LVNV funding

[mrmrsg]

I need help with the Answer and affermitive defenses,

My credit report show the account with LVNV funding at 6100 bucks, the lawers website shows 5900 (screenshot captured) and the Complaint shows 5200 can that help argue the case?

The Lawyer has provided a sworn statement from someone at LVNV funding, and I will be filing a graduated sworn denial to counter

Petition

Count 1 Account Stated

Comes Now Plaintiff and for Count 1 of its petitions against the defendant states as follows:

1. CITIBANK and Defendants had previous transactions related to a credit card issued to Defendant by CITIBANK

2. CITIBANK sent Defendant monthly statements of account identifying Defendants financial transactions related to use of the credit card, to wich Defendant did not object. Pursuant to the terms and conditions sent to the Defendant along with the credit card and governing its use, Defendant made an unconditional promise to pay the amount due resulting for the use of the said credit card.

3. Plaintiff is the holder of a valid assignment of the Defendants CITIBANK account.

4. The Balance of the Defendants account with CITIBANK (which is the balance agreed to by the paries) is 5,255.81

5. Defendant has failed to keep his/her promise to pay said balance, despite demand for same having been made, and the balance remains due and owing by Defendant to Plaintiff.

Wherefore, Plaintiff respectfully prays the court enter judgment in favor of Plaintiff and against defendant on count 1 in the sum of 5255.81; plus the interest rate of 9% per annum, and for its costs.

Count 2 - Breach of Contract

6. Plaintiff restates and re-alleges each and every averment made in paragraph 1 through 5 of count 1 of this petition as if more fully set forth herein.

7. CITIBANK and defendant entered into a contract, whereby CITIBANK extended credit pursuant to the terms and conditions of a credit card agreement("The Agreement") and the Defendant, in exchange for the use of credit extended, agreed to pay the plaintiff for all amounts due resulting from the authorized use of the credit extended, agreed to pay Plaintiff for all amounts due resulting from the authorized use of defendants credit card, including any finance charges and any other charges due under the terms of Agreement.

8. CITIBANK fully abided by the terms and conditions as set forth in said agreement.

9. Defendant failed to make all payments to CITIBANK pursuant to the agreement and is in Default.

10. Defendant breached the Agreement by failing to pay the amount owed.

11. Plaintiff his the holder to a valid assignment of the defendants agreement with CITIBANK

12. Plaintiff has fully performed, pursuant to the terms of the Agreement or its performance has been excused by the defendant’s breach.

13. Plaintiff made demand for payment of the outstanding Balance, but defendant has failed and neglected to pay said balance.

Wherefore plaintiff respectfully prays the court enter judgment in favor of Plaintiff and against defendant on count II in the sum of 52255.81 plus interest at the rate of 9% per annum and for its costs

Signed the ATTOURNY

There is a sworn affidavit attached as the only supporting evidence.

Plaintiffs affidavit of indebtedness and ownership of account

1. I am an Authorized representative for LVNV funding LLC( hereafter the Plaintiff)

I am authorized to make the affidavit on its behalf and the information below is true and correct to the best of my information and belief based on the Plaintiffs business records.

2. I have personal knowledge regarding Plaintiffs creation and maintenance of its normal business books and records, including computer records of its accounts receivables. The Information was regularly and contemporaneously maintained during the course of the plaintiffs business.

3. In the ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts, service accounts and /or other credit lines. The records provided to Plaintiff have been represented to include information provided by the original creditor or to its successors in intrest. Such information includes the debtors name, SSN, account number , account Balance , the identity of the original creditor and the account number.

4.To the best of my knowledge and belief the defendant is not a minor or mentally incompetent person.

5. based on the business records maintained on account XXXX (here after account) which is a compilation of the information provided upon acquisition and information obtained since acquisition, the Account is the result of the extension of credit to DEFENDANTS NAME by Citibank on or about 6/24/2004 (the Date of Origination) said Business records further indicate the the Account was then owned by CITIBANK, that CITIBANK later sold and/or assigned PORTFOLIO 11864 to Plaintiffs assignor which included the defendants account of 9/17/2008 (the date of Assignment) and on the Date of Assignment, all ownership rights where assigned to, transferred to, and became vested in plaintiff, including the right to collect the purchased balance owing 5255.81 plus any additional accrued interest.

I affirm under perjury ...bla, bla Notarized

I am not sure how to argue in the affirmative defenses. I have looked over some on the website but I haven't found any they would dovetail into this complaint.

Thanks in advance for any help!

Edited September 19, 2010 by mrmrsg
Spelling Errors

[Massive]

LVNV Funding has no admissible evidence that they can present at trial.

[mrmrsg]

Ok can someone critique my answer?

ANSWER TO PETITION

Defendant, appearing pro se, for its reply to the Complaint naming LVNV Funding LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO COUNT 1

1. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

2. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

3. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

4. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

5. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

ANSWERS TO COUNT 2

6. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

7. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

8. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

9. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

10. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

11. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

12. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

13. Admit: “Plaintiff made demand for payment of the outstanding Balance”, Denied:”but defendant has failed and neglected to pay said balance”. Defendant requested validation of the debt and strict proof thereof

DEFENSES

1. LVNV Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

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

3. LVNV Funding LLC has not proven that they were retained by CITIBANK as it’s representative in this matter.

4. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

5. LVNV Funding LLC has not proven that CITIBANK is the real party in interest. Defense demands strict proof of ownership specifically that the alleged account is still the legal property of CITIBANK with all of the original creditor’s rights and privileges intact.

6. LVNV Funding LLC has not provided a copy of the original agreement, or any other documentation proving a contract even existed.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

8. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

[Massive]

Ok can someone critique my answer?

ANSWER TO PETITION

Defendant, appearing pro se, for its reply to the Complaint naming LVNV Funding LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO COUNT 1

1. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

2. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

3. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

4. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

5. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

ANSWERS TO COUNT 2

6. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

7. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

8. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

9. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

10. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

11. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

12. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

13. Admit: “Plaintiff made demand for payment of the outstanding Balance”, Denied:”but defendant has failed and neglected to pay said balance”. Defendant requested validation of the debt and strict proof thereof

DEFENSES

1. LVNV Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

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

3. LVNV Funding LLC has not proven that they were retained by CITIBANK as it’s representative in this matter.

4. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

5. LVNV Funding LLC has not proven that CITIBANK is the real party in interest. Defense demands strict proof of ownership specifically that the alleged account is still the legal property of CITIBANK with all of the original creditor’s rights and privileges intact.

6. LVNV Funding LLC has not provided a copy of the original agreement, or any other documentation proving a contract even existed.

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

8. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

I don't know why you would admit to number 13, you don't have evidence of a bill of sale so consequently you don't have knowledge of anything. Is Kramer & Frank handling this?? What a joke outfit. That LVNV Affidavit is laughable.

[FL4answer58]

Look up other defenses on assignment

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

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.

Plaintiff's Complaint 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.

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

*Look up / research 'condition precedent' defense -- for this type of claim.

Edited September 20, 2010 by FL4answer58

[mrmrsg]

I don't know why you would admit to number 13, you don't have evidence of a bill of sale so consequently you don't have knowledge of anything. Is Kramer & Frank handling this?? What a joke outfit. That LVNV Affidavit is laughable.

Berman and Rabin, thanks again for the PM!

[mrmrsg]

Look up other defenses on assignment

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

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.

Plaintiff's Complaint 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.

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

*Always include 'condition precedent' defense -- on this type of claim.

Outstanding thank you!

[Massive]

Berman and Rabin, thanks again for the PM!

You bet, keep us posted.

[nobk4me]

On 3 and 5 of your defenses, LVNV is not representing Citibank, and Citibank is not the real party in interest. Citibank sold the account to LVNV, and LVNV is now the plaintiff suing you, claiming ownership of the account.

The case is captioned LVNV vs. you, right?

[mrmrsg]

Thank you to everyone for your input. Here is my revised defenses

DEFENSES

1. LVNV Funding LLC has not proven that they are authorized and licensed to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

2. Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

3. 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.

4. 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.

5. Plaintiff's Complaint 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.

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

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

8. Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

[FL4answer58]

Don't forget

Defendant reserves the right to 'jury trial'.

I'd vote to change:

7. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time,

Drop this…(for example, if a real party in interest is established for alleged account). Not sure if you meant to include this or just note to thread.

Don't add controversy where none exists in the mechanism

--------------------------------------

Answer must include or generally - 'Use it or lose It'

A good read - "bare Bones Affirm Defenses that dont hold up'

http://www.judgeltd.com/pdf/federalcourts030607.pdf

Edited September 24, 2010 by FL4answer58

[admin]

You're going to look bad if you deny everything with the "Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07."

Why not say stuff like "Denied: sufficent evidence was not not provided" "Denied: Chain of Custody was not provided"

Defenses

=======

#1 - I'd cite the law that said collectors need to be licensed.

Get rid of #5 & #6. You said this in other defenses.

#7 and #8 are not defenses. I would just add the language at the bottom of your response.

You don't need a ton of defenses.

[mrmrsg]

You're going to look bad if you deny everything with the "Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07."

Why not say stuff like "Denied: sufficent evidence was not not provided" "Denied: Chain of Custody was not provided"

Defenses

=======

#1 - I'd cite the law that said collectors need to be licensed.

Get rid of #5 & #6. You said this in other defenses.

#7 and #8 are not defenses. I would just add the language at the bottom of your response.

You don't need a ton of defenses.

Thank you!

Revision 3

ANSWER TO PETITION

Defendant, appearing pro se, for its reply to the Complaint naming LVNV Funding LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

ANSWERS TO COUNT 1

1. Denied: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment per Rule 55.07.

2. Denied: Plaintiff has not provided any statements proving the account belongs to the defendant.

3. Denied: Plaintiff failed to provide any documentation proving there is a valid assignment of the alleged account.

4. Denied: Plaintiff has failed to provide any documentation as to how the total amount listed was reached, or how the amounts were calculated.

5. Denied: Plaintiff has failed to provide any documentation, contract or other supporting evidence that the defendant owes them anything.

ANSWERS TO COUNT 2

6. Denied: Plaintiff has failed to provide any documentation other than a sworn statement that any account existed.

7. Denied: Plaintiff has failed to provide any contract.

8. Denied: Sufficient evidence was not provided.

9. Denied: Plaintiff has failed to provide any payment history to support this averment.

10. Denied: Plaintiff has failed to provide any signed contract.

11. Denied: Chain of Custody was not provided

12. Denied: Agreement not provided

13. Denied: Defendant asked for validation of the debt according to FDCPA 15 USC 1692g and to date no proof has been provided of the alleged account

DEFENSES

1. LVNV Funding LLC has not proven that they are authorized to collect claims for others in the State of Missouri, or solicit the right to collect or receive payment of a claim of another.

2. Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

3. 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.

4. 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.

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

[FL4answer58]

Most at least include this,...general denial

AS A FIRST AFFIRMATIVE DEFENSE Defendant denies each and every allegation made by Plaintiff in the complaint; (this is a General Denial)

I would also suggest, as I hinted before, 'jury trial' in every answer, even if you don't decide to use a jury trial. If not, and realize the advantage it brings later, you will not be able to request at the late date. You can not amend answers to include JT, like you can other affirmative defenses.

Edited September 25, 2010 by FL4answer58

[mrmrsg]

Most at least include this,...general denial

AS A FIRST AFFIRMATIVE DEFENSE Defendant denies each and every allegation made by Plaintiff in the complaint; (this is a General Denial)

I would also suggest, as I hinted before, 'jury trial' in every answer, even if you don't decide to use a jury trial. If not, and realize the advantage it brings later, you will not be able to request at the late date. You can not amend answers to include JT, like you can other affirmative defenses.

Thank you!

I was reading over the Missouri rules of civil procedure on Discovery, and in this thread

On winning against Midland Funding (Sorry my post count wont allow URLs yet)

She mentions a noterized affidavite with her discovery and that she filed the discover requests with the court

The link to the procduction of documents doesn't mention notierization and that the request and answers need are NOT to be filed with the court other that the certificates of service with proper headings. I looked up my local rules to and couldn't find anything eather. I was going to file the request or prodcuton at the same time as my answer. can someone give me a looksee and tell me if I missed somthing?