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Served with an Arbitration Summons from Asset Acceptance, Please Help!


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BACKGROUND INFORMATION:

I received a "required to appear" arbitration summons in Illinois for a 5 figure amount + costs.

SUMMONS INFORMATION

There are three pages to this packet; the arbitration summons, the complaint and an affadavit from an employee of Asset Acceptance. There are no supporting documents attached. Therefore,

(735 ILCS 5/2606) (from Ch. 110, par. 2606) Sec. 2606. Exhibits. If a claim or defense isfounded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes. (Source: P.A. 82280.)

THE COMPLAINT

The plantiff claims as follows:

1. That the defendant , XXXXXX, is indebted to plantiff, ASSET ACCEPTANCE LLC by virtue of a certain agreement entered into by defendant on or about XXX, 2007; Plaintiff has performed any and all conditions required by the contract, if any.

2. Plaintiff acquired on or about XXX, 2011 for a valuable consideration, all right, titale and interest in the account heretofore stated origianally owed by Defendant(s) to HSBC CONSUMER LENDING (USA) IN.

3. That the defendant(s) are in default of the terms of the agreement by failing to make payments due.

4. That after allowing for all credits due defendant, there is due and owing as of XXXX XX, 2011 the sum of $1X,XXX.XX.

5. That demand has been made upon the defendant for the balance due, but defendant has failed to pay and still continues to refuse to pay said balance justly due.

WHEREFORE, plaintiff prays for judgement against the defendant in the amount of $1X,XXX.XX, plus costs of this action.

AFFIDAVIT

1. I, XXXXXX am an employee of ASSET ACCEPTANCE, LLC ("Asset"), and am competent to testify to the matters stated herein.

2. I am familiar with the manner and method by which Asset creates and maintains its business records, including computer records of its accounts.

3. Asset's business records demonstrate that Asset purchased the receivable at issue in this case from BENEFICIAL.

4. The business records associated with the receivable demonstrate that our claim against Defendant is in the amount of $1X,XXX.XX.

88-)

Can anyone give me some direction? I have been scouring the boards and have tried to pick it apart the best that I can. What kind of things should I prepare for the appearance? I am willing to type up and print out an entire arsenal as long as I can find some direction in the choose your own adventure aspects to this situation.

Thank you in advance for any suggestions!

Edited by Familyof4
Taking out irrelevant info
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Read the NOTICE TO DEFENDANT at the bottom right of the page. You must do what it tells you.

File your answer (general denial) before the return date and make sure you attend the hearing.

I noticed that the original creditor is identified as HSBC, but later in the complaint, Asset indicates it purchased the debt from BENEFICIAL. What, if anything, do you know about that? Moreover, Asset alleges you became indebted to them (Asset) by virtue of a "certain agreement" ... This indicates that they may not know, or have any details on the original agreement.

You need to fight this.

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I am not familiar with Il. state rules of civil procedure. But here in my state (and I know some others as well) you should file a counter-affidavit with your answer whenever the JDB files an affidavit as prima facie evidence, this will help with the dreaded Motion for summary judgment that is bound to follow.

Look into your rules for civil procedure. Does the affidavit meet all the rules? Then you'll use this in your counter affidavit.

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5. The affidavit was created 43 days before the filed/entered date stamp from the clerk. It was executed, sworn and subscribed by a notary on the same day. Doesn't it have to be done within 10 days?

Look this up in your rules of civil procedure, search for AFFIDAVITS

AFFIDAVIT

1. I, XXXXXX am an employee of ASSET ACCEPTANCE, LLC ("Asset"), and am competent to testify to the matters stated herein.

2. I am familiar with the manner and method by which Asset creates and maintains its business records, including computer records of its accounts.

3. Asset's business records demonstrate that Asset purchased the receivable at issue in this case from BENEFICIAL.

4. The business records associated with the receivable demonstrate that our claim against Defendant is in the amount of $12,XXX.XX.

Now you need to comb over your rules of civil procedure (RCP from now on) with a fine tooth comb. Do your RCPs require that the affidavit be based on personal knowledge? As this affiant hasn't stated any personal knowledge etc....pick it apart.

Do a search for counter affidavits.....be prepared for a bit of reading.

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Thanks for the quick reply Nascar.

I googled and came up with this:

The HSBC family of consumer financial companies that utilize the names HSBC, Beneficial, Household, Mortgage One, Mortgage Two, and Capital Financial Services.

The affidavit says "BENEFICIAL", but the complaint says "HSBC CONSUMER LENDING (USA) IN". I'm not sure if this makes a difference but the continuity is horrible.

Although there is no "notice to defendant" on any of the pages, the arbitration summons states "To the above named defendant(s)" (and then section A is checked and reads):

A. You are hereby summoned and required to appear before this court at XXXX, IL in Room XXX at X:00 on XX/XX/XXXX to answer the complaint in this case, a copy of which is hereto attached. If you fail to do so, a judgment by default may be taken against you for the relief asked in the complaint.

It doesn't mention a return date. That might be because it is a "required" appearance that is scheduled. I will be there, but I am in Illinois, does that mean I have to file an answer before the appearance or just bring my answer with me?

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Thank you for the advice notgoingdown1.

I intend to fight this and find all of the info I can. After that I will have to figure out how to present it I suppose. Lots of work ahead of me!

I found this in the Illinois RCP's:

(735 ILCS 5/1‑109) (from Ch. 110, par. 1‑109)

Sec. 1‑109. Verification by certification. Unless otherwise expressly provided by rule of the Supreme Court, whenever in this Code any complaint, petition, answer, reply, bill of particulars, answer to interrogatories, affidavit, return or proof of service, or other document or pleading filed in any court of this State is required or permitted to be verified, or made, sworn to or verified under oath, such requirement or permission is hereby defined to include a certification of such pleading, affidavit or other document under penalty of perjury as provided in this Section.

Whenever any such pleading, affidavit or other document is so certified, the several matters stated shall be stated positively or upon information and belief only, according to the fact. The person or persons having knowledge of the matters stated in a pleading, affidavit or other document certified in accordance with this Section shall subscribe to a certification in substantially the following form: Under penalties as provided by law pursuant to Section 1‑109 of the Code of Civil Procedure, the undersigned certifies that the statements set forth in this instrument are true and correct, except as to matters therein stated to be on information and belief and as to such matters the undersigned certifies as aforesaid that he verily believes the same to be true.

Any pleading, affidavit or other document certified in accordance with this Section may be used in the same manner and with the same force and effect as though subscribed and sworn to under oath.

Any person who makes a false statement, material to the issue or point in question, which he does not believe to be true, in any pleading, affidavit or other document certified by such person in accordance with this Section shall be guilty of a Class 3 felony.

(Source: P.A. 83‑916.)

It doesn't state "personal knowledge", but says belief based on fact. That seems pretty general correct?

EDITED TO ADD FOR THOSE LOOKING FOR INFO...what got the affidavit stricken is that within it there was no mention as to the accessibiity of said contract/agreement.

Edited by Familyof4
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Here we go:

(735 ILCS 5/4-104) (from Ch. 110, par. 4-104)

Sec. 4-104. Affidavit. A plaintiff seeking the entry of an order for attachment shall file with the court an affidavit based upon the personal knowledge of the affiant and showing:

1. the amount of the claim, so far as practicable, after allowing all just credits and set-offs;

2. facts establishing any one or more of the causes set forth in Section 4-101 of this Act;

3. the place of residence of the defendant, if known, and if not known, that upon diligent inquiry the affiant has been unable to ascertain the place of residence; and

4. facts establishing the cause of action against the defendant.

The plaintiff shall file an additional statement in writing, either embodied in such affidavit or separately, to the effect that the action invoked by such affidavit does or does not sound in tort and a designation of the return day for the summons to be issued in the action; and the court, if it is satisfied that the affidavit has established a prima facie case, shall enter an order for attachment.

In all actions sounding in tort, before an order for attachment is entered, the plaintiff, his or her agent or attorney, shall apply to the circuit court of the county in which the action is to be brought or is pending and be examined, under oath, by the court concerning the cause of action; and, thereupon, the court shall indorse upon the affidavit the amount of damages for which the order for attachment shall be entered, and no greater amount shall be claimed.

(Source: P.A. 83-707.)

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Based on the fact that no copy of the alleged contract is attached to the order of arbitration that was served to me, can I just motion for dismissal siting that the pleading is legally insufficient (e.g., no copy of alleged contract is attached)? Based on:

Sec. 2‑606. Exhibits. If a claim or defense is founded upon a written instrument, a copy thereof, or of so much of the same as is relevant, must be attached to the pleading as an exhibit or recited therein, unless the pleader attaches to his or her pleading an affidavit stating facts showing that the instrument is not accessible to him or her. In pleading any written instrument a copy thereof may be attached to the pleading as an exhibit. In either case the exhibit constitutes a part of the pleading for all purposes. (Source: P.A. 82‑280.)
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The charge off was made 12/09. The account was opened 07/07. Where can I find the date of default?

If you have not done this, look on your Equifax credit report.

They will have a posting of date of first delinquency.

Check the listing under HSBC and also Asset Acc. on your report and

make sure they read the same.

IF you get a report that does not have that listing call the CRA and tell them you need a printout of that info, and ask that they give you the info over the phone.

Some here will tell you that CRA reports will not be accepted as evidence,

but I disagree.

IN addition... call HSBC and ask them what the date is.

Finally, yours is a sizable amount but you may want to read and look into

electing private contractual arbitration.

What Asset has on their summons to you is state, and it is not a great one to go through.

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It's on my credit report as "Household Finance" and the last payment is reported as 03/09.

It also states that Asset Acceptance makes regular inquiries.

Here's what the entry looks like:

HOUSEHOLD FINANCE

#XXXXXXXXXXXX

PO BOX 3425

BUFFALO, NY 14240

(800) 365-0175

Balance:$0

Date Updated:07/XX/2011

High Balance:$10,XXX

Credit Limit:$0

Last Payment:03/XX/2009

Pay Status:>Charged Off<

Account Type:Line of Credit

Account Responsibility:Individual

Account Date Opened:07/XX/2007

Date Closed:12/XX/2009

Date Paid:03/XX/2009

Loan Type: LINE OF CREDIT

Remarks: PURCHASED BY ANOTHER LENDER

Estimated month and year that this item will be removed: 06/2014

But then there is also this??

HSEHLD FINANCE BNFL FINC

#Different Account Number than above

PO BOX 3425

BUFFALO, NY 14240

(800) 365-0175

Balance:$0

Date Updated:11/XX/2007

High Balance:$9,XXX

Last Payment:07/XX/2007

Pay Status:Current; Paid or Paying as Agreed

Account Type:Line of Credit

Account Responsibility:Individual Account

Date Opened:07/XX/2007 (1 week prior to date closed)

Date Closed:07/XX/2007 (Same date as the above account was opened)

Date Paid:07/XX/2007 (Same date as the above account was opened)

Loan Type: LINE OF CREDIT

Remarks: ACCOUNT CLOSED BY CONSUMER

I never had two loans with these people. Did they transfer the loan to a different account and account number?

I am not sure if they had 2 accounts for you.

This was a line of credit, I understand but did you ever have an actual

say like debit card for this account that you may have lost. If so and you reported it they would have closed the original account and given you a new number.

As I look these over, I see that the date paid marked on date #2 and then #1 was opened that it seems like they did switch from one account to the other... just do not have a clue why.

But this is important.

There is a misleading post on #1.

They say on #2... date paid 7 XX 07.. which would make you out of SOL on this account. ( 4 year Nevada SOL which HSBC is)

However they say that #1 was paid 3-XX-09. I suspect that is the date

that Asset bought the account.

What does not make sense is their saying this will be reported until

06/2014... That should indicate that your first major default happened

at some point between Jan and June of 2007. Which does not make sense

based on their saying you paid or are paying as agreed.

Do you actually know when you made your last payment?

Anyone else with any ideas????

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The charge off was made 12/09. The account was opened 07/07. Where can I find the date of default?

Probably in your checking register. The date of default is generally the day after the last required payment was not made. The date they charged it off is meaningless. That's just an accounting notation.

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Read Velocity Investments, LLC v. Alston for some good case law regarding dismissal for not attaching the contract the complaint is based on.

Cole Taylor Bank v. Corrigan: "It is the business record itself, not the testimony of a witness who makes reference to the record, which is admissible."

I would highly recommend reading this which has a lot of good Illinois case law in it. Google Scholar is wonderful.

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Thanks inthesticks...digging into them now...and editing because I could kiss you right now! The first link is EXACTLY like my case. Now if I can only get it dismissed in arbitration with "citation to authority" supporting my position. Any idea what this entails? Off to google now.

xsqueezex

Edited by Familyof4
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Anything for me to add in the counter about this?

XXXXXXX affidavit states that the receivable was purchased by the Plaintiff from BENEFICIAL while the complaint lists the Plaintiff to have purchased the account from HSBC CONSUMER LENDING (USA) IN.
Edited by Familyof4
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The lawyer that is representing Asset Acceptance has also pulled my credit report. Is this allowed?

There is something called "permissible purpose." If they did this after suit was filed, what possible reason could they have other than to fish for information that would help them in the event they win? Check with Nascar on this, he'll know. I never had to deal with this.

Please steal my identity, anyone....and keep it!

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Thanks inthesticks...digging into them now...and editing because I could kiss you right now! The first link is EXACTLY like my case, same law firm, same issues. Now if I can only get it dismissed in arbitration with "citation to authority" supporting my position. Any idea what this entails? Off to google now.

xsqueezex

Uniform Arbitration Act

710 ILCS 5/1 "A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist for the revocation of any contract"

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It does not look all that good. You are incorporating motions to strike and motions to dismiss into the answer, as well as objections, all of which are improper. The purpose of the answer is to admit or deny the allegations set forth therein, nothing else. You are trying the entire case in the answer and asking the court for what amounts to judgment on the pleadings. This will never fly.

Neither will any of your defenses, most of them aren't even defenses. The only place you'll get any traction is 5, but that is best left out as well. You list it, you have to prove it. How? Make THEM prove that they DO have standing. Don't shift the burden to yourself.

Also, you styled your pleading to include "Counterclaims," none of which you listed here. A counterclaim is a separate pleading.

Your affidavit is fatally defective; it is argumentative, and you are swearing to the court that you have personal knowledge that "Deanna Jason lacks the personal knowledge...." What is this personal knowledge, and where did you get it? Again, you are trying the case in an affidavit, which is improper.

Edited by legaleagle
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