LVNV in PA - Round 2

[SuedByLVNV]

Well, I was sued by LVNV and mentioned so in another thread, where I had asked opinions on the Preliminary Objections I'd written up. Those have since been filed, and I've now received LVNV's amended complaint. There were a few things that jumped out at me immediately.

First, none of the documents are notarized. I was under the assumption that the amended complaint would arrive notarized, as the original complaint had and my POs had been. It also does not show on the CCPA Civil Records search of my docket number, as the original complain and POs do. [edit: It literally just now showed up on the CCPA Civil Records search with a file date of 11/15.]

Second, they sent me multiple copies of everything. All of their "evidence" has two or three copies. It's almost like they wanted to "bulk up" their paperwork to intimidate me.

Now, on to my questions. I had filed POs on 4 points.

1. Pa. R.C.P. 1028(a)(2) - Lack of Conformity to Law or Rule of Court
   
   • A copy of the original writings (Loan/Credit Agreement) had not been attached, nor had a reason been given as to why they hadn't been.
     

[*]Pa. R.C.P. 1028(a)(3) - Insufficient Specificity

• No evidence relative to total amount due or any contract stipulation
  

[*]Pa. R.C.P. 1028(a)(5) - Lack of Capacity to Sue

• They did not establish standing by showing any document that they own my "debt"
  

[*]Pa. R.C.P. 1028(a)(2) - Lack of Conformity to Law or Rule of Court

• Improper Verification, as it was signed by their lawyer and not a party of interest
  

So, their amended complaint tried to counter these points with the following (in respective order):

1. A paragraph within the complaint that simply stated the original contract is unavailable to them
   
2. A copy of billing statements from account opening (Q3 2005) until Q3 2006
   
   • They stipulated that the account was opened Q3 2005, last payment Q1 2007, and charged off Q4 2008
     

[*]They included two generic bills of sale, which did not mention my account number or name in specifics, but mentioned a CSV file containing the accounts sold. They then included an account print-out (presumably from the CSV file?) that had a reference number that matched the supposed account number and my name.

[*]A new Verification from a person signed only as "Authorized Representative" without mention of company or position within said company

Now, if I'm not wrong, all four POs should still apply based on (again, in respective order and with relevant questions):

1. They still have not given reason for the original contract not being produced. Can they really just say "oh, we don't have that"?
   
2. The billing statements don't even run until their claim of last payment. How is that sufficient to prove from $0 balance to current balance?
   
3. I'm not certain of this one. There's nothing really linking the print-out to the CSV file mentioned in the bill of sale. Is the fact that my account number and name are not mentioned in the bill of sale itself enough to counter this?
   
4. "Authorized Representative" of who? They still haven't shown that the Verification was made by a party of interest
   

Am I missing anything, or does anything immediately jump out to anyone? I appreciate any input that anyone would like to provide. Thanks!

[edit: I forgot to include some very important information. In the amended complaint, LVNV attached a 2nd charge of Quantum Meruit. I'm not sure if or how this applies and if it's valid.]

[edit: I've researched Quantum Meruit a bit and under PA law, it does not apply when the complaint is based upon a written contract, which a credit card account would be. I plan to add a 5th PO stating Lack of Conformity to Law or Rule of Court, claiming that the count of Quantum Meruit is invalid on its face, as the plaintiff has claimed the complaint to be based upon a written contract. I have a bit of case law to back this up, also.

Also, as I didn't state it earlier, the case law I'm using for my POs are:

1. Remit Corporation v Miller 5 Pa. D&C 5th 43 and Capital One Bank v Clevenstine 7 Pa. D&C 5th 153
   
2. Capital One Bank (USA) v Patricia L Clevenstine No. 2008-4139 (Centre County 2009)
   
3. Atlantic Credit and Finance, Inc v Carmen L. Giuliana and Patricia Wilson a/k/a Patricia A. Maurizo 2003 Super 259; 829 A 2d 340 (PA Super 2003)
   
4. None
   
5. Benefit Trust Life Ins. Co. v Union Nat'l Bank 776 F.2d 1174, 1177 (3rd Cir. 1985) (quoting Schott v Westinghouse Electric Corp 259 A.2d 443, 448 (Pa. 1969))
   
   • This would be the new PO to counter Quantum Meruit
     

Thoughts?]

Edited November 16, 2010 by SuedByLVNV

[kingair41]

I too filed PO's in my case. No agreement, no accounting on how they came up with the figure suing for.

Take a look at PA RCP 1019(F). Read that rule. What does it tell you?

f) " Averments of time, place and items of special damage shall be specifically stated". Parenthesis's mine.

Also PA RCP 1019(I). What does that tell you? Look at the very last part of the rule. What must they do if they don't have the writtings?

There are several rulings in Pa that state specifically that the plaintiff must state why they don't have the agreement and state the substance of the agreement in writting of what is in the contract if one can't be produced. Not claim solely that they don't have it.

Also PA RCP 1019(A). They must "state in concise and summary form" what the material facts are relating to their complaint. In other words they must state clearly and concisely what their evidence is, to allow the defendant an oppurtunity to clearly understand and form his own defense around this evidence. Get where I'm going?

PA RCP rule 2002. Only the real party in interest can sue. So there must be a total break down from the OC to the present party showing ownership.

[SuedByLVNV]

Thank you for your reply.

I am using Pa. R.C.P. 1028(a)(2) pursuant to 1019(i) for PO #1, 1028(a)(3) for PO #2, 1028(a)(5) for PO #3, and 1028(a)(2) pursuant to 1024© for PO#4. I'm not sure what to use for PO #5. I'm definitely using 1028(a)(2), but I'm not sure where to refer it to (or if I need to refer it to another RCP, since I have case law).

I had not needed to look at 1019(a) previously, but may look into using it since they've thrown in the Quantum Meruit count.

Also, I hadn't seen Pa. R.C.P. 2002(a) as relevant, since capacity to sue is covered by 1028(a)(5). I might look at pointing to it, though.

Thanks for the input.

Edited November 17, 2010 by SuedByLVNV

[SuedByLVNV]

Sorry to bump this, but I've prepared my first draft of Preliminary Objections for this time around and was wondering if anyone could give a thumbs up or thumbs down on them. Instead of making (yet another) huge post, I've created a png image file of my POs. I'm not yet able to make links, so you'll have to copy/paste the URL below (sorry!).

i.imgur.com/jJG1y.png

There are a few things I wasn't sure about:

1. I wasn't certain of the final objection, as I hadn't needed to knock their claim as legally insufficient before. I'm not sure if my objection is sufficient.
   
2. In my first set of POs, I did not ask for prejudice to be attached to the dismissal. I figure at this point LVNV has given all of the "evidence" they have. Should I be asking for prejudice to be attached at this point? I don't want to overstep my bounds. Also, if I ask for prejudice to attach and the judge doesn't agree, can he still dismiss without prejudice?
   
3. I believe I can still object to their verification. It signed by a person listed only as "Authorized Representative". The person's company and/or position are not listed. Am I correct?
   
4. Their "evidence" of debt ownership consists of:
   
   • a Bill of Sale from Capital One to Sherman Originator, LLC, which references a CSV file
     
   • a generic Sale and Assignment from Sherman to LVNV which only states "the Receivable Assets identified on the Receivable File dated <date>"
     
   • a document titled "Receivable Files" with 4-digit portfolio numbers (all beginning with the number 9) listed down the page and nothing else
     
   • a random printout labeled "Bankcard Statement", which shows a reference number matching the credit card number they're claiming, my name, and a zero balance ($500 available credit), but doesn't reference either of the Bills of Sale or any portfolio number
     

Am I missing something or have they not established that they own the debt with this?

Thanks again for anyone who can throw their input toward this. I really do appreciate it!

Edited November 18, 2010 by SuedByLVNV