Jump to content

Being Sued by LVNV funding


Recommended Posts

I am trying to protect my fiancee from some bad decisions she made a LONG time ago, over 7 years, to be exact! She had an old debt from what she claims was roughly 400 dollars of purchases on a Sears card long before I met her. Shortly after I met her, she had made a deal with Sears National bank and made a few payments toward her balance (don't have record of what the balance was back then, but I recall around 800-1000 dollars). Her last payment was for $50 on in the middle of 2003. Shortly after that, LVNV funding took over the account, and made attempts at collection. This was before I knew how to handle it, and many "attempts" went unanswered. At other times between then and 2008 I spoke with them (claiming to be her husband on some occasions, and previous occasions her boyfriend, and she had provided authorization for them to talk to me) and I tried to offer very low settlements on her behalf on the account (like $200 or $300); they had claimed the balance was somewhere around $1500 (but they are willing to take a settlement of $1000). Finally, around March of 2008, we got a letter from Allied Interstate, inc (which had been lost and I don't have a copy of it) claiming they are attempting to collect the debt. I had written them a dispute and validation request later in the month, 2008, asking for, among other things, showing how they calculated the debt, copies of documents that show she agreed to pay what they say she owes, providing proof that the statute of limitations has not expired on the account, and all the other things mentioned in the debt-consolidation-credit... website. I never "saw" anything come in after that, until actually a few weeks ago, I FOUND a letter that had been mistakenly discarded / lost in my house, from RESURGENT CAPITAL SERVICES, LP, sent to our old address on in the beginning of April, and with a misspelling on the street address! I don't know when it actually arrived, and I never had a timely chance to respond to it, but it was basically a letter saying enclosed is an original validation of debt that verifies the debt. The next page is a printing that basically says "The account number xxxxx for YYY(name) acquired from Sears is now owned by LVNV Funding, LLC. At the time the account was acquired from Sears, Sears advised that the balance owing was $15xx.xx. Since that time, additional interest, fees, payments, credits, and offsets, if applicable, have been allowed, for a current balance of $16xx.xx" The third page is a privacy notice, listing all of the related companies (the sherman companies) that the privacy notice is being given in behalf of (and Allied Interstate is not on the list). On the first page, it says if we notify them in writing within 30 days after receipt of this notice they will obtain verification of the debt or a copy of a judgement (if there is one) and mail such verification of judgement to us. If we request within 30 days for the name and address of the original creditor then they will send it. Again, this letter was sent to the wrong address, and the address they sent it to was spelled wrong!, and I really didn't see it until recently, but for all intensive purposes it may have never even been delivered to us!

On October 29, 2008 she was served by someone knocking on our door and having her sign for a notice to appear for a pre-trial conference/mediation. To date, nothing has been done yet, but the trial is later this month and I feel that the statute of limitations is expired, since the last transaction initiated by her was the middle of 2003, more than 5 years ago. In the following reply are the cold hard facts that may have been left out of the story above:

Link to comment
Share on other sites

1. Who is suing you?

LVNV Funding LLC

2. For how much?

count 1: ~$1100+interest, costs,and disbursement; Count 2:(unjust enrichment) plaintiff demands judgement for damages of (same as above) against defendant

3. Who is the original creditor?

"Sears"

4. How do you know you are being sued?

Signed for "Notice to appear for pre-trial conference/mediation", copy of statement of claim included with notice

5. How were you served? Were you served?

notice to appear was delivered to and signed for at door of residence

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

see "story" above

7. Where do you live?

Florida

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

Middle of 2003

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).

unknown, had not yet been to pre-trial conference

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

no, just threatened collection agency that it will be disputed with the credit bureaus if they dont provide proper validation, but no action has been made.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

Yes, half a year before, with a "different company" than the one filing suit.

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?

Not that I can find; just to appear at the pre-trial conference

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

their statement of claim, as filed with clerk, states original creditor name and account number, and amount owed, and claims of how defendant used credit with creditor and by use of the card has accepted terms and conditions of the cardholder agreement

14. What is the SOL on the debt? To find out:

4 years, as per link on your website

Please let me know if I have a valid argument, if you think it is something I should be able to successfully argue myself or if I need to hire a lawyer for this, and any other valid info I might need to present the case.

ps I unfortunately misplaced the postal receipt that our validation letter was delivered. IF I need it I might be able to find it, but it will be work!

Link to comment
Share on other sites

The bad news is SOL on CC in Fl is 5 years. The good news is that many members here know the laws . Between Nascar, the rest of the members and the stickies you have a great chance to win. LVNV may not even have a proper chain of custody on a debt this old. I would stay away from the SOL defense though as I have had quite a few attorneys tell me the courts are leaning towards a 5 year SOL.

Link to comment
Share on other sites

Florida Statutes of Limitation

Contract or written instrument and for mortgage foreclosure: 5 years. F.S. 95.11.

Libel, slander, or unpaid wages: 2 years.

Judgments: 20 years total and to be a lien on any real property, it has to be re-recorded for a second time at 10 years.

The limitations period begins from the date the last element of the cause of action occurred, (95.051). NOTE: The limitation period is tolled (stopped) for any period during which the debtor is absent from the state and each time a voluntary payment is made on a debt arising from a written instrument.

Almost all other actions fall under the 4-year catch-all limitations period, (F.S. 95.11(3)(p)).

ALL CREDIT CARDS IS 4 YEARS

YOU;do not owe them anything!

UNITED STATES OF AMERICA

FEDERAL TRADE COMMISSION

WASHINGTON, D.C. 20580

Division of Credit Practices

Bureau of Consumer Protection

September 16, 1993

Stuart K. Pratt

Director, State Government Relations

Associated Credit Bureaus

1090 Vermont Ave., N.W.

Suite 200

Washington, D.C. 20005-4905

Dear Mr. Pratt:

This is in reply to your letter of August 16, 1993 concerning whether a debt collector is covered by the Fair Debt Collection Practices Act when it purchases defaulted accounts from the original creditor.

We consider the purchase of a defaulted account “. . . an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another." See Section 803(4) of the Act. As such, we do not believe that such a purchase removes the debt collector from Act coverage with respect to that account because it does not make the debt collector a creditor under Section 803(4). I hope this has been helpful.

Your interest in writing is appreciated. Please be aware that since this is only the opinion of Commission staff, the Commission itself is not bound by it.

Sincerely,

John F. LeFevre

Attorney

Division of Credit Practices

A holder who does not give value cannot qualify as a holder in due course.

UCC 3-303;1(1).

Hope this helps you:)++

Link to comment
Share on other sites

Almost all other actions fall under the 4-year catch-all limitations period, (F.S. 95.11(3)(p)).

ALL CREDIT CARDS IS 4 YEARS

You might want to do a little bit more reading into Florida opinions on this subject. Statute of limitations for credit card debt in Florida is generally 5 years, unless the debtor can show that the card is a "merchant" card representing a two-party agreement and not a bank credit card which constitutes a three-party or tripartite agreement.

Link to comment
Share on other sites

The last payment was made in 1993, and it has been 5 1/2 years since that date. The last Purchase was made a few YEARS before that, as it was already very delinquent when that payment plan was made. The account was a SEARS card, and although I would think it is distributed from Sears National BANK, the paperwork they sent us claims that the OC is Sears (I am guessing that is the store, not the bank).

Here is word for word what they sent with the pre-trial conference notice:

STATEMENT OF CLAIM

Plaintiff, LVNV FUNDING,LLC sues Defendant (name), and alleges:

1. That this is an action for damages that is within this court's jurisdictional limitations.

2. Plaintiff is a foreign corporation authorized to do business in Florida

3. Defendant, (name), is an individual, is sui juris, and is a resident of (where the court that is holding the hearing) County, Florida.

4. The Defendant entered in to a credit agreement with SEARS for extension of credit.

5. The credit account number with SEARS was xxxxxx.

6. The Plaintiff is the owner and holder of the debt pursuant to an assignment agreement from the original creditor, SEARS.

7. That all conditions precedent to the bringing of this action have been met or waived.

8. Defendant, by execution of the application and/or by use of the credit card, has accepted the terms and conditions of the credit card holder agreement.

9. Defendant caused various charges to be made throught he use of said card.

10 Notice required by the Fair Debt Collection Practices Act, 15 U.D.C. 1601 et seq. is attached hereto as Exhibit "A" and is included by reference as if stated verbatim herein.

COUNT 1

Plaintiff realleges all of the allegations set forth in paragraphs 1 through 9 above.

11 The Defendant breached the agreement referred to in paragraph 3 by failing to pay the sums of the money due in accordance with the terms and conditions of that contract.

12 The Defendant owes Plaintiff the principal sum of (over $1000, exact amnt written on document), plus interest, and costs as a result of the Defendant's failure to abide by the terms and conditions of the written/credit agreement entered into between the original creditor and Defendant.

13 Demand for payment has been made.

WHEREFORE, Plaintiff demand judgment for damages of #(same amount as in paragraph 12) against the Defendant, (name) plus interest, costs, and disbursements in the institution of this suit, and any other relief which this Court deems just and proper.

COUNT II (UNJUST ENRICHMENT)

Plaintiff realleges all of the allegations set forth in paragraphs 1 through 9 above.

14 The Defendant received a financial benefit, which was in fact appreciated by the Defendant.

15 The Defendant accepted the financial benefit.

16 By virtue of the circumstances surrounding the use of the credit card, the Defendant knowingly requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

17 It would be inequitable for this Court to allow Defendant to retain the benefits or to be unjustly enriched at the expense of the Plaintiff or allow the Defendant to retain the value of the funds in issue without repaying the Plaintiff the value of same.

WHEREFORE, Plaintiff demands judgment for damages of (same as line 12 above) against the defendant, (defendant's name) plus interest, costs and disbursements in the institution of this suit, and any other relief which this court deems just and proper.

Again, they have not shown me any documentation other than their own printout claiming what is owed; nothing form the OC, nothing that shows the initial purchase(s). I know that the amount they claim included lots of interest and late fees, totaling more than 2x the actual items purchased.

Since it has been more than 5 years since the last payment, then the defense of SOL I would think should stick.

Looking at a credit report (from end of year, 2006) shows the account was in collection for a few months, then 1 month of "unknown" then all the rest in charge-off again; and all that was in 2005. Will they try to say a payment was made when it really wasn't, creating a new date for the SOL to start? The last payment was REALLY made in the middle of 2003!!

Link to comment
Share on other sites

Does that change anything about the rules???

Yes. The case will proceed in accordance with the Florida Small Claims Rules.

You are not required to file an answer prior to appearing, nor is the Plaintiff allowed to pursue discovery against an unrepresented Defendant without leave of court, unless the Defendant initiates it first.

Since the debt is so old, they won't take that chance since it would likely result discovery requests from you in return. This would expose the fact that they don't have a case against you.

You'll need to argue your defenses at the hearing. Notice in the complaint that they alleged that all conditions precedent have been complied with. That would include the mandatory notice of assignment under Chapter 559. You'll also want to raise SOL as an affirmative defense. On top of that, you might find this whitepaper on affidavits helpful in formulating your defense.

Link to comment
Share on other sites

nor is the Plaintiff allowed to pursue discovery against an unrepresented Defendant without leave of court, unless the Defendant initiates it first.

Since the debt is so old, they won't take that chance since it would likely result discovery requests from you in return. This would expose the fact that they don't have a case against you.

Please describe what that means, in lamens terms, as I am not sure I understand it.

From what I read in the AFF_Outline link you provided, section 3a1, does the plaintiff need to provide all that info? How do I request them to provide it? I have not seen any of it yet provided by them, and I dont think they can provide all of that. Should I request it somehow before the pre-trial conference, or just bring up during the pre-trial that this is past SOL and should not be tried? Do I need to try to get copies of records proving that to help my case? We have a copy of the short letter provided with the last two payments on the account, and an old credit report that shows it was in collections from atleast middle of 06, but not much else at hand.

Would it work better for me to try to get it moved to a different court (other than small claims) or am I better off in small claims?

Finally what about the unjust enrichment charge? IS that held by the same SOL laws, and if not what is the SOL on it? What is the best defense against that charge (particularly that it is not the OC, and they decided to assume the debt, and we did not enter into agreement with them)?

Also, the original account and purchases were made in a different jurisdiction than the lawsuit, still in Florida but a different county. I doubt that makes any difference but could it?

Finally, in Florida, are we able to bring an attorney with us or must she represent herself? If we dont have an attorney, must she speak for herself or can I atleast help her as her "fiancee" or significant other, if we are not legally married?

Thank you very much for your help thus far and any additional info you give us to help our case!

Link to comment
Share on other sites

Yes. The case will proceed in accordance with the Florida Small Claims Rules.

You are not required to file an answer prior to appearing, nor is the Plaintiff allowed to pursue discovery against an unrepresented Defendant without leave of court, unless the Defendant initiates it first.

Since the debt is so old, they won't take that chance since it would likely result discovery requests from you in return. This would expose the fact that they don't have a case against you.

You'll need to argue your defenses at the hearing. Notice in the complaint that they alleged that all conditions precedent have been complied with. That would include the mandatory notice of assignment under Chapter 559. You'll also want to raise SOL as an affirmative defense. On top of that, you might find this whitepaper on affidavits helpful in formulating your defense.

This being the case would it not be the best stratogy be to initiate discovery?

Link to comment
Share on other sites

This being the case would it not be the best stratogy be to initiate discovery?

If not for the fact that the trial date is less than 30 days away, it probably would be.

According to the OP, there has not been a payment since 1993. If any case should be dismissed on SOL, this looks like one.

There probably was no timely notice of assignment. I would also argue that the suit is barred under 559.715.

Additionally, if the Defendant were to admit that it had a contract with Sears at one time, the Plaintiff would then be prevented from recovering on the unjust enrichment claim and the case would have to be decided on the contract. No way will the Plaintiff be able to come up with proof that they purchased that specific account.

Link to comment
Share on other sites

So how does this work:

Resurgent sends me a letter and I respond (after many previous letters over the years from I dont know how many different "Sherman" companies; this was before we knew how to fight it properly)

LVNV responds with a general letter that doesnt answer with what we want, but they send it to the wrong address and I dont receive it (off the record, it came to us but got lost and I didnt see it until recently).

From what I recently read here, LVNV does not have the right to collect in Florida, but Resurgent does. LVNV is the one suing me, and SUPPOSEDLY they try to say that Resurgent is NOT LVNV of course it is easy to prove their relations)

IS it true that LVNV cannot collect in Florida?

IS that one easy way to "get out of jail"?

Was LVNV supposed to tell us they had transferred the case to another company (resurgent capital)? or resurgent giving it to LVNV (since they are the ones suing us)?

Thank you again!

Link to comment
Share on other sites

Hello

I got a knock at the door last night and a gentlemen hand me a paper, it appears to be a summons for me to appear in court. I am being sued by Palisades collection agency for an old credit card debt that I had with First USA bank. Palisades collection agency bought the debt from the bank. The credit card was opened back in 2002 and charged off. Account was closed in Aug 2004, and sold to different collection agencies, Palisades is the agency that has the debt now. I live in Pennsylvania and was just wondering if the Statues of Limitations could help me, I think that the SOL is 4 years, not sure. Does the 4 years start from the first default date or does it start from the last time that a payment was made. My credit report states that my last payment was made in July 2005. The first default date was back in Oct 2004. I am not sure if I have a leg to stand on as far as my defense goes. Can anyone give me some type of advice as to go about how to purse my defense or if I even have one. Thank you

Link to comment
Share on other sites

As far as the SOL goes, theres a sticky above stating a case law that SOL is 4 years in florida, from a similar case in a county very close, if not the same county, from the same OC!!!!

As for my case, I am looking at some old records we had "filed away" and just found. In the records, I had actually asked for validation a year before, and they sent a notice saying it will take longer than 30 days; then almost 3 months later, they sent copies of 5 statements, 4 of them concurrent and one skipped a month (they sent 2 copies of the last one, to make 6 "pages" total) none of them had any transactions, except the last one had a credit on it from "system ins premium credit". That last one was the month that a deal was made, and a TOTAL of less than 100 dollars was paid that month towards that deal, the rest of the deal was never paid and it went delinquent again; Those records were not in the paperwork they had sent us since it happend during the month, in the weeks after the original statement print date. Keep in mind, it was all still more than 5 years ago! Heres where it gets interesting.... The balance was in the 1500's at that time. The first letter we have ON FILE from a collector, which was LVNV, was dated 3 years later, and the balance they claim was more than 300 dollars LESS than the balance was when we made the last payment!!!!

Can they be trying to fraudulently claim that we made a payment after that date?? IF they CLAIM a payment was made in '05 then the SOL is no good (for us)! When we asked for verification a couple of years ago and received what we did (detailed above), it shows there was MORE owed on those statements than what they claim is owed now, and that came as reprints, straight from Northstar Location Services, LLC, who claims the acct belongs to LVNV... Maybe they think we didnt get that paper?

Also, about the letter they sent that was LOST that they sent us and I recently found (claiming x dollars was owed when they bought it), in our file that I just pulled, the SAME company sent another letter that we did receive in a timely manner, and it was sent 3 days later; and it says "We have received your recent inquiry regarding this account and are in the process of investigating your claim. Once a determination is made, we will contact you with the results of our research." (meaning, they will try to answer the validation request; and not that they just sent validation 3 days ago. right???) That looks really strange to me! By the way, this is all correspondance between us and Resurgent Capital Services LP.

So, can someone tell me if LVNV is licensed to collect in Florida, or should Resurgent or someone else be suing me instead? (the case law in the sticky was a different collector, for the same OC-- Sears) Also, what do you make of the vanishing balance and is there some way the bank could have credited us at a later date making the SOL different??????

Also the statements they sent were up to the month the "deal" was made (probably why there was a "system ins premium credit" on the last bill they sent), but did not show any of the original purchases, which I would like them to prove, if anybody can tell us what to ask (LVNV sent those docs listed above to us, and probably have it on our file... IF they have any more at their disposal I dont know, but it did take 3 months for them to get that to us.)

Thank you AGAIN for all the help.

Link to comment
Share on other sites

OK, I just went to https://cf.fldfs.com/pubinqry/pub2/businesses.cfm to see if LVNV Funding is listed as a licensed collection agency in the state of florida, and LVNV IS NOT LISTED in that website HOWEVER both northstar Location services (a previous col. agency that went after us for this acct) and Resurgent Capital (the last coll. agency letter we got before the suit) are licensed. I know that there are close ties and relations between these companies, as they are all "Sherman Companies", but is LVNV allowed to sue me or do they need to have Resurgent Capital sue me since they are the ones licensed to collect in Florida??????

I still want to know the questions from my last post

Thanks

Link to comment
Share on other sites

  • 2 weeks later...
It looks like it is, the document tracking # starts with SM-

Does that change anything about the rules???

xangelx Your ladie's case sound very simulair to mine. LVNV sued me in small claims court in Coral Gables Fl. Sears also was the OC. It so happen I dv them on my own just to repair my credit, but i was not served, my wife (who is hearing impaired) thought someone with a barge was at the door. Call courthouse, sure enough it was for me. If its anything like what I went through she has nothing to worry about.

You go to pre-trail, they call your name, once that happens a lawyer for Lvnv pulls you outside, try to intimidate you by asking is it yours, last 4 digits of your ssn, just to make them think they got you. don't admit to anything, if they don't show you an assignment, contract with your signature, Sears payment history completely determining the debt, if none of these are produce, turn around go back into court wait til your case is called, tell the judge you don't believe the debt is yours (you have no idea whats been added to it). The judge i had sent us to mediation in 90 days to resolve it without trail. If they haven't produce anything yet they never will, ask to go to trail wait 2 or 3 weeks and you may recieve a letter that they are voluntary dismissing the case. Anyway that's how it was with me. It was my first time and I was really chicken, but I did my homework and listen what is being said in this forum. Like nascar says you never know what a judge will do. So i hope that helps.:mrgreen:

Link to comment
Share on other sites

As it so happens, my mom works for a law firm (who does not do this type of work) and they have a new lawyer fresh out of school who needs some experience. They looked over the case and said there's lots of problems with it (they think the case was not even filed properly!) and they offered to give us their new lawyer pro bono!!!!

The case is later this week, so I will post how it goes.

(I am sure they are not expecting someone to bring legal counsel for a charges of under $1500!!!)

Link to comment
Share on other sites

Well, day one in court and here's what happened:

LVNV is suing many people here in Florida! The prosecuting lawyers had 7 or 8 cases all scheduled together for lvnv, not to mention a few more cases from other clientele! The judge sends everybody to mediation as soon as they present themselves, so there's a table full of folders (cases) of people waiting to go to mediation with this lawyer, and people waiting all day to see them to mediate! The judge was getting sick of the holdups, and ripped the lawyers a new a-hole, threatening them to not take so many cases to the court at the same time if they do not have the manpower to deal with them! Since the lawyers were in and out throughout the day, the judge also threatened to dismiss any future case that they are not present in the courtroom for, when he calls their case!

As for our case, our lawyer immediately moved to dismiss based on statute of limitations, and the judge asked the prosecutor when the last payment was in. The prosecutor did not have that paperwork at hand, and the judge told them that he will set a trial date so they can get the paperwork they need, and will dismiss the case if it is past sol. In the meantime, we found out that LVNV Funding LLC is NOT supposed to be doing business in Florida at this time, as per the Secretary of State! LVNV Funding Inc. did not file their quarterly (I think) reports last year, and had their business license revoked. Then LVNV Funding LLC tried to apply for a license, but it was denied due to their name being the same as LVNV Funding Inc, and that is not permitted since it's the same name! We are working on getting the legal documents showing they are not supposed to be here, to use to support our case, if we need it (maybe it will throw out everybody's case with this judge?? 2/3 of the cases on the docket were from lvnv!). This info was hard to get, as each person we talked to at the Secretary of State offices had a different story, but finally we got through to someone who could read the documents properly and understand wtf is going on in the files!

We will report what happens at the trial.....

Link to comment
Share on other sites

Well, day one in court and here's what happened:

LVNV is suing many people here in Florida! The prosecuting lawyers had 7 or 8 cases all scheduled together for lvnv, not to mention a few more cases from other clientele!

xangelx Boy do that not bring back memories, sitting in that court room and being the only one to show up on LVNV's list

In the meantime, we found out that LVNV Funding LLC is NOT supposed to be doing business in Florida at this time, as per the Secretary of State! LVNV Funding Inc. did not file their quarterly (I think) reports last year, and had their business license revoked. Then LVNV Funding LLC tried to apply for a license, but it was denied due to their name being the same as LVNV Funding Inc, and that is not permitted since it's the same name! We are working on getting the legal documents showing they are not supposed to be here, to use to support our case, if we need it (maybe it will throw out everybody's case with this judge?? 2/3 of the cases on the docket were from lvnv!). This info was hard to get, as each person we talked to at the Secretary of State offices had a different story, but finally we got through to someone who could read the documents properly and understand wtf is going on in the files!

We will report what happens at the trial.....

I didn't know that i must researh this may com in handy.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.