Martha Kunkle. Died in ‘95, but according to a recent article in the online version of The Wall Street Journal, she was still signing affidavits for Portfolio Recovery Associates, Inc. several years after her death. She’s been in the news a lot lately, because despite instructions from Portfolio Recovery Associates (after being sued regarding the issue), another affidavit in a debt collection lawsuit was robo-signed by Kunkle this past summer.
I may not know Martha Kunkle, but as a consumer attorney, I do know these huge debt collection companies, I know robo-signing, and you know what? From my position as a consumer’s rights attorney, whether the signature at the bottom of an affidavit is from a living, breathing person, a dead person like Martha Kunkle, or some other form of robot, computer, or cyborg, it’s most likely pretty shady.
This “robo-signing” that everyone is up in arms about? The big deal is, they are mass-produced signatures on an affidavits. When an affidavit is signed, a debt goes from simply being a company’s record of money owed, to being a sworn statement intended to be used as evidence in court. The justice system–our revered justice system– regards the affidavit as proof of the debt that the debtor must refute.
Now about that “robo-signing”. A signed affidavit is a sworn statement upon personal knowledge, in the eyes of the court. Put simply, the court assumes that the person doing the signing is swearing that they have personal knowledge of the alleged debt. Pretty heavy stuff, right? Well, it should be, but the reality is this: most affidavits that are signed at debt collection firms are signed in a very, very trivial way. In an ideal world, a “Records Custodian” would check a file that would contain things like: a copy of the original debt agreement, the loan or credit card application, and all of the billing statements. In this ideal world, the esteemed Records Custodian would review this file with care, confirming that the debt was legitimate, that all was in order to proceed in court, and then would sign off on the affidavit. However, debt collectors tend to operate in a less than ideal world. In a world where cutting corners is the preferred mode of operation. So instead of an actual Records Custodian, a computer often prints signatures on stacks of affidavits. Affidavits that were most likely written by that very same computer, using a cookie-cutter template and the “merge” function. “But,” you ask, “how can a computer possibly pull a file for review to make sure all is properly in order, and do all that other stuff you just said was necessary to responsibly sign an affidavit? It seems impossible!” Impossible–EXACTLY. And now you understand the problem with “robo-signing.”
As a debt defense attorney, I’d like to take it a step further, though. Consider this–perhaps the Records Custodian is a living, breathing, human being, physically signing off on these affidavits. Surely this must be better, right? In my experience, not really. You see, in the debt collection world, these Records Custodians are almost as secretive and elusive as the endangered Tasmanian Tiger. And the debt collector’s attorneys act as game wardens, protecting the Records Custodians, and the secrecy of their record keeping practices, as best they can. I’m a consumer’s rights lawyer, so I subpoena them. I attempt to depose them. I ask to get a look, a photocopy, just a peek, at these supposedly detailed records that they have custody of. And guess what? In the hundreds of cases I’ve tried as a consumer attorney, so far, I’ve seen exactly ONE Records Custodian appear in person in court. I’ve successfully deposed only a handful (out of 1,500 cases). And the records that I request? The card agreements, the copies of paperwork with signatures, the evidence? Rarely am I even able to get a copy of the original card member agreement. “Why?” you ask. Because the “records” that are being used to create and sign these affidavits are typically line items on a computer screen on the Records Custodian’s desk, that list name, amount of debt, name of original creditor…and that’s about it. If this information matches the information on the affidavit, it gets a signature. And that, friendly consumer, is why it doesn’t really matter to me, the consumer’s rights attorney defending YOU against the debt collector, if the source of that signature is living, dead, or robotic–chances are, the meaning is the same. A baseless rubber stamp signature with no real documentation behind it. The recent Martha Kunkle case is significant for the same reason that a slap in the face is significant–both shock you into the realization that something has gone very, very wrong in your world–our world.
I may not know Martha Kunkle, but as a consumer attorney, I do know these huge debt collection companies, I know robo-signing, and you know what? From my position as a consumer’s rights attorney, whether the signature at the bottom of an affidavit is from a living, breathing person, a dead person like Martha Kunkle, or some other form of robot, computer, or cyborg, it’s most likely pretty shady.
This “robo-signing” that everyone is up in arms about? The big deal is, they are mass-produced signatures on an affidavits. When an affidavit is signed, a debt goes from simply being a company’s record of money owed, to being a sworn statement intended to be used as evidence in court. The justice system–our revered justice system– regards the affidavit as proof of the debt that the debtor must refute.
Now about that “robo-signing”. A signed affidavit is a sworn statement upon personal knowledge, in the eyes of the court. Put simply, the court assumes that the person doing the signing is swearing that they have personal knowledge of the alleged debt. Pretty heavy stuff, right? Well, it should be, but the reality is this: most affidavits that are signed at debt collection firms are signed in a very, very trivial way. In an ideal world, a “Records Custodian” would check a file that would contain things like: a copy of the original debt agreement, the loan or credit card application, and all of the billing statements. In this ideal world, the esteemed Records Custodian would review this file with care, confirming that the debt was legitimate, that all was in order to proceed in court, and then would sign off on the affidavit. However, debt collectors tend to operate in a less than ideal world. In a world where cutting corners is the preferred mode of operation. So instead of an actual Records Custodian, a computer often prints signatures on stacks of affidavits. Affidavits that were most likely written by that very same computer, using a cookie-cutter template and the “merge” function. “But,” you ask, “how can a computer possibly pull a file for review to make sure all is properly in order, and do all that other stuff you just said was necessary to responsibly sign an affidavit? It seems impossible!” Impossible–EXACTLY. And now you understand the problem with “robo-signing.”
As a debt defense attorney, I’d like to take it a step further, though. Consider this–perhaps the Records Custodian is a living, breathing, human being, physically signing off on these affidavits. Surely this must be better, right? In my experience, not really. You see, in the debt collection world, these Records Custodians are almost as secretive and elusive as the endangered Tasmanian Tiger. And the debt collector’s attorneys act as game wardens, protecting the Records Custodians, and the secrecy of their record keeping practices, as best they can. I’m a consumer’s rights lawyer, so I subpoena them. I attempt to depose them. I ask to get a look, a photocopy, just a peek, at these supposedly detailed records that they have custody of. And guess what? In the hundreds of cases I’ve tried as a consumer attorney, so far, I’ve seen exactly ONE Records Custodian appear in person in court. I’ve successfully deposed only a handful (out of 1,500 cases). And the records that I request? The card agreements, the copies of paperwork with signatures, the evidence? Rarely am I even able to get a copy of the original card member agreement. “Why?” you ask. Because the “records” that are being used to create and sign these affidavits are typically line items on a computer screen on the Records Custodian’s desk, that list name, amount of debt, name of original creditor…and that’s about it. If this information matches the information on the affidavit, it gets a signature. And that, friendly consumer, is why it doesn’t really matter to me, the consumer’s rights attorney defending YOU against the debt collector, if the source of that signature is living, dead, or robotic–chances are, the meaning is the same. A baseless rubber stamp signature with no real documentation behind it. The recent Martha Kunkle case is significant for the same reason that a slap in the face is significant–both shock you into the realization that something has gone very, very wrong in your world–our world.