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Being sued by Discover Bank in South Carolina - need help with motion to exclude Robo-Signed Affidavit and inaccurate accounting


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Hi,

I am being sued by Discover Bank.  I'm reasonably certain that the affidavit is Robo-signed.  I need help creating a motion to exclude the affidavit and supporting case law.  Can anyone assist me?

1.  I have already found 50+ identical affidavits filed in South Carolina signed by a handful of affiants.

2. The Affidavit says I owe $10,653.74; Exhibit B (billing statement) referenced by the affiant says I owe $10,661.67; Exhibit C (billing statement) referenced by the affiant states I owe $0.00.  The affiant does not explain the discrepancy.

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3 hours ago, CaptainCharlie said:

Hi,

I am being sued by Discover Bank.  I'm reasonably certain that the affidavit is Robo-signed.  I need help creating a motion to exclude the affidavit and supporting case law.  Can anyone assist me?

You are being sued by the original creditor.  They do not need an affidavit under business records law to prove their case.  They legally can attest to their own records.  

3 hours ago, CaptainCharlie said:

1.  I have already found 50+ identical affidavits filed in South Carolina signed by a handful of affiants.

So what?  Discover is a major creditor and sues thousands of people annually.  They are not required to have a special affiant for every defendant they sue.  It isn't uncommon to have one sign multiple affidavits.  The court won't even blink over this.

3 hours ago, CaptainCharlie said:

2. The Affidavit says I owe $10,653.74; Exhibit B (billing statement) referenced by the affiant says I owe $10,661.67; Exhibit C (billing statement) referenced by the affiant states I owe $0.00.  The affiant does not explain the discrepancy.

They don't have to explain the discrepancy as long as they are suing you for less than the second billing statement.  The last billing statement would reflect a zero balance if it was the one produced after charge off.  It doesn't mean you no longer owe the debt.

There are two defenses to an OC lawsuit:  identity theft and the statute of limitations being expired.  Neither appears to apply to your situation.  In that case your options are a judgment, settling, or bankruptcy.  

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OK so judgement, settlement or bankruptcy.  What about arbitration?  

The statute of limitations won't apply because they have me paying on it within the limit.  The last billing statement was a charge off.  So I guess I'm wasting my time fighting this...Thank you for your advice.  I appreciate it.

 

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9 minutes ago, CaptainCharlie said:

OK so judgement, settlement or bankruptcy.  What about arbitration?  

The statute of limitations won't apply because they have me paying on it within the limit.  The last billing statement was a charge off.  So I guess I'm wasting my time fighting this...Thank you for your advice.  I appreciate it.

 

You can demand arbitration as provided in the cardmember agreement, but original creditors are more likely to agree to arbitrate.  A sort of rule of thumb is if you have a bad case in court, it’s also a bad case in arbitration.

Is this your debt?  Did you offer any defenses or counterclaims?  

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Yes, it is my debt, but I didn't admit to it.  Yes, I thought I could fight and possibly win this because the affidavit is really generic.  My affirmative defenses were:

1. Lack of Standing and Doubts about the Plaintiff's Identity and Accuracy of Debt Claim. - Plaintiff Denied

2. Robo-Signing in Credit Card Debt Collection - Plaintiff Denied

3. Improper chronological order of Plaintiff's affidavits regarding Defendant's Military Status. Plaintiff Denied

4. Lack of receipt of Plaintiff's Exhibit B (Account Summary) prior to complaint filing. Plaintiff Denied

5. Failure to provide sufficient evidence. Plaintiff Denied

6. Lack of Basis, Inaccurate accounting, and insufficient evidence. Plaintiff Denied

7. Illegible exhibit and attempt to deceive (the T&C copy served with the complaint is extremely hard to read) Plaintiff Denied

8. Statute of Limitations - The Plaintiff denied and then sent evidence that they are within the Statute of limitations)

9. Failure to provide copy of complaint after substituted service. Plaintiff Denied

10. Failure to prove notice of consumers right to cure. Plaintiff Denied

11. Estoppel / Waivers / Laches - Plaintiff Denied

12. Unclean Hands - Plaintiff Denied

13. Failure to Mitigate. Plaintiff Denied

14. Selling of debt on intention to sell the debt - Lack of Standing Plaintiff has not responded.

Counter-Claims -

1. Violation of the Fair Debt Collection Practices Act

2. Violation of South Carolina Consumer Protection Code

3. Negligent Infliction of Emotional Distress

Motion to Dismiss and Prayer for Relief:

Plaintiff then mailed to me a laundry list of interrogatories, two near identical requests for admissions, and requests for production of documents.

That all leads me to where I am today...I was going to file a motion to exclude the affidavit for the following reasons:

1. Lack of Foundation

2. Lack of personal knowledge

3. Inconsistencies and inaccuracies

4. Robo-signing concerns

5. Failure to Provide Necessary, Accurate Discovery Materials with the Complaint

6. Failure to provide supporting documentation

7. Violation of CFPB Regulations

8. Lack of Adherence to the Fair Credit Reporting Act

9. Preservation of Defendant's right to Due Process.

I was also going to file a Motion for relief from said interrogatories etc. and also try to get a protective order to get this out of the public eye.

Then I finally found this forum and now I feel like an idiot 😕

Just to add to that some personal information...the truth is, I don't remember a whole lot related to this debt...prior to the default, I was terminal with cancer and was constantly in chemo, radiation, surgery etc.  I finally beat it about a year ago...but forgot completely about Discover...so the complaint when served took me totally by surprise.

I appreciate your advice.

 

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1 hour ago, CaptainCharlie said:

1. Lack of Standing and Doubts about the Plaintiff's Identity and Accuracy of Debt Claim. - Plaintiff Denied

2. Robo-Signing in Credit Card Debt Collection - Plaintiff Denied

3. Improper chronological order of Plaintiff's affidavits regarding Defendant's Military Status. Plaintiff Denied

4. Lack of receipt of Plaintiff's Exhibit B (Account Summary) prior to complaint filing. Plaintiff Denied

5. Failure to provide sufficient evidence. Plaintiff Denied

6. Lack of Basis, Inaccurate accounting, and insufficient evidence. Plaintiff Denied

7. Illegible exhibit and attempt to deceive (the T&C copy served with the complaint is extremely hard to read) Plaintiff Denied

8. Statute of Limitations - The Plaintiff denied and then sent evidence that they are within the Statute of limitations)

9. Failure to provide copy of complaint after substituted service. Plaintiff Denied

10. Failure to prove notice of consumers right to cure. Plaintiff Denied

11. Estoppel / Waivers / Laches - Plaintiff Denied

12. Unclean Hands - Plaintiff Denied

13. Failure to Mitigate. Plaintiff Denied

14. Selling of debt on intention to sell the debt - Lack of Standing Plaintiff has not responded.

Most of those are not affirmative defenses.

1.  If Discover is listed as the plaintiff, that is accepted by the court unless you can prove it sold the account.

2.  Not a defense.  And just because the affidavit may be generic does not prove robosigning.  Robosigning means the affiant did not review the information and documents referenced in the affidavit.

3,4,5,7, and 14 are not defenses.  In regard to insufficient evidence, that’s what the discovery process is for.

9.  What do you mean by “Failure to provide copy of complaint after substituted service”?

11 and 12.  How do they apply to this lawsuit?

13.  How did Discover fail to mitigate?

14.  What do you mean by this one?

 

1 hour ago, CaptainCharlie said:

1. Violation of the Fair Debt Collection Practices Act

2. Violation of South Carolina Consumer Protection Code

3. Negligent Infliction of Emotional Distress

1.  Discover is the original creditor.   The FDCPA does not apply to original creditors.

2.  How was this violated?

3.  No one likes being sued.  If the debt is yours, they have every right to sue for the balance.

I’m so sorry about your health issues.  Congratulations on defeating the big “C”!

Please don’t feel like you’re an idiot.  You most certainly are not.  The fact that you are researching and trying to learn proves that you are not an idiot.  Most of us here have been sued.  That’s why we’re here.  We all had to start with knowing nothing.  I’ve been on this site for over 10 years and I’m still learning.

Just in case you need it for the future (I hope you will not), this something an attorney once told me:

“Don’t ever ask a question in court to which you do not already know the answer.”

The same could apply to defenses, claims, etc.  If you don’t know what something means, find out before raising it in court.  Learn what it means.  If the judge were to ask about a claim or defense you raised, but you don’t know what it means, it could be a bt embarrassing.

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1 hour ago, CaptainCharlie said:

Then I finally found this forum and now I feel like an idiot 😕

You are not an idiot. You are a typical consumer who was battling a lot of different issues at one time.  Unfortunately it isn't a defense to the suit.  Unfortunately I can tell you that based on that answer you filed even the Plaintiff knows you cut and pasted that from the internet.  I get why but most of it does not apply to your situation.  It is the legal equivalent of throwing everything in there and hoping something sticks.  

As for arbitration:  Discover is one of the top 2 creditors who is not the least bit afraid of it and will not only pay and do it but will follow through on appeals.  That threat usually works with junk debt buyers who don't want the costs.  You could compel arb but all it will do is get you an opportunity for a better settlement.  As @BV80said a bad case in court is a bad case in arb.

1 hour ago, CaptainCharlie said:

11. Estoppel / Waivers / Laches - Plaintiff Denied

12. Unclean Hands - Plaintiff Denied

13. Failure to Mitigate. Plaintiff Denied

14. Selling of debt on intention to sell the debt - Lack of Standing Plaintiff has not responded.

11.  None of those apply.  If they filed within the SOL then Laches definitely doesn't apply.

12.  Nothing unclean about what they did.  You breached the contract first by defaulting.

13:  NOTHING requires them to mitigate their damages.  That applies in landlord tenant law but not debt collection.

14.  The debt hasn't been sold.  Discover is the plaintiff therefore they have standing as the OC.

You might head to Legal Aid in your area if it is still around and see if they can give you some advice.

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OK...thank you.  If I can't win, I'll just stop pursuing a win.  Rather, I'll put this ride into reverse and work out a payment plan.  How do I go about that now that I'm in this deep?  Do I just call the Debt Collector that filed the claim?  Or do I have to file more paperwork in court?

 

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18 minutes ago, CaptainCharlie said:

OK...thank you.  If I can't win, I'll just stop pursuing a win.  Rather, I'll put this ride into reverse and work out a payment plan.  How do I go about that now that I'm in this deep?  Do I just call the Debt Collector that filed the claim?  Or do I have to file more paperwork in court?

 

The debt collector who filed the claim is an attorney.  While attorneys who file lawsuits for debt collection are debt collectors, they are still attorneys.  Yes, you would need to contact the attorney who is representing the plaintiff.

If you reach a settlement agreement, it’s possible that they will want you to sign a confession of judgment that they will file with the court.  That usually means if you make timely payments, they won’t try to enforce execution of the judgment.  But you need to ask about the details to make sure.  Once the debt is satisfied, they will file a satisfaction of judgment with the court.

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