[SaM5246]

My question involves collection proceedings in the State of: DuPage County, IL


I was going to file a lawsuit against an ex-friend who owes me money, my lawyer said that I need my witnesses in court and that a notarized affidavit would not be admissible in court.

[COLOR="Blue"]Currently I am being sued for a credit card debt that was sold off to a collector. Attached to the summons is an affidavit stating that:
[/COLOR]
1. That I am the agent in the above captioned matter and I am authorized and qualified to make this Affidavit in support for the judgment against the above name defendant (which is me )

2. That the Plaintiff is the purchaser/assignee of the Defendants account from the original creditor --------Bank

3. That the Plaintiff maintains, in the regular course of business, computer records on which entries by a person with knowledge of the information therein and/or information transmitted from a person with such knowledge;

4. That the defendant is justly and duely indebted to said Plaintiff in the amount of ----. Affiant further states that the foregoing sum is now due and owing to Plaintiff, and the sum herein above mention is due with interest.

[COLOR="Red"]5. That if called upon affiant can testify at trail as to all facts pertaining to this matter. [/COLOR]



1. Is the affidavit admissable in civil court?

2. How do I call the witness to the stand, I know they won't have the witness there because the affidavit was notarized in another state that's very far away.

3. After the day I answer the complaint the judge will set two dates. One is which by when the plaintiff and defendant need to exchange evidence they are going to use. The other of course is the trail date. At that time do they need to also tell me if they are going to call any witnesses?


Most likely they will not have the witness so can I have the case dismissed based on them not being able to produce the witness who made the affidavit?

[divemedic]

That is not admissible because the affiant is swearing that the records kept by a third party are correct. Since there is no way for the affiant to know this, it is inadmissible.

The affidavit is hearsay. For example:

I loan you money. You fail to pay me back. I tell my friend to sue you. My friend swears that you owe him the money, and swears to it. How can he do so, he has no direct knowledge of the debt.

That the Plaintiff maintains, in the regular course of business, computer records on which entries by a person with knowledge of the information therein and/or information transmitted from a person with such knowledge;

There is the exemption to the hearsay rule for a records custodian, as long as that custodian has direct knowledge of the records in question, but an employee of a collector cannot have direct knowledge of the records of the creditor, so this exception does not apply.

[SaM5246]

That is not admissible because the affiant is swearing that the records kept by a third party are correct. Since there is no way for the affiant to know this, it is inadmissible.

The affidavit is hearsay. For example:

I loan you money. You fail to pay me back. I tell my friend to sue you. My friend swears that you owe him the money, and swears to it. How can he do so, he has no direct knowledge of the debt.



There is the exemption to the hearsay rule for a records custodian, as long as that custodian has direct knowledge of the records in question, but an employee of a collector cannot have direct knowledge of the records of the creditor, so this exception does not apply.

Yes, actually most evidence they have with the summons is hearsay evidence.

But is any affidavit admissible in civil court?

Thanks for your reply, waiting for Mr. Knowitall to ring in on this, are you or him attorney's? I took a few law classes myself back in school so I know a bit here and there but I'm no DA

[aaron]

This sounds like a lawsuit on an account stated. The procedures vary by state, and I haven't looked into yours, but if allowed and properly filed they can shift the burden of proof onto the defendant such that if you don't properly contest the statement of account it is presumed valid.

[divemedic]

There are required elements of proof to account stated, one of them being that the parties involved had prior financial dealings and an open account. This requirement alone is generally enough to defeat account stated claims in debt collection suits, since the debt collector and the defendant never had the required financial dealings. For more info on this subject, read Corpus Juris Secundum, 1A CJS Account Stated s.62. You'll also want to read 6 A.L.R.2d 113, Previous debtor and creditor relationship as condition for account stated. It will point you in the right direction.


ETA:
The elements of account stated are: (1) prior transactions between the parties which establish a debtor-creditor relationship; (2)an express or implied agreement between the parties as to the amount due; and (3) an express or implied promise from the debtor to pay the amount due. 1 Am. Jur. 2d Accounts & Accounting section 26 (West 2007).

[aaron]

What he'll want to do is check Illinois law and the Illinois court rules as, although legal encyclopedias often do state the majority rule quite well (and often also list exceptions), you can't count on the majority rule to be followed in every state.

[SaM5246]

There are required elements of proof to account stated, one of them being that the parties involved had prior financial dealings and an open account. This requirement alone is generally enough to defeat account stated claims in debt collection suits, since the debt collector and the defendant never had the required financial dealings. For more info on this subject, read Corpus Juris Secundum, 1A CJS Account Stated s.62. You'll also want to read 6 A.L.R.2d 113, Previous debtor and creditor relationship as condition for account stated. It will point you in the right direction.


ETA:
The elements of account stated are: (1) prior transactions between the parties which establish a debtor-creditor relationship; (2)an express or implied agreement between the parties as to the amount due; and (3) an express or implied promise from the debtor to pay the amount due. 1 Am. Jur. 2d Accounts & Accounting section 26 (West 2007).

Hold on there, where did you find this? Do as arron stated these can vary by state, so where do I look? In the Illinois Compiled Statues? Where did you get the above?


So to get this straight:

1. The plaintiff needs to prove there were prior transactions between the parties which establish a debtor-credit relationship? In other words show the statements with transactions.

2. Plaintiff must prove there was, "An express or implied agreement between the parties as to the amount due." Again, statements would establish this.

3. Plaintiff must prove "an express or implied promise from the debtor to pay the amount due". In other words, an original card holder agreement with a signature and date?

[SaM5246]

This sounds like a lawsuit on an account stated. The procedures vary by state, and I haven't looked into yours, but if allowed and properly filed they can shift the burden of proof onto the defendant such that if you don't properly contest the statement of account it is presumed valid.

I would ask for an "assingment of contract" a paper doc which shows that the plantiff has the legal right to collect on the debt and that it was bought from the original creditor.


Then I would ask if they have an original or copy of the Credit Card agreement with the defendant's signature and date.

Then I would ask how the debt has been accrued? Do you have statements? Were payments made on this account? When? For what amount? Do you have copies of checks? Can you prove the checking account was opened and maintained by the defendant??