Circuit

10th Circuit

In Carlson v. CREDIT MANAGEMENT SERVICES, INC., Dist. Court, D. Nebraska 2012, the court held:

Noting that "[t]he statute does not detail what information must be included in the verification," the Tenth Circuit has also agreed with the Fourth Circuit regarding verification requirements. Relying on Chaudhry, the Tenth Circuit held that, 15 U.S.C. § 1692g "is not intended to give a debtor a detailed accounting of debt to be collected." Maynard v. Cannon, No. 08-4181, 2010 WL 4487113, at (10th Cir. Nov. 10, 2010). Because the debt collector "correctly identified the original loan and the original lender," the debt collector did "all that § 1692g required it to do" and the consumer was not entitled to relief even though the consumer sought additional information relating to the underlying debt. Id.

 

 

In regard to the FTC letter, I know that you already know it's not binding on a court.  If you want to see how much weight the court afford to that particular letter, see if any courts reference it and what they say about it.

 

 

BV 80, I don't think this thing is in court yet. You know how JDB's are...they send garbage hoping to scare the LSC so they don't have to go to court.

 

Gotcha!  :-)  And I do agree that JDBs try to scare the LSC.

 

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The statute requires that the debt collector obtain verification of the debt and mail it to the consumer (emphasis mine). Because one of the principal purposes of this Section is to help consumers who have been misidentified by the debt collector or who dispute the amount of the debt, it is important that the verification of the identity of the consumer and the amount of the debt be obtained directly from the creditor. Mere itemization of what the debt collector already has does not accomplish this purpose

 

http://www.ftc.gov/os/statutes/fdcpa/letters/wollman.htm

 

As usual with this particular subject you are trying to define what validation is, not where it came from and when it came.  I agree that it does not take much to validate, but it must come from the creditor after the consumer asks for validation.  Sometimes collectors mix up debts with other consumers.  They must sent to the OC to be certain that they have the right debt for the right consumer.  If their file is corrupted, reaching into it for more corrupt information would not solve the problem.

 

 Anyway, I doubt if the op can amend his claim to add this violation since he is in the discovery stage.  The collector would certainly object.  I personally would try just the same. 

 

 

The document contains all of my information, information in regards to the account such as the cc #, date opened, default date, things of that nature

 

But has the JDB proffered assignment.  It's one thing to show that you owe the debt but if the JDB  wants to collect that debt then they must prove that they have been given all rights (assignment) to collect.  I have not seen a JDB who has had bona fide assignment yet.  It cost too much to get it and sometimes it is impossible because the OC has been disolved or absorbed.

 

I don't think anyone would disagree that you should be asking for assignment...even if you did not list it as an affirmative defense.  Look at assignment as if it were a title to a car.  You can drive the car around all you want and make people think you own it but if you cannot cough up the title then you don't own it and cannot collect on the sale of the car.

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The courts often give creedence to FTC letters when there is no other ruling on a matter.  I have not read the cases you cited nor do I intend to because, from what you posted, they do not deal with where the validation must come from.  On the other hand, I think it is the Chaudhry case which says that the collector made proper validation by sending to the creditor for validation.

 

Let's move on.

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I'm currently in the discovery phase with this case. The Plaintiff filed suit back in August.

 

BV80 - The document contains all of my information, information in regards to the account such as the cc #, date opened, default date, things of that nature.

 

So this is in court and has nothing to do with validation.  Since the document contains the OC's account, I'm not sure that the JDB adding their account number in writing would be a problem.  You'd have to show that they were attempting to alter the document in some way.  If they were trying to make it look like the OC had included that information, I'd say you definitely have something.

 

How do you know that the Schedule A is from the OC and wasn't created by the JDB?

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