Expert: Jason Shear, Esq. - 6/17/2009

Question
QUESTION: Hello:

I was sued by a NY debt collection law firm on behalf of a collection agency.  I asked the lawyers who represent the agency for proof I had this account.  They sent me several photocopies of statements relating to the original credit card account.  They said I need to pay the entire amount now plus all fees because they are going to submit the statements to the court.  Can they win with these statements?  I don't remember having this debt or this credit card account they claim they own the rights to.
Thanks, I hope you can help me.  I live in New York State.

ANSWER: Jay:

Good question.  When a collection agency/debt buyer does submit a series of monthly statements, either at trial or accompanying a summary judgment motion, those statements must be properly authenticated.  The statements can not be the basis for a collector's summary judgment motion or to make their claim in court if they are unaccompanied by any affidavit swearing to or certifying the records.  

As in your case, a debt buyer can not merely file documents received from the original credit card company, even if they are retained in the collection agency's regular course of business.  The records must have been kept in the original creditor's regular course of business, and an affidavit must authenticate that fact.  So therefore, the answer is no.

Good luck.  Hope this was helpful.  

Jason Shear, Esq.
Attorney at Law
Admitted in NY & NJ
(716) 566-8988



Google keywords:  New Century Financial, Asset Acceptance, Midland Funding, Palisades Collection, LR Credit, Northstar Capital, Pinpoint Technologies, Arrow, CACV, CACH, Collect America, Empire Portfolio, Unifund CCR, Rushmore Recoveries,  Portfolio Recovery, Midland Credit, Great Seneca, West Asset Management, Capital One, Velocity Investments, LVNV Funding, NCO, Cavalry SPV, Cavalry Portfolio, Hilco, LHR, Encore Capital, Asta Funding, Sherman Financial and Firstcity Financial.


---------- FOLLOW-UP ----------

QUESTION: Thanks for that terrific answer.  I'm starting to feel less stressed now.  After I read your response, I looked at what they sent more closely and there is an affidavit from someone who works at the collection agency stating that she is familiar with the account.  Does that change things now?  Thanks.  

Answer
No, it does not change things.  An employee of a debt buyer typically will be unable to certify records created by the original creditor.  To certify business records the affiant must be familiar with the original creditor's record keeping practices.  The affiant must be able to state from personal knowledge that the records were created at or near the time of the occurrence.  

This affidavit sent to you by the plaintiff has no probative value when the affiant's claimed familiarity with the original creditor's business records is derived solely from the affiant's review of those records after they came into the debt buyer's possession.

Hope this answers your question.  If have any other questions or require assistance with this matter, please do not hesitate to call.

Jason Shear, Esq.
Attorney at Law
Admitted in NY & NJ
(716) 566-8988



Google Keywords:  NY Debt Collection Defense, Collection Agency Defense, Sued by Collection Agency, NY Consumer Lawyer, Sued by Creditor, NY Consumer Attorney, Consumer Debt Defense,  Credit Card Defense, Sued by NY Collection Law Firm, Collection Agency Lawsuit, Sued by Collector in NY, Vacate NY Default Judgment, Debt Defense.