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Being sued by LVNV. Please help.


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Hi all. Here are answers to the questions that I've noticed many others post here.

1. Who is suing you?

LVNV Funding, LLC

2. For how much?

3800 and change

3. Who is the original creditor?

HSBC

4. How do you know you are being sued?

Received civil summons

5. How were you served? Were you served?

I got a letter from a head hunting lawyer asking me to take their services in light of my new lawsuit. I then checked the court records online and saw that there was a complaint on me. I went to the courthouse and got a copy of the complaint. I was never served at my house.

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?

mid to late 09

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).

Filed

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

no

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

no

12. Does your summons require a response in writing? (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?

Yes (summons) and No (interrogatory)

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

only an "accound number" with all numbers but the last four starred out.

14. What is the SOL on the debt?

6 Years (possibly 10)

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Here is what was in the original complaint:

COUNT I: MONEY LENT/MONEY PAID

1. Defendant(s) was/were cardholder(s) of credit card account number: XXXX-XXXX-XXXX-XXXX, originally owed by Defendant(s) to HSBC Bank Nevada National Association, the card issuer on said account, who extended credit to Defendant(s).

2. Defendant(s) used the credit card at various times, and thereby requested loans, advances, and/or payments of various sums of money for the use and benefit of the Defendant(s).

3. Defendant(s) promised to repay all such sums loaned, advanced and/or paid out, but Defendant(s) defaulted on this repayment obligation, leaving a balance due in the sum of $XXXX.

4. Plaintiff thereafter acquired, for a valuable consideration, all right, title and interest in the unpaid credit card debt. As a result of the assignment, Plaintiff became, and now is entitled to recover the amount paid out by the use of the Defendant's (') credit and/or loaned at Defendant's (') request, on the credit card.

5. There is presently due the Plaintiff from the Defendant(s) for the money loaned/money paid out on Defendant's (') credit card, the sum of $XXXX.

6. Plaintiff notified Defendant(s) of the assignment and demanded that Defendant(') pay the balance due, but no part of the foregoing balance has been paid.

7. The account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have possession, custody or control of said records; (B) copies were sent monthly to the Defendant(s), and are or were in Defendant's (') possession, custody or control; © said account records may be voluminous. Additional information concerning this obligation is set forth in the attached notice.

COUNT II: UNJUST ENRICHMENT

8. Plaintiff incorporates by reference herein, each allegation set forth above.

9. Defendant(s) promised to repay the entire unpaid balance on the credit card account promptly upon receiving monthly periodic billing statements, but failed to do so.

10. Defendant(s) knowingly retained the benefits derived from the use of the credit account, without having repaid the balance outstanding on the credit card account.

11. Retention of the benefits conferred upon the Defendant(s) under these circumstances would be unjust without requiring the Defendant(s) to make payments for the same.

12. Defendant(s) has/have been unjustly enriched in the amount of the outstanding balance set forth above, as Defendant(s) knew or should have known that the credit was not being provided gratuitously.

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DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

I am responding to the plaintiff's numbered allegations in the order presented in their complaint.

1. Denied.

2. Denied.

3. Denied.

4. Denied.

5. Denied.

6. Denied.

7. Denied.

8. Denied.

9. Denied.

10. Denied.

11. Denied.

12. Denied.

AFFIRMATIVE DEFENSES

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

2. The court lacks jurisdiction due to the presence of a binding arbitration clause in the cardmember agreement.

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

4. The Defendant claims Unjust Enrichment.

5. The Plaintiff has failed to prove assignment in accordance with ORC 1319.12

6. The Plaintiff has failed to Mitigate its Damages.

7. Plaintiff's claim is barred because of charging an effective interest rate that constitutes Usury.

9. Plaintiff's claim is barred by the doctrine of Unclean Hands.

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

10. Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure.

11. Defendant reserves the right to add additional affirmative defenses at a later time as evidence becomes available.

12. Plaintiff Lacks Standing. Plaintiff has not proven ownership of the alleged account which is the subject of the Complaint and, therefore, has not proven standing to initiate legal action.

13. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

14. 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).

15. 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.

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied, or controverted.

WHEREFORE, Defendant prays the complaint herein is dismissed with prejudice at the Plaintiff's costs and for any other relief deemed just and proper under the circumstances.

Respectfully submitted,

September XX, 2011

(ME)

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I created these answers from looking at a few other posts and some other websites. Do these look ok? I went to a lawyer and the retainer alone was more than I can pay to settle the suit so I figured I'd try to fight it as much as I could alone.

I've read some of the other threads here and some success stories so I'm trying to soak up a bunch of info. :o) My answer is due this Friday and so I was going to try to get it in tomorrow and send it away.

The firm that is representing LVNV is Javitch, Block and Rathbone (JB&R). As I understand it, they're pretty much the main firm that represents these kind of suits in Ohio.

Any guidance would be greatly appreciated. :o)

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I created these answers from looking at a few other posts and some other websites. Do these look ok? I went to a lawyer and the retainer alone was more than I can pay to settle the suit so I figured I'd try to fight it as much as I could alone.

I've read some of the other threads here and some success stories so I'm trying to soak up a bunch of info. :o) My answer is due this Friday and so I was going to try to get it in tomorrow and send it away.

The firm that is representing LVNV is Javitch, Block and Rathbone (JB&R). As I understand it, they're pretty much the main firm that represents these kind of suits in Ohio.

Any guidance would be greatly appreciated. :o)

Just take a few minutes and go over your defenses. You have be able to prove your affirmative defenses, if asked. In civil court, a case is not decided based upon "without a shadow of a doubt". It's based upon a preponderance of the evidence. If the JDB does a better job of proving their evidence is valid, and you can't dispute their evidence or prove your affirmative defenses, they win.

Can you prove the "doctrine of unclean hands"? If not, you need to remove it. I would also remove your 1st defense. They have stated a valid claim. It doesn't mean they can prove it, but Money Lent and Unjust Enrichment are valid claims.

I once read this defense written by an attorney: "Plaintiff has failed to provide evidence sufficient for which relief can be granted."

Lack of Standing is an excellent defense. If they don't provide a bill of sale or assignment that shows your specific debt was purchased, you've shown lack of standing.

Regarding your answer to their allegations, you can stick with a simple "denied", or you can also offer why you denied each allegation. The reason I point that out is because they will probably send discovery requests. If your court allows Interrogatories, the JDB attorney may request that you explain why you denied each allegation. You can do that now, or you can wait and see if they ask for an explanation later.

Is this debt still within the SOL?

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Here's my two cents worth:

AFFIRMATIVE DEFENSES

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

REMOVE. The claim upon which relief can be granted is that you didn't pay according to the agreement. They have to prove it, but saying they didn't set it forth won't fly. They were careful not to name account stated or breach of contract, a new trick.

2. The court lacks jurisdiction due to the presence of a binding arbitration clause in the cardmember agreement.

REMOVE unless you invoke the arbitration clause. Of course the court has jurisdiction.

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

REMOVE The assigness "steps into the shoes" of the original creditor and enjoys all the same rights, one of which is to sue you if you don't pay.

4. The Defendant claims Unjust Enrichment.

REMOVE Repeating an allegation in the Complaint is not a defense thereto.

5. The Plaintiff has failed to prove assignment in accordance with ORC 1319.12

REMOVE This is not an affirmative defense worth pursuing. They own the debt, count on it. These guys are stupid, but they aren't THAT stupid.

6. The Plaintiff has failed to Mitigate its Damages.

Depends on how long a period of time has elapsed. They'll counter it by showing all the letters they sent you, but you can leave it in for whatever it's worth.

7. Plaintiff's claim is barred because of charging an effective interest rate that constitutes Usury.

REMOVE HSBC Nevada is a national bank. (Federal charter) They can therefore charge the Nevada interest rate anywhere they do business. Nevada has no usury law. That's why they moved there, like South Dakota.

9. Plaintiff's claim is barred by the doctrine of Unclean Hands.

REMOVE unless you can prove they did something unscrupulous.

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

REMOVE Does not apply. They purchased the debt, therefore they can sue you legally. You also put this in twice. (number three)

10. Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure.

TOSSUP I am not from Ohio, can't comment, altho it seems they have nothing, typical of JDBs. This is somethoing you can exploit through discovery.

11. Defendant reserves the right to add additional affirmative defenses at a later time as evidence becomes available.

REMOVE This is not a defense. The court knows this already.

12. Plaintiff Lacks Standing. Plaintiff has not proven ownership of the alleged account which is the subject of the Complaint and, therefore, has not proven standing to initiate legal action.

REMOVE Same as privity, you are repeating worthless defenses. If you want proof, request it through discovery. If they can't provide it, now you have something.

13. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

REMOVE Credit cards are not subject to this theory of law to my knowledge. The exchange occurred when you used the lender's money to purchase goods, that's what the contract will say if they can produce one.

14. 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).

REMOVE Not a defense. Repititious and unnecessary

15. 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.

REMOVE Not a defense, already a fact known to the court

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ORC 1319.12 requires that the JDB reveal how much they paid for the debt. So compliance with this statute is not just an issue of whether they own it.

I would recommend invoking the arbitration clause, thus the defense regarding jurisdiction is valid.

There is an HSBC agreement with JAMS out there, and you only have to pay $50 to the arb forum. The creditor pays the rest, which they won't do.

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Thank you for your message. To be honest, I've seen the word "Arbitration" all over the forum and as I understand it, arbitration is a very good approach to a lawsuit but I'm not too familiar as to what it actually is. Sorry to sound like an idiot... :o/

Once I fully understand what arbitration is, I think I'll use it in my case. I only have 2 days left to answer the complaint. Should I request arbitration in addition to answering the complaint?

Thank you.

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Unjust enrichment is an equitable claim. Now, equitable defenses are a shoe-in, but you must be able to prove them.

That claim is crap too. They are basically trying to claim that you have been unjustly enriched at their expense. Well, they made the conscious decision to purchase the friggin debt.

If you want to use unjust enrichment as a defense, it needs to be more like this:

Judgment in favor of the Plaintiff would result in Unjust Enrichment.

Unjust enrichment has been used as a defense in CC cases in Ohio, though it has been used in conjunction with Failure to Mitigate and it was with an OC, not a JDB.

Discover Bank v. Owens, 129 Ohio - Google Scholar

IMO, you would have a harder time arguing failure to mitigate with a JDB, but that case may have some useful stuff for you to use.

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Ok, here is what I have shaved my affirmative defenses down to based on the comments to my post. Are there any defenses that you all may suggest in addition to these?

AFFIRMATIVE DEFENSES

1. Plaintiff has failed to provide evidence sufficient for which relief can be granted.

2. The court lacks jurisdiction due to the presence of a binding arbitration clause in the cardmember agreement. (I do plan on seeking arbitration. Anything to try to win this lawsuit)

3. The Plaintiff has failed to Mitigate its Damages.

4. Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure.

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied, or controverted.

WHEREFORE, Defendant prays the complaint herein is dismissed with prejudice at the Plaintiff's costs and for any other relief deemed just and proper under the circumstances.

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Ok, here is what I have shaved my affirmative defenses down to based on the comments to my post. Are there any defenses that you all may suggest in addition to these?

AFFIRMATIVE DEFENSES

1. Plaintiff has failed to provide evidence sufficient for which relief can be granted.

2. The court lacks jurisdiction due to the presence of a binding arbitration clause in the cardmember agreement. (I do plan on seeking arbitration. Anything to try to win this lawsuit)

3. The Plaintiff has failed to Mitigate its Damages.

4. Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure.

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied, or controverted.

WHEREFORE, Defendant prays the complaint herein is dismissed with prejudice at the Plaintiff's costs and for any other relief deemed just and proper under the circumstances.

You might be able to get somewhere with mitigation of damages, but I wouldn't bet on it. Did the Plaintiff have an opportunity to make it so that the amount of damages would be less than it is? If I were their attorney, I would say "No, the amount of damages is the same now as when the debt was assigned to my client, excepting court costs and attorney fees of course. Furthermore, my client acted in a reasonable period of time after being assigned this debt."

IMO, a voluntary assumption of risk is much more appropriate here. They knew that the debt would be difficult to collect, yet they purchased it anyway. Also, since they are claiming Unjust Enrichment, I would argue that makes the amount for which they purchased the debt for very relevant.

However, this is a JDB. If you change your mind about the arbitration route, expect them to be unable to prove standing in the first place, making the above points moot.

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I think that the answer is that if you do choose to elect arbitration, you should do so as soon as you make the final decision, and you should include the fact that you chose arbitration part of your response. Don't wait when it comes to asserting your rights.

Make the decision, then do it. Make them act upon your decision and make them act soon.

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Ok, here is what I have shaved my affirmative defenses down to based on the comments to my post. Are there any defenses that you all may suggest in addition to these?

AFFIRMATIVE DEFENSES

1. Plaintiff has failed to provide evidence sufficient for which relief can be granted.

2. The court lacks jurisdiction due to the presence of a binding arbitration clause in the cardmember agreement. (I do plan on seeking arbitration. Anything to try to win this lawsuit)

3. The Plaintiff has failed to Mitigate its Damages.

4. Plaintiff has failed to support its claim with account documents as required by Rule 10(D)(1) of the Ohio Rules of Civil Procedure.

FUTHERMORE, Defendant DENIES every other allegation not previously admitted, denied, or controverted.

WHEREFORE, Defendant prays the complaint herein is dismissed with prejudice at the Plaintiff's costs and for any other relief deemed just and proper under the circumstances.

Add this one:

Lack of Standing. Plaintiff has not proven ownership of the alleged account which is the subject of the Complaint and, therefore, has not proven standing to initiate legal action.

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7. The account records are not attached hereto because, upon information and belief: (a) Plaintiff is not the original creditor and does not have possession, custody or control of said records; (B) copies were sent monthly to the Defendant(s), and are or were in Defendant's (') possession, custody or control; © said account records may be voluminous. Additional information concerning this obligation is set forth in the attached notice.

How stupid are these people? They just admitted in their own complaint that they can't prove their own case. NOWHERE do they state that you agreed to terms through a contract, etc. This goes back to paragraph 3. "defendants promised...." Oh, really? PROVE IT. I would suggest adding this:

Lack of Consent

The Plaintiff cannot produce evidence to show that Defendant consented to the terms of the “credit installment agreement” referenced in the Complaint, upon which terms Plaintiff has calculated an alleged amount owing. Agreements constitute a meeting of the minds and acquiescence to the terms stated therein. Page after page of legal double talk designed to protect banks rather than consumers, printed in the smallest font available and attached to a billing statement after the fact, does not constitute a reasonable meeting of the minds. If Plaintiff intends to rely upon the alleged “credit installment agreement,” referenced in the Complaint, they should be required to produce same for examination by all parties.

Doctrine of Waiver

Waiver is the intentional or voluntary relinquishment of a known right, which may be statutory or contractual. Any agreement in which defendant allegedly agreed to be bound by the laws of any state other than which he / she resides is unenforceable absent the actual agreement setting forth that condition. Defendant avers that he / she made no such agreement.

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