ifimay

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About ifimay

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core_pfieldgroups_99

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  1. First thing you have to do is respond to the summons and file an Appearance. There should be a return date on the summons that you have to file your appearance by. You do not have to be in court that day, just file an appearance before that date or they will automatically win. I have managed to stave off two suits in Illinois Small Claims by filing motions to dismiss based on the bogus affidavits attached to these complaints. In Illinois, many have been successful in doing so. Based on this civil code: (735 ILCS 5/2‑606)*(from Ch. 110, par. 2‑606)* ****Sec. 2‑606.*Exhibits.*If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.* (Source: P.A. 82‑280.) This basically means the person bringing the complaint must attach the contact that the complaint is based on, or if the contract is not attached or relevant portions of the contract are not recited within the complaint, the claim must have an affidavit explaining why the contract is unavailable. The affidavits the pleaders normally attach to these summons are insufficient as a matter of law because they fail to explain why the original contract is not available. Also, check this out as a great example of case law in Illinois. An Appellate Court decision based on this section of the Illinois Civil code and the affidavits attached to these JDB complaints: VELOCITY INVESTMENTS, LLC v. GREGORY ALSTON I have also posted this case in the case law sub-section in this forum. I am not an Attorney, but have received some great advice out here on this forum that has helped me. Anything I can do to help, I will try.
  2. Got my post up in the Case Law sub-section here for Velocity Investments, LLC vs. Gregory Alston. Read it...love it.
  3. Lastly, in the trial court, plaintiff also relied on computerized printouts of defendant's account history to contest defendant's motion to dismiss. Specifically, plaintiff countered that "these documents have already been admitted as the account history is attached to the 222 Disclosure, 90 © package and the Request to Admit. Thus, the defendant has admitted the accuracy of the account statements as well as the credit card contract and has failed to respond to any of those documents." First, the account history could not be considered the written instrument upon which plaintiff's claim is based. See Ramirez, slip op. at 4 (billing statements do not contain terms defining acts of default or other remedies, nor do they state whether terms can be altered; it is also questionable whether billing statements reflect an affirmative promise to pay by the customer). Furthermore, at the same time that the trial court denied defendant's motion to dismiss, it also granted defendant additional time to respond to plaintiff's request to admit. Defendant did so and stated that the account number cited by plaintiff was not for defendant's account; he had never used the account; and he never signed an agreement under that account number. Thus, he did contest the existence of the credit card contract at the heart of this case. No. 2--08--0746 Plaintiff's failure to attach a copy of the credit card contract to the complaint, recite the terms of the contract within the complaint, or attach an affidavit showing that the document is inaccessible is grounds for dismissal. Sherman, 392 Ill. App. 3d at 733; see also Plocar v. Dunkin' Donuts of America, Inc., 103 Ill. App. 3d 740, 749 (1981) (holding that dismissal of a breach of contract claim was proper in light of the plaintiffs' failure to recite or attach a copy of the contract). Thus, defendant's motion to dismiss should have been granted without prejudice. See Portfolio, 391 Ill. App. 3d at 645 (where the plaintiff failed to attach a copy of the written instrument to its complaint, trial court dismissed the complaint with leave to amend). We, therefore, vacate the judgment and remand the matter to the trial court for further proceedings, premised upon plaintiff's compliance with section 2--606. We need not pass on defendant's remaining contentions. Accordingly, the judgment of the circuit court of Lake County is vacated and the cause is remanded. Vacated and remanded. McLAREN and HUTCHINSON, JJ., concur.
  4. Read this! The entire thing is gold...especially for those in Illinois. No. 2--08--0746 Filed: 1-15-10 IN THE APPELLATE COURT OF ILLINOIS SECOND DISTRICT VELOCITY INVESTMENTS, LLC, ) Appeal from the Circuit Court ) of Lake County. Plaintiff-Appellee, ) ) v. ) No. 07--AR--951 ) GREGORY ALSTON, ) Honorable ) Valerie Boettle-Ceckowski, Defendant-Appellant. ) Judge, Presiding. JUSTICE JORGENSEN delivered the opinion of the court: Plaintiff, Velocity Investments, LLC, filed suit against defendant, Gregory Alston, based on defendant's default on the terms of his credit card agreement. Defendant originally entered into a credit card agreement with Household Bank, whose interest in the debt was subsequently sold to plaintiff. The trial court entered judgment in favor of plaintiff. Defendant timely appeals. On appeal, defendant argues,inter alia, that plaintiff erred by failing to produce the original credit card contract, showing that defendant agreed to its terms and conditions. We agree with this contention and, accordingly, vacate and remand for further proceedings. In the trial court, defendant filed a motion to dismiss, alleging, inter alia, that "plaintiff has no valid documentation showing the amount owed, or the existence of the actual debt owed." On February 28, 2008, the trial court denied defendant's motion to dismiss. We do not have a transcript of the February 28 hearing, but based on the common-law record, defendant has preserved the issue No. 2--08--0746 for appeal. See Exchange National Bank v. Sampson, 186 Ill. App. 3d 969, 975 (1989) (the issue of the failure to attach a written instrument to the complaint must be raised in the trial court in order to be raised on appeal). Defendant's argument, however, is undeveloped and without any citation to authority supporting his position. This court is " 'entitled to have issues clearly defined with pertinent authority cited and cohesive arguments presented ([210 Ill. 2d R. 341(h)(7)]), and it is not a repository into which an appellant may foist the burden of argument and research.' " Stenstrom Petroleum Services Group, Inc. v. Mesch, 375 Ill. App. 3d 1077, 1098 (2007), quoting Obert v. Saville, 253 Ill. App. 3d 677, 682 (1993). Accordingly, we have the authority to hold that defendant has forfeited his argument by failing to develop it or cite any authority to support it. See 210 Ill. 2d R. 341(h)(7); see also People v. Wendt, 183 Ill. App. 3d 389, 404 (1989). We recognize that defendant is proceeding without the benefit of counsel. However, that does not relieve him of the obligation to follow proper procedure. While we do not condone defendant's disregard for the rules, we choose to reach the merits of this argument, as we understand the issue defendant intends to raise, and the merits of the issue can be readily ascertained from the record on appeal. Twardowski v. Holiday Hospitality Franchising, Inc., 321 Ill. App. 3d 509, 511 (2001). Section 2--606 of the Code of Civil Procedure provides that if a claim "is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her." 735 ILCS 5/2--606 (West 2006); Sherman v. Ryan, 392 Ill. App. 3d 712, 733 (2009). The exhibits to which section 2--606 applies generally consist of instruments being sued upon, such as contracts. Garrison v. Choh, 308 No. 2--08--0746 Ill. App. 3d 48, 53 (1999). Plaintiff's complaint specifically alleged that defendant was indebted to plaintiff "by virtue of a certain agreement entered into by defendant on or about August 2, 2001; said agreement is attached hereto and made a part hereof." This language indicates that the agreement was in writing. But the August 2, 2001, agreement was not in fact attached to the complaint. Other documents were attached, but as discussed later, they were not the written instrument upon which plaintiff's claim was founded. Here, the written instrument upon which plaintiff's claim was founded was defendant's original credit card contract with Household Bank, which contract plaintiff then purchased from the bank. See, e.g., Parkis v. Arrow Financial Services, LLS [sic], No. 07--C--410, slip op. at 4 (N.D. Ill. January 8, 2008) (the defendant, a company engaged in the business of buying bad debts from banks, had acquired the right to collect a credit card debt owed by the plaintiff to the bank; the plaintiff brought suit against the defendant, arguing that the failure to attach the written contract between the credit card company and the plaintiff, which was the basis for the suit, violated section 2--606; the district court agreed with the plaintiff); see also Ramirez v. Palisades Collection LLC, No. 07--C--3840, slip op. at 3 (N.D. Ill. June 23, 2008) (same). Here, the original credit card contract was not attached. Nor did the complaint include a recitation of all the relevant terms of the contract. See 735 ILCS 5/2--606 (West 2006) (written instrument must be attached to the pleading as an exhibit or recited therein). Finally, plaintiff failed to include an affidavit stating facts showing that the instrument was not accessible to it so as to excuse the failure to attach the written contract. 735 ILCS 5/2--606 (West 2006). What is attached to the complaint is plaintiff's "Statement of Account," dated October 6, 2005, an affidavit reiterating what is stated in the "Statement of Account," and Household Bank's No. 2--08--0746 standard "Cardmember Agreement and Disclosure Statement." The "Statement of Account," generated by plaintiff, stated that defendant's account balance with Household Bank when the debt was charged off was $22,598.50, consisting of $17,078.18 in principal and $5,520.32 in accrued interest, and was "calculated with the default interest rate of 9.99% on the principal amount from the date of the original creditor's charge off through the present." This document is not the written credit card contract between defendant and Household Bank. See Parkis, slip op. at 4-5 (debt collector's "Affidavit of Indebtedness," executed by debt collector's account manager and stating the consumer's account balance on his credit card, was not "the basis on which the debt was being sued for," for purposes of section 2--606). Also, the affidavit attached to the complaint was insufficient for purposes of section 2--606. The affidavit, prepared by plaintiff's service manager, set forth that the service manager had "knowledge of an account in favor of Velocity Investments, LLC and against Gregory Alston with a principal balance due $17,078.18 and interest of $5,520.32 as of May 16, 2006; plus interest at 9.99% from the aforesaid date; until paid is with my knowledge true and correct, after all credits due the defendant, and that further all services were rendered and/or goods were sold and delivered or that the defendant(s) are in breach of the repayment terms as per any and all agreements between the aforementioned parties." The affidavit provided for in section 2--606 is intended to excuse the requirement to present the written contract, where the affidavit explains why the contract is unavailable. See 735 ILCS 5/2--606 (West 2006). Here, plaintiff's affidavit failed to so explain. Therefore, plaintiff's failure to attach the original credit card contract was not excused. See 735 ILCS 5/2--606 (West 2006). No. 2--08--0746 Likewise, Household Bank's standard "Cardmember Agreement and Disclosure Statement" is not the written contract, as it offers no evidence that defendant agreed to be bound by these terms or that these terms even applied to this particular account. See Portfolio Acquisitions, L.L.C. v. Feltman, 391 Ill. App. 3d 642, 651, 652 (2009) (plaintiff attached, inter alia, copies of cardholder agreements to its second amended complaint; defendant prevailed in arguing that the documents did not constitute a written contract for statute of limitations purposes because, inter alia, there was no evidence that the agreement applied to her account or that she agreed to its terms).
  5. *UPDATE* Judge granted my Motion to Strike Affidavit and gave Plaintiff 45 days to Amend complaint, we'll see what happens. Advice: Based on the banter between the Judge and the Plaintiff, the proper wording in the motion for Illinois SC should be to Dismiss, not Strike. The Plaintiff must attach the CONTRACT or recite in the complaint the CONTRACT, the Affidavit is not good enough to show a claim. Based on this Illinois civil Code: (735 ILCS 5/2‑606)*(from Ch. 110, par. 2‑606)* ****Sec. 2‑606.*Exhibits.*If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes.* (Source: P.A. 82‑280.) I'm also going to post in the Case Law sub-section to show a case I found in the State of Illinois that is likely to be an absolute bombshell to JDB's in the State of Illinois. Velocity Investments, LLC vs. Gregory Alston. Look it up...it's good, very good. Finally...Thank You, once again for the advice I've found on here and hope I can pay it forward...
  6. I love the ideas, thank you very much, this helps a lot!
  7. JDB filed their response to my motion to strike affidavit. This is small claims court, Illinois and Judge allowed Plaintiff 21 days to respond to my motion to strike their affidavit and they took 35 days. In fact, they filed their response to my motion on the day I was to respond to their response (Judge gave me 14 days to respond to their response). I was also given 7 days to provide courtesy copies to the Judge after my response. Question is, do I now even try to respond to their response? Or, by doing so do I automatically "agree" to the plaintiff having filed their response late? In other words, does the plaintiff then say in court "well your honor the defendant still replied to our response in a reasonable amount of time...so he conceded to our late response by responding himself" Or, do I walk into court the day that was supposed to be the hearing for my motion to strike and tell the Judge the plaintiff filed 14 days late and therefore gave me no time to respond? I hope this makes sense? Advice? Thank you in advance for any help!
  8. Thank you all for the advice. I think I will go ahead and file an answer even though it is not required. I feel more comfortable if I have a defense in writing. Filing an answer before really seamed to do no harm even though it was not required. For those interested, this is how the Illinois small claims rule for appearance is written. Rule 286. Appearance and Trial (a) Unless the "Notice to Defendant" (see Rule 101() provides otherwise, the defendant in a small claim must appear at the time and place specified in the summons and the case shall be tried on the day set for appearance unless otherwise ordered. If the defendant appears, he need not file an answer unless ordered to do so by the court; and when no answer is ordered the allegations of the complaint will be considered denied and any defense may be proved as if it were specifically pleaded.
  9. Thank you very much for the advise. You are correct, the language in Arrows Dismissal Order says with prejudice unless they refund my appearance fee within 30 days (which they did), then it will be dismissed WITHOUT PREJUDICE (which means they can sue again). Thank you for clarifying that for anyone else that may be learning from this post. I believe you are saying that I should file an answer even if it is not required in Illinois small claims. The benefit to that is that I can ask for a dismissal WITH prejudice in the answer. The Judge did say that he allows the JDB only one time to dismiss without prejudice, so I will be more aggressive with that this time around and hopefully I get the same Judge. I will definitely file a motion to strike the affidavit again. Why is Midland screwed if Arrow is not on an assignment to Midland?
  10. Last Spring, I received a summons from Arrow Financial concerning an alleged debt from a credit card account. I live in Illinois and they'd filed the suit in small claims court. I registered an account with this site and received some great advice and read a lot of the posts on this site to gain knowledge and confidence. Small claims in Illinois does not require one to answer the complaint, but instead one simply must file an appearance. I filed an answer in this suit with Arrow because frankly, I didn't know any better at the time. I also filed a motion to strike Arrow's affidavit the morning of my court date. Arrow promptly filed a motion to dismiss with prejudice. I didn't want to ask for anything else because I was new to the game and didn't want to piss the Judge off and make my situation any worse, so I accepted the dismissal with prejudice. Now, about a year later, I am being sued again for the same alleged debt and don't know exactly how to play this because I really have no idea what made Arrow move to dismiss their suit one year ago (the present suit is from Midland). The advice I'm seeking is: Should I answer the new allegations even though it is not required in Illinois small claims, or should I simply file my appearance? Was the answer perhaps a reason why Arrow moved to dismiss, or was it more likely the motion to strike the affidavit? If more info is needed, please let me know! Thank you in advance for any advice! P.S. If anyone new is reading this, please be encouraged by this site and the knowledge you can learn from it. When I was sued last year, I was scared. Many times I felt the pressure and couldn't imagine I was going to walk into court and feel happy about the outcome. My first suit was dismissed with prejudice (which means they can sue again), but I was expecting so much worse and really I had nothing to lose. The statement is true "if you do nothing, you will lose, and your wages will be garnished". Empower yourself and learn as much as you can and fight!
  11. I'll have to call the court tomorrow and see if the clerk is helpful in explaining the exact procedure for asking for a motion to strike. That makes a bit more sense now. I don't suppose it would've looked good to say something like "Wudda ya mean I gotta leave your Honor, I just got here!" My answer I'm not too concerned about at this point because it's wasn't even required that I file an answer at all in IL small claims, just an Appearance, then it goes straight to trial. On the one hand I wanted to file an answer anyway in hopes the suit would be dropped if the plaintiff realized they weren't going to get a default judgment, but now I'm thinkin' I tipped my hand and gave them time to get proof that I said they didn't have.
  12. I'll let everyone know how I do in small claims trying to strike the affidavit. There's a document on illinoisprobono.org that outlines many arguments against these very weak affidavits. I'm not allowed to post direct links yet. It's crazy to me when I hear all the legal defenses that can be used against the only evidence the JDBs attach in their complaints, yet how it does not always seem to be successful.
  13. Thank you so much for responding, I really appreciate any help I can get! What I did admit to was that I am a resident of the county that the suit was filed in. Do I ask for permission at my trial, from the clerk, or file with the clerk before/day of my trial? I want to strike this affidavit because without that they don't have much of anything. It's the typical JDB affidavit where an employee claims to have knowledge of the account balance. Would it help if I typed out the jist of the complaint and the affidavit?
  14. I was served a summons about a month ago with an Affidavit attached that looked nearly identical, and in the same circuit as this: %COULD NOT POST LINK% I filed my Appearance and an Answer, although the Answer was NOT required in ILL small claims court. My answer looked like this: DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT Defendant, appearing pro se, for its reply to the Complaint naming ARROW FINANCIAL SERVICES, LLC, states as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein. 1. In response to paragraph #1, Admit. 2. In response to paragraph #2, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in the complaint, and accordingly denies the same and demands strict proof thereof. 3. In response to paragraph #3, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in the complaint, and accordingly denies the same and demands strict proof thereof. 4. In response to paragraph #4, Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation in the complaint, and accordingly denies the same and demands strict proof thereof. 5. In response to paragraph #5, Deny, defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation. AS AND FOR AFFIRMATIVE DEFENSES 6. Plaintiff has not shown that they are the real party in interest. Defense demands proof of ownership specifically that the alleged account is with ARROW FINANCIAL SERVICES, LLC with all creditor’s rights and privileges intact. 7. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 8. The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 9. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 10. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account). 11. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act. WHEREFORE, Defendant, prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Dated and signed. Now my trial date is set (next week Thurs.) and I think my next move is to file a motion to strike plaintiff's affidavit? Only thing I don't know is when and how? Can I do this in front of the Judge or do I have to file with Clerk? I did find this about IL SC motions: ( Motions. Except as provided in sections 2--619 and 2--1001 of the Code of Civil Procedure, no motion shall be filed in small claims cases, without prior leave of court. But, I'm unsure what "prior leave of court" means? Any help or suggestions are greatly appreciated!