There is a huge difference between an affidavit that is signed by an employee of the original creditor or an employee of a junk debt buyer. When an affidavit is signed by an employee of the original creditor, that person is working for the company and the original creditor still owns your account. Therefore, that person can legally sign that document because he is present at the company and can view these files right then and there.

He can see all the acts that occurred between the original creditor and the defendant with his own eyes. Everything that pertains to your account can be seen by him and identified. He is a real witness for the plaintiff suing you. He can see all of this and testify to everything on that affidavit.

When an employee of a junk debt buyer signs an affidavit, it is a different matter altogether. This person signing the affidavit is claiming that he witnessed everything from you opening your account, to charging on that account and to defaulting on that account. Did he/she really? It’s very unlikely if they do not work for the original creditor. The junk debt buyer didn’t get their hands on your account until many years after you defaulted so, he didn’t see you, he didn’t see you make any payments, nor was he present when you opened the account years ago because he never worked for that bank. He was never able to review your account information.

However, he was there to take over your account, call you to collect, send you letters to collect, assume that you opened this account, assume that you used this account, and assume you defaulted. Without an affidavit coming from the original creditor everything that this person signed is hearsay. He is not a real witness.

The junk debt buyer’s affidavit should be signed by an employee of the original creditor, so that he/she can be a witness in court. Calling an employee of the junk debt buyer as a witness to these acts is not acceptable. They cannot bear witness that you opened the account, charged on the account, or defaulted on the account.

So when you receive an affidavit signed by a junk debt buyer’s employee, read everything word for word on that affidavit. Use common sense and then ask yourself whether this person really could have been there when all these alleged acts took place. I think not. It’s time to file a motion to strike that affidavit and chances are that you’ll win.

Admissibility of Affidavits under Trial Rule 56(E)

56(E)Form of affidavits–Further testimony–Defense required. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies not previously self-authenticated of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him. Denial of summary judgment may be challenged by a motion to correct errors after a final judgment or order is entered.