Government May Crack Down on False Collection Affidavits
Our justice system relies on telling the truth. When a witness is in court, and swears to tell the truth under oath under penalty of perjury, we assume that witnesses, most of the time, is telling the truth. But often a witness will swear to tell the truth on paper—that is, without being physically present in court. This is done by an affidavit, a statement of facts that is notarized and done under penalty of perjury.
Abuse of Affidavits
However, the affidavit is one of the most abused pieces of evidence used in our courthouses today. Because the affiant (the person making the affidavit) is not physically present, there is no opportunity to cross examine him or her. That is why affidavits are used sparingly. However, they are used (and abused) very often in debt collection cases and foreclosure cases. Now the scourge of false affidavits in collection cases is coming under scrutiny by the Consumer Financial Protection Bureau.
It is no secret that debt buyers routinely abuse the affidavit process. Debt buyers buy accounts in bulk, often by the thousands. They have no idea about the accuracy or the veracity of every account they collect on nor do they have time to review records and verify the debt they are trying to collect. Yet, they submit affidavits to courts all the time swearing to the accuracy of the debts.
Government Wants Attorney to Be More Involved
The Bureau now wants collection attorneys to verify the accuracy of the debts, or otherwise, to at least verify that they have done some independent review of the account being collected on. The Bureau is trying to stop the practice of affiants reviewing and verifying/signing sometimes hundreds of affidavits a day—an impossible number to do correctly and accurately.
Stories have emerged of affiants simply reviewing computer records and comparing them to court filings, or conducting other sham reviews when they sign the affidavits. Affiants do not have the “personal knowledge” that they must have, by law, before making any statement, affidavit, or testimony in court.
Affiants have no idea how the debt buyers have compiled their information nor do they have records from the original creditors. In many cases, original creditors sell consumer debt accounts in bulk to debt buyers without any warranty or guarantee as to the accuracy of the records.
The affidavit process does not afford any affiant the opportunity to really review a consumer’s account and to say that the amount being collected is an accurate amount. Yet, affidavits are attached to almost every collection lawsuit filed in the entire country, and relied upon by courts in entering collection judgments against consumers.
Naturally, collection attorneys want to show up to court and collect on their cases, without having any responsibility to review the accounts on which they are suing. The Bureau has not acted on the proposed rule yet.
Contact Jacobs Legal to speak with one of our Miami consumer rights attorneys today if you have a question about a collection lawsuit or a debt collector.