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DON'T BE HAMMERED BY YOUR DEBT

DON'T BE HAMMERED BY YOUR DEBT

Friday, August 10, 2007

How To Beat An Old Credit Card Debt: Part Two

The second best weapon to defeat a suit based upon an old credit card debt is CROSS EXAMINATION. The majority of collection suits filed by second or third hand debt buyers are based upon a sworn affidavit. That is an affidavit from someone who works for the debt buyer that says they are familiar with the books and records and your account and that you owe x number of dollars. If no one shows up on the day the matter is set in court, that document is sufficient to allow the debt collector to take a judgment. However, in all courts, you as the defendant have a Constitutional right to cross examination of the party testifying against your interests. And you cannot cross examine a piece of paper. What that means is that the company suing you has to produce a real live breathing witness who can truthfully and accurately testify about your account and be subject to being cross examined by you. Most credit card debt purchasers deal in a volume business and have no interest in going to the expense of making such a witness available in your jurisdiction. Many judges, however, will gloss over your right to cross examination unless you clearly assert that right and demand the opportunity. Your ability to actually cross examine is not as important as forcing the debt collector's hand in producing a live witness.

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7 comments:

Anonymous said...

I have found this recent entry into your blog most informative! Please continue dispensing tips regarding this topic if you don't mind. Thank you kindly, sir.

el guapo said...

Except that you still have mulitple layers of hearsay. Even having the custodian of records from the debt buyer give testimony about account statements or other documents does not prove the debt, only that the debt buyer purchased a puported account. And any further statements as to the validity of the underlying documents showing the debt are impermissible hearsay at best since the account statements are from a different entity (i.e. the original creditor).

To get some sort of businesss records exception to hearsay, you'd need to have the custodian of records from the original creditor testify as to the validity of the account statements. After all, it is the original creditor's out of court statements that are being introduced to prove the validy of the content of those statements. A debt buyer's record clerk just won't cut it.

I'm amazed more judges don't address this sua sponte. It would certainly result in tens of thousands of cases being tossed for failure to prove a prima facie case.

Anonymous said...

In researching this myself, it appears the constitutional protection doesn't apply to civil, only to criminal cases. However, the ROE regarding hearsay should satisfy what you're attempting to accomplish when requiring a witness to cross examine.

barant2@yahoo.com

Anonymous said...

Hello, I am going to try to make this as short as possible. Earlier last year I found out that my bank account was frozen. Upon investigating I found a judgement was entered against me. I was never served with anything. I went to court and filed to have the judgement vacated. It was granted. This was regarding a credit card case and so a date was set to meet in court. I went to court and the plaintiff's lawyer was there, and a court trial date was set. After about 7 months or so, I showed up for trial, but the plaintiff was a no-show, so the judge dismissed the case. Now three months later, I received documents in the mail from the plaintiff's lawyer saying that they are filing for a restoration of the case, because they got confused with their calendar and that's basically why they didn't show up. Now when this case was originally filed, there was just less than one month left before the Statute of Limitation was to expire. The date the default judgement was entered against me was after the statute of limitation had expired. Now that the case will go back on the trial calendar, the statute of limitation has definitely expired. Can I use the Statute of Limitation as a defense now? Last payment on account: 04/16/2001. Case originally filed against me: 03/28/2007. Default judgement entered on 6/20/2007. I filed motion to vacate judgement on 7/17/2007. Trial was set for 2/04/2008, where plaintiff's attorney failed to show up. I would really appreciate a response from you, since I have to show up for court in a few days. My e-mail: silentsound2006@aol.com

TC said...

Hello:

Can you tell me if the statements due date and on that same statement it say YOUR ACCOUNT HAS BEEN PLACED WITH A COLLECTION AGENCY will be proof enough to show the SOL has ran out?

Also the bottom of the statement has a Illonis PO Box but the bank is out of Nevada and I live in Ohio what SOL will be used in court?

Thank you

Todd

melobrien75 said...

Hello,

Thank you for all of your information. I know this is an old post, but I hope you still accept questions/comments.

If my debt collection has proceeded to arbitration, do I still have the right for cross examination?

Anonymous said...

i have a credit card debt from 1999 but they filed a judgement in 2005 and now they are trying to garnish my wages.I went to court this Oct 2010
I filed a ORDER TO SHOW CAUSE and it wss denied after three months

What can I do now ? They sent few pages AFFIRMATION IN OPPOSITION

I was NEVER served

Any Advice would be appreciated
as soon as possible.

Thank you
Bob
Vbr2078@yahoo.com