GoonerIndy

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About GoonerIndy

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  1. Thanks again for all the help. My understanding is that Indiana law does toll SOL for credit card accounts during BK, so I don't think the SOL continued to run during my BK like it did in Hendrix. I appreciate all the suggestions, as I'm certainly open to all angles of defending this case. As I mentioned to @BV80, I intend to meet with a consumer law attorney later this week to pursue some FDCPA violations. He also said he could research my SOL defense. There are certainly other avenues available. I just want to end this as quickly as possible, and had hoped my SOL defense would be the best way to do so.
  2. I spent a good part of yesterday afternoon on the phone with attorneys. The BK attorneys had no interest in my SOL defense, and were only interested in getting me to file a new Ch 13. I'll try a few others. I did however talk with a couple of consumer attorneys, who have some experience defending against JDBs in court. None of them knew the answer to my SOL question, but one I spoke with is interested in pursuing some FDCPA stuff. I'm meeting with him Friday. I think we're going to try to get this case thrown out for improper venue (they're suing me in the wrong county), and will pursue the FDCPA violations as a prelude to JDB refiling in my county. When that time comes, we'll address the SOL issue. Thanks again for your responses. I understand advice here isn't a substitute for talking to an attorney in my state. But I had an attorney who wanted $1000 just to get a default judgment set aside, which I was easily able to do myself. I'm grateful for any help I can get here, that might help me move forward even just a small step, before shelling out for an attorney.
  3. Thanks for your response. It seems to confirm what I believe to be true. I appreciate the case law, as well. Even the plaintiff's attorney generally agreed that trustee payments do not reset SOL. But he said the actual filing does. That's where I'm stuck. Thanks again.
  4. Thank you. I have consulted two different attorneys about this, and plan to continue to do so. Unfortunately this detail falls beyond the initial consultation stage. Money is tight, so I thought I'd check here and see if anyone knew of any specific case law that applies to the actual filing of Chapter 13, and whether or not that resets the SOL. If that's beyond the scope of this forum, I understand. ETA: The NC Supreme Court decision is the closest I can find that rules on trustee payments and Chapter 13. I'd love to have Indiana or 7th Circuit precedent, but haven't been able to find any. Thanks again.
  5. Yes, Indiana law says you reset SOL by acknowledging the debt in writing. That's definitely the case plaintiff will attempt to make. I've read elsewhere that generally filing Ch 13 doesn't restart SOL. I'm looking for case law that would back that up, since I believe the circumstance leaves room for differing interpretations. Here is what I believe to be the pertinent Indiana law: IC 34-11-9Chapter 9. Acknowledgment, New Promise, and PartialPayment IC 34-11-9-1New or continuing contractSec. 1. An acknowledgment or promise is not evidence of a newor continuing contract, for the purpose of taking the case out of theoperation of this article, unless the acknowledgment or promise is:(1) in writing; and(2) signed by the party to be charged by the acknowledgment orpromise.As added by P.L.1-1998, SEC.6. IC 34-11-9-2Joint contractor, executor, or administrator liabilitySec. 2. The acknowledgment or promise of one (1) joint contractoror executor or administrator does not render any other jointcontractor, executor, or administrator liable under this chapter.As added by P.L.1-1998, SEC.6. IC 34-11-9-3Payment; endorsement or memorandumSec. 3. This chapter does not take away or lessen the effect of anypayment made by any person. However, no endorsement ormemorandum of any payment made:(1) upon any instrument of writing; and(2) by or on behalf of the party to whom the payment ispurported to be made;is considered sufficient to exempt the case from this chapter.As added by P.L.1-1998, SEC.6. IC 34-11-9-4Joint debtor or sureties; paymentSec. 4. (a) This section applies to:(1) a joint debtor; and(2) the representatives of a joint debtor;in whose favor the statute of limitations has operated.( A person described under subsection (a) is not liable to:(1) a joint debtor or surety; or(2) the representatives of a joint debtor or surety;upon payment by the joint debtor or surety, or the representative ofthe debt, or any part of it.As added by P.L.1-1998, SEC.6.
  6. If any of this helps... didn't fill it out initially because I'm past the first stages. 1. Who is the named plaintiff in the suit? LVNV Funding, c/o Resurgent Capital 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Weltman, Weinberg and Reis 3. How much are you being sued for? $6000 4. Who is the original creditor? (if not the Plaintiff) Citibank 5. How do you know you are being sued? (You were served, right?) Employer was sent questionnaire after def judgment. 6. How were you served? (Mail, In person, Notice on door) Served at old address, already got default judgment set aside 7. Was the service legal as required by your state? No 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Indiana (Hendricks, suit is in Marion) 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) May 2004 11. What is the SOL on the debt? To find out: 6 years Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Default judgment set aside. I have 20 days to respond to initial complaint. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). 20 days 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Affidavit of debt that includes CC statements and their form showing payments received, which were actually trustee payments during Ch 13
  7. If this belongs in the BK forum, I apologize. It's a bit messy. Need some help with statute of limitations as it relates to a dismissed (not discharged) chapter 13 debt. Credit card I stopped paying in May 2004, filed chapter 13 in June 2006, was dismissed after I missed payments in September 2009, sued in October 2014. My contention is that the statute of limitations (6 years in IN) started in May 2004, was tolled during the period of June 06 - Sept 09, and thus should have expired in August 2013. Plaintiff argued that they were within SOL and cited payments, which were trustee payments. I feel pretty good about citing Person Earth Movers, Inc. v. Buckland,N.C. App. , 525 S.E.2d 230 (2000) This case, as far as I can tell, even though it's in North Carolina, pretty well supports my position that trustee payments do not restart the SOL. Plaintiff's attorney even as much as admitted that after a hearing today to set aside default judgment (which I won). Then plaintiff's attorney said that my filing of Chapter 13 in June 2006 restarted the SOL. I don't agree, and have found general statements affirming my position in online searches (filing Ch 13 doesn't reset SOL, etc), but not actual case law. Person Earth Movers seems to rule only on the issue of trustee payments. I could extrapolate from there that if filing didn't restart SOL in that case, it shouldn't for me, but that seems like tenuous legal standing. When the BK was filed, the debt was still valid and not time-barred, so I didn't object. Lawyers and other experts, what say you? Furthermore, is suing on a time-barred debt an FDCPA violation? Thanks in advance.
  8. I've been reading this forum for the last couple months, and very much appreciate all the great advice on here. Even though I didn't win my case, this forum has been a tremendous resource. So I was sued by Resurgent Finance/LVNV for an old Citibank NA card. By way of background, the last time I used the card was in May 2004, and the last time I paid on it was around the same time. I had a balance of around $4500, and Citibank themselves sued me in June 2006 and received a default judgment against me. I filed Chapter 13 the day after my garnishment hearing. Lost my job in July 2009, and stopped paying the Ch 13 trustee, so of course my case was thrown out. If I had been smart, I would have just turned my 13 into a 7 and been done with it all right then and there. But I didn't, for reasons that don't really matter. Anyway, first I heard from any of the creditors from my Ch 13 was in September 2013 when I was served by LVNV (Weltman, Weinberg & Reis). I was served in Marion County (Indianapolis) Small Claims Court of Lawrence Township. In Marion County the small claims limit is $6k, so debt collectors file there to take advantage of the liberal rules of evidence and burden of proof. The standard in Marion Co small claims court is "preponderance of evidence," which I've learned basically means creditors don't have to actually prove anything. They just need to make a more convincing argument than the debtor, and the judge will rule in their favor. Furthermore, the township small claims courts compete with each other for the high volume collections claims, which means certain judges are more sympathetic to JDBs, and also results in forum shopping. More about that can be found here: http://online.wsj.com/news/articles/SB10001424052702303365804576433763597389214 The courts have conference rooms within the courtroom that the JDB attorneys use for pretrial conferences (without a judge present). If you didn't know better, you'd think the JDB attorneys actually worked for the court. Anyway, I had my pretrial conference back in December. When I was served they included the robo-signed affidavit from someone at Resurgent, a copy of an old Citibank statement, and a generic LVNV account statement that showed payments received from the Ch 13 trustee. I figured I'd challenge their ability to prove I ever owned the debt with Citibank (which would have been fairly easy, given the previous judgment). I'd further challenge LVNV's standing, ask them to prove they owned the debt, demonstrate chain of custody, provide a bill of sale, prove how they calculated the amount I owed, etc. So at the pretrial conference I rattled off a few of these defenses (in Marion Co small claims court, you don't have to file a response or affirmative defense). Rent-a-lawyer said ok, let's set it for trial. Trial was set back in December for today 2/19. Mid-January I sent a request for production of documents to the court and the plaintiff's attorneys (clerk said it was fine to mail filings, just to make sure to send a copy to the attorneys). Got a response from the court acknowledging it had been received and filed, but no yay or nay on my request. Never heard from the attorneys. Went to court today and found that the attorneys had filed a motion for summary judgment back in December. News to me. Figured I'd have received a copy of that from the court (or the attorney). Shame on me I guess for not checking it out. The judge asked the opposing attorney if he was prepared to try the case, because he wanted to hear all the facts. Attorney said yes, so they just brushed off their MSJ. Judge mentions he sees I've requested production of documents, but I didn't do it more than 30 days prior to trial, so he couldn't grant it. Couldn't for the life of me find this 30-day rule, but again, shame on me. I should have sent it the day of the pretrial conference. So things get started, and the opposing attorney presents exhibit 1, a stack of Citibank statement copies. I told them I didn't recall this card, and the statements didn't prove anything or jog my memory. But they had my name and address on them. I was willing to concede at that point, because I thought I had other defenses that would be more effective. However the attorney and the judge kept asking open-ended questions that never really put me in a position where I had to admit anything. They had me basically cornered, but never went in for the kill. So then they moved on from that point (judge and atty were seemingly working together by now). Plaintiff atty admitted the affidavit of debt as exhibit 2. I objected and explained how Resurgent/LVNV's affiant couldn't testify to Citibank's business records. I learned in Marion Co small claims court, you don't object, and then wait for the judge to rule on an objection, like you might see on tv, or in, you know, real court. You pretty much just say what you have to say, and the judge hears you, and everyone moves on. I'm not sure how else I could have attacked this affidavit during the trial. Not sure it would have mattered anyway. Anyway, I was shocked that the plaintiff atty rested after that. To me they'd presented a bunch of paperwork that showed I may have had a credit card with Citibank at one time. And that's it. The judge gave me a chance to speak my peace, and I explained how even if the Citibank card was mine, I didn't think LVNV had standing to sue based on not proving they owned the debt. I also challenged the amount they said I owed, and pointed out they hadn't shown how they calculated it. Finally I said I thought this debt (which I do not acknowledge) had to have been beyond the Indiana SOL (6 yrs). Now, that's a point of contention, to be sure. But as I had not used or paid on any credit card since May 2004 (which is true), I figured it was worth a shot. The plaintiff attorney didn't seem to know anything about the previous judgment, nor my Chapter 13. Chapter 13 payments don't seem to restart the SOL anyway, although Indiana case law seems to be ambiguous about that. Other states are pretty clear and cite federal law in their rulings. Basically, they state that the SOL is tolled in Ch 13, but the SOL doesn't reset. What blew my mind is that the plaintiff's attorney didn't object to my SOL bit, and the judge just kind of blew it off. He didn't say I was wrong, or question or dispute anything I said. Just asked if I had anything else. I said no. Seemed to me the plaintiff hadn't proven anything, and I had raised multiple defenses. Ah, but back to the old preponderance of evidence. Evidently I didn't make a compelling enough case that I didn't owe the debt. The judge didn't rule right there, and just dismissed us. I left not knowing what had happened. But a few hours later I checked the court's website and found the judge had ruled in favor of the plaintiff for the full amount. Seemed like kind of a chickensh*t move by the judge to not just tell me right there he was ruling against me. Anyway, if anyone's still reading, sorry for the novel. It's been cathartic to write all this out and share it. If anyone has any comments, suggestions, advice, etc., I'm happy to hear it. If anyone who knows Indiana law cares to comment, I'd especially appreciate that. I haven't found a lot of info on here about fighting a JDB in small claims court. It's a much different procedure than what I'd been preparing for based on reading these forums. I knew the rules were a little different, but there's a reason JDBs use small claims court in Marion Co. Thanks for reading. Best of luck to anyone with action pending or forthcoming.