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Collection Actions: 4.2.2.4.3 Narrowly interpret admissions and point out ambiguities

Another approach to limit the impact of facts deemed admitted is to narrowly interpret the admissions. For example, consider the admission that the consumer promised to pay the debt buyer or the original creditor. A strict reading of the admission does not admit that the consumer promised to pay the debt buyer and does not admit that the creditor assigned the obligation to the debt buyer. This can instead be viewed as admitting that the consumer promised to pay only the original creditor.

Collection Actions: 4.2.2.4.4 Consumer can admit only to the facts, not to legal opinions

Unanswered requests for admissions should have no effect on a case if the requests solely ask for a legal opinion or ask the party to admit a matter of law as opposed to a fact.62 Admissions are to facilitate proof at trial by obviating the need to adduce testimony or documents as to factual matters that are not really in controversy. “Such requests should not be confused with pure requests for opinions of law, which are not contemplated by the rule.

Collection Actions: 4.2.2.5 Suit Against Collector for Abuses Related to Requests for Admissions

When a collector is abusing requests for admissions to take unfair advantage of unrepresented consumers, one approach is to sue the collector’s attorney for violating the federal Fair Debt Collection Practices Act (FDCPA). For example, in one case, the consumer’s answer raised the statute of limitations. In response, the requests for admissions asked the consumer to admit that there were no facts supporting the statute of limitations defense.

Collection Actions: 4.2.3.1 Generally

This section focuses on collectors’ use of affidavits to proffer evidence found in the affidavits themselves. Section 4.2.4, infra, examines the use of affidavits to authenticate or certify business records that are introduced into evidence. This section only examines the aspect of affidavits meant to constitute evidence, rather than those used just to authenticate other documentary evidence.

Collection Actions: 4.2.3.2 Use of Affidavits at Trial

The general rule is that live testimony is required at trial and that affidavits are not allowed.70 This rule typically still applies in small claims courts and other lower courts.71 Affidavits instead are generally used to support summary judgment motions.

Collection Actions: 4.2.3.3.1 Overview

Debt buyers in particular may seek to conceal their inability to produce the best evidence of a factual allegation by having a debt buyer employee state in an affidavit that the factual allegation is true. Affidavits must be made on personal knowledge and show affirmatively that the affiant is competent to testify as to the matters stated therein.76 For example, a debt buyer employee without personal knowledge of actions taken by the originating creditor cannot attest to those actions.

Collection Actions: 4.2.3.3.2 Robo-signed affidavits

There have been extensive allegations that debt buyers engage in robo-signing of affidavits. The affiant has not reviewed the consumer’s file and does not have personal knowledge of the debt—and does little more than sign a stack of affidavits with little knowledge of the content of each affidavit.

Collection Actions: 4.2.3.3.3 Attorney affirmations and verified complaints

An attorney’s affirmation that is not based upon personal knowledge of the facts has no probative value.90 Similarly, a verified complaint cannot be the basis for summary judgment when the plaintiff only verifies that the facts are true based on the plaintiff’s own knowledge, and, for those matters that are alleged “upon information and belief,” that the plaintiff believes them to be true.91

Collection Actions: 4.2.3.4 Conclusory Affidavits; Missing Attachments

An affidavit should not be conclusory.92 General statements in an affidavit that are only conclusions of law do not prove a case.93 Good examples of inadequate affidavits are those that state that the consumer owes a certain amount without attaching any documentation to support that conclusion,94 and an affidavit claiming that an assignment has been made without attaching the actual assignment document.95

Collection Actions: 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.102 Similarly, look for inconsistencies between the affidavit, the complaint, a collector’s summary judgment motion, and other affidavits and documents in the case.

Collection Actions: 4.2.3.6 Notarizations and Signatures

Look for deficiencies in the affidavit’s signature and notarization. Is the name of the individual signing the affidavit disclosed on the affidavit? Is the affidavit properly signed and notarized? Some states require that an affidavit disclose the affiant’s employer. Has the affiant met this requirement?

Also look for the sufficiency of the notarization. Were the notarization and the affiant’s signature affixed on the same date? Were the two signed at the same location?

Collection Actions: 4.2.3.7 Consumers’ Use of a Counter-Affidavit

The consumer should consider submitting an affidavit to counter facts alleged in the collector’s affidavit, thus placing those facts in dispute. This response should be enough to defeat the collector’s summary judgment motion.114 If the court finds the consumer’s affidavit conclusory or lacking in personal knowledge, the court should apply the same standard to the collector’s affidavit.

Collection Actions: 4.2.4.1.1 Overview

Business records used to prove a collector’s causes of action constitute hearsay. Federal Rule of Evidence 801(c) provides that “[h]earsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” To be admissible, records relating to the consumer’s debt must fit within the business records exception to the rules prohibiting hearsay evidence.

Collection Actions: 4.2.4.1.2 Documents generated only for the litigation

Documents created for the litigation are not business records and the hearsay rule prevents their introduction.120 The records are not contemporaneous—that is, they were not created at the same time as the occurrence of the event that the record is documenting. The records are not admissible if they were created years later, either by the original creditor or a debt buyer. The record must be created shortly after the event that it records, not a year later.121

Collection Actions: 4.2.4.1.3 Documents generated later as part of a debt sale

A document generated by the originating creditor as part of a bulk transfer of data to a debt buyer is not a business record as to the nature of an individual consumer account.128 The document is not kept in the regular course of business but is generated later by manipulating the creditor’s business records. Nor can the typical affiant, particularly one from a debt buyer, testify that the data was accurate, complete, or reliable.129

Collection Actions: 4.2.4.1.4 Trustworthiness

Business records exempt from the hearsay rule also cannot lack trustworthiness. Inconsistencies between the records and the collector’s affidavits, pleadings, or other documents can suggest a lack of trustworthiness in the records themselves.131 If the documents are introduced as true copies of what was sent to the consumer, they should not contain handwritten notes that were added after the document was sent to the consumer.

Collection Actions: 4.2.4.2 Affidavits Must Certify Business Records

When business records are introduced at trial, they are introduced by the testimony of the custodian of those records or some other qualified witness.136 When they are utilized as attachments to a summary judgment motion, they also must be certified by a custodian of the records or other qualified person.137 Business records cannot be the basis for the collector’s summary judgment motion if they are unaccompanied by an affidavit swearing to or certifying the records.

Collection Actions: 4.2.4.3.1 The majority rule

The majority rule is that the affidavit authenticating the records of the original creditor must be sworn to by an employee of the original creditor and not by an employee of the debt buyer,157 because the debt buyer employee has no knowledge of how the originating creditor created the records and cannot testify to how they were created.158 To certify business records, the affiant must be familiar with the original creditor’s record-keeping practices—i.e., the habits and customary practices and

Collection Actions: 4.2.4.3.2 The minority rule of incorporation

A minority of courts recognize a “rule of incorporation,” which provides that records taken into custody by a business are considered “made” by that business if that business integrates the documents into its business records and relies upon them.168 But most state courts reject this extension of the basic rules of evidence.169