Debt Lawsuits: How to Void Documentation Submitted into Evidence
Fix Yor Credit August 7th. 2010, 4:30pmMotion to Strike Documentation * Exhibits * Improper Evidence * Authentication * Lawsuits
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Questions? Get Your Free Credit Consultation Now! How to Write a Motion to Strike Documentation of Debt This page is part of our “I’ve been sued” series. Please Note: I AM NOT A LAWYER. If you are facing court, it’s ALWAYS a good idea to hire an attorney or get some legal assistance. Depending on your area and circumstances, in come cases, you can get free help. If you cannot afford it, though, take heart. Lot of people have handled their cases pro per (in other words, without a lawyer.) Evidence Typically Submitted in Debt Collection CasesWhen you are sued by a collection agency, in the summons and complaint there is usually, but not always, some evidence concerning the debt included in the court file. The evidence is called “Exhibits”, and they are usually given alphabetical numbering, “Exibit A, Exhibit B”, etc. The types of documentation you can get:
You may feel like the Plaintiff has an ironclad case after reviewing these documents. Not so fast! All of this documentation can be thrown out or “struck” from the case if you file a motion to strike it based on hearsay, improper authentication or lack of evidence. Hearsay occurs when a Plaintiff makes a statement based on partial or unsubstantiated evidence. There are numerous instances of case law showing that debt collection companies are submitting evidence falling into this category.
Improper authentication means documents are submitted whose history or origin are unknown. These days almost anyone can create a phony document using a word processor or graphics software – how do you know the documentation hasn’t been faked? (If you don’t think this happens, read on.) Most of the court documents presented as evidence I’ve seen are unauthenticated. In Hartman v. Great Seneca Fin. Corp., Nos. 08-3773/3804, 2009 U.S. App. LEXIS 14110 (6th Cir., June 30, 2009), the court ruled that the Plaintiff manufactured evidence submitted to the courts.
Lack of Evidence. If a collection agency is suing you – they need to have purchased or been assigned the debt from the original creditor or from someone else who legally purchased the debt. You’d be surprised how many cases I’ve seen where the Plaintiff (the collection agency or their lawyer) states they have purchased the debt, but provided no evidence which backs up this fact. If the Plaintiff files a document showing they purchased the debt from Collection Agency A, but have nothing to show Collection Agency A purcharchased the debt from the OC, this is lack of evidence showing they own the debt. In a case where a generic credit card contract is submitted into evidence (extrememly common), the court ruled in MBNA America Bank, NA. v. Nelson, 13777/06,2007 NY Slip Op 51200U; 2007 N.Y. Misc. LEXIS 4317 (N.Y.Civ. Ct. May 24, 2007) thst there was no proof of the actual terms of the agreement with the particular debtor (*7-9) Case Law For Suits Dismissed Due to Insufficient or Poorly Documented EvidenceCase law showing that letters of sale or assignment are not authenticated properly.
Case law where debt buyers lawsuits have been dismissed for failure to show that the plaintiff owned the debt:
Case Law Attacking the Validity of the Documentation or Evidence
For more ammunition in your fight against collection agencies, read this document written by Daniel A. Edelman “COLLECTION LITIGATION ABUSE”, August 1,2009, Mr. Edleman listed numerous cases where documents submitted as evidence were false, misleading, and sometime manufactured by collection agencies and junk debt buyers. A Sample Motion to Strike EvidencePLEASE DO NOT JUST CUT AND PASTE THIS – Every motion is different. One size DOES NOT fit all. If you merely cut and paste, you WILL LOSE. In addition, you need to review and UNDERSTAND your state/county Rules of Civil Procedures when filing your motion. Improper filing of your motion will cause it to be denied. Note: In this case, the defendant was presented with a bulk bill of sale from the OC to the collection agency. You need to customize this motion for your situation. IN THE JUSTICE COURT OF (City Name) Case Number: XXXXXXX MOTION TO STRIKE BILL OF SALE IN SUPPORT OF PLAINTIFF’S CLAIM Comes now, Defendant Defendant Name and respectfully states the following: 1. Plaintiff has submitted into evidence a BILL OF SALE IN SUPPORT OF PLAINTIFF’S CLAIM (hereinafter referred to as “EXHIBIT A”). 2. Bill of Sale (Exhibit A) does not reference the Defendant?s name. 3. Bill of Sale (Exhibit A) does not reference the Defendant?s account number with the Original Creditor. 3. Bill of Sale (Exhibit A) could be referencing anyone?s account, and in no way proves that it is referencing the Defendant or his account. In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L. Weekly Supp. 975b (Orange Cty. July 20, 2007), the court ruled the court held that a debt buyer “assignment” that does not refer to specific accounts does not establish ownership by the plaintiff. 4. Bill of Sale (Exhibit A) does not include the printed name of the party signing on behalf of the Original Creditor. It merely shows an illegible signature which could belong to anyone. 5. Defendant further states that the Bill of Sale (Exhibit A) is vague, and does not prove that the said account was ever assigned from the Original Creditor to the Plaintiff. WHEREFORE, the Defendant prays this Honorable Court that Plaintiff?s ?Exhibit A? be stricken from evidence in the above action. I state under penalty of perjury that the foregoing is true and correct. Defendant Name. By: _______________________________ Date:____ I CERTIFY that I mailed / delivered a copy of this MOTION to: ACME COllection Attorney By: _______________________________ Date:____
If you want more help or examples of how to handle your lawsuit, our legal discussion forums are an excellent source of information. It’s free – visit them today!
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