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I have been sued by Velocity Investments LLC. I have responded with an Answer but now have to respond to the "Motion for Summary Judgement." It looks like they put it together with a poorly written template. On page 3 they mention how Defendant received the automobile, Defendant defaulted under the terms of the credit Agreement. For one, this was a loan there was never a car involved. I have attached a redacted copy of the MSJ, I am having a little trouble deciding how to respond. I am thankful for any suggestions I can get. Motion for Summary Judgment_Redacted.pdf
Hey gang, it's been a while since I was a more active member here. I have been lax about cleaning up my wife and my credit and only casually monitoring our credit reports through CreditKarma.com. So, it was no real surprise when we were served papers for a lawsuit in early to mid-December (2015). Although the summons did not have a case number printed on it, I knew that in Colorado the case number isn't assigned until the Defendants have been served, so I didn't hurry to check the docket since the answer wasn't due until January 22nd. The plaintiff in the case is Velocity Invesments, LLC, who until I received the papers had never heard of (they are being represented by Machol & Johannes who I have tangled with in the past semi-successfully). The Complaint claims that Velocity Investments, LLC is an assignee of Santander Consumer USA who we had a car loan through starting in November 2010. In June 2011 I started hearing rumors that my entire department was going to be laid off in September, so we turned in the vehicle voluntarily to avoid an involuntary repossession from appearing on our credit reports. We knew that being less than a year into the loan we would be upside-down and would have a deficiency balance, but decided to worry about that when it happened. As evidence attached to the complaint, they included our initial "Retail Installment Sale Contract" from the dealership that assigned the loan to Santander and the letter of "Explanation of Calculation of Surplus or Deficiency" dated 8/31/2011 that Santander sent after the vehicle had been sold at auction and showed a deficiency of $4646.23 (the unpaid balance of our loan was $15174.73 and they got $10900 for it - the $371.50 difference between the sale and what we owed was for costs associated with putting the car up for sale). I vaguely remember getting the letter for the deficiency, but again, figured I would deal with it at a later date. At the time, we were fast approaching the expected layoff date and I was more worried about keeping a roof over my family's head. Since receiving the "Explanation of Calculation of Surplus or Deficiency" letter, I had received a handful of calls from Santander reminding me about the debt (none of which I answered or returned), but nothing else and when I started using CreditKarma about a year and a half ago, the entry for Santander showed the account was charged off, the debt had been sold to another company (no name mentioned), and the balance was $0. I never saw another listing on my credit reports for the deficiency and thought maybe I'd get lucky and be able to wait out the SOL on it (obviously, no such luck). December passed and I didn't do anything with the summons, including mounting a full-on defense. From my past dealings with M&J I didn't want to tip my hand too early and both work and home life were pretty busy with the holidays and I didn't have the time or energy to really get into it. I can say that my past experiences calmed my nerves and I wasn't panicked or worried about the answer because I knew I had time to answer and that they didn't really have a case as long as I didn't capitulate to anything. Unfortunately, I should have put everything together sooner because the week before the court date on the summons, my wife's father fell ill and she had to travel out of town to be with him and it left me as a sinngle parent for the week of the court date and I was finishing a huge project at work at the same time. I didn't put my answer together until the day before the court date when I had to make the drive from Loveland to Littleton to file my answer in person because I was not going to be able to attend court the following morning. As a result, my answer was short, but hopefully enough to keep them from an MSJ and a default judgment. My answer used two affirmative defenses: Improper Venue and Lack of Standing. Although the contract was entered into in Arapahoe County, I currently live in Larimer County. Article 15 Section 1692i(a)(2) prescribes that court actions must occur where the contract took place or where the defendant(s) live and recommends to Plaintiffs that unless they want the Defendant to object, they should file where the Defendant Lives and not where the contract was signed. I figured it was a longshot and not being there in person to defend it would make it difficult to persuade the judge, but I figured it was worth trying. For lack of standing, although the Complaint identified Velocity Investments, LLC as the assignee of Santander, there was absolutely no supporting evidence included with the summons and complaint. Additionally, they are not listed on my credit reports and I do not recall ever receiving any notice from them that they had been assigned the debt or other attempts to collect it. Unfortunately, case dispositions are not available online for Arapahoe County and I have not received a response to my documents request from the court yet, so I don't know how it played out. I'm posting here because I would like your opinion on how I responded to the complaint and what you think my next steps should be. I think I have answered all of the usual 16 questions for new case posts, but will look over them tonight and post the questions and answers tomorrow. Thanks!
1. Who is suing you? VELOCITY INVESTMENTS, LLC (Using Blitt & Gaines P C for Plaintiff) 2. For how much? $3998 (principal), $249.00 (Court Cost) 3. Who is the original creditor? Lending Club 4. How do you know you are being sued? Received mailers about getting attorney help and found e Docket in Illinois Clerk website 5. How were you served? Were you served? Initial Contact was Letter in mail with delivery confirmation Not served yet, but on the eDocket it says: SUMMONS ISSUED AND RETURNABLE, CASE SET ON STATUS CALL 05/02 6. What was your correspondence (if any) with the people suing you before you think you were being sued? None. Knew nothing about them prior to this. 7. Where do you live? ILLINOIS 8. When is the last time you paid on this account? 07/01/15 to Lending Club 9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Case set on Status Call 05/02 even though it shows another court date under Complaint Filed 04/02 and activity date 03/01 - 03/02 10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No 12. Does your summons require a response in writing? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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? I haven't received the summons yet. 13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Don't have that information yet, but want to prepare myself as much as possible. I fell very ill for 6 months and lost my good job, already in debt about 60K, accumulated another 40K in treatments due to loss of insurance. Bankruptcy is not an option until 2019 because I was already in Chapter 7 due to being a co-signer on a mortgage and credit cards with my parents when 2007 financial crisis hit and we lost our business and home. I am also wondering if it makes sense to fight this as more lawsuits will come and I will get buried anyways....please help!