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debt purchaser trying to sue on repossession.


shiroinu
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1. Who is suing you? Landmark National II

2. For how much? $18000

3. Who is the original creditor? FirstMerit Bank

4. How do you know you are being sued? Reg. Mail servred notice (need to respond w/in 28 days)

5. How were you served? Were you served? Reg Mail

6. What was your correspondence (if any) with the people suing you before you think you were being sued? NONE!

7. Where do you live? Ohio

8. When is the last time you paid on this account? Sometime in 2003/2004

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). OPEN

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) The collection agency is not even on my credit report... The Repossession was removed by FirstMerit Bank 4 years ago VIA a dispute with them..

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

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? Response in 28 days

13. What evidence did they send with the summons? A copy of the first page of the original promisary note. A copy of the last page of the debt being purchased by them from First Merit Bank

14. What is the SOL on the debt? To find out: OH is 15 yrs EXCEPT the do accept the UCC which for a repossession should be 4 yrs

Here's the details..

-In Sept. 2002 I purchased a car and had a promessary note (loan) through First Merit Bank in the amount of $16000. This was in Ohio

-In Feb of 2003 moved to FL. Shortly after that the car was reppossessed. (ilegally.. even though I had paid the total due amount that day they took it that evening... but nothing I can do about it now) THe vehicle was either repossesed in late 2003 or very very early 2004. Never received anything about the sale or anything so no idea on this..

-2006 the repossesion was disputed and removed by both first merit and the CRA's and also had moved back to Ohio Credit reports were fully updated with current information as was First merit since I had sent them a dispute notice)

Was going to purchase a home and trying to get all my credit info in order..

-Aparently at that time this debt was sold to landmark national (never knew about it nor had I ever received any notice about it)

-Dec 2008 Landmark national runs an iquiry on my credit report.

-Feb 10 2009 I receive a summons notice..

Attached to the notice is the pormissary note from 2002 and a copy of the debt transfer in 2006.

They came up with $18000 based on $11000 remaining ballance on the loan (I guess no copy or proof of this) plus 13% interest up to nov. 2008.. The 13% was the interest rate on the original loan/promissary note..

My problem is this:

I know the statute of limitations for ohio is 15 yrs on written contracts but Ohio does use the UCC (1302.98 Statute of limitations in contracts for sale - UCC 2-725) and that states 4 yrs.

I called First Merit and they will not contact me back in trying to obtain the paperwork from this loan or from the sale and repossession..

I contacted a lawyer and he wants $1500 up front. This is completely not possible since there is only one person working in the family and as most of the US money is really really tight..

The lawyer also said that I could loose the case because the UCC is not always followed..

I need to know what to do!!

$18000 is a lot of money!! And even though I am pretty sure I am in the right since it is well beyond the 4 yrs is it possible for the judge to not follow the UCC and go with the 15yrs?

Also there is no mention in this law suit about the repossesion or how much was obtained from it or the date.. it only states the amount they are suing for and a copy of the first page of the promissary note(signed but noSS # or anything) and a 2 sentace copy of the fact that Landmark National obtained debt from First Merit (doesn't say anything about my specific debt just that in april of 2006 they are are now the debt owners)

I am absolutely terrified!! The fact that the lawyer said I might not win the case and that I can not afford the $1500 retainer fee...

If I loose the case for $18000 its going to put an even harder strain on the family...

PLEASE Can anyone help! I need to respond with in 28 days from the 10th!!!

Anyone know a good lawyer that will help for little or nothing down? Or what I should do from here?!

I'm assuming that I need to respond back other wise they can obtain a defult judgement!

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Thanks for responding and yes I understand that it is 4 yrs but the lawyer(that wants $1500 upfront) said that that the collection agency can dispute this and state that a contract sale in Ohio is 15yrs..

Can they go with that law instead of the UCC code stating that the when I defulted on the loan(2003) they have 4 yrs to obtain a judgement?

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It would seem, IMHO only, that this lawyer, possesses a defeatest attitude. I would not hire him simply because the red flag I get tells me that he would not argue the UCC law on your behalf. Taking into consideration of your personal issues and all, have you tried contacting legal aid in your area? Also try your state's bar association. Many times, they can send word out on the wire that someone is in need of assistance and someone may be willing to step up to the plate and help you out.

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This lawyer was actually a referal from the Lake County Bar association. It seemed to me that he just wanted for me to hire him and said that I can't do this without a lawyer ...

Would it be best to file a Motion of Dismissal because it is time-barred?

This Collection company already paid several hundred dollars on filling this case so I'm wondering if they would even agree to a dismissal even though they are in the wrong..

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  • 2 months later...

Ok I know that it has been a few weeks/months but here is the situation now.

I tried contacting a lawyer through the NACA you suggested but he would not help since we are not "poor"

He stated that we can not use the SoL for reposession because we did not reside in OH until 2006 (Ohio has a Tolling amendment) (2006 also happens to be the same time that this Collection agency bought this debt.)

Basically the paperwork that they sent along with the court claim was

1. a copy of the first signed page of the bill of sale. States the yr make vin of the car. The loan amount. The interest, monthly payments and thats about it. Doesn't say anything about the agreement or what ever it is just the first signed page.

2. a copy of a typed page stating

"Assignment and Bill of Sale

For value received and pursuant to the terms and conditions of the Purchase Agreement between FIRSTMERIT BANK, N.A ("Seller") and Landmark National II, Corporation ("Purchaser) dated April 7, 2006 (the Agreement"), Seller does hereby absolutely convey, transfer, and assign to Purchaser all right, title and interest in and to certain delinquent individual charge-off accounts (the"Accounts") described in Schedule 1 to the Account Sales Agreement dated April 7, 2006 ("Agreement"), which Agreement in incorporated herein by reference, together with the right to collect all principal, interest, or other proceeds of any kind that may be due and owing as of the Effective Date with respects to the Accounts.

Capitalized terms shall have the meanings set forth in the Agreement.

This Bill of Sale is executed without recourse except stated in the Agreement

Dated: April 7, 2006

Seller FIRSTMERIT BANK N.A

(it is signed by the VP of the company)

"

3. The other letter they included was a letter stating exactly this:

"This is from a debt collector. This is in connection with the collection of debt. Any information obtained will be used for that purpose.

Notice under the Fair Debt Collection Practices Act

1. The undersigned attorney is for Landmark Nation II corp. ("Landmark") and has been retained for the purpose of collecting a debt.

2. Please be advised that your account with Landmark is in default and you are indebted to Landmark in the sum of$18,271.68 as of the date of this Complaint is sent to Court. Because of interest, late charges and other charges, which may very from day to day, the amount due on the day you pay may be greater. Hence if you pay the amount shown above, an adjustment may be necessary after receipt of your check, in which event we will inform you before depositing the check for collection. For further information write the undersigned or call 1-###-###-####

3. If you do not dispute this debt, or any portion of the debt, within thirty(30) days of receiving this information, the undersigned will assume the debt is valid.

4. If you notify the undersigned within the thirty(30) day period that you dispute part or all of the debt, the undersigned will mail you verification of the debt or a copy of any judgment rendered against you on the debt.

5. Upon your written request within the thirty(30) day period, the undersigned will provide you with the name and address of the original creditor if different from the current one.

6. This is being sent to you in connection with a collection of debt. Any information obtained will be used for that purpose.

(lawyer signature and contact informations)

Attorney for Landmark National II corp.

"

Now I read that Ohio's Civil R. 10(D) states that they have to show all informations needed in the claim otherwise the claim can be dismissed So in this case they would have to show the fact that the car was repossessed and sold and what amount and what the ballance of the account is/was when they purchased the debt from FMB right? They really only have the front page of my agreement with FMB and a typed paper saying they bought debt from FMB.

Not only that but how can the be the "Assignee" as well as the "Owner" ??

Also does that second letter prove that they own this specific debt?

Lastly for the third item. Why would the send a dunning letter with the claim?

Can I still dispute this with the Attorney or something? This would leave me to believe that they do not have they required information for the suit otherwise why even put that in there?

As stated before this company has NEVER been on any of the 3 CR nor have they ever sent a collection letter. FMB is not even on the 3 CR's anymmore so there is absolutley no record of this with the CRA's

I called FMB and they do not have any record of any of this either and I suppose they wouldn't since they are no longer the owner.

I would REALLY love to get a lawyer but we do not have $1500 to spare on one and that is the cheapest I could find.

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One other thing:

15 U.S.C. §1692g

States,

§ 1692g. Validation of debts

(a) Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing—

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

(d) Legal pleadings

A communication in the form of a formal pleading in a civil action shall not be treated as an initial communication for purposes of subsection (a).

So since this company just filed a claim without contacting me or even sending me notice of this debt, does that mean they are in Violation? The actual dunning letter was included in the claim and never sent otherwise.

Second,

I found this;

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla.

County Court, Orange County July 20, 2007), the court held that a debt buyer “assignment” which does not refer to specific accounts does not establish ownership by plaintiff sufficient:

The Court has reviewed the documents presented by the Plaintiff, Bill

of Sale and the Assignment, and finds that they fail to sufficiently

identify the accounts that were assigned or sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment indicate the account

numbers or names of account holders. They do not provide any

information that would allow the Court to determine if the alleged

account of Defendant was one of the accounts sold or assigned to the

Plaintiff.

That completely describes what they sent me. Would I be able to get the case dismissed based on any of the above information?

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Keep searching for an attorney.....either pay an attorney 1500 to fight for something fair for you....

or pay Landmark $20,000 plus all the other fees they tack on which will be about double. Then they recieve the judgement which can be with you for 10-20 years....they can wipe out your bank accounts anytime, garnish your wages forever, put liens on your property, wreck your credit for a very long time, etc.........

IMO....there is way too much money involved for you to try this yourself. Ohio is not very consumer friendly either. I think they are more for the CA's.

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...pay Landmark $20,000 plus all the other fees they tack on which will be about double. Then they recieve the judgement which can be with you for 10-20 years....they can wipe out your bank accounts anytime, garnish your wages forever, put liens on your property, wreck your credit for a very long time, etc...CA's.

You also should get a consultation from a competent BANKRUPTCY attorney. If you think you will loose this, BK will stop all the above bad things from happening and give you a chance to fix your financial situation.

Note, depending on your income and other factors you may be precluded from filing under Chapter 7 and may be required to file under a Chapter 13 repayment plan. The benefit of Chapter 13 to you is that you will NOT loose all you personal stuff or your house (if current). Once you file a bankruptcy case an Automatic Stay is invoked and creditors must stop ALL action against you. The $18,000 debt would be rolled into you repayment plan; however, depending on your income you may not be required to pay 100% of the scheduled debts.

See this: www . nolo.com/resource.cfm/catID/462A9501-9B21-4E09-A08C5A7B8AF51A79/213/161/

Most BK attorneys will give a FREE consultation before filing. Also, the filing and attorney fees (could be $2,000) would be rolled into the plan.

Good Luck

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