How to Defend Against a Debt Collection Lawsuit by Attacking the Collector’s Robo-Signed Affidavits
A common type of document used by debt collectors in a debt-collection lawsuit is an affidavit. This post explains the evidentiary problems with debt collectors’ so-called “robo-signed” affidavits, as well as other problematic affidavits not based on personal knowledge.
Affidavits are one of the primary types of documents used by debt collectors in the lawsuits they file. An affidavit simply is a written statement, intended to be used as evidence in court, that is signed under oath. It will contain a series of statements, and then a signature block with an oath like “signed under the pains and penalties of perjury.”
Debt collectors’ affidavits are universally used to establish that they own the account being collected. The account has often been sold to the collector by an original creditor (a bank, credit card issuer, or perhaps a medical facility). Thus, the debt collector needs to prove that the account has been properly assigned, or transferred, from the original creditor.
Indeed, a consumer, when confronted with a debt collector’s affidavit, may feel he or she has lost the case. But an examination of the details of the affidavit often reveals substantial flaws that are sufficient to obtain a dismissal of the collector’s lawsuit.
A major problem with debt collectors’ affidavits is that they are not based on the affiant’s personal knowledge. An affidavit is typically only admissible if the statements in it are based on personal knowledge, or the affiant’s firsthand observation or experience. The statements must be something the affiant knows because he or she saw it, not because someone else told them.
The oath in a collector’s affidavit, however, often simply states “Sworn under the penalty of perjury” or “on information and belief,” but does not state that it is “based on personal knowledge.” In such a case, the affidavit is inadmissible. It must be based on personal knowledge.
Courts require that affidavits be based on personal knowledge to determine whether or not the statements in them are credible. Anybody can swear to anything, so only people with firsthand knowledge should be believed. An affidavit that is not based on personal knowledge is therefore inadmissible.
Another well-documented problem with debt collectors’ affidavits is what is called “robo-signing.” One of the largest debt buyers in America, Midland Funding, allegedly had employees signing 200 to 400 affidavits every single day. The affidavits explained that there was sufficient evidence to establish that Midland Funding owned the accounts, and said the affidavits were based on personal knowledge.
The problem with Midland’s affidavits, however, was that the affiants who signed them had not reviewed any documentation. They had no idea where the information came from, and did no review of the files and documents upon which the affidavits were supposedly based. Thus, though they claimed to have personal knowledge, in reality they did not.
The lesson Midland Funding’s robo-signed affidavits is that it is often important to go through the discovery process in a debt collection lawsuit. In discovery, you can send written questions to the collector, force them to produce documents, and make them submit to a deposition where you can ask questions in person about the basis of the statements in their affidavits.
As you can see, the affidavits of debt collectors in collection lawsuits have the potential to be inadmissible if they are not based on personal knowledge, or if they are robo-signed.
If confronted with such affidavits, our office will often argue that, under the rules of evidence, the case should be dismissed, or that the collector should be prohibited from using the affidavit in its case. There is a large body of case law to back up this potion.
There are many other defenses to debt collection lawsuits, and each case is different, so if you have received a summons from a debt collector, be sure to have the case reviewed by an experienced debt-defense attorney.
Dye Culik PC is a consumer-protection firm with offices in Charlotte, North Carolina and Boston, Massachusetts. We defend consumers and small business owners against unfair debt collection tactics and lawsuits in court. If you are facing off against a debt collector, let us have your back and contact us now. Our firm has litigated against almost every major debt collector, credit card company, and debt buyer.