Business Record Affidavit

A Business Record Affidavit is what the creditor typically relies on to attempt to overcome a hearsay objection at trial or summary judgment.

Trial by Affidavit

Courts often accept these affidavits in lieu of having the creditor bring a live witness to Court.  This is problematic for consumers because there is no ability to cross examine the testifying witness.  The creditor does not want to pay to have a witness come to court to testify so they will file these affidavits instead.  Specific objections must be made based on the affidavit.

Hearsay Objection

The documents that the creditor files in the case are likely hearsay.  This means they were created by another person and may not be authentic.  The business record affidavit is in place for the creditor to testify that the documents are authentic.

However, creditors use these affidavits for far more than just authenticating documents.  Creditors will take a representative who will swear under oath about the interest rate, the balance, and just about anything else the creditor needs to prove the case.  The affidavits must be attacked for all of these conclusory and self serving statements.  Some judges are receptive to these objections but others are not.

These affidavits need to be scrutinized and argued against because most likely the creditor spent little to no time before signing the affidavit. These affiants may not have personal knowledge, or any knowledge, of the account that that they are swearing about.

“Robo-signing”

At least one major debt purchaser has been sued for “Robo-signing” by the Attorney General.  Robo-signing is the illegal practice of having an employee sign hundreds of affidavits per day without actually looking at any documents or evidence.  These “custodians” claim to have knowledge of the documents that they are swearing to when most likely they haven’t even looked at anything.

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