case evaluation - texasbarcle · case evaluation ed walton ... the federal debt collection...

CASE EVALUATION

ED WALTON Barron, Newburger, Sinsley & Wier PLLC

101 Metro Dr. Terrell, Texas

(972) 499-4833

State Bar of Texas SUING, DEFENDING AND

NEGOTIATING WITH BANKING INSTITUTIONS April 2-3, 2009

Dallas

CHAPTER 4

Ed WaltonBARRON, NEWBURGER, SINSELY & WIER PLLC

101 Metro Dr., Suite A(972) 499-4833

PERSONAL:

Born in Teague, Texas August 5, 1953Married with three children, two grandchildren

EDUCATION:

B.S. in Biology/Chemistry, Southwest Texas State University, 1974

J.D., Baylor Law School, 1986

PROFESSIONAL EXPERIENCE:

Active trial and appellate practice in the area of complex litigation, including classactions, representing both plaintiffs and defendants in the area(s) of the the UniformCommercial Code, the Federal Debt Collection Practices Act, Truth-in-Lending,Equal Credit Opportunity, and related statutory and common law causes of actionfrom 1986 to the present, with extensive first chair trial experience. Licensed topractice before the United States Supreme Court, Fifth Circuit Court of Appeals,Northern District of Texas, Western District of Texas, Southern District of Texas,Eastern District of Texas and all Texas Courts;

PROFESSIONAL ACTIVITIES:

Associate, Barron, Newburger,Sinsley & Wier, 2008 topresent;

Of Counsel, Barron,Newburger, Sinsley &Wier, 2007 to 2008

Criminal District Attorney forKaufman County,Texas 2003 to 2007;

Board Certified in Consumer

and Commercial Law

by the Texas Board ofLegal Specialization,1993 to the present;

Board Certified in Civil Trial Law by the TexasBoard of Legal Specialization, 1994 topresent;

Assistant Disciplinary Counsel, State Bar ofTexas, 1994 to 1998;

Pattern Jury Charge IV Committee, State Bar ofTexas, 1994 to 1998;

Vice-Chair, Consumer Law CertificationCommission, State Bar of Texas, 1993to 1999;

Examination Committee Chairperson, ConsumerLaw Certification Commission, State Barof Texas, 1994 to 1999;

Vice-Chair, Consumer Law AdvisoryCommission, State Bar of Texas, 1991-1999;

Steering Committee Chairperson, ConsumerLaw Advisory Commission, State Bar ofTexas, 1991-1992;

Member, Consumer Law Council, State Bar ofTexas, 1989 to present;

Treasurer, Consumer Law Council, State Bar ofTexas, 1995 to 1997;

Chairperson, Consumer Law Council, State Barof Texas, 1998 to 1999;

Member, Supreme Court Home Equity LoanForeclosure Rules Task Force, 1997;

Speaker:

Trial, STATE BAR OF TEXAS PROF.DEV. PROGRAM, PRACTICE SKILLSCOURSE - BUSINESS ANDCONSUMER LITIGATION, 1990;

Article 21.21 Insurance Code Litigation,STATE BAR OF TEXAS PROF. DEV.PROGRAM, PRACTICE SKILLSCOURSE - BUSINESS ANDCONSUMER LITITGATION, 1991;

DTPA and Insurance Code Article 21.21,STATE BAR OF TEXAS PROF. DEV.PROGRAM, SELECTED TOPICS INLITIGATION, 1992;

The “New” PJCIV - Insurance, Business,Employment and Consumer JuryCharges, CONSUMER LAW SECTIONOF THE STATE BAR OF TEXAS 5TH

A N N U A L C O M P R E H E N S I V ECONSUMER LAW SEMINAR 1998;

Automobile Issues, 1999 STATE BAROF TEXAS POVERTY LAWCONFERENCE.

Manufactured Housing Issues, THENATIONAL ASSOCIATION OFCONSUMER ADVOCATES, 1999Consumer Finance and Business FraudConference.

Annual Survey of Texas Insurance Law,CONSUMER LAW SECTION OF THE STATEBAR OF TEXAS 8TH ANNUAL ULTIMATEINSURANCE SEMINAR, 1999;

Author/Speaker:

Ed Walton, DTPA "Tie-In" Statutes: A PracticalGuide, STATE BAR OF TEXAS PROF. DEV.PROGRAM, 7TH ANNUAL ADVANCEDDTPA/INSURANCE/CONSUMER LAWCOURSE, 1994;

Ed Walton, The Texas Deceptive Trade PracticesAct, A Helpful Overview and Practice Pointers,STATE BAR OF TEXAS PROF. DEV.PROGRAM, COMPREHENSIVE CONSUMERLAW SEMINAR, 1994;

Ed Walton, The Texas Deceptive Trade PracticesAct, A Helpful Overview and Practice Pointers,STATE BAR OF TEXAS PROF. DEV.PROGRAM, COMPREHENSIVE CONSUMERLAW SEMINAR, 1995;

Ed Walton, Ethics in a Small Firm Practice,TEXAS CONSUMER LAW CENTER, FIRSTANNUAL CONSUMER LAW SEMINAR, 1996;

Ed Walton, The Deceptive Trade Practices Act,UNIVERSITY OF HOUSTON LAW CENTERC O N S U M E R L A W P R O J E C T ,COMPREHENSIVE CONSUMER LAWSEMINAR 1996;

Ed Walton, Recent Insurance Decisions, STATEBAR OF TEXAS CONSUMER LAW SECTION,SIXTH ANNUAL ULTIMATE INSURANCESEMINAR 1997;

Ed Walton, The DTPA Discovery Rule, STATEBAR OF TEXAS PROF. DEV. PROGRAM, 1997ADVANCED DTPA/CONSUMER/INSURANCELAW COURSE;

Ed Walton, Pay Me Now or Pay Me (MuchMore?) Later, CONSUMER LAW SECTION OFTHE STATE BAR OF TEXAS 1997COMPREHENSIVE CONSUMER LAWSEMINAR;

Ed Walton, How to Send Your Children toCollege or Prevent Opposing Counsel From

Case Evaluation Chapter 4

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TABLE OF CONTENTS

CASE EVALUATION.................................................................................................................................................... 1

INTRODUCTION........................................................................................................................................................... 1

VOLUME LITIGATION................................................................................................................................................ 1

CHECKLIST................................................................................................................................................................... 1

DOCUMENTATION/EVIDENCE OF INDEBTEDNESS............................................................................................ 2 Importance of Original Documents ......................................................................................................................... 2 Acknowledged Documents ..................................................................................................................................... 2 Business Records Accompanies by Affidavits........................................................................................................ 2 “Absence of Entry” Business Records Affidavits ................................................................................................... 3 Certified Copies of Public Records ......................................................................................................................... 3 Commercial Paper ................................................................................................................................................... 3 Witnesses................................................................................................................................................................. 3 Deposition on Written Questions ............................................................................................................................ 3 Requests for Admission .......................................................................................................................................... 3 Credit Card Cases.................................................................................................................................................... 3

DEFAULT ...................................................................................................................................................................... 4

DAMAGES/ATTORNEY’S FEES ................................................................................................................................ 4

DISPOSITIVE MOTIONS ............................................................................................................................................. 5

MISCELLANEOUS ....................................................................................................................................................... 5

SUMMARY.................................................................................................................................................................... 5

ATTACHMENT-AFFIDAVIT....................................................................................................................................... 7 ATTACHMENT-CHECKLIST...................................................................................................................................... 9


1

s.

CASE EVALUATION INTRODUCTION Litigation, or preparation or anticipation of litigation, with a banking institution is unlike any other. More so than in any other area of the law, the “line” between plaintiffs and defendants in litigation with banks, is at best a gray area, and in many instances becomes non-existent. It is common, and often seems to be the norm, for an attorney who files a collection matter to find themselves defending a counterclaim for any one of a number of causes of action. Counterclaims which are frequently encountered are for alleged violations of the Federal Debt Collection Practices Act1 (“FDCPA), the Fair Credit Reporting Act2 (“FCRA”), the Texas Debt Collection Practices Act3 (“TDCPA”), the Truth in Lending Act4, and usury. This is certainly not meant to be an exhaustive list as the possibilities are endles At the same time, an attorney who chooses to bring a claim against a Banking Institution may find themselves in a position of having to disprove or to defend a collection matter. This generally happens in one of two ways. A disgruntled debtor may file suit against a bank for violations of one or several of the causes of action mentioned above. The bank may file a counterclaim seeking to recover the underlying indebtedness allegedly giving rise to the plaintiff’s cause of action. The bank may also allege (depending upon the nature of the claims be brought against them) the legitimacy of the underlying debt as a justification for the conduct complained of. For these reasons, an attorney who anticipates litigation with a banking institution either by initiating the suit or responding to one should carefully consider all potential aspects of the litigation from the perspective of all parties. The failure to do so will result in your attempting to play “catch-up” which is often unsuccessful and in very instance places the attorney in a weaker position than they would have otherwise enjoyed. The author was asked to present this topic in the form of a checklist to be considered by those anticipating litigation with a banking institution. A suggested checklist is attached as an appendix to this article. The body of this article will explain the checklist and how it is to be used. Due to the amount of time allotted to this topic, a substantive discussion of the issues involved is not feasible. In fact, several of

1 15 USC 1691 et seq. 2 15 USC 1681 et seq. 3 § 391.001 et seq Tex. Fin. Code. 4 15 USC 1601 et seq.

the causes of action which will be alluded to have been the sole subject of many complete seminars. VOLUME LITIGATION Many attorneys who routinely represent banking institutions in collection matters are involved in an overwhelming number of cases. In order to be able to handle such a large volume of cases, and to retain their sanity, these attorneys use standardized forms as wells as standardized strategies. There is nothing inherently wrong with this approach. Such standardized practices serve the client well in the vast majority of cases. However, neither the Texas or Federal rules of procedure make any allowances, or lessen the burden(s) of litigation, in any fashion for those whose practices involve volume litigation. Once an answer is filed, especially in those cases in which a counterclaim or specific defensive issues are raised, the volume litigant is faced with the same duties and responsibilities and is required to provide the same level of professional representation as in any other case. The failure on the part of many collection attorneys to recognize or to adhere to their duties has resulted in the collection industry achieving an extremely bad name with the courts of this state. The author has spoken with a number of judges who are extremely upset over this situation. Several judges have informed the author that they have never, not in a single instance, had an attorney in a collection matter announce ready for trial. It is recommended in the strongest possible terms that you do not file any suit unless you are ready, willing, and able to see the case through and perform your duties in the most complete and professional manner possible. It should also be pointed out that this situation is not entirely one-sided. It is not unknown for so-called “consumer” attorneys to file suit against a banking institution which would be charitably referred to as weak based on the belief that the institution will agree to forgive the debt rather than to incur the costs of defense which will in most instances exceed the amount of the underlying indebtedness. CHECKLIST Attached to this article is a proposed checklist of various matters to be considered when planning your strategy either for instituting or responding to a suit with a banking institution. This list is to be considered as comprehensive, but not exhaustive. There are far too many possible scenarios and fact situations to anticipate all conceivable areas to be considered. What is provided should provide a very good starting point, however.


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DOCUMENTATION/EVIDENCE OF INDEBTEDNESS Whether prosecuting or defending a collection matter, the first thing to be considered is the documents upon which the collection suit is based, i.e. what documents will be necessary to prove that the debtor owes the debt in question. The next thing which should be considered is to determine how the documents will be introduced into evidence. Many attorneys overlook the issue of admissibility of the documentary evidence. An even greater number fail to realize the importance of this issue until it is either too late or nearly so. On numerous occasions, the author has been involved in litigation, occasionally involving large sums of money, in which the pivotal issue in the case was whether or not the party seeking to recover on the debt can get into evidence the documents which prove that the debt is owed. This should be considered and addressed before the suit or an answer is filed. The checklist includes some routine suggestions for the admissibility of documentary evidence. Again, the suggested list is not to be considered as exhaustive. The number of ways to get evidence admitted is limited only by the imagination of the attorney. One of the most obvious, yet most often overlooked, method of proving the admissibility of documents is through the debtor. Many debtors will acknowledge their signature on documents and will identify documents which they signed. When representing banking institutions, in almost every instance you should subpoena the debtor to appear at trial. It is a standard tactic for attorneys who represent debtors to appear for trial without their client to prevent the lender from proving up their case through the debtor. Importance of Original Documents Both sides should determine as soon as possible who has possession of the originals of any pertinent documents and whether or not they can be obtained by the party seeking to collect. Unless the note (or other document) upon the suit is based is admitted into evidence, the collecting attorney will lose. Although this appears basic to the point of being elementary, the author has seen numerous occasions where this has caught other attorneys by surprise at the last moment. The best evidence rule does not provide that a party “shall use the best evidence.” This rule does not apply to oral testimony. The best evidence rule only comes into play when a copy is offered into evidence and the validity of the original is in dispute. See Rules 1002 and 1003 Tex. R. Evid.5 5 Hereafter referred to as “TRE.”

Like everything else in the law, there are exceptions to the best evidence rule. The original of a document is not required, even over objection, when the original 1) was lost or destroyed, 2) not obtainable, 3) outside the State of Texas, or 4) is in the possession of the opponent. Rules 1004(a) - (d) TRE. If the original is not available, for any of the enumerated reasons, the proponent of the document must be in a position to offer evidence of one or more of these exceptions. Acknowledged Documents Acknowledged documents are self-authenticating. Rule 902(8).

"[T]here is a decided judicial tendency", according to 1 Tex.Jur. 601, ‘to view with suspicion and distrust attempts to discredit certificates of acknowledgment, and it has been frequently said that in order to impeach a certificate the evidence must be clear, cogent and convincing beyond reasonable controversy.’ The testimony of the party whose acknowledgment is certified is not sufficient to overcome the certificate of the officer, in the absence of a showing of fraud or imposition.”

Hardin vs State, 254 SW3d 898, 901 (Tex. Civ. App. - Amarillo 1952, no writ). See also Ruiz vs Stewart Mineral Corp., 202 SW3d 242 (Tex. App. - Tyler 2006, pet. denied). Acknowledged documents may be objectionable on other grounds. Rule 902(8) TRE provides that the acknowledgment must be “executed in the manner provided by law.” See §§ 121.007 and 121.008 to determine whether or not the acknowledgment is, or is not, “in the manner provided by law.” The acknowledged document may contain hearsay and be objectionable on those grounds. “Rule 902 only addresses the authentication issue. Even though a document may be self-authenticated, it still may be inadmissible because it is hearsay,” McLeod vs State, 56 SW3d 704, 710 (Tex. App. - Houston [14th Dist.] 2001, no pet.) Business Records Accompanies by Affidavits A business records affidavit is one of the most useful tools available to an attorney. It is amazing that these affidavits are not used far more often than they are. Rule 902(10)(b) provides a form to be used for a business records affidavit. This form is treated as inviolate by judges. Do not try to improve on it. The affidavit must be filed fourteen days prior to trial. There is no requirement regarding objections,

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either as to timing or whether the objections are to be made orally or in writing. It his highly recommended that, if you intend to object to a business records affidavit, you do so in writing and as soon as possible after the affidavit is filed. “Absence of Entry” Business Records Affidavits Rule 803(7) TRE provides that the absence of the entry of information in a business record is admissible if the records are business records as defined by Rule 803(6) TRE and the absent records are of the type of entry regularly made by the business entity. Remember that there must be records in evidence before the absence of an entry in such records can be shown. In order to use this rule to your benefit, you must have an affidavit which establishes the admissibility of the the records in question which show the absence of the entry of information and meet the requirements of Rule 803(7). Attached is a form affidavit which the author has used on several occasions for this purpose. Unfortunately, Rule 803(7) TRE does not have a corresponding self-authentication prevision in Rule 902. This form of affidavit can be safely used in support of a motion for summary judgment, but should not be relied upon at trial. Certified Copies of Public Records Certain types of loan documents are filed in the County Clerk’s deed records. These are self-authenticated under Rule 902(4) TRE. Commercial Paper Commercial paper is self-authenticated under Rule 902(9) TRE. Commercial paper is not defined in the rule and there is no case law interpreting this rule. It should be assumed that this rule only applies to commercial paper as defined by Article 3 of the Uniform Commercial Code. Witnesses It may be necessary to prove the admissibility of documents through the testimony of a witness, when available. Witnesses may be available who saw one or more of the parties sign pertinent documents, saw the documents delivered by the person signing, or heard the signor discussing the instrument and their involvement. Deposition on Written Questions This is another valuable tool which is too seldom used. You may find yourself in the position of needing to prove up documents as business records and not be in a position to determine whom you need to contact about obtaining a business records affidavit. Taking the deposition on written questions of the business

entity from whom you need the information most often resolves this difficulty. There are numerous court reporting firms and records retrieval services who provide this service. Requests for Admission You may be able to authenticate documents through requests for admission served on the opposing party. Credit Card Cases There is a great deal of confusion regarding the documents which are necessary to prove the existence of a credit card contract. Many attorneys in representing debtors take the position that it is necessary to produce the credit card application and the cardholder agreement. This argument is appealing, and some judges are inclined to accept it, but happens to be completely false. In the case of In Re Tran, 369 BR 312 (B.R. SD Texas 2007), the Court pointed out the ease with which the creditor could have proven their case, the Court stated:

"The court found that there were several key documents, any of which could have satisfied eCast's burden of proof6 had they been entered into evidence. An affidavit from the custodian of records: i) authenticating the credit card agreement; ii) authenticating monthly statements; or iii) certifying the unpaid balance and balance due could have met eCast's burden.

Id. at 319. All that is necessary to show a contract, in a situation involving a credit card is the account statements. In Jones vs Citibank, 235 SW3d 333 (Tex.App. -- Fort Worth 2007, no pet.), the creditor moved for summary judgment, which was granted. The debtor argued that the creditor had not proven the existence of a contract. In giving little credence to the debtor's argument, the Court pointed out:

“Under federal law, the term ‘credit’ means the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment. 15 U.S.C.A. § 1602(e) (West 1998). Thus, a credit card company extends credit to an individual when it opens or renews an account, as well as when the cardholder actually uses the credit card to make purchases. Am. Exp. Co. v. Koerner, 452 U.S. 233, 241, 101 S. Ct. 2281, 2286, 68

6 All emphasis added unless otherwise stated.


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L. Ed. 2d 803 (1981). When the account is opened, the creditor has granted a right ‘to incur debt and defer its payment,’ and when the account is used, the creditor has allowed the cardholder ‘to defer payment of debt.’ Id.; Riethman v. Berry, 287 F.3d 274, 279 (3rd Cir. 2002) (construing ‘creditor’ to mean someone who enters into an agreement with another party who uses credit to incur debt). The issuance of a credit card constitutes a credit offer, and the use of the card constitutes acceptance of the offer. Bank of Am. v. Jarczyk, 268 B.R. 17, 22 (Bankr. W.D.N.Y. 2001).

Thus, a contract was formed here under federal law. Id. Finally, in Winchek vs American Express, 232 SW3d 197 (Tex.App. - Houston [1st Dist.] 2007, no pet.) the Court stated that "[a]s Amex contends, a contract was created when Winchek used the Card, not upon manual delivery of the Agreement," id. at 204. DEFAULT A debtor normally breaches the contract with the creditor by non-payment. There may be other breaches including failure to provide insurance coverage for the collateral, escrow deficiencies, etc. You may also encounter the situation where several breaches have occurred. It is in proving a default that the “absence of entry business records affidavit” most often becomes useful. The failure to make periodic payments as required, provide insurance, pay taxes, or maintain a proper escrow balance can all be proven by the use of this type of affidavit. DAMAGES/ATTORNEY’S FEES When contemplating litigation by or against a banking institution, the potential recovery by either side as well as the likelihood of a potential counterclaim should be taken into consideration. This is especially true when relatively small amounts of money are involved. In a collection suit involving one hundred thousand dollars ($100,000.00) in unpaid credit card debt, the attorney representing the banking institution should probably not be too concerned over the possibility of a nuisance value FDCPA counterclaim. In comparison, a suit over ten thousand dollars ($10,000.00) in debt could result in the FDCPA counterclaim becoming the minnow that swallowed the whale. Neither should a debtor’s attorney contemplating filing a “fair debt” suit ignore the possibility of a counterclaim. This situation is especially risky where limitations has run on the underlying debt and suit is

contemplated over letters or telephone calls occurring after limitations on the debt has expired. Under § 16.069 Tex. Civ. Prac. Rem. Code, a counterclaim that arises out of the same transaction or occurrence may be filed within thirty (30) days of the date on which an answer is required, even though the counterclaim would otherwise be barred by limitations. There is a split of authority over whether a suit for collection arises from the same transaction or occurrence. The Fifth Circuit in Plant vs Blazer, 598 F.2d 1357 (5th Cir. 1979) has reached the conclusion that the two causes of action arise from the same transaction or occurrence and one was therefore a compulsory counterclaim regarding the other.7 Carefully consider each area of potential recovery from your prospective and from that of the opposing party. Calculate the total potential recovery for both sides of the dispute. This is obviously not an exact science and is extremely fact intensive. Every collection suit involves the risk of a “fair debt” counterclaim. The potential recovery for such counterclaims will run the gambit from a mere nuisance value for a purely technical violation to claims of psychiatric “meltdown” and eternal misery arising from the inability to purchase that home, automobile, or vacation which had been a life-long dream. Particular attention should be paid to cases involving repossession of a home or other “big ticket” items. The collector should review all available information including correspondence, recordings, and collection notes in order to determine the likelihood of a counterclaim as well as the potential recovery for such. Keep in mind that by filing suit you will, in many instances, be driving the debtor into the arms of an attorney. There are limitless possibilities for the basis of a “fair debt” counterclaim and there are many which even the most diligent researcher will not be able to anticipate in advance. However, listed below are some warning signs that may appear as the result of a reasonable level of investigation:

1. initial correspondence which does not include the statutory language required by 15 USC 1692g - the thirty day validation language;

2. failure to include the “mini-Miranda”

warning required by 15 USC 1692e(11);

7 The relevance here is not that the counterclaims were compulsory, but that the two arise from the same transaction or occurrence, therefore invoking the right to file a counterclaim that would otherwise be time-barred under § 16.069.

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3. an unreasonable number (viewed from the standpoint of the debtor) of telephone calls;

4. threats of any kind but especially threats to

garnish wages or place or enforce an alleged lien on a homestead;

5. any form of unprofessional or derogatory

comment; 6. requests that communications be ceased; 7. indications that the debtor has received

advice from an attorney; 8. indications that communications have been

recorded; 9. communications to the debtor at their place f

employment; 10. statements that something unpleasant will

happen to the debtor due to the conduct of a collector, i.e. “You are going to make be lose my job,” have a heart attack, etc.

DISPOSITIVE MOTIONS Any potential party to litigation with a banking institution should carefully consider the possibility of a resolution by a motion for summary judgment or other dispositive motion. During the initial case evaluation, you should evaluate whether the case in question is one which you may dispose of by summary judgment8 or in which you should expect to have to respond to a motion for summary judgment. In either instance, you should prepare and consider the effect on your potential costs and recovery in evaluating the case. If you believe that you may be able to dispose of your claim by way of summary judgment, begin preparation for the motion immediately. Take this into consideration when preparing both pleadings and discovery. Don’t file multiple causes of action if you only anticipate moving for summary judgment on one. For some reason unknown to the author, Judges are almost universally reluctant to grant partial summary judgments. Also, the specter of other causes of action provides a “straw man” to be used by the respondent in defeating your motion. In a perfect world, every attorney would prepare their anticipated motion prior to filing suit. In the real

8 For the purpose of this article, a summary judgment will be used as an example of a dispositive motion although there are other possibilities such as motions to dismiss or 12(b) motions under the Federal Rules of Civil Procedure.

world, most of us will not do so. It is suggested, however, that you always prepare your motion before beginning discovery. If you prepare the affidavit(s) which you need to win your motion, you will immediately see the areas in which you need to conduct discovery. MISCELLANEOUS There are myriad considerations which could affect case evaluation when becoming involved in a suit with a banking institution. The more common have been discussed, above. Other considerations which you may need to take into account, depending upon the particular circumstances involved are:

1. Venue - Is the locale where you are about to file, or defend, a suit in a “debtor friendly” or “creditor friendly” area? Are you about to file suit against the only bank in a six county area in the farthest reaches of West Texas?

2. Is the lending institution financially sound? 3. Is the debt collectable? 4. Do you represent the original creditor or the

purchaser of the debt? If a purchaser, did your client acquire the debt when it was in default?

5. Is the documentation necessary to proving

your claim in the possession of your client and readily available? If not, what steps will be necessary to obtain the necessary documentation in admissible form?

SUMMARY Included in this article are a number of suggestions for evaluating the possible results when litigating with banking institutions. The most important admonition, however, is that you take the time to engage in evaluation of the case, before litigation is initiated.

AFFIDAVIT

STATE OF ___________________________ §§

COUNTY OF _________________________ §

BEFORE ME, the undersigned authority, on this day personally appeared

___________________, who being by me duly sworn deposed as follows:

"My name is _________________. I am over the age of eighteen (18) and of

sound mind and am competent to make this affidavit, and am personally

acquainted with the facts herein stated. I have never been convicted of a felony

or misdemeanor involving moral turpitude.

“I am a custodian of records of Big Bank. Attached hereto are _____ pages

of records from Big Bank. This said _____ pages of records are kept by Big

Bank in the regular course of business, and it was the regular course of

business of Big Bank for an employee or representative of Big Bank, with

knowledge of the act, event, condition, opinion, or diagnosis, recorded to make

the record or transmit the information thereof to be included in such record;

and the record was made at or near the time or reasonably soon thereafter.

The records attached are the original or exact duplicates of the original.

“Records of payments are the type of records which are regularly made and

preserved by Big Bank in the regular course of business, and it was the regular

course of business of Big Bank for an employee or representative of Big Bank,

with knowledge of the act, event, condition, opinion, or diagnosis, recorded to

make the record or transmit the information regarding payments received to be


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included in such records. Records of payment are made by Big Bank in the

regular course of business at or near the time that such payments are received

or reasonably soon thereafter.

"I further state that I have read the above and foregoing affidavit, and that

every statement contained therein is based upon my personal knowledge and is

true and correct."

Signed this ______ day of _________________, 2009.

__________________________________

STATE OF ___________________________ §§

COUNTY OF _________________________ §

Before me, the undersigned notary public, in this day personally appearedDon Kerr, known to me to be the person whose name is subscribed to theforegoing instrument and acknowledged to me that they executed the same forthe purposes and consideration therein expressed.

Given under my hand and seal of office this _____ day of___________________________, 2009.

__________________________________Notary Public, State of ___________


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Documentation/Evidence of Indebtedness

Document Evidentiary Basis for Admission

_____ Note _____ Original

_____ Acknowledged Document

_____ Business Records Affidavit

_____ Public Record

_____ Commercial Paper

_____ Witness

_____ Deposition on Written Questions

_____ Requests for Admission

_____ Other _______________________________

_____ Deed of Trust _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Guaranty(ies) _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Assignments _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Application _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________


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_____ Cardholder Agreement _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Account Statements _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Assignments _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Notice of Default _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Notice of Acceleration _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________


10

_____ Demand for Payment _____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

_____ Other __________________________

______________________________________

______________________________________

______________________________________

_____ Original



_____ Public Record


_____ Witness



_____ Other _______________________________

Default

Act of Default Date(s) Evidentiary Basis for Admission

_____ Non-payment _____ Acknowledged Document


_____ Public Record


_____ Witness



_____ Other

_______________________________

_____ No Insurance _____ Acknowledged Document


_____ Public Record


_____ Witness



_____ Other

_______________________________

_____ Escrow _____ Original



_____ Public Record


_____ Witness



_____ Other

_______________________________


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_____ Insolvency _____ Original



_____ Public Record


_____ Witness



_____ Other

_______________________________

_____ Other _____ Original



_____ Public Record


_____ Witness



_____ Other

_______________________________

Damages/Attorney’s Fees

Recovery Amount

Past Due Payments $_________________________________________

Principal Balance $_________________________________________

Interest $_________________________________________

Past due interest $_________________________________________

Late Fees $_________________________________________

Penalties $_________________________________________

Over Limit Fees $_________________________________________

Other Fees

____________________________________

____________________________________

____________________________________

____________________________________

$_________________________________________

$_________________________________________

$_________________________________________

$_________________________________________


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Recovery by Debtor

_____ Mental Anguish

_____ Daage to Credit

_____ Payments

_____ Costs

_____ Nuisance “Value”

$_________________________________________

$_________________________________________

$_________________________________________

$_________________________________________

$_________________________________________

Attorney’s Fees - Client $_________________________________________

Attorney’s Fees - Opposing Party $_________________________________________

Costs

_____ Depositions

_____ Travel

_____ Expert Witness Fees

_____ Document Recovery

_____ Other

$_________________________________________

$_________________________________________

$_________________________________________

$_________________________________________

$_________________________________________

Total Recovery- Client $_________________________________________

Total Recovery - Opposing Party $_________________________________________


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