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Everything posted by DebtBgone

  1. I need to clarify what the order says: Having heard and considered all the testimony and evidence presented, the Court finds that the Plaintiff did not prove liability on the part of the Defendant by a preponderance of the evidence. Wherefore, the Court Hereby dismisses Plaintiff's lawsuit With prejudice! So, this was a win on the merits alone! I am working on the details for everyone. Please bear with me. I am sooooo very swamped right now. I promise I will be back with a blow by blow from the courtroom!
  2. Here is a recap of my case info: Just returned from court, and the judge stated: I find that the Plaintiff has not met its burden of proof. Judgment for the defendant!!!! This judge HATES pro se litigants with a passion!!!! Although it did not help that the Planitff's atty began INSTRUCTING the judge from a bench book!!!!! I will have to get back to you all with details along with all of the case law I used to fight with. Thanks to Coltfan wherever you are!!!!!!! Everyone on this site has been so helpful in explaining things to this Arkansas Hick!!!!! Thanks to you all!!!! Just NEVER give up!!!!!
  3. So I just found out that this is a Rule 37 trial schduled. Meaning that the judge wants to know why there has been no activity on this case. There has been plenty of discovery, but the Plaintiff has not so much as scheduled a pre trial hearing or anything. So, I am filing a motion to preclude everything, and after tha we will see how they respond. I don't think they will continue after I file that motion, but if they do I am working on a trial brief, and a strategy in case the judge does allow in their "so-called evidence" You never know with some of these judges. As soon as this case is over, I will make my redacted docs and filings available for viewing by all. I find very little help here in AR for people trying to fight these companies. There are not any templates that I found, but I have found many cases that outline exactly what is needed. Those judges spell out what to do and what NOT to do when defending yourself. Case law is there, but you have to really read it to make sure it applies to you. Many of those appeals court or supreme court cases that go against the defendant were because the defendant DID NOT raise objections properly or timely in the lower court. READ, READ, READ those cases! Happy winning!!!
  4. I am a fellow Arkansas that beat this same duo. Trust me that consent judgment is just their " hail mary hoping you will cave last ditch effort because we have no case against you!!!" Just stick to your guns. Send them Discovery, POD, ROGs, and Admissions when you get those back. They will fold like a house of cards! DO NOT PAY THEM!!!!
  5. OK, here we go on the home stretch. Trial is set for May, and I have all the ammo I need. I am filing a motion in limine and hopefully that keeps it from being a bench trial. I will update as soon as I hear from the attorneys/and or the judge.
  6. Fellow Arkansan here that beat Midland and Lamb too!!! Just wanted to let you know that if you fight them back, they will bow out as ungracefully as they came.
  7. @coltfan: Could you direct me to any cases including yours where this was successfully argued and won? Thank you! I am thinking about filing a motion to dismiss after I get the new discovery back based on SOL. I will be updating this with the actual docs I file when I do it. I am just so tired of all this. I hope to be done soon.
  8. Thanks Bruno. Some of those place look familiar, but I am not sure about these. They never sent anything after my first set of POD, nor did they answer my interrogs. I am sending another set of POD to see what they will send me. Then I will send them my admissions request based on what I get back. I guess this is their way of answering my requests by sending me request for Admission with alleged cc statements attached.
  9. Ok, JDB just sent out new Requests for admissions with alleged cc statements attached as well as a sheet that has my name on it and a copy of a generic assignment from BofA. They want me to admit that the above stated items are attached. Then they want me to admit to each and every charge, late charge etc. contained in each. ie Admit that the defendant made a purchase on ______ at Gatren's eatery in the amount of 5.33. How do I answer these? I can't know that these are even legit!
  10. Ok, I will read that. So then when I argue this SOL, I should also use fact that BofA uses or defers to Delaware law on all its cc agreements. I can pull up a copy of their CC agreement online. Thanks a bunch!
  11. Hi LR Knight! I would go down to the Circuit Clerk's office in your county to get an idea of how many cases they file and their stock complaints. I bet there are NONE that have been answered. Just make sure you read, read, read. Have you read the ARCP? Here is a link to it. Here is a good case I found from the Arkansas supreme Court that is an excellent read on several issues. I was looking for the information on amending your answers, and the Justices basically spell out just how to defend yourself when answering and challenging so-called evidence. There is also other case law cited as well as a number of ARK statutes to take a look at! SETH v. ST EDWARD MERCY MEDICAL CENTER, No. This case helps one to understand the "when" in Arkansas of asserting certain Affirmative defenses as well as how an amended answer may be looked at by the court. I am only looking at adding SOL as an affirmative defense in my case, and I see that you do not waive the right to do so just because you did not put that in your initial answer.  Ark. R. Civ. P. 15(a) provides that “a party may amend his pleadings at any time without leave of the court,” with the exception of the defenses listed in Ark. R. Civ. P. 12(h)(1).Those exceptions are: (h) Waiver or Preservation of Certain Defenses. (1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process, insufficiency of service of process, or pendency of another action between the same parties arising out of the same transaction or occurrence is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or ( if it is neither made by motion under this rule nor included in the original responsive pleading. Objection to venue may be made, however, if the action is dismissed or discontinued as to a defendant upon whose presence venue depends. Sol IS NOT listed! I hope this helps someone else as well. It is so important to research as much as possible. Doing this yourself definitely helps you understand and grasp the concepts much better. Reading case law helps you understand how those laws are applied to cases. Read the comments from the judges so you understand what the attys did wrong then you can avoid making the same mistakes, or you can see what they did right and copy it!
  12. Ok, I see this even MORE clearly now! Thank you! I am just waiting on my discovery requests now. I will update as soon as I receive their answers and/or documents requested. I am off to look up some case law for a brief to support a MSJ!
  13. I just found my answer!!! Duh! Coltfan answered me in post number 3.
  14. Bumping for help on my last question and to ask how many times may one amend an answer? I could find nothing about this in the Rules for Civil procedure.
  15. OH JOY!!! Coltfan, God Bless You! Boy I wish I had been there to watch them crash and burn! Ok You said: Back off the SOL in discovery and start in with getting them to object to everything as irrelevant or even better as not in their possession that will go to proving the written contract. Don't ask for "written contract proof" ask for it appearing you need for another irrelevant reason so they will object to it as irrelevant, because it actually would be irrelevant if you were actually asking for it for the reason they thought. But there they go thinking again, and we know how this is going to turn out, don't we? So I guess I need a 2nd POD because I did not ask for a written contract from them. I also have not even brought up the SOL defense yet. Should I file an amended answer and use the SOL as an affirmative defense? Or should I wait until I have their discovery back to file an amended answer? According to the ARCP the affirmative defense should be made with the answer to the complaint. Will I waive my right to claim that defense if I wait until I receive their discovery back?
  16. Thanks Coltfan! I am waiting on discovery from them right now, so I will just begin preparing a MSJ in the mean time. Can you point me to the statute that defines credit card debt as open ended? Thanks again!
  17. Yep, I did they ALL said 5 years. I remembered what you told me before, and I started really digging. I am finding a bit of conflicting info though. Is it 3 years from the last payment or 6 months after the last payment? I found both of these. I looked at the law, and it says: 16-56-105. Actions with limitation of three years. The following actions shall be commenced within three (3) years after the cause of action accrues: What is "afther the cause of action accrues"? I just want to make sure I truly understand how to calculate this. If it is just 3 years from last payment, then that is not a problem. Even if it is 6 months after the last payment I still win because they filed later than that. So I just want to make sure I am arguing this correctly.
  18. I also will add I DID NOT use any affirmative defenses, but the time barred, SOL needs to be addressed somewhere. I am just not sure how to address it now.
  19. ok, So just to recap: This is my case. 1. Who is the named plaintiff in the suit? CAVALRY SPV I LLC 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) McHughes 3. How much are you being sued for? 8000.00 4. Who is the original creditor? (if not the Plaintiff) Bank of America 5. How do you know you are being sued? (You were served, right?) Served summons 6. How were you served? (Mail, In person, Notice on door) certified mail 7. Was the service legal as required by your state? Yes Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None, I never even knew that they were collecting 9. What state and county do you live in? Arkansas, sorry I can't give you my county 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 9-2008 11. What is the SOL on the debt? To find out: 3 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). see below 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). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 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 and an illegible copy of a cardmember agreement I believe this account is past the SOL. Just received a hard copy of my credit report, and it says the last payment was made on 9-2008. In AR the SOL is 3 years per Ark. Code Ann. § 16-56-101 et. seq. I have already answered the complaint, interogs, and admissions along with POD. If you need to see all of that I will link it to you. I have also sent off my own POD and ROGs. I asked for the last payment made on the alleged account in it. I also included my own affidavit to in effect have dueling affidavits. Do I need to go ahead and pursue a MSJ based on the SOL, or do I need to amend my answer to include the SOL? Thanks for any assistance!
  20. It's McHughes, and the charge off date is April 2009. I have beaten Lamb before It is in Circuit court.
  21. (d) Legal pleadings A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a). So am I to understand that if a civil suit is filed, the collector or law firm no longer have to follow this statute?
  22. It is a JDB using a law firm to sue for them. I have never received anything from either of them.
  23. It looks like the law suit can be considered the initial communication from a debt collector, but, it seems they are supposed to send you something about your right to validation within 5 days of filing. 15 U.S.C. § 1692g: (a) Notice of debt; contents Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing— (1) the amount of the debt; (2) the name of the creditor to whom the debt is owed; (3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector; (4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and (5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor. I never received any of this. So my right to validate the debt was circumvented by the law firm. I found some cases that are conflicting as to how this act applies to my situation, but suffice it to say I am going to just leave this one alone.