Jackie1989

debt buyers proof of amount owed

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Hi Everyone,

 I am trying to put up a fight against a "commercial" junk debt buyer. original loan was "dba". Anyways, they sent summons and i filed an appearance. they filed two exhibits 1. a contract with signature 2. bill of sale for a portfolio of debt they purchased. They(their attorney) also sent a spreadsheet. I do not believe that what they are showing is accurate. I have no way of knowing what they have tacked on since purchase. I asked for statements and they did not provide any.

I am wondering if any of you can view spreadsheet I uploaded and let me know what you think.

the written contract from 2012 had a balance of 37k the spreadsheet starts in 2013 with a balance of 29k. I have no way of knowing the accuracy or how principle and interest were applied. I always had an issue with original lender as they took over this loan from another bank and it was not one that fit into their system - from they always told me-. They never could decide the right department I could speak with , either business or personal. I did not always receive statements and often wondered if payments were being applied properly. At the bottom -2nd page- you will see transaction date Jan 2016 an interest accural of $830.00 was applied! that was the date of last payment as well. this spreadsheet does not indicate what fees were charged, and I know there were and as mentioned , I do not know what junk debt had for a balance on this account when purchased and what they are adding.

The contract did state that interest would accrue, but this just seems incomplete to me.

I truly appreaciate this board and any insight I can get.

This is in Connecticut. I need to file an answer by the next two weeks.

Pymt History jsommer.odg

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Here's the thing.  You could possibly argue against the $830 interest charge, but the total debt when it was charged off was $9,000.  A year of 11.25% interest would make that $10,000.  So even if the court gives you credit for the $830, you're still looking at a $9,100 judgment.  The other problem is that you have no way of knowing if this is accurate.  You, as a business owner, are responsible for keeping your own books.  What are you going to say when the court asks if it's your debt?  Do you have some evidence this debt wasn't sold to the plaintiff?  If you don't believe their balance is correct, where are your records showing what it should be?

You never know.  You might get a judge that will toss the whole case over a less than 10% discrepancy.  I can tell you from what I've read on this board, though, it's far more likely the judge will just calculate the balance minus the $830, assuming there isn't a logical explanation (i.e. promo period, etc).

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what about the accounting? the spreadsheet starts at 29k and original amount was 37k. Do they need to show this? Do they need any statements or something other then a partial spreadsheet?

Thanks again for taking the time to respond!

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do i have any chance in questioning that the amount can not be considered accurate unless they can provide statements or something other than the spreadsheet? if the spreadsheet is flawed, what is to say the amount they are requesting is completely flawed? Isn't it their burden to prove complete accuracy, since they are suing?

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im sure there will be an affidavit of debt from a person that works for this commercial jdb, but what good is that? This is not their record? How can they prove its accuracy?

I honestly believe that bank of america inflated this debt. rarely did i receive statements and money was just withdrawn from my account. I realize that is poor business management on my part, but doesn't the plaintiff have responsibility to show exactly what is owed and how they came to that figure?

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Under the business records exemption law(s) a JDB can use very little documentation including affidavits to prove their case.  Can you argue it is hearsay or incomplete?  Sure but the burden of WHY it is insufficient proof is on YOU.  It takes more than simply saying you believe it is not accurate you have to prove it.

Your other major problem is the FDCPA does not apply to business debts.

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So, with what you say, this junk debt buyer can claim an amount and I need to prove it's not accurate?

They could essentially claim any amount. How could I argue? I guess I could ask bank of America to track the account I had at one time with them and send me statements, which would show deductions that represent payments?

It seems that the burden should be on them to show how they came up with their number.

This stinks

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8 minutes ago, Jackie1989 said:

It seems that the burden should be on them to show how they came up with their number.

The law also presumes that if the amount was not accurate you would have done something LONG before you defaulted, the account was subsequently sold, and then you were sued.  Do you have documentation between you and BoA or the next loan servicer that you felt the amount(s) were wrong?  Bank statements can prove amounts paid and a possible miscalculation.  The problem is when you default often the amount of interest immediately escalates.  Add on late fees and assorted other fees for being in default and the balance quickly balloons.  

Account statements, spreadsheets and affidavits are often enough for the courts.  Yes, there have been judges who tossed out suits because they said it wasn't enough but you cannot count on that.  Your posts suggest you want to be able to walk into court and simply say "it isn't right" and have the court force them to do a whole lot more.  It is technically possible but you are going to have to have case law to back it up and be able to represent yourself functioning as an attorney.  It is not easy and requires a LOT of work.

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Clydesmom

I appreciate your insight.

I get it. I'm out of my league.

 it doesn't seem right that I have to prove I don't owe an amount they haven't proved I owe.

I don't have any evidence to offer but again, I feel that they should be able to demonstrate that the amount they are asking for is accurate by showing a full history of accounting or at the very least the "ending" of this account prior to default and through default. When and how much interest was charged, what fees were charged. When did bank stop charging fees and what fees and interest have jdb added. They have not provided any statements whatsoever. This was an issue I had with bank as statement did not come regularly. What was balance when they purchased account.

Also with reference to spreadsheet. A lump interest sum of $800 was added one month. That can not be accurate. If it is indeed inaccurate, be it a small amount, how can the rest of that spreadsheet be trusted as being accurate?

Sure I didn't write to complain about interest, but does that mean the OC or plaintiff can just take advantage of my ignorance? 

Thanks again to you both

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3 minutes ago, Jackie1989 said:

it doesn't seem right that I have to prove I don't owe an amount they haven't proved I owe.

Have they not given you monthly statements? If not, I'm pretty sure they will at trial. 

5 minutes ago, Jackie1989 said:

Sure I didn't write to complain about interest, but does that mean the OC or plaintiff can just take advantage of my ignorance? 

Absolutely. You are responsible to make sure you are being charged the correct amounts, and to dispute incorrect amounts within 60 days. Once that window is closed, no court should just take your word that you "can't believe" that it's as much as they say. Especially when you're trying to dispute it in response to a lawsuit a full year after the fact. The time to address this was before you got sued. 

Again, your trial could be your lucky day. I just wouldn't count on it. 

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it may all well be legitimate. I just was hoping I could see it. And No, I did not receive statements regularly which is why I called them every so often to ask and they would bounce me around from department to department. 

anyways, thanks for your time!

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So they are basing their lawsuit solely on that spreadsheet you uploaded?  Did they include any other documents?  Loan agreement?  Affidavits?

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yes

they have a signed contract. it has the original amount of 37k. they go on to say that the default occurred on such and such a date and this is the amount owed almost 14k.

they provided a bill of sale. it was for a portfolio of debt and signed by a bank of america employee. it also states that it was sold "as is" etc etc.

the lawyer posted this bill of sale and contract immediately after i filed my appearance.

 he contacted me and ask if i wanted to agree to a stipulated agreement to avoid further cost.

he then sent spreadsheet.

 i emailed him a few days later and asked for more information - he said not to hesitate to ask-.

he replied that he already emailed me the information but would send it again. 

all he sent was the spreadsheet , bill of sale and contract.

i asked for statements and complete accounting and he did not reply

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34 minutes ago, Jackie1989 said:

they go on to say that the default occurred on such and such a date and this is the amount owed almost 14k

Who is "they", and where are they saying this?  Is there an affidavit?

 

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Also, did you do alter the the spreadsheet at all after they sent it to you?  I ask this because it looks like something from 1985 and it's an Open Office document format.  I can't imagine BofA would be doing any part of their customer accounting on a spreadsheet, and find it even more unbelievable that they or any JDB would use Open Office over MS Office.

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"they" is the attorney representing plaintiff. This is in the complaint. 

As mentioned

They sent me spreadsheet and filed complaint with two exhibits with court. 1 the bill of sale staing that a portfolio of debt was sold 2. A signed contract.

This is the spreadsheet. I only loaded on libreoffice to remove names and account numbers.

I researched online and found a few cases in which bank of America was the plaintiff , not a junk buyer, and this is what they had offered but, they did show full accounting on spreadsheet. Some for 14 years! But no statement. These cases were with same law office. And all were defaults.

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Did they serve you with any sort of disclosure statement where they tell you what documents they intend to introduce at trial and what witnesses will testify?  You need to ask for these things if they haven't already disclosed them.  If all they have is a bill of sale and a spreadsheet, they shouldn't win this lawsuit.  At a bare minimum they will need a witness to introduce the records, and, depending on how your state treats 3rd party records, some level of knowledge about the origin of those records as well as how they were kept and maintained.  Some states allow JDB witnesses to introduce the OCs records with a fairly standard recitation of "I have reviewed the records, and am familiar in the manner in which they were kept and maintained; they were incorporated into JDBs records and relied upon, blah blah blah."  This is referred to as Adoptive Business Records Doctrine.  Other states have ruled that the witness must have first hand knowledge of how the records were created, meaning that the witness must have worked for the OC, or demonstrate they received some sort of instruction from the OC on its record creation and keeping practices.

But in either case, a witness is 100% required.  The lawyer can't stand up there and testify.  It has to be a witness either from the OC or JDB to lay foundation and introduce whatever records the JDB intends to introduce.  I can't seem to find Connecticut court rules online.  I found a practice book which appears to be sort of an abbreviated version of the rules, and it indicates that you can ask them to produce things related to your case, but no real details about how that works, like if you have to request permission from the court to ask them or if you just send them a request directly, etc.

Sorry for not getting clarification earlier, but you should know that, if they don't have a witness, yours in a very rare case, so I was under the assumption that they had provided you with at least some billing statements and an affidavit.

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5 hours ago, Jackie1989 said:

So, with what you say, this junk debt buyer can claim an amount and I need to prove it's not accurate?

They could essentially claim any amount. How could I argue? I guess I could ask bank of America to track the account I had at one time with them and send me statements, which would show deductions that represent payments?

It seems that the burden should be on them to show how they came up with their number.

This stinks 

Anyone can claim the numbers are inaccurate, and they very well may be.  You need to show they're inaccurate.

Have you searched for cases involving your JDB and a BofA commercial loan?   I did this with the JDB I was up against and found a few cases that allowed me to track the extent of the documents they were able to submit to the court.  This was a huge help.

I used a court site for Palm Beach County, FL.  It wouldn't hurt to do a search for your JDB, just in case they handle cases in Florida.  Link: https://applications.mypalmbeachclerk.com/eCaseView/landingpage.aspx 

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From what I see on court records they provide an affidavit of debt after the the fault that they typically get and the affidavit of debt is from someone that works for the junk debt buyer obviously stating to the validity of the debt and the amount. But you guys all know that. I haven't filed my answer yeah and it's getting ready to prepare it and just want to prepare one that is solid and sound

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The contract that they provided the court is legit and it does have my signature. There's no way to argue that. 

I was thinking more along the lines of the amount in question then possibly the bill of sale because it just states that they purchased a portfolio of debt. 

 

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And again

This is something I don't understand.

The plaintiff is suing me and claiming I owe a certain amount. Why is it my burden to prove that the amount isn't right. Shouldn't it just be plain and clear that the amount they are seeking is accurate? What would stop them from claiming I owe $1000000? I can't prove I don't owe them a million dollars? All I can say is show me how you calculated that I owe you a million dollars.

And as mentioned earlier in the thread, there is a $830 lump of interest added one particular month when the default occurred. Then they skip months and just show interest accrued but the numbers don't seem to jive up with the percentage rate that they supposedly were charging at the time. I'm not an accountant, but if they can provide explanation, probably statements to the effect for all these months that let up to their total showing fees and the interest that it would  give me a better understanding. Why should I trust that spreadsheet if it's off a few hundred dollars in one instance possibly?

Thanks again

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Should I ask the attorney again for statements?

Statements , at the very least, that lead up to default and there after?

Is it a requirement that statements must be sent in order to continue to charge interest, or is that for credit card debt only?

I could understand if they provided such that I would have no argument with amounts.

I know I am writing a lot here. I am hoping you guys understand what I am getting at and again I can't thank you enough for input.

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