Consumer Debt Collection Actions-Form Affidavits (Administrative Directive 2012-2)

ADMINISTRATIVE DIRECTIVE OF THE CHIEF JUDGE OF THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE NO. 2012-2 This 22nd day of August 2012, WHEREAS, pursuant to 10 Del. C. § 1302(d), the authority being vested in the Chief Judge as the administrative head of the Court during the term of his appointment; and WHEREAS, Court of Common Pleas Civil Rule 8, "General Rules of Pleading," sets forth the basic requirements of pleading required by Delaware law; and WHEREAS, consumer debt collection actions filed with the Court continue to grow at an exponential rate, straining the court system and imposing an increased burden upon judicial resources; and WHEREAS, the Court seeks to better manage consumer debt collection litigation to improve efficiency and fairness to litigants; and WHEREAS, the Court finds it prudent and consistent with sound public policy and due process to adopt and implement standardized procedural guidelines in consumer debt collection actions to ensure fairness to all litigants and improve efficiency in the administration of justice; and WHEREAS, the term "Principal Amount Due," when used herein, shall be defined in accordance with the substantive law applicable to the type of legal obligation upon which the action is based; and American LegalNet, Inc. www.FormsWorkFlow.com WHEREAS, the term "Consumer Debt Collection Actions," when used herein, shall mean suits to recover the balance due on credit extended for personal, family or household purposes. NOW, THEREFORE, IT IS DIRECTED that Administrative Directive 2011-1 is hereby rescinded and replaced in its entirety, as follows: 1. Actions: Pleading Requirements for Complaints in Consumer Debt Collection Any Consumer Debt Collection Complaint must include an Affidavit of Ownership and Amount Due which shall substantially conform to Form 1 appended hereto. Additionally, the following information shall be set forth in the Complaint: a. the caption shall include a sufficient description of the original creditor to reasonably enable the defendant to identify the account, along with the name of the plaintiff; b. the last four digits of the original account number or the account number that existed at the time of default; and c. a breakdown of the Principal Amount Due and interest, fees and other charges. 2. Non-Compliance. Allegations of non-compliance with this Administrative Directive shall be heard by the Court upon motion, or sua sponte until judgment is entered. All parties are expected to consult with one another in good faith in an attempt to resolve any disputes prior to filing such a motion. 2 American LegalNet, Inc. www.FormsWorkFlow.com 3. Judgment. a. Default Judgment. If the Plaintiff directs or requests the entry of default judgment due to a Defendant's failure to appear or respond to the Complaint, Plaintiff shall comply with Rule 55. The Affidavits submitted by Plaintiff shall substantially conform to Forms 2A and 2B appended hereto. If default judgment is sought pursuant to Rule 55(b)(1), the Direction and Affidavits may be submitted without notice. If default judgment is sought pursuant to Rule 55(b)(2), then submission shall conform to that subsection. b. If it appears that the Plaintiff has failed to comply with this Administrative Directive, the Court may sua sponte deny the entry of judgment. c. A judgment entered pursuant to this Administrative Directive may be set aside only upon Motion. In considering such Motion, the procedures and standards shall be governed by Rules 55(c) and 60. d. A request for attorney's fees shall substantially conform to Form 2B and provide sufficient explanation of the basis for recovery of fees and the amount sought to enable the Court to make a determination of appropriateness and reasonableness as contemplated by Delaware law. 4. This Administrative Directive shall apply to all Consumer Debt Collection Actions within its scope filed on or after September 2, 2012. BY THE CHIEF JUDGE /s/ Alex J. Smalls 3 American LegalNet, Inc. www.FormsWorkFlow.com cc: Judge John K. Welch Judge Rosemary Betts Beauregard Judge Kenneth S. Clark, Jr. Judge Charles W. Welch, III Judge Joseph F. Flickinger, III Judge Andrea L. Rocanelli Judge Anne Hartnett Reigle Judge Eric M. Davis Commissioner Joseph Whitmore Maybee Commissioner Mary M. McDonough Stephanie Fitzgerald, Acting Court Administrator Elizabeth Jonkiert, Clerk of the Court Deborah Mowbray, Judicial Case Manager Administrator Teresa Lindale, Kent County Judicial Operations Manager Wanda Smith, Sussex County Judicial Operations Manager Tamu White, Judicial Case Manager Supervisor File 4 American LegalNet, Inc. www.FormsWorkFlow.com AFFIDAVIT OF OWNERSHIP AND AMOUNT DUE FORM 1 STATE OF COUNTY OF : : SS. : _______________, authorized representative of _________, the plaintiff in the abovecaptioned action, hereby swears and affirms: 1. I am employed as a ____________ of ____________, the plaintiff in the above-captioned action. I am competent person over 18 years of age and authorized to make this Affidavit. 2. The information contained in this Affidavit is based on my personal review of plaintiff's records. I am familiar with the manner and method by which plaintiff maintains its business records. Those records are kept in the regular course of business. Entries therein are made contemporaneous to the time of the act or occurrence recorded by a person with knowledge or at the direction of a person with actual knowledge of the event or transaction recorded. 3. Plaintiff is the current owner, by assignment, of the defendant's, (DEFENDANT'S NAME,) (ORIGINAL CREDITOR'S NAME) account number xxxxxxxxxxxx_ _ _ _ that is the subject of the above action. Plaintiff acquired that account from (SELLER'S NAME) on or about (DATE) and has neither re-assigned, extinguished nor released the debt. [If applicable: The account was assigned by the original creditor to (NAME) on or about ( DATE) and then to (NAME) on or about (DATE). 4. The following is a breakdown of the balance currently due and owing. Principal Amount Due1: Interest (from ____ to ____ at the rate of ____% per annum): 1 As that term is referenced in the "Whereas" Clause of Administrative Directive No. 2012-2. Page 1 of 2 Consumer Debt Collection Action Form 1 American LegalNet, Inc. www.FormsWorkFlow.com Attorney's Fees: Total: I solemnly affirm, under penalty of perjury, that the foregoing statements made by me are true and correct. ___________________________ SIGNATURE ___________