One trick the debt collectors like to do is attach an "affidavit" to
the petition when they sue you. If they do, it could be a golden
opportunity for you. And if they attach an affidavit later in the
process, it's probably still a golden opportunity.
First, What Is an Affidavit? And What Is it Supposed to Say?
Let's take it one step at a time.
First, what is an "affidavit?" An affidavit is sworn testimony, for one
thing, in the form of a series of statements and notarized by a notary
public. In every jurisdiction of which I know, the affidavit is required
to have statements in it that indicate how the person ("affiant") comes
to have first hand,
personal knowledge of the facts about which she is testifying. And they
are required to have first hand, direct personal knowledge.
You can find out for sure if this is the case in your jurisdiction by
looking first at the rules of civil procedure. Take a look under the
rule for summary judgment. If you have the annotated version of the
rules, look at the comments. If that doesn't answer the question, Google
"your state, evidence, affidavits." That will get you started.
How Would an Employee of a Debt Collector Know What they Say in the Affidavit?
Just remember, though, in the case of debt collectors and their
affidavits, they almost NEVER have first hand knowledge about the
account they're talking about (so logically, how could they swear
anything about it?), and their affidavits either make this clear Or else
completely fail to show any basis for first-hand knowledge.
That's because the person making the affidavit is almost always going to
be some bureaucrat for the debt collector. And the affidavit is almost
always going to be talking about how you supposedly owed money to the
original creditor, a different company. They'll slap a lot of lipstick
on that pig, slathering in lots of "ordinary course of business" thises
and "normal business records" thats. But ask yourself a simple question.
How would an employee of the debt collector know anything about the
records of the original creditor? They do not.
This makes the affidavit "deceptive" and an unfair debt collection practice in my opinion.
It's There to Fool You
The affidavit is there for one or both of two reasons. In the first
place, it may be to swindle the court: to persuade it that there is
genuine evidence that would support a judgment. Some courts require that
before they'll give a plaintiff a default judgment. Or the affidavit
may be there to swindle you by making you believe that you really do owe
the debt collector the money and they can prove it.
It's There to Make You Give Up
If you believe they've got proof of the debt, there isn't much reason to
fight the case in court or even show up in court. Probably hundreds of
thousands of these cases get filed per year. If half of them have the
affidavit, and half the people seeing the affidavit give up because of
them, then the debt collectors have swindled the public out of amounts
of money numbering in the hundreds of millions of dollars.
It's There to Rip You Off
That's one big reason I created my web site. It is outrageous. And it's why you should add a counterclaim
for unfair debt collection practices under the Fair Debt Collection
Practices Act if the debt collector tries to pull this trick with you.
It isn't an accident. It's theft on a huge scale.
Action Steps
So here's what to do. If the debt collector suing you uses an affidavit
in the process, you must look at the affidavit very closely to see if
there is any indication that the person swearing it out has any actual
basis for knowing what they're talking about. Are they saying they
"know" the debt against you is valid? Or for a certain amount? Are they
saying that anybody other than their own company kept records "in the
ordinary course of business"?
Or are they being coy: "the business records of the original creditor
show..." If they're being coy, they are still violating the FDCPA
because they are submitting an inadequate affidavit in an attempt to
collect a debt. And believe me, these guys know its inadequate. They
make hundreds of millions of dollars off of them, and they are very
sophisticated.
And they also know that the affidavit is designed to look like it is not
inadequate. That makes it "deceptive" and in violation of the FDCPA.
