Yup... Father's being sued, AGAIN... Different debt, different CA. Only this time, it's the OC that's out for blood, and it's DEFINITELY his account. He took my advice and sent a DV letter to the CA (which also happens to be a "law office"). I also told him to ask for a copy of the original application/agreement for the account even though it was arguably beyond the "standard" of "debt validation" (e.g. Chaudhry v. Gallerizzo), though I operated on the supposition it's not entirely unreasonable to ask for it so that you can verify that your signature is actually upon it. (Before it even comes up, I know that it's not the "dealbreaker" in establishing if an alleged account is really yours if the CA wants to play the "you opened the account, you used it, you obviously agreed to the terms" card.) Anyhow, the CA/Attorney returns "validation" in the form of a statement of account. The SoA contains the name of their "client" (the OC), the name of the "debtor" (which, curiously, omits whether or not they're after me or my father since we both have the same name), the CA's file no., and a laundry list of principal, interest, attorney's fees, etc. It does not, however, contain the address of the original creditor (minor nitpick, I'll admit, but just thought I'd throw it out there). No copies of old statements were included either, however I'm also aware that including those very possibly qualify as going "above and beyond" if they use the Chaudhry precedent. All was silent for about a few months, until we received a certified letter notice in the mail. Surprise! Notice of Civil Complaint from the local MDJ. I read the complaint, and things get even more curious... The sworn affidavit of account is signed by none other than... the Plaintiff's attorney?!? Aren't these typically signed by an employee of the OC whose job is to maintain the records of their employer? And again, the "Defendant" listed on the complaint is vague and confusing in that it doesn't specify whether they seek judgment against me or my father. Now, I see this going a few different ways... Suppose he files a notice of intent to defend, thus nullifying the sworn affidavit of account and forcing the attorney to produce a live witness to testify about the debt. Considering this is an Original Creditor we're talking about (and a rather pugnacious one at that; PM me if you really want to know who it is), isn't there a pretty good chance that they'll actually product a competent witness? If so, he's toast, and the focus instead turns to pleading for a payment plan with the MDJ, but considering the amount owed, the payments are more than likely going to be burdensome at best. There's always Chapter 7, but attorneys are expensive. And help from the legal aid office isn't guaranteed (actually, I sincerely doubt they help with things like that). Self-filing is an option, but laden with pitfalls for the foolish and not exactly convenient (it still costs a not-so-insignifigant amount of money and you ain't filing "in forma pauperis" with this one). Or... Miraculously... The attorney shows up without a witness, and it's more or less a slam dunk (any "records" presented would then be hearsay under the PA Rules of Evidence, even if they play the "Business Records Exemption" card). But I seriously don't see that happening... Overall, the portents look bleak. The only riposte I can think of off the top of my head is sending a certified letter to the CA reminding them that the debt was disputed and that the statement of account was not sufficient enough to establish whose debt this really is, but I also concede this isn't an aegis. Comments? Suggestions? Condolences? By all means share them. I welcome any feedback.
I recall reading, either here or elsewhere, that the "business rules exemption" rarely applies in debt litigation because the paperwork is almost always reprinted for the sole purpose of litigation. In other words, in order for the BRE to apply, the plaintiff would need to appear in court with original documents. Anything less -- an affidavit, a letter, an internal account summary -- is heresay. Also, I vaguely recall read another thread about a debtor in Pennsylvania who used a state law to slap around a lawyer. IIRC Pennsylvania has some weird laws about separation of lawyers from CAs / OCs. As in, the CA can't actually sue someone -- they MUST hire an outside lawyer (instead of using their own in-house lawyers). And something about how a CA can't actually testify on behalf of an OC. So if you raise a hearsay claim, the OC would have to appear -- the CA is not permitted to address the matter. Wish I could remember the name of the law, but it's worth looking into. I remember reading it and thinking about what a bizarre piece of legislation it was. It created a real maze for debt collectors.
Funny you should mention that. Under the Pennsylvania Rules of Evidence, Rule 902(11) it states the following: In other words, if the attorney enters a pile of credit card statements into evidence but fails to produce a witness who can give competent testimony and has actual knowledge of their creation in accordance with Rule 901(b)(1) (requirement of authentication), those statements must be accompanied by an affidavit of the originator of the document (in this case, the custodian of the OC's records) in order to meet the requirements of Rule 803(6) (exceptions to hearsay). I must admit I'm unaware of such laws, but in that same vein the CA's attorney is not a competent witness for the purpose of authenticating records, nor does he possess firsthand knowledge of the account. This might explain why the CA cannot really testify on behalf of the OC. When I cross examined the Plaintiff's attorney in the last case about the alleged debt they were suing my dad for, he repeatedly responded with something along the lines of "what I have and know is in the file." He essentially understood and acknowledged that he was not competent to testify about matters regarding the account. Most definitely, especially if it explicitly states that a CA cannot testify on behalf of an OC. If you happen to find it before I do, please post it.
Okay, I thought I'd give an update. The MDC was notified of his intent to defend. I have a strategy worked out, the first element of which (and the only one which I'm really concerned about) is to send the aforementioned letter to the CA's attorney as a sort of "good faith" measure. My question is: Could this do more harm than good? And is it advisable to "show one's hand" this early in the process, before any settlement offers have even been sent out? Or should the letter wait until the attorney responds with a settlement? If anyone's willing to give me their opinion (NOT legal advice or counsel) on the general text of the letter I've drafted for my father, I'd greatly welcome and appreciate it but I prefer to carry on that discussion in PM's if possible. While I concede that a settlement isn't the worst thing in the world, it will definitely eat up what little disposable income he has. At the very least, I'll see to it that the terms of any settlement are negotiated in his favor as much as humanly possible.
After a long period of silence from the collections attorney and some preliminary objections filed by me (namely, that the affiant of the original complaint wasn't a qualified witness and that the Plaintiff's attorney failed to respond to our reasonable requests for information), I'm pleased to report that the collections suit against my father was officially withdrawn by the Plaintiff. Considering how MDC normally short-circuits the discovery process, I'm a bit surprised that an OC of all things would fold when pressed on the basis for their case. A dismissal with prejudice would've been even nicer, but considering how close he came to having a judgment entered against him, this is one gift horse he's not looking in the mouth. I'd say he was very, very lucky.
