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Can someone help me here? I am being Sued


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1. Who is suing you: Attorney for Wells Fargo

2. For how much? Count 1 $2,500 (loan) Count II $2, 900 ( Credit Card)

3. Who is the original creditor? Wells Fargo

4. How do you know you are being sued? Summons

5. How were you served? Were you served? I wasn’t- found out by lawyer advertisement, and then called court house.

6. What was your correspondence (if any) with the people suing you before you think you were being sued? I was making payments almost a year ago. Until I had financial misfortune. I called numerous times to see about making arrangement for both accounts and I spoke to 4 or 5 different people. Finally one worker told me they would not accept the payment offer. If I did not have the payment in by a certain day they would call my employer and garnish my wages. This was about May of 2007.

7. Where do you live? Ohio

8. When is the last time you paid on this account? May 2007

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily). I am in litigation now

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. YES

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? YES, I RESPONDED, ANSWER, COUNTERCLAIMES ECT...

13. What evidence did they send with the summons? NONE .An affadavit? YES from a person claiming to have knowledge of my account, they are in Nevada.

A statement from the OC? NO Anything else they attached as exhibits? Yes there was a contract with a signature, it does not look like my signature. And for the credit card just a listing with a few numbers. Nothing itemized.

14. What is the SOL on the debt? To find out: In ohio 6 years.

I filed discovery, but the attorney's have not answered, it is 3 weeks past due.

they have asked for 1 extension of time to answer and they are in the process of asking for another. They have also noticed me to a deposition in another city from the lawsuit.

I think they are mad with me. Their attorney has accused me of harassing them and prolonging the proceeding, and filing unnecessary documents. They also stated they do not have time to answer my discovery because I am filing too many documentS that they are having a hard time trying to complete my Discovery.

The Judge has already told them to have my discovery by March 06, 2008. I still don' have it.

Anyone have any suggestions. I know this is long and drawn out. I don't have any money for an attorney.

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I am sorry but with May 07 as last payments in Ohio, your only hope is to attack their evidence especially the signature and even then parol evidence will probably prevail. I know you probably don't want to hear this but if I were you, I'd be trying to settle the case for less than the full amount. If there is mitigating circumstances, I don't see it from what you have posted.

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They also stated they do not have time to answer my discovery because I am filing too many documentS that they are having a hard time trying to complete my Discovery.

The Judge has already told them to have my discovery by March 06, 2008. I still don' have it......

First, tell them to "tell it to the judge" regarding BS complaints about discovery. If the judge tells you your being unreasonable, then worry about it.

It sounds like the judge has told them to answer, tough luck for them.

In my case, I think the judge had a dislike for JDB, yours may be a different though because it sounds like WF is the OC. Anyway in my case, when they didn't answer discover in 30 days (Ohio rules of civil procedure) I went straight to filing a motion to dismiss, with prejudice. I cited the reasons in my answer and the fact that plaintiff has yet to respond to discovery, and the evidence submitted so far was just lame. The judge granted it with prejudice.

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1.) You have the right to file all the paperwork you want. If its part of your defense and its somewhat on point, its your right!!!! A guy just held off forclosure on his house for 11 years in the Wall Street Journal. Want to bet some of his paperwork was probably a little irrelevant?

2.) Read the affidavit close! (from ed combs)

Testimony, whether live or in the form of an affidavit, to the effect that the

witness has reviewed a loan file and that the loan file shows that the debtor is in

default is hearsay and incompetent; rather, the records must be introduced after a

proper foundation is provided. New England Savings Bank v. Bedford Realty

Corp., 238 Conn. 745, 680 A.2d 301, 308-09 (1996), later opinion, 246 Conn.

594, 717 A.2d 713 (1998); Cole Taylor Bank v. Corrigan, supra, 230 Ill.App.3d

122, 129, 595 N.E.2d 177, 181 (2nd Dist. 1992) (bank officer's affidavit

summarizing bank records insufficient where it did not show the officer's

familiarity with the amounts disbursed or collected or provide the documents

upon which he relied as to his conclusion as to the amount due); Hawai'i Cmty.

Fed. Credit Union v. Keka, 94 Haw. 213, 222, 11 P.3d 1 (2000) (following

Corrigan). It is the business records that constitute the evidence, not the

testimony of the witness referring to them. In re A.B., 308 Ill.App. 3d 227, 236,

719 N.E.2d 348 (2nd Dist. 1999) (“Under the business records exception . . . it is

the business record itself, not the testimony of a witness who makes reference to

the record, which is admissible . . . . In other words, a witness is not permitted to

testify as to the contents of the document or provide a summary thereof; the

document speaks for itself. M. Graham, Cleary & Graham's Handbook of Illinois

Evidence § 803.10, at 825 (7th ed. 1999).”); Topps v. Unicorn Ins. Co., 271 Ill.

12

App. 3d 111, 116, 648 N.E.2d 214 (1st Dist. 1995) (“under the business record

exception to the hearsay rule, only the business record itself is admissible into

evidence rather than the testimony of the witness who makes reference to the

record”); Northern Illinois Gas Co. v. Vincent DiVito Constr., 214 Ill. App. 3d

203, 215, 573 N.E.2d 243, 252 (2nd Dist. 1991) (“The business records exception

to the hearsay rule (134 Ill. 2d R. 236) makes it apparent that it is only the

business record itself which is admissible, and not the testimony of a witness who

makes reference to the record”).

D. A witness cannot “testify” by regurgitating the content of business records that a

witness has reviewed when the witness has not seen or heard the events in

question. Such regurgitation is hearsay, plain and simple. Wahad v. Federal

Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In re McLemore,

2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio App. 2004); Nebraska v.

Ward, 510 N.W.2d 320, 324 (Neb. App. 1993).. “There is no hearsay exception .

. . that allows a witness to give hearsay testimony of the content of business

records based only upon a review of the records.” Grant v. Forgash, 1995 Ohio

App. LEXIS 5900, *13 (Ohio App. 1995).

E. If records are submitted, they must be properly authenticated. Kleet Lbr. Co., Inc.

v. Lucchese, 2007 NY Slip Op 51928U, 2007 NY Slip Op 51928U, 17 Misc. 3d

1111A, 2007 N.Y. Misc. LEXIS 6909 (Dist. Ct., Nassau County, Oct. 10, 2007)

(“these documents are not submitted in admissible form. Simply annexing

documents to the moving papers, without a proper evidentiary foundation is

inadequate. Higen Associates v. Serge Elevator Co., Inc., 190 AD2d 712, 593

NYS2d 319 (2nd Dept. 1993); Palisades Collection, LLC v. Gonzalez, 10 Misc 3d

1058(A), 809 NYS2d 482, 2005 NY Slip Op 52015(U) (Civ. Ct. NY Co. 2005).”)

F. A good case involving debt buyer affidavits is Luke v. Unifund CCR, 2-06-444-

CV, 2007 Tex. App. LEXIS 7096 (2d Dist. Ft. Worth Aug. 31, 2007).

G. Nor is such an affidavit made sufficient by omitting the fact that it is based on a

review of loan records, if it appears that the affiant did not personally receive or

observe the reception of all of the borrower’s payments. Hawaii Community

Federal Credit Union v. Keka, supra, 94 Haw. 213, 11 P.3d 1, 10 (2000). If the

underlying records are voluminous, a person who has extracted the necessary

information may testify to that fact, but the underlying records must be made

available to the court and opposing party. In re deLarco, 313 Ill.App.3d 107, 728

N.E.2d 1278 (2nd Dist. 2000).

3.) Attack lack of validation

4.) Demand a jury trial.

My advice is based on the assumption that you want to fight. I am not a lawyer, I am not suggesting you fight if you don't feel you can handle the fight, but with many collection lawsuits from JDB's, there are many valid defenses.

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Thank you everyone for the answers.

LLoh1970: I will file a motion to dismiss and see what happens. This attorney claims to have sent this overnight on Friday March 1, 2007, by it being the weekend I should have gotten it by March 03, Monday. UPS was the deliverer. I was working from home there was not a knock on the door, everything I get from UPs, they always make me sign for it.

Trueq: that was awesome. That does make me feel better. I am gettng ready to do a motion also to object to the Deposition. I live in Westerville Ohi and they are in Cleveland.

they want me to come to cleveld everyday until the depositon is complete. I cannot take off from work like.( I would lose my job) The case is in Columbus Ohio. I think this is a bit unethical, since the case is in franklin county. i DID DEMAND A TRIAL BY JURY. Another question I had thought about filing for Summary Judgment? Would that also work?

Maybe I can use some of this in my case.

THANKS AGAIN, YOU ARE A GREAT GROUP AND THIS IS A WONDERFUL SITE.

LOVE YOU ALL!!!!

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If you take the deposition, just make sure you do not confirm or deny anything claim related without requesting them putting the document in front of you. (The "I can't be sure, unless I can see the document", I use that one all the time!)

You will not win with the deposition, but you can lose it in deposition.

You have the right to exercise your 5th amendment right not to answer! The lawyer will huff, but don't admit anything that makes you uncomfortable. You have the right to not incriminate yourself!

If you move to dismiss, you need a reason like SOL, action is barred from lack of validation under FDCPA, lack of subject matter jusridiction, lack of standing (sued in wrong county for instance), etc.

Good luck!

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