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4.2.3.5 Inconsistent, Sloppy, and False Information

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  1. Collection Actions
  2. Chapters
  3. Chapter 4 Proof of the Merits of the Collector’s Claims
  4. 4.2 Sufficiency of the Collector’s Evidence
  5. 4.2.3 Collector’s Use of Affidavits As Evidence
  6. 4.2.3.5 Inconsistent, Sloppy, and False Information

4.2.3.5 Inconsistent, Sloppy, and False Information

When documents are attached to the affidavit, look for inconsistencies between the documents and the affidavit itself, which will call into question the evidence being proffered both by the affidavit and by the documents.101 Similarly, look for inconsistencies between the affidavit, the complaint, a collector’s summary judgment motion, and other affidavits and documents in the case.

For example, in one case the debt buyer’s affidavit specified a date of assignment over three months after the date specified in the alleged “Bill of Sale.”102 In another case, the affidavit provided that the consumer owed an amount on one particular account while the attached business records referred to a different account number.103 Also look for inaccurate or conflicting information as to whether the affiant is employed by the original creditor, the debt buyer, or the company servicing the debt buyer’s accounts.104

A number of courts have also ruled that, where an affidavit is made on personal knowledge that is based upon a review of documents, those documents must be attached to the affidavit.105

In introducing the credit agreement, the collector must link that agreement to the consumer. Thus, the submission of a form credit card agreement was found insufficient when that agreement had a date more than one year after the credit card was first issued.106

See if the affidavit also contains false statements. Look for statements that the affiant is employed by the plaintiff, when in fact the affiant is employed by a collection agency hired by the plaintiff. Does an affiant employed by a debt buyer claim to have personal knowledge of the practices of the original creditor, when it would be impossible for that affiant to have that knowledge? In one case, the court cited with disapproval a debt buyer’s affidavits and other documents that included three different interest rates and which referred to the debt buyer as being the original owner and the entity from whom goods or services were purchased.107

Footnotes

  • 101 See § 4.2.4.2, infra.

  • 102 Unifund CCR Assignee of Providian v. Ayhan, 2008 WL 2974639 (Wash. Ct. App. Aug. 5, 2008). See also Recovery Mgmt. Sys., Ltd. v. Coburn, 2008 WL 4801641 (Ohio Ct. App. Nov. 4, 2008).

  • 103 Ezeoke v. FIA Card Servs., N.A., 739 S.E.2d 81 (Ga. Ct. App. 2013).

  • 104 Midland Funding, L.L.C. v. Coia, 2018 WL 2750257 (N.Y. Sup. Ct. June 4, 2018).

  • 105 See Midland Funding L.L.C. v. Walker, No. 3AN-14-9283 (Alaska Super. Ct. Dec. 6, 2017), available at www.nclc.org/unreported; Portfolio Recovery Assocs. L.L.C. v. Delgado, No. 3AN-13-06902 (Alaska Super. Ct. Dec. 12, 2016), available at www.nclc.org/unreported.

  • 106 Citibank, N.A. v. Giovine, 2014 Mass. App. Div. 73 (Mass. Dist. Ct. 2014).

  • 107 Barajas v. Harvest Credit Mgmt., VI-B, L.L.C., 2008 WL 4308334 (Tex. App. Aug. 28, 2008).