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BIG TROUBLE NOW all advice I've gotten is challenged by NCB


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Sorry for cross-posting, but originally in wrong area.

Warning this is a long post, but necessary.

See these threads for background

http://creditboards.com/forums/index.php?s=&showtopic=125614&view=findpost&p=998598

http://creditboards.com/forums/index.php?s=&showtopic=130989&view=findpost&p=1047243

http://creditboards.com/forums/index.php?s=&showtopic=136188&view=findpost&p=1094163

I answered my complaint using whychat's template and got the following response to it yesterday. This was mailed to me from the plaintiff and not from the court, but I confirmed with the clerk that indeed there is a court case scheduled.

I appreciate all the help I've gotten so far, but some of that help is under attack and I don't know my next step.

1. What do I need to file in order to postpone the court date to give time for discovery?

2. How do answer this motion?

3. Is now the time to request permission to file amended answers including the hearsay defenses that dixiedrifter provided?

NOTICE OF MOTION TO STRIKE AFFIRMATIVE DEFENSES not stamped as filed by the court

Plaintiff National Check Bureau formerly Unifund (I added the Unifund for your reference)

Please take note that on January 20, 2006, at 9:30 a.m., or as soon thereafter as this Motion may be heard, the attached Motion for Default Judgement shall be heard before the Honorable Judge Vespa in Courtroom 214 of the Peoria County Courthouse, 324 Main Street, Peoria, Illinois.

MOTION TO STRIKE AFFIRMATIVE DEFENSES

Plaintiff, NCB, by and through counsel, respectfully moves this Court to strike the purported affirmative defenses plead by defendant, pursuant to 735 ILCS 5/2-615. In support of this Motion NCB states as follows:

1. According to 735 ILCS § 5/2-615, a party is required to raise any objections to pleadings by motioon, seeking the appropriate remedy when "a pleading or portion thereof be stricken because substantially insufficient in law."

2. According to 735 ILCS § 5/2-613(d), Defendant was required to plead "the facts constituting any affirmative defense...which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must plainly set forth in the answer or reply."

3. In his Answer, Defendant purported to state 9 affirmative defenses. However, Defendant did not plead sufficient facts to support any of his alleged affirmative defenses.

4. In fact, without any factual context, Defendant's affirmative defenses are utterly nonsensical, making it impossible for NCB to respond to any of them.

5. In addition, all of the affirmative defenses plead by Defendant are insufficient as matter of law.

6. Therefore, as set forth in the accompanying Memorandum of Law, which is attached hereto and hereby incorporated by reference, Defendant's affirmative defenses must be stricken pursuant to 735 ILCS §§ 5/2-615 & 5/2-613(d)

MEMORANDUM OF LAW IN SUPPORT OF NCB'S MOTION TO STRIKE AFFIRMATIVE DEFENSES

I. INTRODUCTION

On October 14, 2005, Defendant filed his Answer to the Complaint filed by NCB. In his Answer, Defendant purported to assert 9 affirmative defenses, but failed to plead any facts in supprt of his alleged affirmative defenses. Pusuant to 735 ILCS §5/2-615(a), this Court should strike Defendant's affirmative defenses in their entirety.

II. FACTS

On August 10, 2005, NCB filed its Complaint against Defendant, seeking relief for Defendant's failure to pay a credit card debt which was assigned to NCB, See Complaint at ¶5. Specifically, NCB stated that Defendant had a credit card account with Citibank, with the account number XXXX-XXX-XXXX-XXXX ("Account".) Id. at ¶¶ 5 &6. Defendant (or his authorized users) utilized the Account to purchase goods and/or services, and /or to make cash advances. Id. at ¶7. By utilizing the Account, Defendant became bound to the terms and conditions of the Credit Card Agreement (which is attached to NCB's Complaint Exhibit A.) Id. at ¶8 & Ex. A. Defendant failed to make payments on the Account in an amount satisfactory to comply with the Credit Card Agreement. Id. at ¶9. The balance on the Account, as of the time NCB filed its Complaint, was $9,822.57 (which includes the principal amount as of the cherge-off date of December 28, 2001 plus interest from that date accruing at 5% per annum in the amount of $1,475.05). Id. at ¶10. NCB asserted the following causes of action in order to recoup the amount due on the account: (1) breach of contract for Defendant's failure to adhere to the terms of the Credit Card Agreement; and (2) quasi-contract or quasi meruit. See Compl. at ¶¶ 4-14.

On or about October 14, 2005, Defendant responded to NCB's Complaint by filing his Answer. In his Answer, Defendant denied all of the allegations in NCB's Complaint but one. See Ans. ¶¶ 1-4. In addition, Defendant asserted the following puported affirmative defenses and exemptions.

5. Defendant?s other defenses are: This ALLEGED debt, dated 12/28/2001 from plaintiffs complaint, is time-barred under Ill. statute ?735 ILCS 5/13-210 under Nev. statute NRS. 11.190 Civ. Code §1788.10-30

(attached exhibit # 1 and #2)

This alleged account does not fall under the Illinois Statutes for written contracts for the following reasons.

6. It is excluded under Illinois Banking & Interest Definitions Statute

7. It is excluded under Illinois Statutes Of Frauds § Ill. Comp. Stat. Ann. ch. 815, §§160/1 to 160/3 (Smith-Hard 1993) (attached exhibit 3)

8. It is excluded under the Federal Truth In Lending Act Title 15 § 103 (attached exhibit 4)

9. The alleged account is defined as an open-ended credit account per ruling in Supreme Court case No. 02-857

In the Supreme Court of the United States HOUSEHOLD CREDIT SERVICES, INC. AND MBNA AMERICA BANK, N.A., PETITIONERS v. SHARON R. PFENNIG

10. Per the alleged account agreement provided as an attachment to Plaintiff?s complaint the account is defined as an open-ended account opposed to a written contract according to the TILA (attached exhibit 4). It is not plausible for a credit card agreement to be classified as an open-end agreement while it is active, but to be claimed to be a closed end "written" contract after default.

11. Section 226.28 of Regulation Z Describes the effect of TILA on state laws.

As a general matter, state laws are preempted if they are inconsistent with the act and regulation, and then only to the extent of the inconsistency.

12. A state law is inconsistent if it requires or permits creditors to make disclosures or take actions that contradict the requirements of federal law.

III. Exemptions

13. Defendant?s only source of income is Social Security Disability Insurance with all assets exempt from attachment or seizure. Exemption form is on file with this court.

See Ans. ¶¶5-13.

III. ARGUMENT

According to 735 ILCS §5/2-615, a party is required to raise objections to pleadings by motion, including that "a pleading or portion thereof be stricken because substantially insufficient in law." In addition, 735 ILCS §5/2-613(d) provides as follows:

The facts constituting any affirmative defense...which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must plainly set forth in the answer or reply.

"It is the 'facts' of a defense which must be alleged with particularity, not matters of law."

Huszagh v. City of Oakbrook Terrace, 41 Ill. 2d 387,389,243,N.E.2d 831, 833 (1969).

Defendant has utterly failed to comply with the requirement to plead the facts constituting his alleged affirmative defenses, and , indeed, Defendant pleads only vague, incomprehensible statements of law which give NCB absolutely no indication of the factual substance and context of Defendant's purported affirmative defenses are "substantially insufficient in law" and should be stricken by this Court.

First, Defnedant states that NCB's Complaint is time-barred under 735 ILCS §5/13-210, which states that "[w]hen a cause of action has arisen in a state or territory out of this State...and by the laws thereof, an action thereon shall not be maintained in this State." Defendant then refers to a Nevada statute, which claims prescribes a three (3) year statute of limitations to claims such as NCB's, to support his assertion. See Ans. ¶5. (referring to Nev. Rev. Stat §11.190 which provides statutes of limitation under Nevada law). Defendant's reference to Nevada law is inexplicable, and Defendant pleads absolutely no facts to give any indication why 735 ILCS §513-210 or the Nevada statute of limitations should apply. In fact, NCB is aware of the no facts which would indicate any nexus between this case and the State of Nevada rendering the application of §5/13-210 or the Nevada statute of limitations appropriate.

In fact, Defendant utterly misconstrues the manner in which courts apply 735 ILCS §5/13-210. Section 5/13-210 is only applied when A. none of the parties are residents of Illinois and B. the foreign statute of limitations is shorter than the Illinois statute of limitations. See Ko v. Eljer Industries, Inc., 297 Ill. App. 3d, 42, 678, N.E.2d 641, 774 (1st App. Dist. 1997). Defendant is clearly a resident of Illinois: he was served in Illinois and lists a Peoria, Illinois address in the signature block of his Answer. As such 735 ILCS §5/13-210 cannot apply to this case.

In addition defendant is utterly mistaken about the statute of limitation that a State of Nevada prescribes for actions such as NCB's, so even if Nevada law applied to this case (which it does not), NCB's Complaint would not be time-barred. Nevada prescribes a six (6) year statute of limitations for actions "upon a contract, obligation, or liability founded upon an instrument in writing..." and a statute of limitations of four (4) years for an action upon a "contract, obligation, or liability not founded upon an instrument in writing." See Nev. R. Stat. §11.90 (1)(B) & (2)©. As Defendant clearly admits in his affirmative defenses, the alleged debt was charged-off on December 28, 2001, less than four (4) years prior to NCB filing its Complaint. As such, NCB's Complaint was clearly brought prior to the expiration of the Nevada shortest statute of limitations that Nevada prescribes for claims such as NCB's. NCB's Complaint is not an action "upon a liability created by statute, other than a penaly or forfeiture" (the section marked by Defendant which he mistakenly believes applies to NCB's Complaint). Id at (3)(a) & Ans. Ex. 2. As such, the three (3) year Nevada statute of limitations cited by Defendant is not applicable to NCB's Complaint. In any event, further analysis of the applicable Nevada statute of limitations is moot, because Defendant has given this Court no facts which would indicate application of Nevada law is appropriate.

In addition, Defendant asserts that NCB's claims are "excluded" under the Illinois Banking & Interest Defintions Statute. However, Defendant pleads absolutely no facts to support his assertion. Moreover,a search of Westlaw and of the Illinois statutes database reveals absolutely no statute entitled the "Illinois Banking & Definitions Statute." As such, not only has Defendant failed to properly plead facts to support this purported affirmative defense, but he has cited a non-existent law in support his alleged affirmative defense. As such, this affirmative defense must be stricken.

Similarly, Defendant claims that NCB's Complaint is "excluded" by the provisions of the Illinois Credit Agreements Act, 815 ILCS §§ 160/1-160/3 ("ICAA"). The ICAA requires that credit agreements, as defined by the statute, must be in writing. *15 ILCS §160/2. However, Defendant provides absolutely no facts to support his assertion that the ICAA applies. Moreover, Exhibit 3 to Defendant's Answer proves that the ICAA does not apply to credit card agreements, such as the one at issue in this case. 815 ILCS § 160/1 (defining a credit agreement and stating that a "credit agreement' means an agreement or commitment by a creditor to lend money or extend credit or delay or forbear repayment of money not primarily for personal, family or household purposes, and not in connection with the issuance of credit cards") Therefore, not only does Defendant fail to provide the requisite facts to support his purported affirmative defense, but Defendant also pleads himself out of Court by attaching the provision of the ICAA clearly stating that it does not apply to credit card agreements.

Defendant next asserts several affirmative defenses (possibly intended as counterclaims) based on his assertion that NCB's claims are "excluded" under the federal Truth in Lending Act ("TILA"), including his invocation of the Household Credit Services, Inc. v. Pfennig, 541 U.S. 232 (2004), his assertion that his Account is an "open-end agreement," and his claims that TILA preempts state laws. Ans. ¶¶ 9-12. As an initial matter, Defendant provides this Court with no facts to support his assertion that any alleged violation of TILA occured (and NCB denies any such violation).

In addition, Defendant's assertion of TILA is barred by TILA's statute of limitations. Under 15 U.S.C. § 1640(e), "[a]ny action under this section may be brought in any United States district court, or in any other court of competent jurisdiction, within one year from the date of the occurence of the violation." (Emphasis added"; see also Inge v. Rock Financial Corp., 281 F.3d 613, 616, (6th Cir. 2002). As such, Defendant's assertion of TILA (whether plead as an affirmative defense or a counterclaim) is clearly barred by the one year statute of limitations. Defendant admits that his debt was charged off on dated December 28, 2001, which clearly indicates that any alleged violation giving rise to any complaint Defendant had with regard to initial disclosures of the monthly billing statements required of creditors by TILA and Regulation Z would have arisen on or prior to that date, clearly more than one (1) year prior to October 14, 2005, the date upon which Defendant filed his Answer.

Moreover, as Pfennig ( a case cited by Defendant) recognizes, "TILA regulates, inter alia, the substance and form of disclosures that creditors offering 'open end consumer credit plans' (a term that includes credit card accounts) must make to consumers, §1637(a), and provides for a civil remedy for consumers who suffer damages as a result of a creditor's failure to comply with TILA's provisions, §1640. Pfennig v. Household Credit Services, Inc., 541 U.S. 232, 235 (2004) (emphasis added below). NCB is not subject to the requirements of TILA and Regulation Z. Under TILA, "only 'creditors' are required to send monthly billing statements" pursuant to 15 U.S.C. §1637(B). Neff v. Capital Acquisitions & Management Co., 352 F.3d 1118 (7th Cir. 2003). According to the plain language of TILA, the term creditor "refers only to a person who both (1) regularly extends ...consumer credit which is payable by agreement in more than four installments or for which the payment of a finance charge is or may be required and (2) is the person to whom the debt arising from the consumer credit transaction is initially payable..." 15 U.S.C. §1602(f) (emphasis added see below); see also Regulation Z §226.2 (adopting an identical definition of the term "creditor"). Because NCB does not extend consumer credit and is never the person to whom the debt arising from the consumer credit transaction is initially payable, TILA does not apply. As such, this Court should strike all of the Defendant's alleged affirmative defenses (or counterclaims) based on TILA, because they are fatally defective, and have no place in this case.

Finally, Defendant asserts that his "only source of income is Social Security Disability Insurance with all assets exempt from attachment or seizure." Ans. at ¶13. However, the fact that Defendant's income may exempt is not an affirmative defens to Defendant's liability. Rather, it is an issue that must be asserted upon execution of any judgement NCB receive.

EMPHASIS: Aside from the helpful quote encapsulating the purpose of TILA and Regulation Z, Pfennig could not be more inapplicable to the case at bar. Pfennig was a class action case which contemplated whether "regulation Z specifically excludes over-limit fees from the definition of "finance charge." Pfennig, supra, at 236.

CONCLUSION

For all the foregoing reasons, this Court should strike the alleged affirmative defenses plead by Defendant, in their entirety.

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I had a case management hearing today and got the hearing on the motion to strike put off till March 29 and 3 weeks to get interrogatories to Plaintiff. I spent 3 hours in the law library and discovered that the Plaintiff is twisting the interpretation of the law. Regarding the borrowing statute for Illinois the Plaintiff claims that since I am now a resident of Illinois the borrowing statute doesn't apply and therefore the Nevada Statute of Limitations doesn't apply. The way I interpret the cas law is that if the cause of action accrues in a foreign state and both parties are not residents of Illinois then the Nevada SOL applies. I think Plaintiff is thinking that because they bought the debt that the cause of action is when they filed against me. So I guess I have to prove I was in Nevada when all payments were stopped to Citibank. That is if they prove that it is my account. In addition does it ring true that since there is no written signed contract between me and Unifund then I don't owe anything since they purchased the debt without guarantee of collection. They claim that Citibank assigned all rights to them. I would like to hear comments from those experienced.

Thanks

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