Served by Asset Acceptance LLC in Illinois. Pre-trial this Friday 1/11/08

[Baz80]

Thanks in advance to anyone who's willing to help.

1. Who is suing you?

Asset Acceptance LLC attorneys Freedman Anselmo Lindberg & Rappe LLC

2. For how much?

Almost $1000 give or take a couple hundred.

3. Who is the original creditor?

SBC Phone company

4. How do you know you are being sued?

Served an "Alias Summons"

5. How were you served? Were you served?

Around 12/20/07 someone with a county jacket on served me at work. Couldnt tell if he was sheriff. He told me to call the aboved mentioned lawyers.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

I've received letters requesting the above amount. I believe they have called my house but I've never talked to them.

7. Where do you live?

Illinois

8. When is the last time you paid on this account?

The paperwork they sent with the summons said the date of last payment was 10/29/02. Charge off says 08/11/02. I cant confirm either since they dont report it on my credit reports. I never remember receiving a bill from the OC (SBC) for this.

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).

The summons I got is requesting I appear for a pre-trial on this Friday 1/11/08.

From my counties online court records:

08/23/2007 **Complaint filed on 08/23/2007. Summons issued, ret'd to Atty. 121.00pd

08/24/2007 Pre-trial set for 9/28/2007 at 08:35 in courtroom 301.

09/28/2007 No proof of service, alias summons may issue.

10/03/2007 Summons ret'd and filed (NS) (my name here)

10/26/2007 Notice of appearance and substitution of counsel filed.

12/04/2007 Alias summons issued, ret'd to Atty. 5.00pd

12/19/2007 Alias Summons ret'd and filed.(S)12/18 47.00

I never received a summons to appear for the pre-trial on 9/28.

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? (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?

The Alias Summons I received stated that I've been summoned to appear on 1/11/08 to answer the complaint in this case. They attached a copy of the complaint filed on 8/23/07. What follows is the main text on the complaint.

"I, the undersigned, being duly sworn upon oath deposes and claim that the defendant(s) is/are indebted to the plaintiff(s) in the sum of (above amount) as of July 26, 2007 for breach of contract on note, agreement for credit or retail installment contract dated January 1, 2002, plus contractual interest as called for in the agreement at 0% and the plaintiff(s) ASSET ACCEPTANCE LLC has/have demanded payment of said sum; that the defendant(s) (my name here) reside(s) at (my address here); that the plaintiff(s) ASSET ACCEPTANCE LLC reside(s) at PO BOX 2041, Warren MI 48090. The plaintiff, ASSET ACCEPTANCE LLC, is the bona fide owner of title to this action."

That's exactly how the bulk of the complaint appears. Not numbered or anything. Just one big paragraph.

I didnt receive any questionnaire or interrogatories.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

Attached to the complaint was an Affadavit filed in MI in June. It basically stated that they purchased this account from SBC and now had the right to collect. They attached a statement of account.

The statement is a simple typed document stating the ASSET account#, SBC account#, interest, purchase date, amount, interest rate, date of charge off, date of last payment. This must've been made by ASSET. The footer lists ASSET's account# and the names of the attorneys. Above that is the "THIS COMMUNICATION IS FROM A DEBT COLLECTOR" line.

14. What is the SOL on the debt?

Oral: 5 years

Written: 10 years

Promissory: 10 years

Open-Ended: 5 years

I have no idea what a phone bill would fall under. Would I have a leg to stand on even if it was five years? Their statement says the date of last payment was 10/29/02. Charge off stated 08/11/07. Did they beat the possible 5 year SOL by filing the complaint on 08/23/07? Or did they need to get me summoned or actually in court before the SOL?

My main things I'm concerned about are:

1. Will claiming that the debt is past the SOL work here?

2. Should I file an answer before the court date or on the court date 1/11/07? Do I have to send a copy to ASSET's attorneys? I'll ask this when I contact the clerk tomorrow.

Here's the address for the Answer form that's on my counties website http://www.co.rock-island.il.us/uploadedFiles/CirClk/Answer.pdf

Should I use this verbatim or change the actual answer? It basically says I deny every allegation and a request to be notified of any court date.

Thank you all for taking the time.

[someonesomewhere]

Just seeing this today, how did it go and did you consult with a lawyer?

[Baz80]

Just seeing this today, how did it go and did you consult with a lawyer?

I never contacted an attorney.

I filed my answer the same day as court. Their lawyer requested I send a copy to Freedman Anselmo Lindberg and Rappe's main office. A local lawyer had shown up representing them.

He filed a continuance. My next court date is 2/15.

They received my answer shortly after the 1st court date. I sent a pay for delete settlement letter agreeing to pay about 55% if they delete the tradeline and dismiss with prejudice. They received it over a week ago, but I havent heard back from them.

My court date is around the corner. Im further researching some of my affirmative defenses stated in my answer. I waited way too long to type up my answer. So I submitted a lot of the defenses without thoroughly researching them.

The main things I'm researching are:

1. 4 year UCC SOL, does it cover phone bills in Illinois?

2. Collection Agency licensing. Illinois' https://www.idfpr.com/dpr/licenselookup/default.asp doesnt list either ASSET or their attorneys as having a license to collect.

3. Writing up a motion to strike the statement of account affidavit they attached to the complaint according to IL RCP.

Any help is appreciated.

[CivilLiberty]

The SOL has to expire BEFORE THEY FILE if you want to use the SOL defense - it appears that they FILED before the 5 year SOL expired (if indeed your DOFD was 10/29/2002). Assuming a 5 year SOL for open ended accts (I think a utility bill fits Open Ended).

I.e., if 5 years is the shortest in your state, then it appears that you cannot use the SOL defense - but I am not an attorney, and not familiar with the laws in Illinois, so your milage may vary.

If I were in this situation, I would file the answer and deny everything, make a motion for discovery, and then see what they have to present against you, and plan your defense accordingly.

CL

[NYMatt]

its hard to believe they would sue for such a small amount.take 'em to court and jack up their legal costs.

:D:D

[Baz80]

I received a response to my Answer in the mail yesterday. Honestly I'm not certain of the significance of it yet. Is this normal?

Any thoughts on where to go from here appreciated. Criticisms are welcome too for the benefit of anyone out there formulating their own answer.

Below the caption they title it "Plaintiff's Response To Defendant's Affirmative Defenses" then state...

"NOW COMES the captioned plaintiff by and through their attorneys, Freedman Anselmo Lindberg & Rappe LLC., f/k/a Freedman Anselmo Lindberg and Rappe, and in response to the defendant's affirmative defenses states as follows:

[below are my affirmative defenses with their "RESPONSE:" below each one. Im including my general denial from the beginning of my original answer for anyone who cares.]

Answer

Comes now the Defendant, Pro Se, Mr. NotGonna****inTakeItNoMore, and answers the Plaintiff's Complaint as follows; the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of every allegation and count set out in the complaint, and on that basis generally and specifically denies the allegations contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

Affirmative Defenses

1. Defendant alleges that this action is time-barred under (UCC) 810 ILCS 5/2-725 of the laws of Illinois.

RESPONSE: Plaintiff denies this assertion.

2. Plaintiff has submitted an Affidavit of debt into evidence. Said document pertains to acts and events that allegedly occurred between Defendant and a third party, SBC. The Affidavit is duly sworn by an employee of ASSET ACCEPTANCE LLC and not SBC. At no time was the creator of the Affidavit nor any of Plaintiff's employees present to witness any alleged acts or creation of the records of transactions occurring between defendant and SBC. As such, said Affidavit falls under the hearsay rule and is inadmissible as evidence.

RESPONSE: The Plaintiff admits that the affidavit attached to the complaint is that of an employee of ASSET ACCEPTANCE LLC and not SBC and that ASSET ACCEPTANCE was not present at the time of any prior transactions between SBC and the defendant. However, the plaintiff denies that the affidavit is inadmissible into evidence, further states that this is not a defense to the claim and denies any further defense that may be asserted in paragraph 2.

3. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and was to answer for the debt, default, or miscarriage of another person.

RESPONSE: Plaintiff denies that the Statute of Fraud applies and further denies any affirmative defense that may actually be asserted in paragraph 3.

4. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

RESPONSE: Plaintiff denies any affirmative defense which may be stated herein and asserts that they take this claim as an assignee of the original creditor.

5. Plaintiff's Complaint includes references to alleged agreements made outside the alleged written contract, violating the Parole Evidence Rule.

RESPONSE: Plaintiff denies any affirmative defense that may be stated within paragraph 5 although the claim appears to be more of a legal conclusion than a statement of fact.

6. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, from collecting attorney fees, interest, collection fees, and any amount not specifically provide for by agreement.

RESPONSE: Again, the defendant appears to be stating a legal conclusion and further denies any affirmative defense which the court may deem to be set forth therein.

7. Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

RESPONSE: Plaintiff denies the assertions set forth in paragraph 7 of the affirmative defenses and further attaches a copy of the bill of sale from the original creditor to ASSET ACCEPTANCE LLC. [note: No bill of sale was attached to this copy of the response. If there actually is such a document.]

8. Plaintiff's complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

RESPONSE: Again, the defendant does not appear to be setting forth a valid affirmative defense and plaintiff denies it and again references the bill of sale.

9. Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.

RESPONSE: Plaintiff denies the assertion set forth therein.

10. Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties.

RESPONSE: Plaintiff denies the assertion set forth herein in paragraph 10.

11. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits.

RESPONSE: The plaintiff denies any knowledge of such purported Accord and Satisfaction and since no specific evidence has been set forth to support this claim as required under a proper affirmative defense, the plaintiff demands strict proof thereof.

12. Plaintiff voluntarily, with knowledge inherent, made an assumption of risk and is not entitled to judgement and not entitled to equitable, pecuniary or statutory damages under the doctrine ofVolenti non fit injuria.

RESPONSE: Again, the defendant seems to be setting forth some form of legal conclusion without any support of fact insofar as the court may deem that an affirmative defense is set forth and the plaintiff denies it.

13. Plaintiff's damages are the result of acts or omissions committed by non-parties to this action over whom Defendant has responsibility or control.

RESPONSE: Plaintiff denies an knowledge of such acts claimed by the defendant and since no specific statement of fact was set forth to support the assertion in paragraph 13. The plaintiff demands strict proof thereof.

14. Plaintiff's damages are the result of acts or omissions committed by Plaintiff.

RESPONSE: Plaintiff denies this allegation.

15. Plaintiff's damages are limited to real or actual damages only.

RESPONSE: Again, this is a conclusion and does not set forth any defense and seems to allow that damages may be due to the plaintiff. If there is any affirmative defense being set forth herein, plaintiff is not able to discern what that may be.

16. The Plaintiff is not a collection agency licensed or authorized to conduct collection agency business in the state of Illinois.

RESPONSE: The plaintiff admits they are not a collection agency and thus there is no need to be licensed as a collection agency to do business in the State of Illinois (at least under the law as it was in place at the time of filing of this law suit, wherefore plaintiff denies any possible affirmative defense that may be set forth therein. [note: "THIS COMMUNICATION IS FROM A DEBT COLLECTOR" is written at the bottom of every page of this response. If ASSET ACCEPTANCE isnt a collection agency then who is?]

17. The Plaintiff is not authorized or licensed to collect claims for others in this state, solicit the right to collect or receive payment of a claim of another.

RESPONSE: The plaintiff is attempting to collect a debt on its own behalf since they are the assignee of the original creditor and is not attempting to collect a claim for another and thus the plaintiff denies any and all allegations set forth therein.

18. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise, the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.

RESPONSE: The plaintiff is not exactly sure what the defendant is attempting to assert here. The plaintiff affirmatively states that they are legally able to proceed with this cause of action and with this in mind plaintiff denies any potential affirmative defense which may be set forth therein.

19. The Complaint fails to allege or prove that Plaintiff is licensed and has procure a bond as required by law.

RESPONSE: Plaintiff denies that they are not able to proceed in this cause of action as the law applied at the time of the filing of the lawsuit. Thus, plaintiff denies any allegations set forth in paragraph 19.

20. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

RESPONSE: Since the defendant does not make any specific claim or defense, the plaintiff makes no response.

[CA's prayer for relief from response] WHEREFORE, the plaintiff respectfully moves that this honorable court deny the purported affirmative defenses and enter judgement in favor of the plaintiff for the full amount prayed for and for any additional relief the court shall deem appropriate.

[My prayer for relief from original answer] WHEREFORE, the Defendant requests that the Plaintiff's action be dismissed in its entirety with prejudice.

[gator944]

Others here have more experience with the others, but I would like to comment on 17. The FDCPA does specifically say that JDBs are classified as Collection Agencies. State laws tend to mimic those federal guidelines. I am sorry I don't have time to find, cut, and paste the actual statute.

I think you answers would have carried a lot more weight had you specifically listed statutes for each of your answers.

[montanatim]

Since you did not specifically ask for their affidavit to be thrown out you may want to do a Motion in Limine citing their admission that it is a third party document and get it thrown out (just because). You may also want to cite the rule of evidence for hearsay and third party business documents. you may do this after you try the next thing if it fails.

In their response to #16, it looks like you caught it. If they are not licensed to do business in your state, and they are required to be by statute (look it up) I would motion for dismissal on lack of standing. Citing the authority of the statute, the proof you have that they are not licensed and anything else that proves they are engaged in collection activity with out license.

If you fail to get it dismissed send your discovery requests to them. You may want to do this anyway so as to be timely while in the process of these pre-trial motions.

Just my two cents....may or may not be worth that much.

[Methuss]

At this point you will be arguing your case with the judge.

The illinois debt collection law is 225 ILCS 425 et. al.

The relavent definitions are:

"Debt collector", "collection agency", or "agency" means any person who, in the ordinary course of business, regularly, on behalf of himself or herself or others, engages in debt collection.

"Debt collection" means any act or practice in connection with the collection of consumer debts.

So they are debt collectors by definition of the law because it doesn't matter if it is on their own behalf or another's. So their answer to #17 is blatantly false.

[trueq]

None of that crap is fact before the court!!!!

Construct an affidavit countering all this nonsense. Try to keep it generic (especialy if you are very guilty of underlying debt). Say you "are not in receipt of a document" which verifies you owe money, have a contract, blah blah,. Do it point by point.

YOUR AFFIDAVIT IS A FACT BEFORE THE COURT!

Other side needs to get a witness to counter your affidavit. Statements of counsel, whether in brief or oral argument, are not facts before the court. Your affidavit rises to the level of evidence, his crapola brief you received does not rise to the level of evidence, unless you don't object to his testimony!

If lawyer tries to testify, submit an affidavit signed by the lawyer, or attempts to submit a witness affidavit without the witness being present to cross examine.... Object early, loud, and often!!!

Make the other lawyer cry! He sounds like he's lazy and stupid.

[Zerububble]

What happened at pre-trial? We have one coming up and would love to know.