Defending Debt Collection Suits (Often, the Best Defense is a Good Offense...)

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1 Defending Debt Collection Suits (Often, the Best Defense is a Good Offense...) Prepared by: Jerry J. Jarzombek The Law Office of Jerry Jarzombek, PLLC 714 W. Magnolia Avenue Fort Worth, Texas Facsimile I. Objectives of this presentation A. To generate enough cash flow in the defense of collection suits to operate a successful practice. B. To better serve your clients by identifying actionable violations of state and federal debt collection statutes, arising from collection lawsuits. C. To overcome the attempts of the debt buyers to separate your client from their money. D. To develop a reputation as an attorney who makes collection attorneys, debt buyers and creditors obey the law. E. To make collection attorneys, debt buyers and creditors obey the law. II. The Process Where to Begin? A. How did the client get to you? Or, better yet, how do you get clients to find you? 1. Court clerks and Judges (yes, they DO refer people; they have families ands friends too) a. what can you do so that they remember you favorably? 2. Other lawyers Bankruptcy, personal injury, family law a. some bankruptcy lawyers are your friends; some are not b. almost every personal injury lawyer has clients who have medical bills that may never get paid 1

2 c. family law lawyers have clients who were often both supporting a household, and now support two households 3. Websites 4. Direct mail 5. Newspaper articles and television interviews (never pass up a chance at being interviewed) 6. Legal insurance providers. B. Size up the client. Talk to them and LISTEN to what they have to say about the account made the basis of the suit. 1. Do they have a story? a. death/health/job/age? b. harassment? c. have no clue why they are being sued (identity theft)? d. do they (think that they) know more than you? 2. Are they credible? 3. Can they pay you something? How much is enough and what is too much? a. It is OK to ask for the money your doctor does. b. You too can structure payment plans 4. Is there a possibility of a counterclaim or a separate lawsuit? 5. What does the client want? Do they want it to go away, or are they looking for a pound of flesh? C. How do you charge the defendant in a collection case? 1. Hourly? a. set a limit? 2

3 b. the sky s the limit? 2. Flat fee? a. based on your probable result? b. based on the average time you spend? c. based on just how good you really are? 3. Pro bono? D. Who is the Plaintiff and/or its lawyer? 1. Do you automatically know there is an offensive claim? 2. Do you and your clients get treated favorably by a particular lawyer or that lawyer s client? Or does the lawyer need a lesson or two? 3. Will you get a non-suit by making a phone call or merely filing an answer? Or is it Rambo litigation equal to Sherman s march to the sea? 4. What are your ethical obligations? 5. Are there cases you need to turn away? E. LOOK closely at the pleadings. 1. Is the suit from a creditor or a debt buyer? a. Claims against the collection lawyer and/or the debt buyer will be FDCPA claims, while claims against the creditor will be governed by state law. b. do you have to spend more time on a creditor lawsuit as compared to a debt-buyer suit? III. Causes of action commonly asserted in scavenger suits A. Breach of written contract [something they can t get] 1. requirements of a valid contract are: (1) an offer; (2) an acceptance in strict compliance with the terms of the offer; (3) a meeting of the minds; (4) each party's consent to the terms; and (5) execution 3

4 and delivery of the contract with the intent that it be mutual and binding. 2. Does the contract have more than one part? a. Citibank and BOA both have interest rates described in a separate document called a card carrier or a folder. This additional item is part of the card agreement and the original creditors don t have it so the scavengers can not possibly have it! 3. How can the scavenger prove the contract of some prior owner? a. Business record affidavits b. Subpoenas to the original creditor c. Admissions to the consumer d. Establishing a contract through the use of the card B. Breach of oral contract [never have I ever seen one] 1. has anyone seen a credit card agreement that allows for oral modifications? So why do they use it? Probably because Citibank started it. C. Sworn account [still found in pleadings in some states] 1. A sworn account applies only to transactions between persons, in which there is a sale upon one side and a purchase upon the other, whereby title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing--it does not mean transactions between parties resting upon special contract. D. Account stated a. Credit card transactions are a financing arrangement they are not the sale of an item to the consumer by the credit card company so sworn account will not apply. 1. A few definitions: a. An account stated has been defined as an agreement 1) between two persons who have had previous transactions, 4

5 2) fixing the amount due in respect of such transactions, and 3) promising payment b. At a minimum, Plaintiff is required to prove 1) that services were rendered and 2) the prices charged were agreed to by Defendant or that, in the absence of an agreement, the prices charged were usual, customary and reasonable. c. An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and the balance stated is correct, together with a promise, express or implied, for the payment of such balance. 2. The contract AND the statement of account are required. 3. How can the scavenger prove that the statement was held by the consumer without objection? 4. How can the scavenger prove that the consumer received the statement? i. It is insufficient for a plaintiff to claim that a statement was mailed, but not paid. E. Money had [ some states consider this to be conversion, with a shorter SOL] 1. A claim for money had and received is an equitable action that may be maintained to prevent unjust enrichment when the defendant obtains money, which in equity and good conscience belongs to the plaintiff. A cause of action for money had and received is not based on wrongdoing but instead looks only to the justice of the case and inquires whether the defendant has received money which rightfully belongs to another. It is essentially an equitable doctrine applied to prevent unjust enrichment. 2. But, the scavenger did not provide any money to the consumer rather, a windfall is sought. Otherwise, the consumer ought to be able to make the scavenger whole, by paying them back the acquisition cost of the purchased account. F. Quantum meruit [and this is mutually of contract] 1. The elements are: (1) valuable services were rendered; (2) to the party sought to be charged; (3) which services were accepted by 5

6 the party sought to be charged; (4) under such circumstances as reasonably notified the recipient that the plaintiff, in performing such services, expected to be paid by the recipient. 2. But, the scavenger did not provide any services to the consumer and how could the scavenger expect to the paid by the consumer at the time the services were acquired? G. Unjust enrichment [like money had can be subject to a shorter SOL] 1. Unjust enrichment is based on the equitable principle that one who receives benefits unjustly should make restitution for those benefits. A party may recover under the theory of unjust enrichment when another has obtained a benefit by fraud, duress, or the taking of an undue advantage. To be entitled to restitution under a theory of unjust enrichment, the plaintiff must show the party sought to be charged had wrongfully secured a benefit or had passively received one which would be unconscionable for that party to retain H. Common law debt I. Truth In Lending Act: Defendant s failure to exercise an option to object to the billings is irrelevant. 1. THE TRUTH IN LENDING ACT DOES NOT WAIVE CONSUMERS RIGHTS a. Plaintiff s frequently rely on the Fair Credit Billing portion of the TILA, 15 U.S.C That provision imposes liability on plaintiff were it not to comply with the statutory billing error procedures. 1666(e). The Fair Credit Billing Act does take away consumers rights to claim that they do not owe what is stated on a periodic bill. It does not mandate that consumers avail themselves of those dispute procedures -- unless they want to seek statutory damages for their violation -- nor does it provide that consumers lose claims or defenses if they call to complain -- as most do -- rather than write. Congress did not take away consumers defenses as a penalty for not invoking the statutory billing error procedures, undoubtedly because imposing a writing requirement places a burden, sometimes insurmountable, on a portion of TILA s intended beneficiaries. See, White and Mansfield, Literacy and Contract, 132 Stanford Law & Policy Rev. 233 (2002). While the majority of the population may be able to draft a dispute letter, a 6

7 significant minority unfortunately does not have that capability, for lack of either literacy or English language skills. See, National Institute for Literacy, the State of Literacy in America: Estimates at the Local, State and National Levels (1998), available through Plaintiff s efforts to import the optional consumer protection of the Fair Credit Billing Act as a sword against the consumer turns that consumer protection statute upside down and inside out. 2. THE FRB AGREES THAT RESORT TO BILLING ERROR PROCEDURES IS OPTIONAL a. The Federal Reserve Board s position appears in its Official Staff Commentary, which is dispositive unless demonstrably irrational. Ford Motor Credit Co v. Milhollin, 444 U.S. 555 (1980); Mourning v. Family Publications Service, 411 U.S. 356 (1973). As does defendant, the FRB interprets 15 U.S.C (unauthorized use) and 1666 (billing errors) as alternative, non-exclusive options: 12(c) Right of cardholder to assert claims or defenses against card issuer. 1. Relationship to The (c) credit card "holder in due course" provision deals with the consumer's right to assert against the card issuer a claim or defense concerning property or services purchased with a credit card, if the merchant has been unwilling to resolve the dispute. Even though certain merchandise disputes, such as nondelivery of goods, may also constitute "billing errors" under , that section operates independently of (c). The cardholder whose asserted billing error involves undelivered goods may institute the error resolution procedures of ; but whether or not the cardholder has done so, the cardholder may assert claims or defenses under (c). Conversely, the consumer may pay a disputed balance and thus have no further right to assert claims and defenses, but still may assert a billing error if notice of that billing error is given in the proper time and manner. An assertion that a particular transaction resulted from unauthorized use of the card could also be both a "defense" and a billing error. 2. Claims and defenses assertible. Section (c) 7

8 merely preserves the consumer's right to assert against the card issuer any claims or defenses that can be asserted against the merchant. It does not determine what claims or defenses are valid as to the merchant; this determination must be made under state or other applicable law. Official Staff Commentary on Regulation Z, (c). b. Moreover, the statute itself provides that the consumer may re-assert the same error, but provides that the card issuer does not have to again comply with the investigation provisions. 15 U.S.C. 1666(a), final clause. c. Citibank has lost the argument that failure to take advantage of the statutory remedies waives the consumer s claims and defenses. Citibank (South Dakota) v. Mincks, 135 S.W.2d 545 (Mo. App. Ct. 2004). Nothing in the statute affirmatively imposes any penalty on the consumer for failing to take advantage of the benefits of this statute [TILA]. The only penalty which can even be inferred is the loss of the abatement rights contained therein. Id. at 559. If we were to accept Citibank s argument, it would mean that a consumer who failed to utilize this billing error statute through ignorance, inadvertence, or purposeful action would completely forfeit his right to contest the debt owed in a collection lawsuit. Id. d. And it doesn t work in Connecticut either. In People s Bank v. Scarpetti, 21 Conn. L. Rptr. 357, 1998 WL (Conn. Super. 1998), Judge Skolnick ruled, The court finds that 1666 does not require a defendant to allege that he provided, or to provide, written notice of theft or loss of a credit card in order to assert unauthorized use by others as a special defense. Rather, 1666(a) provides the required procedure a creditor is to follow when and if an obligor voluntarily provides timely written notice of an error on a credit statement. Defendant also respectfully refers the Court to Crestar Bank v. Cheevers, 744 A.2d 1043, 1047 (D.C. 2000) (15 U.S.C does not mandate the consumer to utilize the statutory dispute procedures); Jacobs v, Marine Midland Bank, N.A., 475 N.Y.S.2d 1003, 1005 N.Y. Super. 1984) (legislative history shows purpose to protect the consumer against unfair or inaccurate practices between credit card issuers and retail merchants). 8

9 3. BILLING ERROR PROCEDURES ARE QUITE LIMITED IN APPLICATION a. Plaintiff s position that failure to comply with the Billing Error Act waives any claims or defenses is also unsound because the Act applies only to certain limited aspects of the periodic statement. 15 U.S.C. 1666(b); Reg. Z, 12 C.F.R (a). Reg Z (a) limits the optional billing error dispute procedures only to: Extension of credit not made to the consumer Extension of credit not made in the amount reflected by the statement Unauthorized extension of credit even if consumer received benefit Extension of credit for property not accepted by the consumer Extension of credit not properly identified Extension of credit for property or services not delivered (wrong quantity or different from agreed upon) Failure to include a payment or credit Computational error in the credit related portion of the statement Additional clarification request, if accompanied by a dispute Failure to send to last known address b. The Billing Error Act does not apply, for instance, to disputes over the quality of accepted merchandise. Official Staff Commentary (a)(3)-1. The list of available disputes under the Fair Credit Billing Act does not include contractual disputes between the card issuer and the card holder: usury or the proper amount of interest; whether late charges or over limit fees are contractually authorized and constitute liquidated damages or an unlawful penalty; unauthorized use; unsolicited issuance (15 U.S.C. 1642); statutory disclosure violations that can be used as recoupment, 15 U.S.C. 1640; or theft of identity. c. Plaintiff s position that the TILA deprives the consumer of defenses is not only contrary to the statute it relies on and the dispositive interpretation of the FRB, but constitutes another effort to evade the normal burden of proof on a contract claim. 9

10 d. The Fifth Circuit clearly states that the purpose of the Fair Credit Billing Act is protecting consumers from the harassment of creditors. Koerner v. American Express Co., 615 F.2d 191, 196 (5th Cir. 1980). In a discussion of credit card fraud and its relationship to failing to dispute fraudulent charges, the United States District of Columbia Circuit Court of Appeals states: Regulation Z likewise reflects the remedial purpose of Filling in the gap between TILA and the Fair Credit Billing Act, the Federal Reserve Board explains in Regulation Z that a cardholder need not contest charges under 1666 in order to pursue remedies under See Crestar Bank, 744 A.2d at Specifically, the Board's official staff interpretation of 12 C.F.R (b)(3) states that "[t]he liability protections afforded to cardholders in [under 1643] do not depend upon the cardholder's following the error resolution procedures in [under 1666]." Although 1666 and apply only to "consumer credit" and not to corporate credit, see 1666(a), 1602(h), they nevertheless support the general proposition that a cardholder's failure to report fraudulent charges does not create apparent authority for such charges. Congress instructed the Federal Reserve Board to promulgate regulations to carry out the purposes of TILA, see 15 U.S.C. 1604(a), and the Supreme Court has held that courts owe deference to the Board's regulations and its interpretation of its regulations under TILA. See Anderson Bros. Ford v. Valencia, 452 U.S. 205, 219, 101 S.Ct. 2266, 2274, 68 L.Ed.2d 783 (1981) (citing Ford Motor Credit Co. v. Milhollin, 444 U.S. 555, 556, 100 S.Ct. 790, 792, 63 L.Ed.2d 22 (1980)). Because the Board's interpretation is consistent with 1643 and 1666, deference to Regulation Z is due. See Anderson, 452 U.S. at 219, 101 S.Ct. at 2274; Milhollin, 444 U.S. at 565, 100 S.Ct. at 796. Indeed, in Crestar Bank, 744 A.2d at 1048, the District of Columbia Court of Appeals deferred to Regulation Z and rejected an interpretation that "reads into 1643 a presumption that if the cardholder fails to notify the [card issuer] that the disputed charges 10

11 are not his, they will be deemed to have been authorized by the cardholder." d. The above-cited authority dealt with fraudulent charges, but the result is the same there is no liability placed on a consumer for allegedly failing to notify a card issuer, and an alleged failure to notify does not means that the cardholder authorized the charges. IV. Venue Violations: Where does the consumer live? [1692i violations] A. Is the suit filed in the county where the consumer resides? B. Is the suit filed where the consumer signed the agreement made the basis of the lawsuit? 1. That is NOT necessarily the same as the consumer s residence. 2. Is it worthy of a 1692i claim? C. What about courts of lesser jurisdiction (such as justice courts that are divided into precincts?) 1. Do you transfer venue? Not if the wrong venue is favorable 2. Does a motion to transfer venue get you a non-suit (or dismissal) with prejudice? V. Does the debt belong to the named Defendant? [1692e violations] 1. Is the named defendant only an authorized user? 2. Is this identity theft? VI. How old is the account? [1692e violations] A. Ask about the last payment. While most people remember the events in their lives that caused them to have financial difficulty, some are poor historians. If you have a poor historian, have them get a credit report. 1. Look for an affidavit attached to the pleadings. Collection lawyers attach affidavits to get a default judgment without making a physical appearance to the courthouse. [In Tarrant County, Texas, judges estimate that 85% to 95% of collection cases are concluded with a default judgment; one Dallas County, Texas, one judge opined the number was 95% and not a bit less]. 11

12 a. Sometimes the affidavit proves that the account is timebarred. A true gift. VII. What about notices under 15 U.S.C. 1692g and responses to validation requests? [1692g(a) and (b) violations] A. Did the lawyer send a notice prior to suit? 1. In the case of a debt buyer, some collection lawyers rely on their client to send the g notice. 2. Is the g notice included in the pleadings? Is it defective? B. Are you at a hearing with an appearance lawyer (rent-a-lawyer or lawyer du jour? 1. Heintz v. Jenkins says The Act must be read to apply to lawyers engaged in consumer debt-collection litigation for two rather strong reasons. First, a lawyer who regularly tries to obtain payment of consumer debts through legal proceedings meets the Act's definition of "debt collector": one who "regularly collects or attempts to collect, directly or indirectly, [consumer] debts owed... another," 15 U.S.C. 1692a(6). Second, although an earlier version of that definition expressly excluded "any attorney-at-law collecting a debt as an attorney on behalf of and in the name of a client," Congress repealed this exemption in 1986 without creating a narrower, litigation-related, exemption to fill the void. 2. Where s the rent-a-lawyer s g notice? a. Ask if he does this all the time (or you may know that already) b. Is the appearance lawyer buddies with the judge? 3. Have the appearance lawyer formally appear in the case. a. Ask them questions to prove they know nothing about the case, giving them an opportunity to dazzle the judge with their brilliance. B. What about validation? 1. If the g notice is in the pleadings, ask for validation. If an answer is required prior to the expiration of the validation period, you may have an overshadowing violation. 12

13 a. But what about 1692g(d)? Pleadings are not an initial communication. b. Should the client call the lawyer before hiring you if there was no pre-suit notice? 2. Ask if the consumer requested validation or disputed the account. Many consumers send a validation request or a dispute notice they found on the internet somewhere. Hopefully, they kept a copy, and sent the request by certified mail. Was the suit filed without response to the validation request? a. Look at the credit report to see if the account is being reported as disputed. There could be an e8 violation. b. Look at the credit report to see if the account is being reported as a joint account when it is the sole responsibility of the other spouse. Another chance for an e8 violation. 3. Demand a validation notice from the rent-a-lawyer. a. Watch them send a defective validation notice, such as one addressed to your client, c/o you as the lawyer, with the salutation of the notice addressed to your client. VIII. Telephone calls prior to suit. [1692 d, e & f violations] A. Is the client savvy enough for this? Or do they just want it to go away? B. Calls from the creditor. 1. This is not fertile ground for an FDCPA suit, BUT can form the basis of a counterclaim based on state law. a. Example: Providian habitually called clients in Texas, threatening wage garnishment and liens on their homesteads in an effort to wrench $$ from the consumer. C. Calls from the collection attorney. 1. Are the calls from a lawyer? a. Example: Some states (such as Texas) require a bond for a non-lawyer to communicate with a consumer regarding the 13

14 D. Calls from the debt buyer. collection of a consumer debt; other states have a licensing requirement. 1. Be ready for the we re not a collector we own it argument. E. Assess your client! 1. Do they have a recording? What kind of witness will they make? Are they up for being deposed? F. Foti violations. 1. Messages left on the answering machine without any disclosure. IX. Examine the pleadings. [1692e violations] A. Legal Misrepresentations. 1. Does the pleading seek recovery on an improper theory? a. Example: Case law in Texas holds that credit card cases are NOT subject to a suit on a sworn account under Tex. R. Civ. P In spite of this, collection lawyers continue to make allegations regarding a suit on a sworn account. b. How many times have you seen an attempt by a debt buyer to recover under the account stated theory? c. Who made this oral contract? 2. What? A legal misrepresentation is subject to the BFE defense? a. Maybe a motion for summary judgment on the impossible claims? Sanctions? B. Factual Misrepresentations. 1. Does the pleading allege something that is false? a. Example: Does the debt buyer claim that there was a contract between it and the consumer? Or that the debt buyer supplied goods or services? X. Examine Attachments to Pleadings. Look at footers!! [1692e violations] 14

15 A. Affidavits again. 1. Does the affidavit contain false statements? B. Agreements. a. Example: Affidavits notarized by Sondra Rosenfeld, employed by NCO, frequently contain allegations that the affiant is employed by the Plaintiff (when in reality, the affiant is employed by NCO). b. Does the affiant, who represents a debt buyer (and fifth owner of the debt) claim to have personal knowledge that the original creditor issued a credit card to the consumer? c. Is the affidavit signed by a TrakAmerica employee? 1. Note, in many jurisdictions a business record affidavit must disclose the employer of the affiant, and none of the TrakAmerica affidavits I have seen make this disclosure. 2. Update allegedly, Sara Rubin is no longer employed at TrakAmerica 1. Is there a real credit card agreement attached? C. Demand letters. a. Example: A suit to collect a credit card debt should not contain a blank copy of a retail sales installment contract for a vehicle purchase. b. Example: Does the suit identify Bank One as the original creditor, only to have a NextCard agreement attached as a copy of the agreement? c. Example: Does CACH want to collect a Providian MasterCard, but attached a Providian Visa agreement? 1. Is the collection lawyer silly enough to attach his demand letter? a. Example: the letter makes an immediate demand for payment of $150 in attorney s fees, although the lawyer says he has not yet looked at the case. 15

16 D. Offers to Settle Without Litigation 1. Example: Wolpoff & Abramson offers to have the defendant call them to settle, which could result in missing the deadline to answer, and the entry of a default judgment. Probably false, deceptive and misleading. XI. Read subsequent pleadings carefully. A. The collector s MSJ 1. Example: Some mills are so busy, that they include a copy of every asset purchase made by their scavenger client. Some will pre-date your client s default; others will prove that the scavenger bought the debt from an entity other than the one sworn to by the scavenger in their affidavit; still others prove that the debt was time-barred. B. Business Records Affidavits 1. FRE 803(6): (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that complies with Rule 902(11), Rule 902(12), or a statute permitting certification, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. a. How can the scavenger testify that the records were made by a person with knowledge? They didn t make them, nor did anyone in their employ. b. The rule does not require a witness laying the predicate for introduction of a business record to be the creator of the document or even an employee of the company keeping the subject record. What the rule does require, however, is that the person testifying demonstrate that he or others 16

17 in his company "knew of the events recorded on the third party documents. The purpose in requiring that the "qualified witness" know of the events in the records is to ensure the accuracy of the records 2. Challenge computer generated records a. What about the records transmitted with that bulk purchase that are contained in a database somewhere? In the case of a paper record, the inquiry is into the procedures under which the file is maintained, including custody, access, and procedures for assuring that the records in the files are not tampered with. The foundation is well understood and usually is easily established. See EDWARD J. IMWINKELRIED, EVIDENTIARY FOUNDATIONS 4.03[1] (5th ed. 2002) ("IMWINKELRIED"); 5 WEINSTEIN [1][b][i]. This ever-expanding complexity of the cyberworld has prompted the authors of the current version of the Manual for Complex Litigation to note that a judge should "consider the accuracy and reliability of computerized evidence" and that a "proponent of computerized evidence has the burden of laying a proper foundation by establishing its accuracy." MANUAL FOR COMPLEX LITIGATION (FOURTH) (2004), citing with approval, Gregory P. Joseph, A Simplified Approach to Computer-Generated Evidence and Animations, 43 N.Y.L. SCH. L. REV. 875 ( ). b. Professor Imwinkelried perceives electronic records as a form of scientific evidence and discerns an eleven-step foundation for computer records: 1. The business uses a computer. 2. The computer is reliable. 3. The business has developed a procedure for inserting data into the computer. 4. The procedure has built-in safeguards to ensure accuracy and identify errors. 5. The business keeps the computer in a good state of repair. 6. The witness had the computer readout certain data. 7. The witness used the proper procedures to obtain the readout. 8. The computer was in working order at the time the witness obtained the readout. 9. The witness recognizes the exhibit as the readout. 10. The witness explains how he or she recognizes the 17

18 readout. 11. If the readout contains strange symbols or terms, the witness explains the meaning of the symbols or terms for the trier of fact. IMWINKELRIED 4.03[2]. 3. Is the affidavit internally consistent? a. if principal and interest are given, is the total mathematically correct? b. are their markings on the documents that indicate unreliability? i. the name of the collection firm and the file number on a 5 year old statement ii. iii. is there a conflict with the affidavit attached to the original pleading filed in the case? is there a conflict with the pleadings? 4. Example: Some mills can not add the principal and interest add to a sum different that what is sworn to in the affidavit; many have handwritten notes by the collection firm (such as their internal file number or the name of the firm) hardly possible on a statement mailed to a client 5 years before and an indicia of a lack of trustworthiness. Some of the same connect the dots issues as stated above. 5. Does the affidavit claim to be made by a person with knowledge, at or near the time of the occurrence yet the affiant is an agent of the debt buyer, with credit card statements branded with this is a facsimile not an original? Knowledge of the creation of the records is required in most jurisdictions. 6. Does the affiant claim that they or an employee of the debt-buyer made the records or transmitted information to be included in the records? XII. Motion to Dismiss / Plea to the Jurisdiction A. Can they prove they own the claim? 1. Securitization? 18

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