• Report: #681071

Complaint Review: Frederick J Hanna and Associates

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  • Submitted: Mon, January 10, 2011
  • Updated: Fri, February 18, 2011

  • Reported By: need help in texas — richmond Texas United States of America
Frederick J Hanna and Associates
Unknown Marietta, Georgia United States of America

Frederick J Hanna and Associates demeaning, rude, aggressive, tallking over me and overall disrespectful Marietta, Georgia

*Consumer Comment: Info. vs. Hanna

*Consumer Comment: Legal Brief vs. Hanna by Georgia Law Firm

*Consumer Comment: Info for you

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Today I received a phone call from a Ron Schultz of Frederick J. Hanna and Associates regarding a Chase credit card bill. He asked me all kinds of personal questions and I responded in the affirmative. He told me that I owed Chase a large sum of money and he was calling to see what terms could be arrived at between us to begin payment of the debt. I informed him I am not working and have not worked for over three years but I am looking for employment. He told me to hold on, he would discuss my case with his supervisor and see what could be done. He returned to the phone offering me to settle the debt for $7500 to which I told him that if I had that kind of money I would never have stopped making the payments. How much could I pay, he asked, and I told him $5. He told me to hold on and he would let me speak directly to his supervisor. I held on and another man got on the phone talking to me in a very rude manner, telling me that I should not have ran up this debt and then not be willing to pay it and how much could I pay. I asked to not speak to me in that manner and as I said before I could only pay $5 which in reality was difficult but I would do it. He began yelling at me telling me that $5 was nothing when comparing the balance on the account. What else could I do? I told him the same thing and he began threatening to sue me. I told him to go ahead because I was not working and I have no means by which to pay anything other the aforementioned amount. He kept yelling at me, I told him I was not going to be treated that way and if he perisited I was hanging up. He obviously did not hear me because of all the yelling so I said I was hanging up and I did.

After concluding the phone call, I checked my caller ID for the company name associated with the number (866)375-4232 but none was available so I looked the number up on the internet and found it. I checked for the legitimacy of the firm name and it appeared in you agency report with a complaint on this company from a person in California and listing the category for this company.

I do not know if there is anything you can do for me but I would greatly appreciate any help in dealing with this company in the future. Should I tolerate offensive and demeaning calls from these people? How do I fight back?


This report was posted on Ripoff Report on 01/10/2011 03:38 PM and is a permanent record located here: http://www.ripoffreport.com/r/Frederick-J-Hanna-and-Associates/Marietta-Georgia-/Frederick-J-Hanna-and-Associates-demeaning-rude-aggressive-tallking-over-me-and-overal-681071. The posting time indicated is Arizona local time. Arizona does not observe daylight savings so the post time may be Mountain or Pacific depending on the time of year.

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#1 Consumer Comment

Info. vs. Hanna

AUTHOR: HannaH8R - (USA)

The Georgia Supreme Court says Hanna is a "law firm," so you have to submit a bar complaint vs. them (and not a consumer complaint with the state OCA or federal FCC -- but fine if you do that too anyway).  You may submit a bar complaint vs. Fred Hanna (the owner of the "firm") and any atty. that may have contacted you that also violated bar rules for atty.s:(Call and ask for a bar complaint, and if they have them online):State Bar of Georgiawww.gabar.org104 Marietta St. NW, Suite 100Atlanta, Georgia 30303(404) 527-8700(800) 334-6865FAX: (404) 527-8717***See below for info. on where to look for sample do-not-call letters vs. Hanna, and how to fight Hanna lawsuits and WIN (feel free to post on here too for more info.):Info. for fighting Hanna lawsuits:http://www.beatdebtcollectors.com/Hanna consumer complaints and blogs:http://nextlevelunlimited.net/blog/fredrick-j-hanna-collection-debt-or-hanna-barbera-crook-or-cartoon/http://www.ripoffreport.com/Search/Frederick-J_-Hanna.aspxSubmit a Georgia bar complaint vs. Fred Hanna and other Hanna attorneys:http://gabar.org/contact_the_bar/***
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#2 Consumer Comment

Legal Brief vs. Hanna by Georgia Law Firm

AUTHOR: B - (U.S.A.)

IN THE STATE COURT OF COBB COUNTYSTATE OF GEORGIA

HSBC BANK NEVADA, N.A.,

)




)




Plaintiff,

)


)

CIVIL ACTION


vs.

)


)

FILE NO. 11-A-0000
JOHN DOE,

)




)


Defendant.

)


BRIEF IN SUPPORT OF DEFENDANTS MOTION TO DISMISS
AND MOTION TO COMPEL DISCOVERY



COMES NOW John Doe, Defendant in the above-styled case, and respectfully requests that this Court GRANT Defendants motion to dismiss pursuant to O.C.G.A. 9-11-12(b)(6) for failure to state a claim upon which relief can be granted, and O.C.G.A. 9-11-12(b)(1) to dismiss Plaintiffs Complaint for lack of subject matter jurisdiction. In the alternative, Defendant respectfully requests that this Court GRANT Defendants motion to compel discovery pursuant to O.C.G.A. 9-11-37.

SUMMARY OF THE ARGUMENT



Plaintiff is not the real party in interest in this action. Defendant has repeatedly requested that Plaintiff provide proof of ownership of the debt at issue. Plaintiff has refused to comply. Plaintiffs Complaint is defective on its face and fails to state a claim on which relief can be granted. Plaintiff has failed to meet its standing, jurisdictional, and evidentiary burdens, and is unable to prove by admissible and reliable evidence that it owns the credit card account in question and that Defendant is the alleged debtor. Plaintiff has provided zero evidence to establish that it is the real party in interest to this action, despite Defendants repeated discovery requests. Defendant submits, based on the information and authority listed below and in its Motion to Dismiss, that the Plaintiff in this case no longer owns the debt at issue and has sold the debt to a third-party debt buyer. The third-party debt buyer may or may not be the collection attorney in this case. Therefore, Defendant respectfully requests that this Court GRANT Defendants Motion to Dismiss. Further, Plaintiff has refused to comply with Defendants reasonable discovery requests designed to ensure that Plaintiff indeed owns the alleged account and has a right of action to collect on the alleged account. Therefore, in the alternative, Defendant respectfully requests that this Court GRANT Defendants Motion to Compel discovery.

ARGUMENT

I.

MAJOR CREDIT CARD COMPANIES SELL DEBTS ON THE FINANCIAL MARKET AS ASSET-BACKED SECURITIES



1). Credit card receivables are pooled together so that investors may purchase securities backed by those assets. Kenneth S. Jannette, The Concept of Securitization, NACTT Quarterly, July/Aug./Sept. 2009, Vol. 21, No. 4, at 27. <http://www.keepandshare.com/doc/1488357/the-concept-of-securitization-pdf-october-27-2009-3-21-pm-534k?da=y>.



2). The receivables are transferred to a holding company, who then sells them as asset-backed securities to investors. Allen Harkleroad, Stick it to Sue Happy Debt Collectors (2010), at 20.



3). A credit card plaintiff must own a credit card account to have standing to sue on it, and for the court to have subject matter jurisdiction to hear the case. Craig Jordan, How to Defend a Credit Card Case (Poverty Law Conference, April 15, 2009), at 9. <defending_credit_card_cases_2009_04.pdf>.



4). Without proof, it is unclear whether an original creditor ever has an individual account transferred back to it, after default, for collections. An original creditor, or an assignee, may not have standing to sue for a defaulted account, if the creditor sold an individual account as part of an asset-backed securities bundle and did not have the individual account transferred back to it. O.C.G.A. 9-11-17(a) states, in pertinent part, every action shall be prosecuted in the name of the real party in interest. Without showing proof, it is unclear who is the legal owner of the debt at the time of a collections lawsuit. See Citibank (South Dakota), N.A. v. Carroll, 148 Idaho 254; 220 P.3d 1073 (2009) (Although bank had assigned receivable to a trust as part of an asset-securitization transaction, the asset-securitization contract transferred interest in the unpaid account receivable back to bank before suit was filed against the debtor). See also Tostado v. Citibank (South Dakota), N.A., No. SA-09-CV-549-XR; 2010 WL 55976 (W.D. Tex., Jan. 4, 2010) (Citibank provided summary judgment evidence that it retained ownership of credit card accounts assigned to a master trust). In the Carroll and Tostado cases, the Plaintiff credit card company willingly provided contractual evidence that it is the real party in interest and has standing to bring suit to collect the credit card debt. Because the collections attorney in this case is claiming to represent the Plaintiff, it should have access to some documentation showing who the current legal owner of the debt is. Such information is by no means privileged, yet Plaintiff has refused to provide a single shred of such evidence to prove that it is the entity that owns the credit card account being sued upon.



5). Due to the frequency of transfer of ownership of credit card debt, it is
essential that any party wishing to collect on a defaulted account show a chain of title proving that they are the current legal owner of the debt.

II.

MAJOR CREDIT CARD COMPANIES ROUTINELY SELL DEBTS TO THIRD-PARTY DEBT BUYERS AFTER THE DEBT HAS BEEN CHARGED-OFF BY THE ORIGINAL CREDITOR



1). When a consumer is delinquent on a credit account . . . the [credit card] company normally sells the debt to a wholesale purchaser. SEC v. Merchant Capital, LLC, 483 F.3d 747, 750-51 (11th Cir. 2007). The credit card company then treats the debt as an expense or a loss: this routine practice is known as a charge-off. Wholesale debt buyers purchase the charged-off accounts for cents on the dollar and then bring suit to attempt to collect against the consumer. Id at 751. As one New York court aptly observed, credit card debt is sold at such a cheap price for the simple fact that the proof required to obtain a judgment in the creditors favor is lacking, usually as a result of poor record keeping on the part of the creditor. MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148(A); 841 N.Y.S.2d 826; 2007 WL 1704618 at 2 (N.Y. City Civ. Ct. 2007).



2). In most debt purchase transactions, the debt buyer is not provided with, and does not have access to, documentation which would constitute admissible evidence to prove that the consumer indeed opened the account, used the credit card, or agreed to the terms and interest rates imposed by the credit card agreement. As in the case before this Court, only basic electronic information regarding the alleged account is typically provided or available. See Foreman v. PRA III, LLC., No. 05 C 3372; 2007 WL 704478 (N.D. Ill., March 5, 2007) at 3. In most jurisdictions, including Georgia, this type of evidence is deemed inadmissible hearsay and Plaintiffs case must be dismissed if no further evidence is tendered. See Nyankojo v. North Star Capital Acquisition, 298 Ga. App. 6; 679 S.E.2d 57 (2009) (grant of Plaintiffs motion for summary judgment reversed where Plaintiff was unable to provide proof of authenticity or genuineness of preprinted form showing the alleged debt). Further, live or affidavit testimony to the effect that a witness has reviewed a file and that the file shows that the debtor is in default is also hearsay and inadmissible. Id. See also New England Savings Bank v. Bedford Realty Corp., 238 Conn. 745; 680 A.2d 301, 308-09 (1996) (testimony of banks asset manager establishing amount of debt in mortgage foreclosure action was inadmissible hearsay because manager had no personal knowledge concerning terms or status of debt and based testimony on file that was not produced at trial); Cole Taylor Bank v. Corrigan, 230 Ill. App.3d 122, 129; 595 N.E.2d 177, 181 (2nd Dist. 1992) (trial court erred in relying on hearsay affidavit of bank vice president containing summary of bank records without presentation of underlying records). Plaintiff is unable to prove by admissible and reliable evidence that it owns the account in question and that Defendant is the alleged debtor. Therefore, either Defendants Motion to Dismiss or Motion to Compel should be granted.



3). Credit card debts are often charged-off at the time of sale to a third party debt collector. Lorraine Nordlund, Purchased Debt Cases, at 2. <http://www.ftc.gov/os/comments/debtcollectroundtable2/091119outline.pdf>. Often, all the debt buyers are buying are merely a computer listing of unpaid accounts. Id.



4). Third-party debt buyers include debt collection companies and
collections law firms. Third party debt buyers, including collections law firms, often purport to represent the original creditor, when they have purchased the debt themselves and are the real party in interest regarding the debt. Third-party debt buyers have also been known to buy lists of people with bad credit and sue on those accounts, with no connection to the original creditor or legal owner of the debt whatsoever.

III.

DEBT COLLECTION LAW FIRMS FILE SUIT ON DEBTS THAT THEY DO NOT OWN OR CANNOT PROVE THEY OWN



1). The possibility that a debt buyer is suing to collect a debt it does not legally own is very real. Debt buyers have acknowledged that debts are sold without good title and suits are brought to collect them despite this fact. See e.g. American Acceptance Co. v. Goldberg, No. 2:08-CV-9 JVB; 2008 WL 2074128 (N.D. Ind. May 14, 2008) (debt buyer brought lawsuit alleging that a broker of charged-off debts sold debts to which it did not have title); Hudson & Keyse, LLC v. Goldberg & Associates, LLC, No. 07-81047-CIV; 2009 WL 790115 (S.D. Fla. Mar. 24, 2009) (another debt buyer, Hudson & Keyse, filed suit alleging that the same debt broker obtained information about consumer debts owned by Hudson & Keyse and used the information to try to collect the debts for its own account, even though it did not own them).



2). Further, courts have dismissed numerous foreclosure and collection lawsuits purported to have been filed in the names of entities that do not own the purported debts. See In Re Foreclosure Cases, No. 1:07CV2282; 2007 WL 3232430 (N.D. Ohio Oct. 31, 2007) (15 foreclosure cases combined). In the Ohio cases, foreclosure complainants alleged that the named plaintiffs were the holders and the owners of the notes and mortgages, but they were not the original payees, and there was nothing showing that the plaintiffs owned the notes and mortgages at the time suit was filed. Dismissing the cases, the court commented, [c]ounsel for the [debt collectors] are not without legal argument to support their position, but their arguments fall woefully short of justifying their premature filings, and utterly fail to satisfy their standing and jurisdictional burdens. The [debt collectors] seem to adopt the attitude that since they have been doing this for so long, unchallenged, this practice equates with legal compliance. Finally put to the test, their weak legal arguments compel the Court to stop them at the gate. Id at 3 (financial institutions substituted for debt collectors). Similarly, this Court should dismiss Plaintiffs wholly inadequate and unsubstantiated Complaint or grant Defendants Motion to Compel discovery.

IV.

DEBTORS ARE AT RISK OF BEING SUED TWICE ON THE SAME DEBT, WHEN CREDITORS REFUSE TO PROVE OWNERSHIP OF THE DEBT



A. Proof of ownership of the debt must be provided to avoid multiple lawsuits or collection activities on the same debt.



1). O.C.G.A. 9-11-17(a) states, in pertinent part, [e]very action shall be prosecuted in the name of the real party in interest. The Georgia Court of Appeals has noted that the purpose of this rule is to protect a defendant against another action brought by the party actually entitled to recover. Town & Country Dodge, Inc. v. World Omni Financial Corp., 261 Ga. App. 503, 504 (2003). In the debt collection context, this is a probable concern entitled to serious consideration by this Court. There are reported cases in which consumers have been subjected to litigation because they settled with one firm, and then another firm claimed to own the debt (see below).



2). [T]he judiciary continues to provide an important role in safeguarding consumer rights and in overseeing the fairness of the debt collection process. As such, this Court does not consider its function to merely rubber stamp [any aspect of the collection process]. MBNA America Bank, N.A. v. Nelson, 15 Misc.3d 1148(A); 841 N.Y.S.2d 826; 2007 WL 1704618 at 1. Plaintiff has provided this Court zero evidence to demonstrate that it is the proper party in interest in this action. The information sought by Defendants reasonable discovery requests is in no way privileged and must be brought to light in the interests of consumer protection. Therefore, Defendants Motion to Dismiss or Motion to Compel discovery should be granted.



B. There are multiple reported cases in which debtors have been subjected to litigation because they settled with one debt collector, and then a second debt collector claimed to own the debt. See Daniel A. Edelman, Collection Litigation Abuse, Aug. 2009, at 3.
<http://www.ftc.gov/os/comments/debtcollectroundtable1/542930-00029.pdf>:



1). Smith v. Mallick, 514 F.3d 48 (D.C.Cir. 2008). A commercial debt purchased and resold by a debt buyer, and the debt buyer (possibly fraudulently) settled the debt it no longer owed. The settlement held binding because notice of assignment was not given, but debtor was subjected to litigation as a result.



2). Miller v. Wolpoff & Abramson, LLP, No. 1:06-CV-207-TS, 2008 U.S.Dist. LEXIS 12283 (N.D.Ind. Feb. 19, 2008): debtor complained he had been sued twice on the same debt.



3). Dornhecker v. Ameritech Corp., 99 F.Supp.2d 918, 923 (N.D.Ill. 2000). The debtor claimed he settled with one agency and was then dunned by a second for the same debt. This is a very common complaint.



4). Northwest Diversified, Inc. v. Desai, 353 Ill.App.3d 378, 818 N.E.2d 753 (1st Dist. 2004): a commercial debtor paid the creditor only to be subjected to a levy by a purported debt buyer.



5). In Wood v. M&J Recovery LLC, No. CV 05-5564, 2007 U.S.Dist. LEXIS 24157 (E.D.N.Y. Apr. 2, 2007), a debtor complained of multiple collection efforts by various debt buyers and collectors on the same debt, and the defendants asserted claims against one another disputing the ownership of the portfolio involved. Shekinah alleged that it sold a portfolio to NLRS, that NLRS was unable to pay, that the sale agreement was modified so that NLRS would only obtain one fifth of the portfolio, and that the one fifth did not include the plaintiffs debt. Portfolio Partners claimed that it, and not Shekinah, was the rightful owner of the portfolio.



6). In Associates Financial Services Co. v. Bowman, Heintz, Boscia & Vician, P.C., IP 99-1725-C-M/S, 2001 U.S.Dist. LEXIS 7874 at 9-12 (Apr. 25, 2001) allegations were made that a creditor had continued to collect accounts allegedly sold to a debt buyer.



7). There are many occasions in which debts were paid or settled to one entity, after which another tried to collect the entire debt or the remaining portion.

V.

TO AVOID PROBLEMS OF PROOF, AND OTHER SHORTCOMINGS, DEBT COLLECTION LAW FIRMS OFTEN PURPORT TO REPRESENT THE ORIGINAL CREDITOR WHEN THEY IN FACT REPRESENT A THIRD-PARTY DEBT BUYER OR OWN THE ALLEGED DEBT AS A DEBT BUYER THEMSELVES



1). As a general rule, one must be a party to a contract in order to enforce its provisions. O.C.G.A. 9-2-20(a). Under Georgia law, a party to the original contract may assign to another a contractual right to collect payment. O.C.G.A. 44-12-22. The assignment must be in writing in order for the contractual right to be enforceable by an assignee. Id.



2). In several reported Georgia cases, the debt buyer was unable to demonstrate a valid assignment of the right to collect the debt being sued upon. In Wirth v. Cach, an affidavit from the debt buyer averring its status as an assignee was held insufficient to demonstrate that the debt buyer was the real party in interest and had standing to bring the suit. Wirth v. Cach, 300 Ga. App. 488, 490 (2009) (The affidavit . . . fails to refer to or attach any written agreements which could complete the chain of assignment from Providian to Cach). See also Ponder v. CACV of Colorado, LLC, 289 Ga. App. 858 (2008) (summary judgment order in favor of a wholesale debt buyer reversed where the debt buyer merely identified itself as an assignee in the style of its complaint and offered no proof of its relationship with the original creditor); Nyankojo v. North Star Capital Acquisition, LLC, 298 Ga. App. 6, 10 (2009) (summary judgment order in favor of a wholesale debt buyer was reversed where the debt buyer was unable to provide evidence completing the chain of assignment). In an attempt to avoid this common problem of proof, debt collection law firms are now purporting to represent the original creditor when they have either purchased the debt themselves or represent a third-party debt buyer.



3). Debt buyers often claim to represent the original creditor or sue on a purchased debt under the name of the original creditor. The bread-and-butter of debt collection law firms is default judgments. Debtors are much less likely to contest a debt if they assume that it is the original creditor is bringing the suit. If the debt collector wins the suit, then they can and do keep all the proceeds of a debt that they may have purchased for a fraction of a penny on each dollar of debt collected. A debt collection law firm can also claim that the Fair Debt Collection Practices Act (FDCPA) does not apply to them as they represent the original creditor. If they claim that the original creditor is bringing the suit they can try to suggest that proof of ownership is not necessary, since the debtor did in fact open an account with the original creditor; without providing a copy of an assignment or bill of sale, or proof that the specific account was part of the sale or assignment.



4). Debt collection law firms that buy debts and misrepresent who the plaintiff is in the lawsuits they file are at risk of being exposed in high volume fraud on the court. They are willing to go to all lengths necessary to avoid being exposed as a debt buyer. If they are exposed, high volume debt buyer law firms face overwhelming proof problems, disputes, FDCPA counterclaims, and class action lawsuits for fraud. Debt collection law firms also face the prospect of regulation by Georgia state consumer protection agencies, such as the Georgia Governors Office of Consumer Affairs, for massive amounts of consumer complaints, if they are classified as a debt collector vs. a law firm. Doyle v. Frederick J. Hanna & Associates, P.C. (Georgia Supreme Court Case, Docket #S10A0397). <http://www.gasupreme.us/docket_search/results_one_record.php?caseNumber=S10A0397>.



5). Debt buyers, including collections law firms, buy debt because that is how the credit card debt industry is set up. Major credit card companies do not spend their time and money hiring countless law firms all over the country to represent them. They instead do a charge-off and take the debt as a loss on their taxes, and sell the debt for a fraction of a penny on each dollar on the debt market. This is simply the most efficient way to do business in the high volume credit card debt industry. Debt buyers (including collection law firms) are then on their own with how to collect on and prove the purchased debts. Corruption in the debt collection industry is widespread, and many debt buyers are more than willing to cut corners to collect on as many debts as possible. Just because a debt collector and debt buyer happens to be owned by a collections attorney does not make it exempt from this business model. High volume national debt collection law firms are often massive boiler-rooms of debt collectors with a tiny staff of attorneys (e.g. a ratio of 100 to 1). These are essentially debt collectors that have the power to sue thousands of debtors as a collection tool. This however does not make them exempt from Georgia rules of evidence and procedure, and they must prove their cases under the same rules as any other class of plaintiffs. Moreover, with the widespread abuses in the collection industry, including collections law firms, these types of suits should be met with increased scrutiny.



6). Defendant has made repeated requests for proof of ownership of the debt in this case. Plaintiff has continually refused to cooperate with reasonable discovery requests designed to ascertain whether Plaintiff indeed owns the account in question. Therefore, either Defendants Motion to Dismiss should be granted, or its Motion to Compel should be granted.



VI.

DEBT BUYERS ROUTINELY FILE FALSE AFFIDAVITS



A. Debt buyers regularly submit affidavits which purport to be made on personal
knowledge but in fact are based on reading a computer screen. See Daniel A. Edelman, Collection Litigation Abuse, Aug. 2009, at 7-12:



1). Luke v. Unifund CCR Partners, 2007 Tex. App. 7096 (2007).



2). Palisades Collection, LLC a/p/o AT&T Wireless v. Gonzalez, 809 N.Y.S.2d 482 (2005). A conclusory affidavit, or an affidavit by a person who has no personal knowledge of the facts, cannot establish a prima facie case. The court held that affidavits based on books and records but not executed by someone familiar with the manner in which the entity that engaged in the transactions prepared an maintained the books and records are insufficient.



3). Rushmore Recoveries X, LLC v. Skolnick, 841 N.Y.S.2d 823 (2007). The proponent must meet three general elements, by someone familiar with the habits and customary practices and procedures for the making of the documents, before they will be accepted in admissible form: (i) that the documents were made in the regular course of business; (ii) that it was the regular course of the subject business to make the documents; and (iii) that the documents were made contemporaneous with, or within a reasonable time after, the act, transaction, occurrence or event recorded.



4). Other false affidavit cases: Todd v. Weltman, Weinberg & Reis Co., L.P.A., 434 F.3d 432 (2006); Delawder v. Platinum Financial, 443 F. Supp. 2d 942 (2005); Griffith v. Javitch, Block & Rathbone, 405 F. Supp. 2d 856 (2005); Blevins v. Hudson & Keyse, Inc., 395 F. Supp. 2d 655 (2004); Stolicker v. Muller, Muller, Richmond, Harms, Meyers & Sgroi, P.C. W.D.Mich. (2005).



B. Collection attorneys routinely submit three things which constitute their entire case: credit card statements, a printout of a generic (unsigned) credit agreement, and an affidavit. All three items are inadmissible hearsay, and are grossly insufficient to prove a case, however these documents are typically attached to a motion for summary judgment. The affidavit, which purports to qualify the hearsay statements and contract printout under the business records exception to the hearsay rule, is a hearsay document attempting to be used to turn other documents into non-hearsay. Typically, no address or phone number, credentials, or other identifying information is given for the affiant. In this way, a collection attorney can keep the identity of the employee of the original creditors office a secret, so that debtors counsel will not have the opportunity to investigate the affiants identity or credentials in advance. This is helpful to collections attorneys in cases where the affidavit is false, if the affiant does not actually work for the original creditor, or does not have personal knowledge of the account at issue.

VII.

DEBT BUYERS REGULARLY USE INAPPLICABLE OR MANUFACTURED DOCUMENTS



A. Fake statements. See Daniel A. Edelman, Collection Litigation Abuse, Aug. 2009, at 12:


1). Hartman v. Great Seneca Fin. Corp., 2009 U.S. App. 14110 (2009).



B. Generic or inapplicable contracts. See Daniel A. Edelman, Collection Litigation Abuse, Aug. 2009, at 12-15:



1). America Bank, N.A. v. Nelson, 15 Misc. 3d 1148(A); 841 N.Y.S.2d 826; 2007 WL 1704618 (N.Y. City Civ. Ct. 2007). The court required proof of the actual terms of the agreement with the particular debtor. Petitioner must tender the actual provisions agreed to, including any and all amendments, and not simply a photocopy of general terms to which the credit issuer may currently demand debtors agree. The contract offered by the Plaintiff did not contain the debtors signature.



2). Palisades Collection LLC v. Hauque, 235 N.Y.L.J. 71 (2006). Plaintiff attempted to introduce into evidence a document entitled Terms and Conditions which does not name defendant, contains no specific terms as to the defendants particular account, contains no signatures...



3). Unifund CCR Partners v. Harrell, Conn. Super. LEXIS 2037 (2005). Failure to produce signed agreement or affidavit authenticating purported agreement as that entered into with defendant results in denial of summary judgment. Affidavit of plaintiffs legal coordinator that she has access to the records of Unifund and therefore has personal knowledge of the facts not sufficient.



4). First Select Corp. v. Grimes, 2003 Tex. App. 604 (2003). Summary judgment for debtor affirmed where there was no evidence that the debtor used the credit card after First Select sent out an agreement modification and no copy of the written agreement between the original creditor and the consumer or the consumers acceptance of such agreement.

CONCLUSION



Plaintiff is not the real party in interest in this action. Defendant has repeatedly requested that Plaintiff provide proof of ownership of the debt at issue. Plaintiff has refused to comply. Plaintiffs Complaint is defective on its face and fails to state a claim on which relief can be granted. Plaintiff has failed to meet its standing, jurisdictional, and evidentiary burdens, and is unable to prove by admissible and reliable evidence that it owns the account in question and that Defendant is the alleged debtor. Plaintiff has provided zero evidence to establish that it is the real party in interest to this action. Further, Plaintiff has refused to comply with Defendants reasonable discovery requests designed to ensure that Plaintiff indeed owns the alleged account and has a right of action to collect on the alleged account. Therefore, Defendant respectfully requests that this Court GRANT Defendants Motion to Dismiss, or in the alternative, GRANT Defendants motion to compel discovery.




Respectfully submitted,



______________________________
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#3 Consumer Comment

Info for you

AUTHOR: Stacey - (U.S.A.)

STOP! Do not offer to do any deal with the scum bag debt collectors. Don't answer the phone anymore - let the machine pick it up. Go to www.budhibbs.com and click on worst debt collectors then read about these losers. He has good information for you and you can contact him for reference to a good attorney if needed.

Fight back and hits these losers where it hurts most - their bank balance.

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