ATIS, LLC asking for judgement, help

[soprano1]

ATIS, LLC and Morgan and Pottinger are asking for a judegement on a debt they bought from US Bank. The Statute of Limitations in Kentucky on credit card debt is 5 years, and it has ran out on this debt. I put that in my answer to their original correspondence, but that did not satisfy them. Do I have a leg to stand on?

They have cited several court cases:

Steelvest, Inc. v Scansteel

Smith v. Food Concepts, Inc.

Hubbell v. Johnson

Welch v. American Publishing Company of Kentucky

Hallahan v. The Courier Journal

City of Florence v. Chipman

I do not understand all the legal stuff. I am just a school teacher. What I can prove is that when I was in better financial circumstances, I attempted to pay this debt. I sent 2 large payments to US Bank, and they did not send anything showing I had paid, but the checks cleared. I sent them correspondence requesting a statement showing I had paid, and told them I would not send anything more until I received such a statement. I even spoke on the phone with them. They refused. They didn't want this to work out. I can also prove that I did settle a debt with another company (GE Money Bank) that did work with me, so if US Bank had treated me in a dignified manner, I would have also worked with them.

That is what I know for a fact I can prove. I may find more, when I look through all my files. I know I can keep them from collecting right now, because I only make $75.00 a day, and do not get paid on days I am not called in. I am a substitute. No pay on holidays, summer, and very little pay when I do work. Also, no insurance, no assetts, and I am currently unable to pay my student loans, which are on hold by the Federal Government. With all of that said, what are my chances of avoiding a judgement if I fight them? Thanks for any and all help!!

[BV80]

1. You say ATIS is asking for a judgment, so I assume they have filed a lawsuit and sent you a copy of the complaint?

2. When did you send the 2 payments to US Bank?

3. Have you checked your credit reports to see what US Bank is reporting as the date of last payment or last activity?

4. Is ATIS reporting on your CR? If so, what?

[FL4answer58]

You may have re-aged or stopped tolling of the debt by payment or they may be using 'choice law' for another [states] SOL.

Review your claim - what does it indicate - example 'breach of contract', 'account stated' and others. Please list....

You are in Ketucky? [based on cases cited]

All of those cases you cite merely indicate they have right to SJ because:

"Summary judgment is proper where there exist no material issues of fact and

movant is entitled to judgment as a matter of law. Steelvest, Inc. v. cansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991)."

But keep in mind:

"The Court in Liberty Lobby also held that, where the nonmoving party must meet a higher burden of proof than usual, that party must meet the same burden in resisting the summary judgment motion. Id. at 2512. The Court cautioned that trials on affidavits were not justified and that summary judgments should be granted with circumspection,"

Also:

"the Supreme Court held that the trial court had properly granted summary judgment. Id. at 2515. It ruled that not every issue of fact or conflicting inference presents a genuine issue of material fact which requires the denial of a summary judgment motion. Further, the Court held that the materiality of any fact should be determined by the substantive law of the case. Id. at 2510. The Court went even further and held that the test for deciding a motion for summary judgment is the same as that for a directed verdict motion. Id. at 2512. There is no issue for trial, the Court stated, unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id"

You have a 'genuine issue of material fact' and in that 'contoversy'.

No Summary Judgment with 'Controversy'

A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract runs or is tolled in SOL that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy.

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

Your issue in effect: "that the minute you admit that you owe the money the SOL restarts!"

I'd also review

"One who voluntarily pays the obligation of another cannot in an action like this recover of the debtor the sum so paid. City of Louisville v. Anderson, 79 Ky. 334; Noble v. Williams, 150 Ky. 439, 42 L.R.A. (N. S.) 1177, 150 S.W. 507; City of Morganfield v. Wathen, 202 Ky. 641, 261 S.W. 12. One cannot voluntarily become the creditor of another so as to enforce his claim in a court."

Edited October 10, 2010 by FL4answer58

[soprano1]

1. You say ATIS is asking for a judgment, so I assume they have filed a lawsuit and sent you a copy of the complaint?

Yes

2. When did you send the 2 payments to US Bank?

2004

3. Have you checked your credit reports to see what US Bank is reporting as the date of last payment or last activity?

Not recently, but I will do so.

4. Is ATIS reporting on your CR? If so, what?

Will check this, too.

[soprano1]

You may have re-aged or stopped tolling of the debt by payment or they may be using 'choice law' for another [states] SOL.

I made the payments in 2004, to US Bank in Missouri. ATIS, LLC is in Louisville, Kentucy!

Review your claim - what does it indicate - example 'breach of contract', 'account stated' and others. Please list....

Can't find anything this specific. All they have in their info is info on my account.

You are in Ketucky? [based on cases cited]

Yes.

All of those cases you cite merely indicate they have right to SJ because:

"Summary judgment is proper where there exist no material issues of fact and

movant is entitled to judgment as a matter of law. Steelvest, Inc. v. cansteel Service Center, Inc., 807 S.W.2d 476 (Ky.1991)."

But keep in mind:

"The Court in Liberty Lobby also held that, where the nonmoving party must meet a higher burden of proof than usual, that party must meet the same burden in resisting the summary judgment motion. Id. at 2512. The Court cautioned that trials on affidavits were not justified and that summary judgments should be granted with circumspection,"

Also:

"the Supreme Court held that the trial court had properly granted summary judgment. Id. at 2515. It ruled that not every issue of fact or conflicting inference presents a genuine issue of material fact which requires the denial of a summary judgment motion. Further, the Court held that the materiality of any fact should be determined by the substantive law of the case. Id. at 2510. The Court went even further and held that the test for deciding a motion for summary judgment is the same as that for a directed verdict motion. Id. at 2512. There is no issue for trial, the Court stated, unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. Id"

You have a 'genuine issue of material fact' and in that 'contoversy'.

No Summary Judgment with 'Controversy'

A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract runs or is tolled in SOL that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy.

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

Your issue in effect: "that the minute you admit that you owe the money the SOL restarts!"

I'd also review

"One who voluntarily pays the obligation of another cannot in an action like this recover of the debtor the sum so paid. City of Louisville v. Anderson, 79 Ky. 334; Noble v. Williams, 150 Ky. 439, 42 L.R.A. (N. S.) 1177, 150 S.W. 507; City of Morganfield v. Wathen, 202 Ky. 641, 261 S.W. 12. One cannot voluntarily become the creditor of another so as to enforce his claim in a court."

Wow! Thanks, so much!! You have been a big help! I wanted to know if I had enough of a chance for it to be worth my while to fight, and it looks like I do!! Thank you!!

[BV80]

soprano1

2. When did you send the 2 payments to US Bank?

2004

Looks like this debt is outside the SOL. Have you answered the complaint? If not, you must do so. You would include the SOL in your affirmative defenses.

Be sure to read the sample answers to complaints and answers to requests for discovery on this site. Sleazebag collection attorneys will do their best to get you to admit something you shouldn't, or to provide documents you shouldn't have to provide. In other words, they want you to do their work for them.

[soprano1]

Looks like this debt is outside the SOL. Have you answered the complaint? If not, you must do so. You would include the SOL in your affirmative defenses.

Be sure to read the sample answers to complaints and answers to requests for discovery on this site. Sleazebag collection attorneys will do their best to get you to admit something you shouldn't, or to provide documents you shouldn't have to provide. In other words, they want you to do their work for them.

Thank you so much! I have just finished typing my answer, and will get it in the mail tomorrow!!

[KentWA]

Right after your answer is in the mail. Sit down and write up a motion for dismissal based on SOL and get it filed. Including it in your answer is proper, but the court does not need to take action on your answer. The court will act after they receive a motion.

[soprano1]

Right after your answer is in the mail. Sit down and write up a motion for dismissal based on SOL and get it filed. Including it in your answer is proper, but the court does not need to take action on your answer. The court will act after they receive a motion.

Done! Thank you!

[soprano1]

Well, I got my receipts back last week, so both Morgan and Pottinger, and the court has gotten my mail, but the case is still on the docket, as of this afternoon. It is set for Monday.

I will have to miss work and give up a days pay to go, but am I correct that if I don't go, they will win by default, even though I have sent in my answer and motion? Thanks!

[Savoir]

...... to any court date ..... just to make sure that the snakes aren't doing anything behind your back.

[Massive]

Well, I got my receipts back last week, so both Morgan and Pottinger, and the court has gotten my mail, but the case is still on the docket, as of this afternoon. It is set for Monday.

I will have to miss work and give up a days pay to go, but am I correct that if I don't go, they will win by default, even though I have sent in my answer and motion? Thanks!

What's on the docket? An answer hearing? If so you have already answered so you would not need to attend. Call the court for clarification. Don't miss a day of work if you don't need to.

[soprano1]

What's on the docket? An answer hearing? If so you have already answered so you would not need to attend. Call the court for clarification. Don't miss a day of work if you don't need to.

Thanks! I think that is what it is. All it says on the court's website is Atis LLC v my name. I was hoping this would be the case! Thanks!