Proposed Changes to Trial Rule 9.2 for Proof of Written Instruments

Kyle B. Blowers

Author: Kyle B. Blowers

POST DATE: 3.30.18
Ccha  Creditors Rights

The Indiana Supreme Court has proposed new rules which may impact the required documentation necessary for filing a proof claim on a written instrument. In particular, these proposed changes may pose a significant change for debt buyers, assignees of certain debt, and plaintiff creditors that are not original creditors of a consumer account.

The proposed changes to Rule 9.2 are as follows in ilalics:

Rule 9.2. Pleading and proof of written instruments

(A) When instrument or copy, or an Affidavit of Debt must (shall) be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must (shall) be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record. Further,

  1. if the claim:
    1. arises out of a written contract, a copy shall be attached; however, the fact that a copy of such contract is not in the custody of the plaintiff shall not bar the filing of the claim; or
    2. is on an account, an Affidavit of Debt, in a form substantially similar to Appendix A-2 shall be attached;
  2. in addition to the requirements set forth above in subsection (1), if the plaintiff is not the original creditor, and the claim arises from a debt that is primarily for personal, family, or household purposes, the plaintiff shall provide an Affidavit of Debt that shall have attached as one or more Exhibits which shall in include:
    1. a copy of the contract or other writing evidencing the original debt, which shall contain a signature of the defendant. If a claim is based on credit card or other debt and no such signed writing evidencing the original debt ever existed, then copies of documents generated when the debt was incurred or the credit card was actually used shall be attached; and
    2. a chronological listing of the names of all prior owners of the debt and the date of each transfer of ownership of the debt, beginning with the name of the original creditor; and
    3. a certified or other properly authenticated copy of the bill of sale or other document that transferred ownership of the debt to the plaintiff.

Of particular note is the proposed change regarding claims based upon credit card accounts. In instances where no writing is available to evidence the original debt, a plaintiff is required to provide copies of documents generated when the debt was incurred. This in addition to the other proposed requirements will require greater diligence by plaintiff creditors in not only bringing suit on such consumer accounts, but also in purchasing or acquiring debt.

If you believe this may impact your business practice or your rights in enforcing a money obligation, contact CCHA. For more information about Kyle and his practice, click here.