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Welp a 6 month battle with Atlantic Credit, netted me a dismissal w/o prejudice. With my Denials of everything, it culmilated in a MSJ that they filed and i countered by attacking their affidavit of debt and calling heresay. I went in for oral arguments, and the judge extended the MSJ to allow a deposition of the affidavit. I found a place to setup the room, court reporter and all with a $500 refundable deposit, I sent the notice of deposition to the lawyers and witness and they filed (by the court date) for the dismissal w/o prejudice.

I went so far as to get information on this witness and learned that while she worked in VA, her residence is in AZ, i believe i created doubt that she may be a robo - signer.

While i will get my deposit back, it cost around $300 with all the certified mailings and notaries and filing to fight the suit, along with the countless hours i spent on this great site and also reading a few (outdated) books as well.

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  • 1 month later...

I have a piece of wonderful news for JDB defendants in WA state: Court of Appeals, 1st division, has ruled in favor of defendant, who successfully disputed her ascension to alleged debt and SOL of 3 years for credit cards as being partially oral contract (not 6 years for written contract).

I strongly believe that a good deed cannot go unpublished and therefore am attaching the CoA's opinion. I have been monitoring this rare appeal case all the way from the district court (ruled in defendant's favor), reversed in superior court in plaintiff's favor (Unifund, represented by Suttell and Hammer), and reversed again in defendant's favor by CoA. The original amount of debt is just below 2k, but you should see the defendant's attorney fees just from the district court alone (big LOL) , which I hope the JDB will be paying in full

Read on!

COA decision.7.18.16.pdf

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59 minutes ago, sasha0378 said:

I have a piece of wonderful news for JDB defendants in WA state: Court of Appeals, 1st division, has ruled in favor of defendant, who successfully disputed her ascension to alleged debt and SOL of 3 years for credit cards as being partially oral contract (not 6 years for written contract).

I strongly believe that a good deed cannot go unpublished and therefore am attaching the CoA's opinion. I have been monitoring this rare appeal case all the way from the district court (ruled in defendant's favor), reversed in superior court in plaintiff's favor (Unifund, represented by Suttell and Hammer), and reversed again in defendant's favor by CoA. The original amount of debt is just below 2k, but you should see the defendant's attorney fees just from the district court alone (big LOL) , which I hope the JDB will be paying in full

Read on!

COA decision.7.18.16.pdf

Thanks for posting that decision, Sasha.  Great ruling by the court!

Just a note, though.  The court ruled that Unifund did not prove a written agreement existed because the JDB did not produce a copy of the agreement that was in effect during the defendant's last use of the card.   The defendant's last use of the account was in 2008 and her last payment was in 2009.  But Unifund only provided a copy of a 2010 agreement.   Since she didn't use the card in 2010, Unifund failed prove she assented to the agreement they provided to the court.   That's why the court ruled that in THIS case, the SOL for oral agreements applied.

From the ruling:

"Rather, a debt collector relying on assent by conduct in the form of continuing use of a credit card proves assent to the version of the card agreement in existence at the time of the card's most recent use."

But it does show that a JDB has to provide the applicable and properly authenticated agreement.

 

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  • 2 weeks later...

REQUEST FOR DISMISSAL WITHOUT PREJUDICE filed on 07/27/2016! I WON!! YAAAAAAAAY! So if you FIGHT a JDB, you win!

I would've preferred Dismissal WITH Prejudice, but either way, my case has been dismissed exactly one week before Trial.

LVNV Funding, LLC, filed a 'bare bones' Complaint on 12/08/2015 and served me on 12/24/2015 - Christmas Eve with the intent to get a quick default judgment. I've heard here that it's common practice to serve Defendants as close to or on major holidays. I answered their suit with a General Denial, two days before my 30 days was over. I found this place and discovered what a BoP was, and so it began.

LVNV attorneys were incredibly bad. They responded to my Discovery requests with excuses and misapplication of the law and at the end, they simply ignored me. They didn't even send me a CCP 98 nor sent me a Statement upon my Request for Statement of Witnesses and Evidence (ccp 96). We had a Court date on 08/04/2016 and after they received my Trial Brief, Request to Exclude Witnesses and Documents at Trial (a brilliant move by Calawyer, btw), and Declaration, they saw their huge mistakes and filed a Dismissal without Prejudice with the Court on Thursday, 07/27/2016.  I didn't wait for them to serve me the papers but went to Court and got my own copy on the following Monday, 08/01/2016.

You can read my journey here in my own thread. I plan to write a recap of my journey in the hope that if someone else has a case progress like mine, they can use the info.

I also plan to sue them for FDCPA and Rosenthal Act violations, in addition to filing a Memorandum of Costs (MC-010).

I had planned to file my MC-010 today, but I didn't get a signature for the Proof of Service and need to wait until tomorrow (Friday, 08/05/2016). I want my filing fee BACK. Then I plan to sue them for the FDCPA and Rosenthal Act violations. And now that I read that Credit One Bank and LVNV are the same, I'm going to dispute their reporting on my CR as well since they are reporting the alleged account TWICE.

WooooHOOOO! Thanks to all the Generals on this board (Anon Amos, Calawyer, Sadinca, and RyanEx) for all their invaluable help!

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25 minutes ago, AuthorCat said:

And now that I read that Credit One Bank and LVNV are the same, I'm going to dispute their reporting on my CR as well since they are reporting the alleged account TWICE.

@AuthorCat they are owned by the same parent company The Sherman Group but they are NOT the same company.  They are two distinct businesses in two separate states and as such can report both trade lines.  This argument won't fly in an FDCPA claim.  Credit One is the original creditor and LVNV is a junk debt buyer.  They can both report even if they are owned by the same parent company.

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5 minutes ago, Clydesmom said:

@AuthorCat they are owned by the same parent company The Sherman Group but they are NOT the same company.  They are two distinct businesses in two separate states and as such can report both trade lines.  This argument won't fly in an FDCPA claim.  Credit One is the original creditor and LVNV is a junk debt buyer.  They can both report even if they are owned by the same parent company.

They can both report IF their reporting is accurate, which it's not. But I never intended to sue them for reporting their trade-lines, and most definitely wouldn't have done that under the FDCPA. I would've sued them under the FCRA, which doesn't limit me. I intend to dispute their reporting and get them off my CRs. Especially LVNV. Now that I've discovered Credit One Bank doesn't have the original application and are missing about 2 years worth of statements (thanks to the information I've uncovered during Discovery during the lawsuit), I will dispute the amount. They can either remove their reporting as inaccurate or they can face an FCRA lawsuit. I've been successful removing OCs and JDBs with simple disputes in the past.

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1 hour ago, AuthorCat said:

They can both report IF their reporting is accurate, which it's not. But I never intended to sue them for reporting their trade-lines, and most definitely wouldn't have done that under the FDCPA. I would've sued them under the FCRA, which doesn't limit me. I intend to dispute their reporting and get them off my CRs. Especially LVNV. Now that I've discovered Credit One Bank doesn't have the original application and are missing about 2 years worth of statements (thanks to the information I've uncovered during Discovery during the lawsuit), I will dispute the amount. They can either remove their reporting as inaccurate or they can face an FCRA lawsuit. I've been successful removing OCs and JDBs with simple disputes in the past.

In order to get statutory damages for violations of the FCRA, you have to prove the violations were willful, intentional.  You have to prove they knew their reporting was inaccurate and did it anyway.

If you can only prove neglect, you must have actual damages.

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  • 3 weeks later...

Looks like my last post got lost somehow.

A couple years back I beat Patenaude & Felix for a Target card and beat them with the help of people on this forum. They made a mistake by not responding to my CCP96.

I just beat CACH, LLC for a Citibank Card. When they sent their CCP98 they listed a vacant address where the declarant could be served in care of.

Thank you to  @Anon Amos , @sadinca, @RyanEX, @calawyer, and @HomelessInCalifornia who wasn't in my thread but I borrowed from him. Also thanks to @HotWheels96 who helped me tremendously in my case two years ago and I reused a lot of what she did for me.

I posted up my redacted trail brief, objection to CCP98, and declaration in support of objection to CCP98 in my thread.

 

Hopefully it can help someone else.

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  • 1 month later...
  • 2 months later...

I just got the best present just after Christmas.  I got my filing fees back!  I was sued by Winn in November 2015 and it was the most stressful night ever.  Over a year later and I have not only won (dismissed without prejudice before trial on day of trial), but got my filing fees back and they had to pay me for a lost day when they did not show up to the Case Management Conference.  So I am actually ahead. 

I filed my answer and was very stressed out.  I sent them a BOP and they sent me back a few statements and a bill of sale from someone that supposedly worked for Citibank.  I think the biggest concept I had to come to grips with is that even though I owed Citibank I did not owe these people who supposedly bought my debt.  I am not sure I did everything as I should the way I should have.  I have a very busy job and was not always able to give this the time I should have.  Well I received their request for Interrogatories etc and I spent hours going through this site looking for what to do.  I am grateful for the wonderful people who post on this site to help others.  I don’t know what I would do without you all.

They did not show up to the Case Management Conference and my judge was not happy.  He set another date and stated I would be compensated for my day.  They showed up to the next date and the trial date was set. 

I sent the CCP 96, but believe I sent it a few days too early.  Well I sent it with return receipt and was able to see that it was delivered a few days later and it could not be delivered because they were closed.  Well they did not accept it until almost 3 weeks later which actually was too late for them to say they are going to have a witness because it was less than 30 days from trial.  I never received anything from them. 

I got a call from them about a week before the trial that I answered.  It was just a woman asking me if I wanted to make a payment.  I informed her that uhh I was being sued and that the trial was next week.  I wanted to know if she was calling to respond to my discovery request and she said oh let me get someone.  An attorney got on the phone and I told him the same thing I told her.  I was wondering if he was calling to answer my request for discovery.  (I didn’t know what I was talking about just wanted to sound confident).  Well he was stuttering and saying uhhh well we are not completed with getting our documents together.  I then said oh by the way did you get the order from the court regarding the sanctions that you were supposed to pay me for my lost day.  He stuttered even more and said oh I don’t see that in our records right now.  He said we usually discuss this during the settlement.  We like to offer to settle so you don’t have to be inconvenienced with a trial.  I let him know if they didn’t want to inconvenience me they should have thought about that a year ago when they started this.  I was ready for trial next week.  He did not have much to say after that.  Well I got a check in the mail for my day of wages the following week.  Oh yeah…I’m happy now. 

On the morning of the trial I freaked out because while I was waiting for them to send me discovery I forgot about all the other things on the trial checklist.  Oh no, was I supposed to write a trial brief, were there things I was supposed to send in.  I check the court website and they had also not filed a trial brief.  Well I spent the morning freaking out before the trial that the judge says should only last 20 minutes. 

I sat in the courtroom waiting for them to show and an attorney ran in at the last second saying she was on all the cases that day but said they were all going to be dismissed without prejudice.  The court clerk looked at me and said I guess you get to go home.  THE END J

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  • 2 weeks later...

With the help of the posters in this forum, we managed to get three cases dismissed against us: 

In total, we were able to prevent about $4,500 in judgements against us.  We were so terrified when we were served with the first two...and then the third came, and we were just about pushed over the edge.

A few days ago, the last (and largest) of the three suits was dismissed by the plaintiff.

For anyone out there that's just been served, who may be terrified and afraid at what may be coming, we say to you this:  turning your back on the monster doesn't make it disappear--it only makes it bigger.  You -have- to fight--in fact, if you don't fight, you only embolden them.

Whether you realize it or not, by coming to these forums you've put yourself in the company of defenders that are far more competent than your tormenters.  It is truly a blessing to have this help, and after 6+ months at this, we have emerged harder, stronger, and victorious(!) with the guidance/assistance we've received here.

Thank you so much, and we'll try to stop in occasionally to give back :)

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  • 2 months later...

I beat Patenaude & Felix last month, who represented Capital One for an alleged credit card debt I owed (about $3,300). I am posting on here to help anyone who is in the same boat and discouraged about their situation. I want to say to those people, do not be discouraged. You can beat them! Do not be afraid to fight! I too, like the others here,  have fought and won against an OC which is supposed to be much harder to win. These people file so many lawsuits and they just expect you not to fight in order to get a summary judgement. If you fight them, follow what you learn here and stay the course, you will win! They tried to scare me right before the trial. They claimed they would win, but they didn't. A few minutes after their claim, they dismissed without prejudice because they did not have a case.

If you are in California read the threads and advice from @ASTMedic, @HomelessInCalifornia, @calawyer , @Seadragon, @sadinca and @Anon Amos

There are so many others on here that give great advice also.

I am attaching my redacted Trial Brief which I got from ASTMedic's thread which I changed only a few things to fit my situation.

Fight on!

 

Cap One Redacted Trial Brief .docx

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Second case won against a JDB--this time Midland Funding! Request for Dismissal w/out prejudice filed last Monday

(03/13/2017)

but didn't dismiss untl 22 mins before Trial on Wednesday!

Do not  give up, give in, or settle with these atrocious bottomfeeders and you WILL win!.

First and foremost, my most sincerest and deepest thank-yous and infinite gratitude to both Calawyer and Anon Amos. My heroes for LIFE. I couldn't have done this without you. Seriously. And thank you to whomever set up CreditInfoCenter!

Now, the history...

Midland filed a Complaint a couple of days after they dismissed my case back in August 2016. They filed on 08/01/2016. This time they filed against my significant other--hubby. He wanted to immediately settle with them but I said 'no' and spoke with him that we can do this because they're not the OC but the JDB, and I was fresh off of my experience with a JDB (LVNV) lawsuit against me and had the dismissal papers to show it. I knew the drill.

My S.O. had received a marketing letter in the mail from some law firm offering their services that there was a limited civil case filed against him, so I knew there was a case coming even before he was served (on a friggin Sunday of all days!) by the process server. I immediately drafted and served their attorneys (H&H) a Bill of Particulars even before filing a General Denial (Complaint was unverified so Gen.Denial was appropriate) .

I went through the motions without bothering Calawyer and Anon, doing what I could on my own from what I've learned. They helped me so much in my case that I didn't want to bother them for things I knew already. It went extremely well! I needed some help with responses to their discovery and Anon was amazing there. When we had the Trial Setting Conference in November 2016  (currently in lieu of a CMC due to budgetary cuts) and their rent-a-lawyer pushed the trial out to March the following year, I knew they had a weak case. Why push the trial out four months if you're confident about your case?

My case appeared simpler than hubby's although his was for $200+ less than mine. In my case (that I won - read upthread), JDB didn't even respond to my CCP 96. Their case was dead and they knew it. In hubby's case, they were far more attentive and astute; responding tinely to everything (although with a bunch of crap). Thanks to Anon and Calawyer - who picked apart their 'evidence' - and my fresh experience, we were able to counter everything they tried. Even when I filed hubby's trial brief (10 days before trial) an ex parte motion was filed right after. Calawyer drafted a response to said ex parte motion that turned out to be erroneously filed under hubby's case--but I did file and serve the response anyhow.

I was (wrongly) expecting a dismissal to be filed before trial. Turns out, there was, but at the last minute, two days before the day of trial. Although hubby is an excellent public speaker, he really, really didn't want to go to trial. I had to enlist my daughter to make him (he never says no to her). Come day of the trial, he was ready for war. We got into the courtroom 7 mins before trial would start only to learn that their lawyer had gotten his motion for dismissal w/out prejudice. We celebrated at our favorite Mexican Restaurant!

::celebrate::::balloons::::celebrate:: So it's 2 - 0 in our favor!  ::celebrate::::balloons::::celebrate::

EDIT TO ADD: Will be filing a Memorandum of Costs (MoC) on Monday to get our fees back.

Edited by AuthorCat
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8 hours ago, sadinca said:

Congratulations on your Victory! 

how good was that mexican food knowing that JDB ate dust! lol. few things beat celebrating a victory with Tequila!

Thanks so much, Sadinca! I won't lie. We were euphoric and floating on Cloud 9 for the rest of the day and night. We went to our favorite Mexican restaurant and the food tasted exceptionally delicious especially since knowing that nasty JDB didn't have the courage to face us in the courtroom but got their dismissal 22 mins before we arrived! The cherry on the top will be when we get our fees back. That would be yet another reason to celebrate!

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