Xcalibar

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Xcalibar last won the day on June 28 2011

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About Xcalibar

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  1. Mt1720 does not identify what state he is from, but it really doesn't matter... Discover can be be beat...Please see this Pro Se Defendant beat Discover rather easily...Heck Original Creditor or Junk Debt Buyer, they can all positively be beat if you just conduct your research and understand the Rules of Evidence regarding the non admissibility of Hearsay and the requirement for Affidavits to be sworn upon "Personal Knowledge"... Please review the below case and post any comments or inquiries that need to be addressed... 2016-Ohio-2751 DISCOVER BANK, Plaintiff-Appellee, v. JAMES F. SWARTZ, Defendant-Appellant. OPINION FAIN, J. {¶ 1} Defendant-appellant James F. Swartz appeals, pro se, from a judgment rendered against him by the Montgomery County Common Pleas Court, in favor of plaintiff-appellee Discover Bank. Swartz has not identified any specific assignments of error, but argues that the trial court erred in granting Discover Bank's motion for judgment on the pleadings. Discover Bank asserts that the pleadings sufficiently established the amount due on the contract. We conclude that Discover Bank's motion for judgment on the pleadings did not establish that it was entitled to judgment. Therefore, the judgment is Reversed, and this cause is Remanded for further proceedings. https://scholar.google.com/scholar_case?q=2016-ohio-2751&hl=en&as_sdt=4,36&case=15206912774019301783&scilh=0
  2. @Mt1720 Wow...I really don't quite understand how a bank can just give someone $2,000 in excess of my credit imti and then come at me and expect me to pay them when I did not ask for an extension of funds and most certainly did not approve of giving the Rental Car Company and extra $2,000 above my credit limit... I am almost positive that the Rental Car Company did not get a Pre-Aporoval for $3,000 on the initial swipe of the Victims credit card...That should definitely be a defense against the charges...and I can pretty much guarantee that there is nothing in the Credit Card Agreement" that obligates Discover to automatically increase a Members credit limit to cover a Rental Car Agency's realized loss due to damage...
  3. Today is September 05, 2017..Have you done anything about discover as of today? If not then I will monitor this thread and offer some advice on dealing with Discover...They can be beat... You indicate that you had a "secured card" with Discover for $1,000...If that is the case, doesn't that mean that your credit limit was also $,1000...Please explain how a Car Rental Company could process a charge for $2,900 if your limit was only $1,000. Inasmuch as you have not been served with a complaint, you have some time to study your defenses and then make a determination if you will be equipped to fight...But be forewarned, based upon your current questions, you have a long road to hoe (but its not impossible. It's fight or flight time.
  4. I understand your question perfectly... From a purely Financial Point of View, it would not make sense to pay the rent, but... Based upon filing BK, you could probably stay in your apartment for about 90 days rent free...Filing BK immediately stops any collection actions, however the Landlord could and probably will file a motion seeking dis-posession of your rental unit...That would take at least 30 and probably 60 days... I guess the main question would be is have you already arranged for new living quarter where you are moving to? If so, do not throw away your hard earned cash, keep it for yourself... I am not an attorney and I am not providing any legal advice...But I have filed BK myself several times and know a little bit on the subject...
  5. Wells Fargo has temporarily suspended sales of defaulted credit card accounts, according to press reports this week. This latest move to strangle the debt industry comes after JPMorgan Chase reportedly also suspended sales of most of its defaulted accounts. These media revelations about two major banks left many debt buyers puzzled and questioning the future of the industry. However, a recent Federal regulator’s statement of stringent “best practices” for all debt sales by banks is the likely cause for the purported pullback by Wells Fargo and JPMorgan Chase. Further, these new best practices for debt sales promise to radically redefine debt buying forever. At Least 82% of All Accounts Sold are Affected by OCC Statement On July 17, 2013, Office of the Comptroller of the Currency (OCC) issued a statement to a Senate committee regarding debt sales by nationally chartered banks. The full statement by the OCC Best Practices Include Limiting Lawsuits on Purchased Accounts and Placing Restrictions on the Resale of Accounts. Good News for Consumers The restrictions on reselling accounts will severely constrict the ability for smaller debt buyers to acquire portfolios in at least 82% of the market (from the 19 largest banking organizations regulated by the OCC). Further, the restrictions on pursuing collection litigation on accounts will limit collection options for all purchasers.
  6. In your opening statement you indicate tat you filed a Motion for Definitive Statement and that you also denied each of the Plaintiff's allegations against you...If that is the case, then it appears that you have in fact ANSWERED the Complaint... However, if you did not in fact ANSWER, you should by all means answers the Complaint and you can simply write DENY for each and every allegation presented by the plaintiff...But you must deny each allegation separately i.e. Count 1. Deny Count 2. Deny Count 3. Deny ...
  7. What does MMDS stand for (what is the xtra M for? Be certain to also include in your motion (Which can be a combined motion to withdraw your Discovery Request and a motion to deem Plaintiff's Discovery Request to be Pre-Mature)..
  8. You should not have filed for Discovery as you have not yet filed an answer... The Plaintiff is aware that the filing of Discovery prior to the Defendant answering the Compliant is premature at best and an abuse of process at worst, but... Because you filed your discovery request, you may now be foreclosed from filing a Motion for More Definite Statement... Based upon your litigation thus far I would recommend... Filing a Motion for More Definite Statement Filing a Motion to Strike Plaintiff's Discovery Request (based upon being pre-mature) Filing a MOtion to Withdraw Defendant's Discovery Request (stipulating the withdrawal is made pending Defendant's Answer to the Complaint)... You have made errors in the process of litigating your case, errors which can be used agains your adversary... Right now they probably have formed the opinion that you are ignorant of the Rules of Civil Procedure and will treat you badly according to their belief... In all likelihood, you will not prevail on the Motion for More Definite Statement, therefore your time woud be better spent on developing GOOD Discovery Requests and preparing for their Motion for Summary Judgment...
  9. The Motion for More Definite Statement in all likelihood is not going to be granted. First off, when dealing with Credit Cards there is a peculiar "legal acceptance" that the mere use of the credit card creates a "contract"...Therefore the argument that there is not a "signed" contract will avail you nothing. The approach much more likely to bear fruit would be to answer the Complaint with denials and then hit the Plaintiff with Discovery requesting "sworn" responses to your inquires which will include a Request for Production of Documents, to include a copy of the original agreement and any addendum to the original agreement. DO NOT REQUEST A SIGNED CONTRACT this will only hurt you and will not receive any ind of response. The Plaintiff in all likelihood will not even correctly respond to your Discovery and rEquests for Admissions and you can later you this to your advantage in the Summary Judgment phase...
  10. Debt Buyer Barred from Collection Activities in West Virginia If you’re a collection agency and you want to collect in West Virginia, you’re going to want to make sure that you’re licensed in the state of West Virginia. Prominent industry debt buyers Cavalry Portfolio Services, LLC, learned this the hard way. West Viriginia’s Office of the Attorney General released a press statement titled “Court Enjoins Cavalry Debt Buyers from Collecting Debts.” “In addition to halting Cavalry’s pending collections lawsuits,” the release says, “the circuit court’s injunction requires Cavalry to stop all wage garnishments and to release all liens filed against West Virginia consumers’ property stemming from judgments obtained by its companies before they became licensed.” Cavalry became licensed to collect West Virginia debt in October of 2010. However, they had filed somewhere around 1,300 collection lawsuits prior to being licensed. It’s those accounts — 743 suits that resulted in around $3 million in judgments against West Virginian consumers — that the fuss is about. Cavalry has also been ordered to send written notices to all affected consumers. Once sent, Cavalry “may accept payments made voluntarily” by consumers (there’s the rub) but must first place them into escrow and report all payments received to the Attorney General’s office. Essentially, anyone served a collections notice prior to Cavalry being licensed in 2010 is now no longer on the hook to the agency.
  11. Whatever are you talking about? You have been given several sustainable solutions for answering the Complaint...
  12. Although you did not ask... Why are yo seeking to file Bankruptcy? You are unemployed and seemingly devoid of Assets, so why the need to file Bankruptcy? As a strategy, consider getting a divorce and wait any necessary period of time and then file bankruptcy and your wife's income will be irrelevant...You could always get remarried.
  13. While BV80 and legaleagle have each provided good advice on the subject matter covered in their post. I believe that an additional observation may prove beneficial... hexed775 indicates that he subscribes to the KISS approach to dealing with his lawsuit, but immediately gives into to his need to be on a Soap Box... I have been fighting or assisting others in fighting Credit Card lawsuits since 1992 and in that time I have personally been involved in 115 cases here in Ohio and have lost only one(1) [the very first case that I undertook, my own...Lost because I misunderstood the rules at the time].. With that said, I have yet to see a Defendant win a case based upon any supposed Affirmative Defenses...I mean really, what Affirmative Defenses... I don't quite understand why it is that when someone spews some nonsensical defense theory such as hexed775 is presenting in his post, that those who are supposedly "in the know" don't simply call spade a spade and inform the errant poster that what they are purporting to undertake is nonsense... All that is necessary for nonsense to prevail is for those that know better to just simply say nothing... hexed775, the approach that you are proposing to take is UTTER NONSENSE and will unequivocally not work for you. From your posting, you obviously do not possess the legal acumen to understand what you are proposing, much less the ability to successfully get the Court to go along with it and rule in your favor... What Affirmative Defenses? If the Plaintiff comes forward with some credible and "admissible evidence" to bolster its case you will have no defense unless their is a Statute of Limitations violations. Better Approach... To increase your chances of a win [A Dismissal Without Prejudice] you should focus your energies on preparing a Motion in Opposition to Plaintiff's Summary Judgment Motion and a Motion challenging the Plaintiff's Affidavit,,, The Plaintiff will most assuredly come forth with a Summary Judgment Motion based upon an invalid Affidavit or they will attempt to present improper Summary Judgment Evidence... In most Junk Debt Buyer Credit Card Cases, the Plaintiff presents credit card statements and other documents from the original creditor or documents that have been self generated without proper "authentication"... Without proper authentication, the Plaintiff will have no admissible evidence and therefore no case... Conclusion Leave the theatrics for the theatre and come down off of the soap box, no one, especially the Court and the Plaintiff's attorneys will give a rat's @#$ about how clever you are with obscure Latin phraseology... Will someone please enlighten me as to why people are afraid to speak the truth and just tell someone when they simply out to lunch... Hurt me with the Truth...But never comfort me with a Lie...
  14. I respectfully submit that your answers on the surface seems really reasonable and if not for experience one could actually succumb to the fallacy that your argument presents... Your position points out the "boilerplate" responses gleaned from the internet, but your argument fails to address the "boilerplate" langauge utilized by the Plaintiff's..Except for the named Plaintiff, each Credit Card case is almost "exactly" the same in their assertions regarding alleged liability on credit card accounts. Secondarily, there is not much benefit for an uninitiated Consumer trying to pretend to be more verse in the subject matter than they really are... It has been my experience that when a Pro Se Defendant puts forth legal arguments to buttress their position, this simply makes the Plaintiff''s attorney and the Court to hold the Pro Se Defendant to an even higher degree of legal standing...Without actual knowledge of the law and rules, the position that you are proposing would put the Pro Se Defendant in an even worse position, because they have now demonstrated to the Court that they are more legally astute than they actually are and any future errors/mistakes will not be take lightly. The posture that you have chosen to present "assumes" that the Court and the Plaintiff's attorney are playing a fair game...There is nothing FAIR about Credit Card Litigation and the Pro Se Defendant should not give the adversary any inkling that they are going to put up stringent fight, much less reveal how that fight will be waged. The better strategy is to let the Plaintiff believe that they have a slam dunk and then put their foot in their mouth to point where they cannot get it out..At that point the PPro Se Defendant should move in for the klll... In sum... I respectfully strongly disagree with your position.
  15. Hello: My response below is for you and anyone else adopts the position that the fight against Junk Debt Buyers is an opportunity to stand on a Soap Box and attempt to demonstrate how “intelligent” or how legally astute they are... No one cares about all of the trite legal snippets that you put forth in your answers or communications regarding this Credit card Lawsuit. Better to Keep It Simple Stupid (KISS) do not let the opponent know your thoughts... With that in mind, here are my suggestions for answering the complaint... Must I send a response to the plaintiff as well as the magistrate/judge?? Yes... You must file a response with the Clerk of Courts and you must also send a copy to the Plaintiff... Be certain to include in your Response a Certificate of Service. Complaint: Plaintiff, LVNV Funding LLC, by an through its attorneys, LAWFIRM NAME & Associates, P.C., complains of the Defendant as follows: 1. Plaintiff, LVNV Funding LLC, (hereinafter "Plaintiff") is a Delaware corporation with a principal place of business located at 123 STREETNAME St, CITY, SC xxxxx. No Response required 2. The Defendant me (hereinafter "Defendant") is an adult individual residing at MY ADDR. ADMIT 3. At all relevant times herein, Plaintiff was engaged in the business of debt purchase and collection. No Response required 4. Defendant applied for and received a credit card issued by Citibank with the account ################. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 4 and therefore Denies the same. 5. The within account was sold by Citibank to LVNV Funding LLC for valuable consideration and all rights under said accounts were assigned to LVNV Funding LLC. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 5 and therefore Denies the same. 6. Use of the Citibank CC was subject to the terms and conditions of the Cardmember Agreement (herinafter "Agreement"), a copy of which was sent along to the Defendant with the credit card. (See, Credit Card Agreement attached hereto as Exhibit "A"). Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 6 and therefore Denies the same. 7. Defendant used the Citibank CC with account ################, for purchases, cash advances, and/or balance transfers. Use of the card in this manner constituted acceptance of the terms and conditions and subjects the defendant to the terms and conditions contained therein. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 7 and therefore Denies the same. 8. The Defendant was mailed monthly account statements relative to the Defendant's use of the subject credit card. (See Account Statement attached hereto as Exhibit "B"). Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 8 and therefore Denies the same. 9. The Defendant defaulted under the terms of the agreement by failing and refusing to make monthly payments on the account as they became due. DENY 10. The Defendant last made payment on April 16, 2008. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 10 and therefore Denies the same. 11. The principal amount was $6xxx.xx at the time of charge-off. DENY 12. Pursuant to the account agreement, any unpaid balance accrues interest at the contract rate of 6%. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 12 and therefore Denies the same. 13. The principal amount was $6xxx.xx at the time it was received by the Plaintiff. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 13 and therefore Denies the same. 14. The total amount due and owing the Plaintiff including interest, is $7xxx.xx. Defendant is without knowledge to form a belief as to the truth or falsity of the allegation contained in paragraph 14 and therefore Denies the same. WHEREFORE, Plaintiff requests judgment in its favor and against Defendant in the amount of $7xxx.xx plus cost of suit and any other relief as the Court deems just and appropriate. This section does not require a Response by the Defendant and therefore no Response should be made. VERIFICATION: I, FNAME LNAME, Attorney for Plaintiff LVNV FUNDING LLC, am fully familiar with the facts set forth in the within Complaint and am authorized to make this Verification on behalf of Plaintiff . I Verify that the facts set forth in the within allegations are true and correct to the best of my knowledge, knowing that any false statements are punishable by law pursuant to 18 C.S.A. 4904. This section is not intended for any type of response by the Defendant... After you have concluded your responses to the allegations contained in the Complaint, you need to sign your answers as Pro Se and you also need to incorporate a Certification of Service... If Pennsylvania requires notarized answers then you will need to have your answer notarized... Be certain to include ALL of your Affirmative Defenses, including a violation of Statute of Limitations is such is a valid Affirmative Defense... Example of Affirmative Defenses... • The Complaint fails to state a claim upon which relief can be granted. • Plaintiff has failed to name necessary and indispensable parties. • Plaintiff is not the proper party plaintiff and has failed to attach proper assignment or transfers depriving this Court of Subject Matter Jurisdiction. • Plaintiff lacks privity of contract with Defendant. • Plaintiff has failed to attach a proper accounting as required under Ohio Civil Rule 10. • Defendant reserves the right to amend his answer to add such additional defenses, counterclaims and/or third-*‐party complaints as may be disclosed during the course of discovery in this action. WHEREFORE, Defendant respectfully requests that Plaintiff’s Complaint be dismissed at with costs assessed to Plaintiff. Respectfully Submitted, BY_________________________________ Your Name, Pro Address Cleveland, OH 44120 (216) 123-4567 CERTIFICATE OF SERVICE This is to certify that on September 26, 2011 a copy of Defendant’s Answer and Affirmative Defenses was mailed to: Reimer, Arnovitz, Chernek & Jeffrey Co. L.P.A Peter L. Mehler Darryl E. Gormley P.O. Box 968 Twinsburg, OH 44087 By placing the documents in the United States Mail, properly addressed, with first-*class postage fully pre-*‐paid. BY_______________________________________ Your Name, Pro Address Cleveland, OH 44120 (216) 123-4567