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Originally Posted by squirrels
Cute Chick,
I have looked a little into the caselaw definition of verification per FDCPA, and unfortunately it looks like it works more against us than for us. However, if I remember correctly, the Supreme Court has not decided it (or have decided by refusing to hear it), and the issue has not reached various circuit courts either. The few that have decided the issue have ruled not in our favor. Due to this, I think the primary issue should not be geared towards deciding what verification means, but what is deemed admissible evidence to prove the verification. Find caselaw concerning evidence as inadmissible that is identical or very similar to what the CCC will say is verification of the debt, i.e. unsigned photocopies of billing statements. The problem is that some debt collectors can get signed affidavits from the alleged proper person who works in the CCC billing department and can attest that these redcords are kept properly, blah, blah, blah. Here would be the proper time to insert the applicable statute that evidence cannot be purchased (some debt collectors do pay $$$ to receive those billing staements, affidavits, etc.). If the attorney is a first party for the CCC, this will be tough if not impossible to prove. Keep in mind that some battles are not worth fighting. Settlement may be appropriate. I plan to settle mine soon. I'd love to assist, but I just do not have the time right now. Good luck.
-squirrels
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Hey Squirrels I think you're right. Remember that case Spears v. Brennan that everyone treats like the bible for defining verification? Well, in my opinion, that case is a debtor's nightmare. Why? Because the judge says *although a copy of the contract alone is not enough to verify the debt, the debt could be verified if the contract contained an accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments. . . . .* This quote is on page 23 in my version of the case but just look at the last paragraph of the opinion (right before the Conclusion) to read the entire holding.
Now look up the word *verification* and *verify* in Black's Law Dictionary are you will cleary see that this court opinion is totally off point . . . . . .
So yeah Squirrels the counter argument you speak of is found under Rule 1001 of the Federal Rules of Evidence - the Best Evidence Rule. This rule basically requires the proponent to produce the original document or a duplicate (i.e. a photocopy if I'm not mistaken). And if the original or dupe is lost, stolen, or cannot be obtained, the proponent must show that it is acting in good faith in producing a copy . . . . . . Actually, this is what the creditor will argue to confuse the court . . . .
The real rule to consider is UCC 3-302 here since we're dealing with our original Prom Notes or negotiable instruments. The UCC says that the proponent MUST show the original note in order to prove that it is a Holder in Due Course (i.e. has a legal right to collect payment on the debt). Remember, the Promissory Note is seperate from the original loan agreement we demand verification of in most cases (read your loan documents to make sure).
UCC 3-309 is the exception to this rule and the creditor may show a copy of the Prom Note to prove his Holder in Due Course status ONLY IF it satisfies all 3 requiements under 3-309, which is almost impossible for ANY creditor to do because most of them sell the Notes in a flash. So you see, the UCC is our friend because it protects us against having to pay the same debt to another bank - that is the bank (or 3rd party) who purchased the Note from the creditor . . . . .
And even if the creditor says that it is a Holder in Due Course because it destroyed the Note to comply with the UETA, this defense is invalid because the UETA does not apply to Article 3 of the UCC (Negotiable Instruments). See my other thread on the Banking Board *Wow They Put It In Writing* for more info on the UETA.
And for affidavits, the general rule states that the affiant must have personal knowledge of the matter asserted. See Federal Rules of Evidence Rule 602. That affidavit serves as written testimony and the person taking the oath is a witness. Therefore, if the witness doesn't have personal knowledge of what he/she is testifying about (in other words, the person doesn't know what he/she is talking about), the affidavit is no good and the evidence is deemed inadmissible.
So this is my strategy I guess. Thanks Seeker for helping me organize my thoughts . . . By the way, how do you plan to settle your accounts? Prom Note for Accord and Satisfaction??