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radi8

Affidavits of debt?

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You’ve requested validation of a debt from a debt collector and in reply received an “affidavit of debtâ€

or an “account stated†claim?

 

___________________________________________________________________

John Doe, being first duly sworn upon his oath, deposes and says:

 

He is a representative of , plaintiff herein, and as such is authorized to make this verification for and on behalf of the plaintiff; he has read the foregoing Complaint and knows the contents thereof; and the same is true to the best of his knowledge, information and belief.

 

John Doe

 

Subscribed and Sworn to before me this ___ day of ____ 200_.

 

_______________________________

 

Notary Public

 

____________________________________________________________________

 

 

 

 

 

Now what!

 

 

 

I know it’s true, I heard it from the brother of a cousin of someone who was once friends with that guy who used to work there……

An affidavit is merely a sworn statement of fact, similar to the testimony of a witness in the courtroom.

I like this comparison, as it makes clear the requirements of an affidavit, as they are the much the same as for a live witness.

 

1) The testimony must be sworn as truthful and accurate, to the best of the witness’ knowledge.

And-

2) The witness must have first hand knowledge of the facts to which they are attesting.

 

Do you see an immediate problem with a third-party collector swearing an affidavit of debt?

Where is the first hand knowledge?

They are by definition, a third-party to the claim, not part of the original agreement.

 

 

Story problem:

Imagine for a moment that you are in a courtroom, and your opponent brings forth a witness who says:

“ Your honor, I didn’t actually see the event, but I heard about itâ€

At what speed would they be ejected from the witness stand?

a) 10 miles per hour

;) 25 miles per hour

c) watch for flaming tracks.

This is exactly what an affidavit of debt originating with a third-party collector is:

Hearsay.

 

 

 

 

Just say no!

An affidavit originating with the original creditor, who has first-hand knowledge of the account is a different matter.

If left uncontested, it is valid and will be used against you.

Uncontested is the important word, an affidavit that is contested is no longer enough by itself to work against you.

Once you challenge the accuracy of an affidavit, it’s been reduced to essentially “he said she saidâ€, effectively useless without supporting evidence.

 

 

"Account Stated" has a specific definition:

Account stated is when both parties to a contract are in complete agreement as to the terms, balance owed, and who is responsible.

 

Clarified by caselaw, here is one such example:

 

http://www.nycourts.gov/comdiv/Law%20Repor...00/questra.html

 

An account stated "is an agreement between parties to an account based upon prior transactions between them with respect to the correctness of the account items and balance due."

See Sisters of Charity v. Riley, 231 A.D.2d 272, 282 (4th Dep't 1997).

A party may expressly assent or admit to an account, thus creating an account stated.

See Rosenman Colin Freund Lewis & Cohen v. Neuman, 93 A.D.2d 745,746 (1st Dep't 1983).

 

Clearly an essential element of an account stated is an agreement regarding the amount of the balance due.

 

 

 

I’m not calling you a liar, but your pants ARE on fire…

Collectors use affidavits of debt, often coupled with the “chaudry†letter for one purpose- to get a debtor to pay without further validation hassles.

They know that a large portion of the population will be suitably intimidated by legal-sounding documents and case law citations, and humbly offer up payment upon receipt of the same.

Further, they assume that faced with such “documentationâ€, they can sue and win by default, as the average debtor will not fight such evidence.

 

Unfortunately, they are often correct. Even when what they claim is not correct.

 

The facts are that such a statement is merely one party attesting to their claim.

By challenging the accuracy of the affidavit, you are attesting to it’s possible inaccuracy, making further documentation necessary if the collector is to prevail.

If it’s wrong- make that fact clearly known, in writing, certified mail.

“Because I said soâ€, even when signed and notarized, is never sufficient documentation.

Oh, and the correct answer is "B". Because I said so.

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