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Everything posted by Spikey

  1. The only thing I would caution @laundryqueen on is that members of the bar always get the benefit of the doubt. Even if their excuse is just as flimsy as last time, there's a reasonable possibility that the judge will allow the case to continue. Even if the case is dismissed, I would still expect a new suit to be filed.
  2. @BV80 If you can force them to provide the entire ownership/assignee chain that's even better.
  3. Even states that allow assignees to sue have rules on what needs to be provided to prove they have the right to sue. Just because we say so is not a valid assignment.
  4. Since this seems to be your goal, you need to get leverage on them to push for a quicker resolution rather than wait out the 10 months which is easy enough for them to overcome.
  5. No, a FDCPA violation has no impact on the underlying debt. @ArtVandelay's advice is a way to take care of that.
  6. The big challenge with a FDCPA claim is that you're dealing with Federal Court. It's a whole new level of complication. I personally wouldn't feel comfortable trying it Pro Se.
  7. @ArtVandelay I think small claims is a bit different, but anything over $10k has strict timelines attached. You answer the claim, then a trial (it's technically mandatory arbitration) date needs to be set no more than 6 months out. That date dictates the discovery time line and pre-trial motions. The opposing attorney in my case my no effort to try and talk to me to settle. The JDB that owned the debt kept trying though.
  8. The best FDCPA attorney in your area is Edelman, Combs, Lauttner & Goodwin. Give them a call and see if they can help you. @ArtVandelay There's really no push for settlement in Illinois at least from my experience. The judge stays out of that stuff.
  9. SSI can not be garnished in Illinois, so she's safe on that account. I don't know what happens if she can't make the court date since unless she hires a lawyer no one else can represent her. I'm not sure she should even worry about it since they can't collect.
  10. Could you post the complaint? That's what you need to respond to, not the affidavit.
  11. If you're going to use SOL as an affirmative defense, you're going to need proof other than a credit report which isn't admissible in court. You'll need to pull your banking records, most banks keep all that information electronically. Bank of America will email you the records for free, although you have to wait 2 days.
  12. Is the discovery period over? If not, make another request for it. It's not necessarily detrimental, but if they have more evidence that you didn't ask for, then you're going to be at a disadvantage come trial. I would suggest trying to keep your information in a single thread rather than a new thread for every question. It makes it a lot easier to follow your case and where you stand.
  13. I'm assuming that they are suing you on that card in particular? Defaulting on the card means that you're responsible for the debt. It's not the end of the world, they still need to prove that they own the debt.
  14. I wouldn't call your MTD a bluff, it's a tactic. A rather valid tactic but unfortunately you happened to run into a JDB that's savvy to it. Had this not been a small claims case you would have had better results. I think you could still win this court. It's not about matching wits, it's about hammering them over their lack of evidence which proves they have ownership of the subject account (aka standing).
  15. Probably because someone else signed for them. It's not uncommon.
  16. As a Pro Se in Illinois all you can add is filing fees and that's assuming you win. Good luck collecting though. If they win, they'll be able to tack on legal fees.
  17. Call them and ask for it. Tell them you want an extension to respond based on their lack of compliance to that rule.
  18. Arizona has what's called disclosure which forces each party to turn over all their evidence or they can't use it. As far as proceeding with your case, in order to get answers to your discovery requests, you need to look into a motion to compel. Many states require the parties to confer prior to filing that motion.
  19. Understandable, why pay someone that can't even prove that you owe them any money. There ways to protect yourself, like getting them to agree that whatever you pay settles the debt in full, that they're not allowed to sell the remainder or issue a 1099-C for it. Get it all in writing of course. Hard to say. If they've sent any settlement offers before, you could start at a figure below that at the very least.
  20. The only way to get this to go away quickly would be to settle with them. Waiting out the lawsuit won't have any effect on your credit report.
  21. Under Florida rules of civil procedure 1.420(e); They have 10 months to proceed with the case. If there's no activity within 10 months, you'll need to file a notice of intent to dismiss, which gives them 60-days to respond. Failure to proceed within the 60-day time frame, allows you file a motion to dismiss for lack of prosecution. It's a without prejudice dismissal though.
  22. @boltsnapper Much like you used a boilerplate 615 motion, at least 1 law first has already developed a 615 opposition to those points. Apparently that opposition is making the rounds as this is the second attorney to use similar tactics. As far as what's required for Small Claims, unfortunately they are correct that only an affidavit is required with the complaint as the pleading requirements for Small Claims are relaxed. That doesn't alleviate the need to prove their case in trial though. One thing I find bothersome with the version of the opposition I've seen is that they claim that IL contract law isn't appropriate for credit card case. If they've claimed or hinted in the complaint that you breached the contract, then what law should apply? There's already sufficient case law that shows that contract law governs in a breach of contract claim in Illinois and that ILCS 735 5/2-403 is the governing statute. Unifund v. Shah is the latest precedent on this matter and the appellate court upheld this interpretation of the law. By the way, many of the same arguments in your 615 MTD are appropriate for your trial defense . The only way to can find out if they're willing to settle is to propose a settlement to them. Settling saves them money over going to trial. The other option is to wait and see if they will propose a settlement. Whatever you decide, make sure you get the terms of the settlement in writing. Also make sure that whatever you end up paying settles the debt in full, doesn't allow them to re-sell the remaining nor allows them to issue a 1099-C against the remainder. If you're going to pay the devil, make sure you don't leave any loop holes for them to screw you over down the line.
  23. MTD's in small claims in Illinois either succeed because the Plaintiff doesn't want to be bothered with a fight so they don't file opposition or voluntarily dismiss. Or they fail because the Plaintiff understands the rules of small claims court and files a detailed opposition. The pleading requirements for small claims are such that the usual 615 MTD strategies aren't viable. I've also seen a MTD fail because the defendant filed an answer which is a no-no for small claims in Illinois as filing an appearance serves as a general denial. Anyway, assuming that there's a motion hearing coming up, if the judge denies your motion, I would request of the court to have the Plaintiff turn over their evidence prior to trial so that you can prepare appropriately. Normally this isn't necessary and there's no discovery or disclosure in small claims court. After that you'll need to prepare for trial. You can certainly settle if that's what you want to do. The closer it gets to trial, the more likely that you'll get a favorable deal. I'm personally not of the mind to pay some random company on their say so.
  24. I'm really not sure that MCM can continue a case started by Asset. Change of counsel is one thing, that's allowed. Change of ownership, I'm not so sure about that. It's certainly not your responsibility to send any documents to their new counsel. I also don't think DV'ing them does anything for you if they're allowed to continue the existing lawsuit. Edit: although it may be worth DVing them just to throw a wrench into the works
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