racecar

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racecar last won the day on November 4 2013

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About racecar

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  1. I see you haven't been on here in almost six years, but some advice you left on here for someone else dealing with Rosenburg Law Firm just saved my sanity and (hopefully) my hide.  Just wanted to say thank you - for months I've been stressing over this, getting the runaround. You just shot straight, no b.s.  - thank you! World needs more of that!!!

  2. Hi i need your help im being sued by portfolio recovery by there attorneys william kelhoffer and associates here in phoenix. i did summit the answer to court now i have to fill out disclosure statement jcrcp rule 121 and i dont know what im doing my court date its 9/14/16 im really stressed out about it! that account i got when got divorce back 2012 and got sick and had stop working for while so i stopped paying it! they sent me old statements but there saying that i made payments it does not show any payments on statements!  i never spoke to them.  I dont have the money to hire a lawyer right now. i owe them 1134.00 can you please please help me and tell me what to do?

    do you have ideas where i can get some help 

    thank you thank you 

    bernice

  3. Kansas applies the lex loci contractus doctrine and applies the law of the state where the contract is made. Florida courts apply the lex loci contractus doctrine also.
  4. @BV80 The petition reads: The plaintiff states the following claim: 1. The defendant is indebted to the plaintiff in the amount of $1790. 2. The oc is Capital One, account #xxxxxx. Then states plaintiff demands the pincipal amount, interest before judgement 10% per year from 10/2011, interest after judgement as allowed by law and costs. BV80 can Pam plead under Virginia Code 8.01-248 with the two year SOL? This is from a Florida case http://webcache.googleusercontent.com/search?q=cache:U0u9O8sLcs4J:www.nclc.org/images/pdf/unreported/Gelsey_Order.pdf+&cd=1&hl=en&ct=clnk&gl=us Kansas applies the lex loci contractus doctrine and applies the law of the state where the contract is made. The Capital One "Customer Agreement" contains a choice of law provision which reads "Applicable law. This Agreement will be governed by Virginia law and federal law." Virginia law concerning the applicable statute of limitations to this case.Virginia Code Section §8.01-246(2) provides In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not; Virginia Code Section §8.01-246(4) provides in pertinent part In actions based upon any unwritten contract, express or implied, within three years. Virginia Code Section §8.01-248 provides Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued. "Breach of Contract" is governed by Virginia's three year statute of limitations. See Virginia Code Section §8.01-246(4). Virginia law provides that the statute of limitations is five years for a written contract signed by both parties, however, in order to fall within this category a contract must show "mutual assent between the parties as to all material terms of the deal" and "the terms and conditions of a contract must be 'reasonably' certain." See Union Labor Life Insurance Company v. The Sheet Metal Workers National Health Plan, 1991 U.S. 13613 (D.C. Dis!. 1991) (court dismissed breach of contract claim for failure to state a cause of action and applied the three year statute of limitations for quantum meruit and unjust enrichment claims), ARCD Corporation v. Hogan; 656 So.2d 1371 (Fla. 4th DCA 1995) (Florida courts apply the statute of limitations for unwritten contract where the "written instrument is 'a link in the chain of evidence to prove the cause of action' but does not on its face establish all of the elements of plaintiffs claim."), See also Portfolio Recovery Associates. LLC v. Fernandes, 13 Fla.L.Weekly Supp. 506a (Circuit Court, 151h Judicial Circuit (Appellate) in and for Palm Beach County, Florida) (the Cardholder Account and Security Agreement alone introduced at trial would not be enough to establish liability and the action is not founded on a written instrument for purposes of the statutes of limitations). "Account Stated" is governed by either Virginia's three year statute of limitations contained in Virginia Code Section §8.01-246(4) or the lesser two year statute of limitations because it is not a claim founded on a signed, written agreement as is provided above. See Virginia Code Section §8.01-248. "Quantum Meruit" and is governed by Virginia's two year statute of limitations. See' Virginia Code Section §8.01-248. See also Tao of Systems Integration. Inc. v. Analytical Services & Materials. Inc. ;299 F.Supp. 2d 563 (E.D. Va. 2004), Union Labor; supra and Portfolio, supra.In RMT Tech, the Fourth Circuit Court of Appeal held pursuant to Virginia law the determination of the applicable statute of limitations is a procedural question and governed by Virginia law even when the parties contract to have the laws of another state apply to litigation. Therefore, if the parties contract to apply Virginia law, the Virginia courts have determined this is a procedural question to be determined by Virginia law.
  5. Here are the rules In General A motion is a written request to the court to issue an order for specific action. For example, an order could grant or force discovery, or dismiss all or part of an action. (An Order to Show Cause is a speeded up form of a motion). Motion papers tell the other side of the nature of the request and state the date, time and location where the request will be made. Motion papers consist of a top page called a “Notice of Motion,” followed by an “Affidavit in Support” of the motion, and copies of any documents that support the request and would help the judge make a decision. Motion papers must be served on all the parties. The person serving the papers must fill out an Affidavit of Service, which must be filed together with the motion papers to place the motion on the court’s calendar. A party served with motion papers may prepare papers to oppose the motion. The moving party (the party making the motion) is then entitled to submit papers in reply to the opposing papers. On the hearing date of the motion, all parties must come to court and the judge will decide the motion. There are strict requirements as to how to properly make a motion. Many people find it is easier to come to court in person and fill out an order to show cause for the relief needed. You may refer to Order to Show Cause to read about the procedure. However, if you would like to make a motion or you have been served with a motion and you want to oppose it, continue reading below. You may also review the law on motions by going to CPLR 2214. Notice of Motion To view or print a free civil court form, you may refer to Notice of Motion. You must fill in all the information on the Notice of Motion before you serve it (otherwise your motion will be defective), including: 1. The date the motion will be heard by the court. This is sometimes called the “return date,” or the date the motion is “returnable.” The party making the motion (moving party) chooses the date the motion will be heard by the court. When you choose the date, you must pick a date that gives the other side at least 8 days of notice. If you are serving the motion by mail, you must choose a date that is at least 13 days after the motion papers are mailed. If you want copies of the other side’s opposition papers (and any notice of cross-motion) at least 7 days in advance of the hearing date to be able to review them and reply to them, you should choose a date that gives the other side at least 16 days of notice. If you are serving the motion by mail, the hearing date should be at least 21 days after the motion papers are mailed. You must also pick a day of the week that the civil court in your county hears motions. Go to Where and When Motions Heard to check. Make sure the day you pick is not a court holiday because the court will be closed. 2. The full address of the courthouse. You may refer to Where and When Motions Heard for the full address of the courthouse. 3. The Part, room number and time the motion will be heard by the court. Refer to Where and When Motions Heard for the correct part, room and time your motion should be heard in your county. 4. The relief you are seeking from the court. Fill in what it is you are asking the court to do. You will need a copy of the completed Notice of Motion form for every party and one for yourself. Affidavit in Support A motion must also include an Affidavit. An Affidavit is a sworn statement made before a notary public which explains to the court why your request should be granted. You may submit as many affidavits from as many people as you feel are relevant to prove to the court that the request in the motion should be granted. The Affidavit should: 1. state the reason you are making your request, 2. state the relevant facts about your case, 3. state whether or not you have ever made the same request before, 4. also have copies of any relevant documents you are referring to in your Affidavit attached to the notice of motion, 5. be signed at the bottom in front of a notary after it is filled out and be attached to the notice of motion, 6. be copied after it is signed so that there is a set for every party. The copies must be served with the copies of the notice of motion and relevant documents on all parties. You may download a free civil court form by going to Affidavit in Support, or you may use your own form or obtain one from the clerk. Serving the Motion 1. Copies of the notice of motion and supporting papers must be served on all parties at least eight days before the time at which the motion is noticed to be heard by the court. Add an additional 5 days if the motion is served by mail. 2. Papers must be served by a person who is not a party to the action and is eighteen years of age or older. 3. If the opposing party has an attorney, the motion papers must be served on the attorney. Service of the motion papers may be made by delivering the papers to the attorney personally, or by mailing the papers to the attorney. 4. After the motion papers have been served, the person who served the papers must fill out an Affidavit of Service. Affidavit of Service The person who serves the motion papers must fill out an Affidavit of Service. The Affidavit of Service tells the court who was served with the papers and how and when they were served. The Affidavit of Service must be sworn to in front of a notary public. You may download the appropriate free civil court form at Affidavit of Service. Next, make a copy of the original affidavit of service for your records and annex the original as the last page of your motion papers. The motion papers must then be filed with the court in order to place the motion on the court’s calendar for the date that you have chosen. Filing the Motion With the Court After you have attached the original affidavit of service to the back of the motion papers, you must file the papers with the court in order for the motion to be called and heard on the hearing date. You can go to Locations to find where to file your motion. Opposition Papers If you wish to oppose a motion, you may prepare an Affidavit in Opposition. If you do not oppose the motion, the judge may decide to grant the motion based on the information in the moving papers. An Affidavit is a sworn statement which must be signed in front of a notary public. You may submit as many affidavits from as many people as you feel are relevant to prove to the court that the request in the motion should be denied. You may attach copies of any relevant documents to the Affidavit in Opposition. You can download a free civil court form at Affidavit in Opposition, or you may use your own form. After you have prepared the opposition papers, follow the procedure outlined below: 1. Copies of the opposition papers must be served on all other parties at least 2 days before the hearing date of the motion. However, if you were served with the motion at least 16 days before the hearing date, the motion may demand that you serve opposition papers at least 7 days before the hearing date. 2. Opposition papers must be served by a person who is not a party to the action and is eighteen years of age or older. 3. If a party has an attorney, the papers must be served on the attorney. Service of the opposition papers may be made by delivering the papers to the attorney personally, or by mailing the papers to the attorney. 4. After the opposition papers have been served, the person who served the papers must sign an Affidavit of Service which states how and when the papers were served. The Affidavit of Service must be signed in front of a notary. You may download the appropriate free civil court form at Affidavit of Service. 5. Make a copy of the Affidavit of Service for your records and attach the original to the copy for the court. 6. Opposition papers can be filed in the courtroom on the date that the motion is heard. Cross-Motions If you have been served with a motion and wish to ask the court for relief of your own, you may notice a cross-motion for the same day as the motion is scheduled to be heard. You can download a free civil court form at Notice of Cross-Motion, or you may use a form of your own. The address, date, part number, room number and time that you fill in on the Notice of Cross-Motion must be the same as the information on the Notice of Motion that you received. The cross-motion must be served on all parties at least three days prior to the motion date, and should be filed with the court as soon thereafter as possible to make sure that it is placed on the court’s calendar. However, if you were served with the motion at least 16 days before the hearing date, you must serve the notice of cross-motion at least 7 days prior to the hearing date. If serving by mail, you must add 3 days and serve it at least 10 days prior to the hearing date. Follow the same procedure for serving the cross-motion as you would for serving opposition papers. You may refer to CPLR 2215 to view the law. Reply Papers If you served your motion papers in enough time before the hearing date of the motion, you may prepare any reply affidavits which must be served at least one day before the hearing date of the motion. You may go to Reply Affidavit to download a free civil court form or you may use a form of your own. You should follow the same procedure for serving the reply papers as you did for Serving the Motion Papers and prepare an Affidavit of Service too. You should bring the original and extra copies to court. If you did not have time to prepare reply papers and feel that it is necessary, you can ask the court for an adjournment for time to prepare papers. The judge may or may not grant your request. Appearing in Court You are required to appear in court on the date the motion is scheduled to be heard. If you do not appear and you are the moving party, your motion will be denied. If you do not oppose the motion, the motion may be granted on default. You should give yourself extra time to get to the courtroom since all visitors are required to go through metal detectors. You should bring your copies of the papers with you and any papers and affidavits that you have not yet filed with the court. The courtroom is presided over by a Judge, who is assisted by a court attorney, a clerk, and a court officer. The court officer, wearing the uniform, maintains order in the courtroom. The clerk, sitting at a desk at the front of the courtroom, can answer any questions you may have about the calendar or the Judge’s rules. The court attorney, who is a lawyer, assists the Judge. The Judge sits on the bench at the front of the Courtroom and hears arguments for and against motions and orders to show cause, reviews stipulations, and decides requests for adjournments. There is a calendar posted outside the courtroom that lists all the cases that will be called that day. Each case has a number. You can find your case to see when you will be called. You should sit quietly and listen for your case to be called. You will have a chance to explain your case to the judge or the judge’s court attorney. If you are not ready to discuss the motion with the court, or you need more time to prepare papers, when the case is called you can ask the court for a postponement or an adjournment of the motion. If your case has been adjourned before and marked “final” it means the judge will not allow any further adjournments. For more information, you may go to Adjournments. The other side may want to discuss the motion with you alone to see if you can come to an agreement. If you reach an agreement, you and the other side can write the terms of your agreement into a stipulation for the judge to review. However, you do not have to talk to the other side alone. You can wait until your case is called by the court and the judge will make the decision on the motion. The Decision on the Motion If you and the other side are unable to agree about the relief being requested, the judge will make a decision on the motion. Sometimes, the judge makes a decision immediately. However, the judge has 60 days to decide the motion. Some judges will mail you a copy of the decision if you provide a self-addressed stamped envelope. You may find out if a decision has been made by checking calendar information. Otherwise, you can go to the courthouse to get a copy of the decision. To find out where to go in your county refer to Locations. The judge’s decision may award a judgment to the winning party. In order to start enforcing a judgment, it must first be “entered” by the clerk. Learn more at Entering Judgments. Once the judgment is entered, the winning party should serve a copy of the judgment with notice of entry on the losing party. This service starts the loser’s time to appeal running. Learn more at Serving Notice of Entry. If you are unhappy with the judge’s decision and think that the judge made a legal or factual mistake, you can file an appeal. An appeal must be filed within 30 days from the service of the decision and order appealed from and written notice of entry. If neither side has served a copy of the decision and order with notice of entry, there is no time limitation on the filing of an appeal. For more information about appealing a decision, go to Appeals.
  6. Chapter 60 article 23 (d) Assignment of account. If any person, firm or corporation sells or assigns an account to any person or collecting agency, that person, firm or corporation or their assignees shall not have or be entitled to the benefits of wage garnishment. ("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business.
  7. Did they send you this? AFFIDAVIT State of Virginia City of Norfolk ss. I, the undersigned, Tracey L. Wiggins, custodian of records, for Portfolio Recovery Associates, LLC hereby depose, affirm and state as follows: 1. I am competent to testify to the matters contained herein. 2. I am an authorized employee of Portfolio Recovery Associates, LLC, ("Account Assignee") which is doing business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representations and averments herein, and do so based upon a review of the business records of the Account Assignee and those records transferred to Account Assignee from Capital One ("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business. 3. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on Date. Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever. 4. According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from DEFENDANTS NAME ("Debtor) to the Account Seller the sum of $$$$.$$ with the respect to account number ending in 1111 as of the date of 11/26/2013 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale. 5. According to the account records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $$$$.$$ as due and owing as of the date of this affidavit. 6. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States. Portfolio Recovery Associates, LLC By: Tracey L. Wiggins , custodian of records Subscribed and sworn to before me on AUG 22 2013 Sandra Ahlt Notary Public
  8. USC does that mean to put the his and her Rolex in a cereal box.
  9. I would not send the new law firm any thing at this time. They will come out of the wood work soon enough, I bet yours is not the only case they have.
  10. Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS Article 29.--PLEADINGS 61-2910. Application of chapter 60, when. Upon motion of any party and for good cause shown, the court may order that an action filed under the code of civil procedure for limited actions, except an action filed pursuant to the small claims procedure act, article 27 of chapter 61 of the Kansas Statutes Annotated, and amendments thereto, shall thereafter be governed by the provisions of chapter 60 of the Kansas Statutes Annotated, and amendments thereto. The party obtaining an order under this section shall pay any additional docket fee required had the action been filed under chapter 60 of the Kansas Statutes Annotated, and amendments thereto. Upon such order of the court and payment of any additional docket fee, the clerk of the district court shall renumber the case as a case filed under chapter 60 of the Kansas Statutes Annotated, and amendments thereto, in the same manner as required by K.S.A. 60-2418, and amendments thereto. History: L. 2000, ch. 161, § 16;L. 2002, ch. 66, § 1; Apr. 25
  11. I think when you filed your answer in that court you admitted that venue was proper. I would motion to transfer the case to chapter 60. You have unlimited discovery in chapter 60. Under chapter 61 you can only send 10 requests for production, 10 requests for admissions, and 10 interrogatories then the plaintiff files for summary judgment. Is something like this what they sent you 1. ( a) Full legal name and date of birth; ( b ) Social security number; ( c ) Current address, e-mail address, and telephone number (d) Current place of employment, including address, and telephone number of employer; (e) Driver's License number and State issued from. 2.Please state whether or not you have ever had a Capital One credit card issuedby Capital One Bank, with an account #xxxx xxxx xxxx 1234, which is the subject ofthis litigation, as evidenced by the statements attached and marked as Exhibit "A". 3. Please reply with either a "yes" or "no" answer as to whether or not you havemade any charges on your Capital One credit card issued by Capital One Retail Bank acct#xxxx xxxx xxxx 1234, which is the subject of this litigation. 4. Please reply with either a "yes" or "no" answer as to whether or not you havemade any payments on your Capital One Retail Bank credit card issued by Capital One Retail Bank account#xxxx xxxx xxxx 1234, which is the subject of this litigation, as evidenced by the statementsattached and marked as Exhibit "A". 5. Please reply with either a "yes" or "no" answer as to whether or not you madeat least your minimum monthly payment every month as required on your Capital One credit card issued by Capital One Retail Bank account #xxxx xxxx xxxx 1234, which is the subjectof this litigation. 6. If you deny Request for Admissions No. 2 below, please state the amount youcontend the balance should be on your Capital One credit card issued by Capital One Retail Bank acct #xxxx xxxx xxxx 1234, which is the subject of this litigation. 7. Please state the basis of your dispute of this claim?8. Please respond with either a "yes" or "no" that you acknowledge that a letter ofexplanation addressed to you accompanied this discovery which set forth the entire credit card account number, which is the subject of this litigation. 9. Please reply with either a "yes" or "no" answer as to whether or not the lastpayment you made on your Capital One credit card issued by Capital One Retail Bank acct#xxxx xxxx xxxx 1234, which is the subject of this litigation, was in the amount of $260.00on 02/11/2012, as evidenced by the statement with closing date of 02/27/2012 attached andmarked as Exhibit "A". 10. When you made your last payment of $260.00 on 02/11/2012, please reply witheither a "yes" or "no" answer as to whether or not you ever contacted Capital One Retail Bank in writing to dispute the balance due and owing as shown on the statement with closing date of 02/27/2012, a copy of which is attached and marked as Exhibit "A". If so, please state how and when you did so.
  12. When you say you filed your answer did you file it at the proper county courthouse with the court clerk and she stamped it and you brought copies for the court and two copies to send to the plaintiff that were stamped by the clerk. If you have a stamped copy of your answer you filed with the court you should bring it to the court clerk so she can correct your filing. In your answer did you deny all the allegations in the numbered paragraphs of plaintiffs complaint. Every material allegation not specifically denied will be taken as true and you can lose by default that way. I wonder if you did not deny some of the allegations. I would be at the court house tomorrow asking the clerk if you can see your file.
  13. shellieh98 She is our Colorado expert i bet she will pop in here soon she hates junk debt buyers. Judges seem to favor the plaintiff's in these cases. Study the rules of civil procedure and rules of the court. Be ready for the next hearing, I'm sure the plaintiff thought you would not show and they would win by default.
  14. Under Texas Rule of Civil Procedure 320, a court may set aside a judgment "for good cause." A defendant must file a motion for new trial within 30 days after the judgment was signed. Grounds for a motion for new trial include that the service of the suit, default hearing or trial was improper on the defendant or the defendant failed to make an appearance due to oversight or a mistake. http://webcache.googleusercontent.com/search?q=cache:M0o0gwG9GUoJ:hsblaw.com/data/newsletters/Anthony_Lowenberg_Article.pdf+&cd=8&hl=en&ct=clnk&gl=us all about default judgments