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.


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