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Am I barking up the wrong tree concerning debt validation


PC1978
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I am looking for advice on a case I am currently involved in, and to see if I am barking up the wrong tree regarding debt validation. I received an initial collection notice from an out of state "attorney" debt collector collecting for a JDB a while ago. I sent both the JDB and the "attorney" a form dispute/validation request, certified mail. Neither responded in any fashion. Several months later I recieved an initial collection notice from an attorney in my state (Ohio) attempting to collect this debt for the JDB and the attorney made a hard inquiry of my credit report. I sent this attorney a form dispute/validation request certified mail. They sent a response of a letter on their letterhead stating the details of the debt from the "electronic file". I sent them another letter stating that this was not validation and I was still disputing/requesting validation, certified mail. They sent a letter with one page of a statement. I sent another letter saying this was not validation and I was still disputing/requesting validation, certified mail. The JDB and attorney then filed suit.

I answered the complaint and included a counterclaim for FDCPA violations as the JDB did not originally validate the alleged and continued to collect the alleged debt by retaining a new attorney to collect the alleged debt (2 violations - the letter and hard credit inquiry after failure to validate).

I also joindered the attorney as a counterclaim defendant and included as the second count of the counterclaim FDCPA violation by the JDB and the attorney for continued collection of the debt by bringing the lawsuit after failing to validate the debt by providing only the one page statement. I attached all of my evidence: letters, certified mail receipts, etc and sworn affidavit about the evidence.

I also served my discovery request to the Plaintiff and counterclaim defendant (admissions, interrogatories and production) they were granted an enlargment of time until the Jan 20 (about an extra month) to answer, no answer yet.

They filed a motion to dismiss the counterclaim for failure to state a claim (which has been denied) and gave two basic reasons: I did not allege all facts necessary to state an FDCPA claim and they in fact did validate the debt (this validation argument was premature, would be a summary judgement argument). My reply gave my arguments why I did allege the facts necessary (in general - they were reasonably inferred and case law that pro se pleadings are not held to as high of standard). It also gave my arguments as to why they did not validate the debt. I also filed an amended counterclaim to allege the neccesary facts and added OCSPA violations.

My real question revolves around the debt validation argument. They cited four cases (none of which are Ohio or 6th circuit) as to why they argue they validated the debt. I will post my reply to that part of their motion and would appreciate any feedback as to if you think that this argument will hold any water if either of us go for summary judgement (I think I would still have the JDB on the first count as they provided no validation before continuing to have the attorney collect).

Sorry for the length of this, I will put my reply to that part of their motion to dismiss in the next post.

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Post 1 of the reply:

Opposition to JB&R Properly Verified the Debt Argument

In Section III(B) of the Memorandum JB&R present their arguments as to why they believe they properly validated the debt. While the Defendant did state in counterclaims 14 and 18: “did not answer the Debt Collector Disclosure Statement,” Defendant is fully aware that the Counterclaim Defendant may not be required to answer the “Disclosure Statement” per se. This form was used by the Defendant to make his dispute and request for validation to JB&R. Defendant also stated in counterclaims 14 and 18: “was not validation of alleged debt.” While “validating” the alleged debt the Counterclaim Defendant provided the Defendant with one page of one alleged billing statement from the alleged original creditor. Defendant argues that this did not sufficiently validate the alleged debt and will set forth his arguments below. If the Counterclaim Defendant’s “validation” “was not validation of alleged debt”, it stands to reason that (“In construing a complaint upon a motion to dismiss for failure to state a claim, the material allegations of the complaint are taken as admitted”) the Defendant has stated a claim upon which relief can be granted.

Defendant states that JB&R’s argument at hand is to dismiss the entire counterclaim. If the Counterclaim Defendant is of the belief that the statement made in counterclaims 14 and 18 “did not answer the Debt Collector Disclosure Statement” is in any way “any redundant, immaterial, impertinent, or scandalous matter” pursuant to Rule 12(F) the proper remedy in this situation would have been a Motion to Strike such alleged “redundant, immaterial, impertinent, or scandalous matter.” JB&R’s arguments also only pertain to Count 2 of the counterclaim. In their Motion they would have the Court dismiss the entire counterclaim, including Count 1, based on an argument of no relevance to Count 1.

The Counterclaim Defendant cites several cases ruling on the matter of debt validation; however the Defendant argues that when taken in full context the published opinions of these cases show the level of validation provided by the defendants in said cases to be greater and more detailed than that provided by the Counterclaim Defendant in this case. Also, the specific circumstances of the cited cases are significantly different from this case.

In Chaudhry v. Gallerizzo, 174 F.3d 394, 406 (4th Cir. 1999) the Court was ruling only on the allegedly unverified legal fees of the attorney debt collector (claim was waived on right to verification of inspection fees) and there was no dispute as to the validation of the actual underlying debt:

2. Gallerizzo's Failure to Cease Collection Efforts on Allegedly Unverified Inspection Fees and Legal Fees

Appellants allege that Defendants violated § 1692g(b)6 by (1) failing to verify the inspection fees portion of the debt asserted in the Demand Letter (Count II);  (2) failing to verify the legal fees portion of the debt (Count III);  and (3) failing to cease his collection efforts with respect to the foregoing disputed portions of the debt (Count IV).

With respect to Count II, the district court determined that Appellants' counsel, in a telephone conversation with Gallerizzo where he stated that the verification that was needed related to legal fees, “waived whatever claim that the Chaudhrys might make in regard to the alleged failure to verify the inspection fees.”   Assuming that there had been no waiver, however, the court determined that “Gallerizzo adequately verified the amount of inspection fees” and “then sent the Chaudhrys' counsel a letter including written verification of these fees.”

In respect to the validation of the actual underlying debt the Court stated:

In the present case, Gallerizzo, after receiving assurances from NationsBank that the sums were owed, verified the debt amounts in his January 18th letter to Plaintiffs' counsel and forwarded a copy of the bank's computerized summary of the Chaudhrys' loan transactions. The summary included a running account of the debt amount, a description of every transaction, and the date on which the transaction occurred.

When this case is taken in full context it shows that the attorney debt collector had already provided “a running account of the debt amount, a description of every transaction, and the date on which the transaction occurred” in respect to the underlying debt and that the actual ruling on validation was only being considered in regards to validation of the attorney fees.

In Monsewicz v. Unterberg & Associates, P.C., 2005 WL 756433 (S.D.Ind., 2005) the Court stated of the validation that:

Tucker sent the Plaintiff detailed evidence of the debt, namely, a printout of the mortgage loan history reflecting the beginning principal, the dates on which payments were made, the amounts received, and the ending principal balance, as well as copies of the mortgage, the note, and the assignment of security instrument.

What was being ruled on in this case was if the debt collector needed certified or attested to copies of these stated documents.

In Weathersby v. Citibank, 928 So.2d 941, 2006 WL 114845 (Miss.App. 2006) the creditor sent “credit card statements” and the opinion did not specify any information about the detail of and the information on the statements. It is also important to note in this case that while Citibank did not raise the defense or argue the fact, they are a creditor and not a debt collector as defined by the FDCPA, and thus had no legal obligation to validate the debt.

In Johnson v. Equifax Risk Mfmt. Servs., No. 00 Civ. 7836(HB), 2004 WL 540459 the case was based on a check written to a retail store that was returned unpaid. The best and possibly only validation document(s) available in this circumstance would have been a copy of the returned check. Johnson v. Equifax has no significant similarities, in respect to validation, to the counterclaim in this case.

As shown above in the cases cited by JB&R there are significant differences in what is being ruled on in respect to validation of a debt as compared to the counterclaim in this case and when taken in full context the actual validation of the underlying debt provided by the debt collectors is significantly more detailed in these cases than in what was provided by JB&R to the Defendant.

In Spears v. Brennan, 745 N.E.2d 862 (Ind. App. 2001), a case that is extremely similar to the Defendant’s counterclaim the Court ruled concerning the validation provided by the debt collector that:

Brennan maintains, however, that there was no violation of the FDCPA because he “sent adequate verification of the debt [to Spears] in the October 30, 1996 notice of claim.”   Brief of Appellee at 13.   Specifically, Brennan claims that a copy of the consumer credit contract between Spears and American General attached to the notice of claim provided sufficient verification of the debt within the meaning of 15 U.S.C. § 1692g(B).   We cannot agree.

The contract in no way provides sufficient verification of the debt.   A review of the document reveals that it identifies only the terms of Spears' loan, including a 17.99% annual interest rate and the original loan amount of $2,561.59.   The loan agreement contains no accounting of any payments made by Spears, the dates on which those payments were made, the interest which had accrued, or any late fees which had been assessed once Spears stopped making the required payments.   Indeed, the existing unpaid contract balance at the time Brennan sent the debt collection notice was at least $350.00 more than the original loan amount.   Therefore, Brennan violated 15 U.S.C. § 1692g(B) when he failed to cease collection of the debt by obtaining a default judgment against Spears after Spears had notified Brennan in writing that he was disputing the debt but before Brennan had mailed verification of the debt to Spears.7  We reverse the trial court's entry of summary judgment in favor of Brennan on this issue.

Many of the items that the Court stated the validation was lacking in Spears v. Brennan are items that were provided in the validation provided by the debt collectors in the cases cited by JB&R concerning proper debt validation.

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Post 2 of the reply:

The Defendant finally contends that an aspect not present in all of the above cited cases in respect to debt validation, that is a major factor in this case, is the element added by a third party debt buyer, see Exhibit A of the Counterclaim. The Plaintiff’s official website states that “****** is a national buyer of delinquent consumer receivables.” The FDCPA does not specifically define what proper debt validation consists of, the FTC has offered an opinion of a document that does not validate a debt and there is limited case law, but as shown above each case has its own set of specific circumstances that cannot necessarily be applied to all situations and context has to be applied to each case. When any consumer is presented with a demand for payment from a company they have never heard of and that company claims that the money is owed directly to them, as the owner of the debt, it would not be unreasonable for any consumer, even a sophisticated consumer, to want validation that money is in fact owed to this company with whom they have had no previous contact or have no knowledge of. Even more so, a consumer who in fact did not owe the debt or the “least sophisticated consumer” could become easily confused or simply not believe the demand for payment without some sort of validation showing the third party debt buyer to actually own the debt (i.e. bill of sale, assignment agreement, etc.).

In Barany–Snyder v. Weiner, 539 F.3d 327, 332 (6th Cir.2008):

Courts use the “least sophisticated consumer” standard, an objective test, when assessing whether particular conduct violates the FDCPA. Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 329 (6th Cir. 2006). This standard ensures “that the FDCPA protects all consumers, the gullible as well as the shrewd.” Kistner v. Law Offices of Michael P. Margelefsky, LLC., 518 F.3d 433, 438 (6th Cir. 2008)

Hereto attached to this document as Exhibit C are two press releases, one from the Office of the Attorney General of Minnesota and one from the FTC. The Minnesota AG press release informs the public of a lawsuit filed by the AG against a third party debt buyer and states:

The Attorney General said that debt buyers cast a wide net to find people who may owe old bills and often pursue the wrong person altogether or pursue people who paid the bills long ago. In some cases, debt buyers pursue people solely because they have the same or similar name or address as the real debtor. . .

Because acquired debt portfolios involve old debt and because debt buyers typically only acquire an electronic file about the debt and not actual copies of underlying charge slips, account statements, signed contracts, etc., citizens regularly are hounded by debt buyers for payment of bills they do not owe. In some cases, debt buyers sue people solely because they have the same or similar name or address as the real debtor, while in other cases they pursue people for bills paid back long ago. The National Consumer Law Center (NCLC) has estimated that one out of ten lawsuits filed by debt buyers are premised on bad or incorrect information. . .

Some citizens sued by Midland state that they did not contest the lawsuit because they were not served with it, could not afford an attorney, or did not recognize the name of the debt buyer, since they had never done business with it (emphasis added).

The FTC press release informs the public of the settlement of a lawsuit with a third party debt buyer and states:

In March 2004, the FTC charged CAMCO, RM Financial, and their principals with threatening and harassing thousands of consumers to get them to pay old, unenforceable debts or debts they did not owe. . .

In December 2004, the FTC sued the defendants alleging that they continued to use harassing, intimidating, deceptive, and illegal methods to collect “debts” – debts so old that they were beyond the statute of limitations, and could not appear on credit reports – and debts consumers never incurred and did not owe at all.

Defendant is fully aware that all of the allegations stated in both of these cases and press releases are allegations only. Defendant is in no way implying that the defendants in these cases or the Plaintiff in this case have committed or will commit any of the actions alleged in these cases and press releases. The quotations stated above from said press releases are for persuasive purposes only (as the quotations are made by competent authority) in regards to the Defendant’s argument that it would not be unreasonable for any consumer to want validation that money is in fact owed to a company with whom they have had no previous contact or have no knowledge of or that a consumer who in fact did not owe the debt or the “least sophisticated consumer” could become easily confused or simply not believe the demand for payment without some sort of validation showing the third party debt buyer to actually own the debt (i.e. bill of sale, assignment agreement, etc.).

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They properly validated. The good news is the claim won't be considered frivilous and the only way you can get hit with atty fees for them defending the suit is if the court deems your suit frivilous.

By law they all they have to do is basically check the records and say yep you owe. Always good to bring a counterclaim for leverage, but I say with 99.9999% confidence you will lose that part of the lawsuit. However, it might be enough leverage to get them to offer a good settlement or drop it.

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On the matter of validation you have them dead to rights on their action of retaining the in state attorney while not responding to your validation and if I am reading their argument they are not arguing that and may not see it coming. Most likely on the matter of not answering the validation when you DVed the in state attorney, they are likely to win.

Is Mr In State lawyer also a debt collection firm as well? It is an FCRA violation for a lawyer to pull a credit report in preparation for litigation. The only way they get around that is if they have a bunch of collectors working for them and they actively pursue collection. But when they send a letter then sue, they can get in deep trouble very fast.

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Thanks for all the input. Even if I do lose on the claims against the attorney regarding validation (it is Javitch, Block and Rathbone), I think like KentWA said I still have the JDB for continuing to collect after failing to provide any response to my dispute/validation request.

It is also only a $1400 debt so hopefully this will make them not want to put up as much of a fight.

What about there being no Ohio or 6th Circuit case law cited to back up their validation arguments, do you think that will make any difference?

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Is Mr In State lawyer also a debt collection firm as well? It is an FCRA violation for a lawyer to pull a credit report in preparation for litigation. The only way they get around that is if they have a bunch of collectors working for them and they actively pursue collection. But when they send a letter then sue, they can get in deep trouble very fast.

They are a debt collection firm. They pulled the the credit report before they sent the first demand letter. Would they argue that at that point they were only acting as a debt collector not an attorney, that is what their initial demand letter stated.

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What about there being no Ohio or 6th Circuit case law cited to back up their validation arguments, do you think that will make any difference?

Not in the least.

Look up the law in Ohio that requires an arrested person to be given their Miranda warning if they are arrested and questioned. Guess what it will refer you? Yep, Arizona law, Miranda V Arizona.

Well settled law does not have to be addressed at every state level for it to be binding.

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They are a debt collection firm. They pulled the the credit report before they sent the first demand letter. Would they argue that at that point they were only acting as a debt collector not an attorney, that is what their initial demand letter stated.

So it is going to come down to how quickly they filed the case and how well an argument you can make that the letter was a tactic in the litigation (i.e. pre-litigation settlement). It might just take an above average knowledge of case law and poker face for a Pro Se to pursue.

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Thanks for all the input. Even if I do lose on the claims against the attorney regarding validation (it is Javitch, Block and Rathbone), I think like KentWA said I still have the JDB for continuing to collect after failing to provide any response to my dispute/validation request.

I agree, if you can prove it.

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I agree, if you can prove it.

I have the initial demand letter from the first "attorney", my dispute/validation letter sent to both the attorney and JDB, the certified mail slips and electronic return receipts for both letters, the initial demand letter from their current attorney, the experian alert of the hard inquiry. I attached them all to the counterclaim as exhibits with a sworn statement by me. I also served requests for admissions regarding all of my claims. Do you think this will be enough or will I need something else?

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In court but not during debt validation.

Coltfan, what if the JDB cannot prove assignment? That would mean that they have no legal ownership of the debt, therefore they should not be attempting to collect it. As attorneys, they should know this. They do this to thousands of people because they think the "unsophisticated consumer" won't know any better, etc. File a suit based on ownership fo the debt, which they ALWAYs put in the complaint, go to court, OOPS! We can't prove we own the debt. Sorry, let's go home. Not so fast. Are you that stupid that you would file a case when you knew or should have known you can't prove ownership? What law school did you go to, JDB lawyer? I work at Walmart or do construction or flip burgers and I know this law, why don't you? Write the check.

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In court but not during debt validation.

Coltfan, what if the JDB cannot prove assignment? That would mean that they have no legal ownership of the debt, therefore they should not be attempting to collect it. As attorneys, they should know this. They do this to thousands of people because they think the "unsophisticated consumer" won't know any better, etc. File a suit based on ownership fo the debt, which they ALWAYs put in the complaint, go to court, OOPS! We can't prove we own the debt. Sorry, let's go home. Not so fast. Are you that stupid that you would file a case when you knew or should have known you can't prove ownership? What law school did you go to, JDB lawyer? I work at Walmart or do construction or flip burgers and I know this law, why don't you? Write the check.

Oh, I agree 100% with you. Just look at all the posts where a debtor fights back or shows up in court. 99% of the time they tuck tail and get out before they have to be humiliated in court (Thank God !!!! that did not happen to me and they thought I was the one bluffing, what great fun).

However, until the law changes, they don't have to prove ownership, at the DV stage. I agree they should have to provide some proof, but suing on a DV violation for not providing that proof in the DV stage, is simply not a violation.

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In court but not during debt validation.

Coltfan, what if the JDB cannot prove assignment? That would mean that they have no legal ownership of the debt, therefore they should not be attempting to collect it. As attorneys, they should know this. They do this to thousands of people because they think the "unsophisticated consumer" won't know any better, etc. File a suit based on ownership fo the debt, which they ALWAYs put in the complaint, go to court, OOPS! We can't prove we own the debt. Sorry, let's go home. Not so fast. Are you that stupid that you would file a case when you knew or should have known you can't prove ownership? What law school did you go to, JDB lawyer? I work at Walmart or do construction or flip burgers and I know this law, why don't you? Write the check.

Ohio Courts, along with the Sixth Circuit Court of Appeals, have ruled that filing a lawsuit without proof of ownership of a debt is not an FDCPA violation.

"Even when viewed from the perspective of an unsophisticated consumer, the filing of a debt-collection lawsuit without the immediate means of proving the debt does not have the natural consequence of harassing, abusing, or oppressing a debtor. Any attempt to collect a defaulted debt will be unwanted by a debtor, but employing the court system in the way alleged by Harvey cannot be said to be an abusive tactic under the FDCPA." Harvey v. Great Seneca Financial Corp., 453 F. 3d 324 - Court of Appeals, 6th Circuit 2006

"[A] debt may be properly pursued in Court, even if the debt collector does not yet possess adequate proof of its claim." Whittiker v. Deutsche Bank National Trust Co., 605 F. Supp. 2d 914 - Dist. Court, ND Ohio 2009

"Simple inability to prove present debt ownership at the time a collection action is filed is not a per se FDCPA violation." Munger v. Deutsche Bank, Dist. Court, ND Ohio 2011

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I have seen cases like this and have posted them in my info thread. Ohio seems to rule like this. The decisions seem to be based upon the fact that the lawyer is relying on information supplied by his client. However, there must be other grounds upon which to bring a counterclaim. By what right does an attorney who does this for a living walk away from the provable fact that he brought a case he knew he could not make? This goes a bit beyond the strict FDCPA law. It goes back to the plaintiff, he is responsible for the actions of his attorney. If the attorney screwed up, the OC has an adequate remedy at law against the idiot he hired. My take is that the consumer was injured.... who cares who was responsible? Let them sort that out among themselves. This is a very interesting point of law, we should pursue this. Constantly bringing boiler room suits against consumers when there is no provable basis has to stop. Many of the cases I posted recently show JDBs losing for this very reason. Me, I would pursue them under the unfair trade practices statute. Each state is different, though. Gee, good old South Dakota doesn't really have one other than one that covers false advertising. Big surprise.

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I have seen cases like this and have posted them in my info thread. Ohio seems to rule like this. The decisions seem to be based upon the fact that the lawyer is relying on information supplied by his client. However, there must be other grounds upon which to bring a counterclaim. By what right does an attorney who does this for a living walk away from the provable fact that he brought a case he knew he could not make? This goes a bit beyond the strict FDCPA law. It goes back to the plaintiff, he is responsible for the actions of his attorney. If the attorney screwed up, the OC has an adequate remedy at law against the idiot he hired. My take is that the consumer was injured.... who cares who was responsible? Let them sort that out among themselves. This is a very interesting point of law, we should pursue this. Constantly bringing boiler room suits against consumers when there is no provable basis has to stop. Many of the cases I posted recently show JDBs losing for this very reason. Me, I would pursue them under the unfair trade practices statute. Each state is different, though. Gee, good old South Dakota doesn't really have one other than one that covers false advertising. Big surprise.

Again, I agree with you. I pretty much bullied the other side, called their man hood into question, and made Allen, on Boston Legal, cringe with my arrorgrance toward the other side. If not for that they would have tucked tail and run, I'm sure.

I guess the argument can always be made, by the other side, that once they started adding up legal costs, it was no longer cost effective to continue the fight. However, they could have won and it was not frivilous, it was just a business decision.

Not for a second taking up for the other side (I'm sure you know that). However, I did it all the time in insurance claims. I paid off fraud claims, bogus injuries, old damage on collision claims, when I had sent an initial letter stating we would not pay and why. However, when pressed backed down almost every time. I can assure you we could have won 98% of those disputes but no way were we going to spend 20K to get out of paying a 3K fraudulent neck injury claim.

So the other side, I'm sure, will say, oh we could have won, but since these game playing debtors were going to just try and run up our bills and file every motion under the sun, while we could have won, we have the right to make a business decision and back out.

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Constantly bringing boiler room suits against consumers when there is no provable basis has to stop.

While searching around for info on this tonight, it looks like the State of Delaware is doing something about this:

courts.delaware.gov/commonpleas/docs/AD2011-1ConsumerDebt0.pdf

The whole document is great but under 2(B) they get really detailed:

Each assignment or other writing evidencing transfer of ownership must contain at least the last four digits of the original account number of the debt

purchased and must clearly show the debtor’s name associated with that account number.

Is there such a thing out there as an assignment agreement for each individual account in the sale?

It looks like they were invited to Harvard law school to speak on the subject:

courts.delaware.gov/commonpleas/docs/PR_CCPJudgeHarvardLaw.pdf

Edited by PC1978
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While searching around for info on this tonight, it looks like the State of Delaware is doing something about this:

courts.delaware.gov/commonpleas/docs/AD2011-1ConsumerDebt0.pdf

It looks like they were invited to Harvard law school to speak on the subject:

courts.delaware.gov/commonpleas/docs/PR_CCPJudgeHarvardLaw.pdf

Before I answered the complaint I filed a motion to dismiss for failure to demonstrate standing. My case was filed in municipal court but the court of common pleas for my county has a local rule:

7.03 Upon filing and where appropriate, complaints shall have attached proof of assignment from the original creditor or original party in interest to the plaintiff establishing standing and jurisdiction of the court. The court may dismiss the complaint without prejudice if the proof of assignment is not attached to the complaint upon filing.

The municipal court wouldn't go for it though as the Ohio Civil Rules call for a motion for a more definite statement.

Edited by PC1978
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I would file that immediately and cite the statute. Sounds like you made a minor procedural error, you can correct it by filing the appropriate document. Be advised, Ohio is a very difficult place to take on account stated or credit card cases. There are a few good rulings though, see my posts. The best part is the "zero balance" thing. My case law in now in the case law sticky. I disagree with the court's ruling, but what do I know. They like to give lawyers every chance to prove their case. More definite statement usually means you can't make heads nor tails out of the complaint. The attachment rule is pretty straight forward, either they did or they didn't. If municipal gave you a written ruling, file an objection so as to preserve the issue for appeal. You may be able to file a motion to reargue, you'll lose, but get it on the record somehow. If you don't, you can't raise it at appeal unless it fits the parameters.

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I would file that immediately and cite the statute. Sounds like you made a minor procedural error, you can correct it by filing the appropriate document. Be advised, Ohio is a very difficult place to take on account stated or credit card cases. There are a few good rulings though, see my posts. The best part is the "zero balance" thing. My case law in now in the case law sticky. I disagree with the court's ruling, but what do I know. They like to give lawyers every chance to prove their case. More definite statement usually means you can't make heads nor tails out of the complaint. The attachment rule is pretty straight forward, either they did or they didn't. If municipal gave you a written ruling, file an objection so as to preserve the issue for appeal. You may be able to file a motion to reargue, you'll lose, but get it on the record somehow. If you don't, you can't raise it at appeal unless it fits the parameters.

Would the municipal court be bound by that rule since it is a local rule of the common pleas court, or would it just be a persuasive argument?

I sent JB&R an email after their motion to dismiss was denied offering a proposal for both parties to dismiss all claims with prejudice. I received their motion for enlargement of time to answer discovery today. They stated that they are waiting for their clients response to my proposal and want the enlargement of time to resolve the matter prior to incurring further expense. I hope they are serious but I am leary that they are just buying more time so they don't have to answer the discovery or will come back with a proposal wanting me to pay them some reduced amount.

Would I be able to submit a reply to their motion that I don't object but ask, that should the Plaintiff not answer my proposal or we do not come to an agreement and they move for judgement on the pleadings before answering discovery and include evidence with their motion that would have been responsive to my discovery, for consideration of a motion in limine by me to preclude this evidence as unfairly predjudicial.

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