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Help with Affidavit of Debt

It can be a little overwhelming to find yourself in the middle of a credit card lawsuit, especially when you have taken the courageous decision to defend yourself. With a flood of documents, legal terminology and policies, it can be a challenge to comprehend what is in front of you. However, it’s not impossible and many consumers have successfully made come out the other side. The Defendant’s Package has enabled many to understand their case and work through each stage effectively.

One issue that is frequently raised is that of affidavits of debt.

An affidavit of debt is a written statement that is confirmed by an oath and signature. The person who signs the affidavit is known as the affiant and by his or her signature is providing a sworn testimony. This statement is also notarized and the signature of the public notary is usually found at the bottom of the page or on the last page and is referred to as the jurat.

The term affidavit refers to a general sworn statement but throughout a lawsuit, you may come across various types of affidavits. However, one of the most significant in your case will be the affidavit of debt. This is an affidavit sworn by the creditor providing evidence of unpaid debt owed by the defendant to the plaintiff. Depending on where you live, you may see this affidavit of debt at different stages of the lawsuit.

In some states like Indiana, according to law, an affidavit of debt must be attached to the initial complaint that is served with the summons. However, in other states, you may not see an affidavit of debt until you request it in the discovery stage of the lawsuit.

Therefore, it is vital to check your local state rules to see what is required of the plaintiff regarding the affidavit of debt.

In cases where the plaintiff should have attached the affidavit to the complaint but did not, you may be in an excellent position to have the case dismissed or at least to have the sum reduced.

Scrutinize the affidavit

In many, if not all states, an affidavit must contain certain information as an exhibit to the complaint proving that what they are claiming is true.

They should provide information regarding the following questions:

  • Are they the original creditor?
  • If they are not the original creditor, who was their assignor and the original creditor?
  • Who is the debtor?
  • What is the total balance of the account?
  • What is the account number of the case in question? (usually identified by the last four digits)
  • When was the account opened?
  • What type of account was it?
  • What was the date that the final payment was received?
  • How much was received in that final payment?
  • What are the account fees and interest that make up the total balance?
  • Is the plaintiff seeking to claim any attorney’s fees?

All of that information should then be signed and notarized.

An affidavit that is signed by an employee of original creditor is a much stronger piece of evidence. However, remember that all relevant evidence is admissible unless properly objected to. Make them prove everything they claim in the affidavit. References are usually made to records but they fail to provide copies of those records. This is not substantial proof and without copies, it is purely hearsay. Unless YOU object to this though, no one else will.

If a junk debt buyer is suing you, they often make claims regarding the original creditor that they are not capable of making. They have been told that you opened an account with Capital One in June 2007 but they have no evidence to prove it. The debt buyer lacks personal knowledge of the account and therefore cannot swear to this information. The individual who signs the affidavit of debt must have first-hand knowledge of the account and must have researched the details to check that everything is satisfactory and accurate.

Obviously, this takes a lot of time and as a result a practice referred to as ‘robo-signing’ has become rampant and routine amongst many junk debt buyers. This is where companies have one employee sign-off on thousands of cases without doing the appropriate research.

This is how it works: Credit card accounts generate huge amounts of documentation including contracts and monthly statements and so, to save space, time and money the credit card company condense this information and create digital records and spreadsheets. After a balance is defaulted on and ‘goes bad’, these spreadsheets are sold to junk debt buyers and they begin to pursue the old debts. The debt buyer then produces thousands of identical affidavits which are signed by the same individual and this person swears to the information in the spreadsheet, without ever seeing any original documentation. These affidavits are then used in court and unfortunately, unless objected to, they lead to many victories.

Proving that the affidavit has been robo-signed isn’t as easy as it should be. To find out if yours could have been ‘robo-signed’ you might want to do an internet search of the name on your affidavit. You might find that this person has also signed hundreds of other affidavits in the same week or even the same day which would prove that the oath could be false as there is no way one person could research two hundred accounts in one day.

Some attorneys suggest calling the person who signed the affidavit as a witness in court and question them regarding the details of your account. This will hopefully highlight their lack of knowledge of your personal case.

However you decide to play it, remember that an affidavit is not always what it appears to be. You must do your research and expect the underhanded.

The Defendant’s Package has helped many consumers win their credit card lawsuits against original creditors and junk debt buyers. If you would like more help, take a look.

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