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Lawyers answer to Motion to Dismiss -UPDATED :)


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So, there was no contract attached to my summons as required by Illinois law. I filed a motion to dismiss in lieu of an answer based on that, the judge gave the JDB 21 days to respond. I will be going back to court soon. Anything I should bring with me? An answer perhaps? I am pretty sure they will come up with nothing, but they could use my signature from another loan that has since been paid in full and closed. What should I expect in court? Will I have time to respond to what they bring as "proof"?

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.

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Anything I should bring with me?

Yes, a counterclaim against them. It's Asset there is no way they have not violated the FDCPA, it's what they do.

They will come up with enough to beat a motion to dismiss. Don't worry about that, no big deal. Personally, I would have not even filed the motion to dismiss. You just drew their attention to the fact you know your stuff and you know what they need to prove their case.

You basically told them they need to be better prepared for you. I would not point out their weaknesses if the end result is them just getting to fix their mistakes. The court calls it curing a defect. It's common. It's where the court gives them a do over.

Better to have them in court and then bring of their lack of evidence when it's way too late to "cure their defects." However, Asset along with Midland, have to be the easiest to beat. It's just a matter of how much fun you want to have. You obviously know more than 98% they sue. That alone will make you a very unattractive target. If your going to keep this train going you need to file a counterclaim so they can't get out cheap.

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In their complaint did they ever mention the original creditor? Or a Bill of Sale?

If Asset has this debt, then the debt has been sold a couple times by now. They are the last stop in the deep discount JDBs.

They make alot of reference to a breach of contract, but no reference to a chain of title or how they acquired the debt.

That affidavit is garbage, at no point in the affidavit did the affiant state any relevant knowledge around how they acquired the debt.

File a simple counter-affidavit that offsets their affidavit, denying the statements. You never entered into a contract with Asset. They can say it, but you never applied for credit with them.

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They did mention the original creditor, but referred to them by two different names (one name in one place and another in another place, although both mentioned are part of the same group of banks).

In filing the counter affidavit, should I do that with the court before our follow up court date (even though they have not submitted answers yet) or wait until the court date.

Do I need to submit answers with the counter affidavit?

Is it proper to file both the counter affidavit and the counter claims at the same time?

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Wait for the court to rule on the motion.

(735 ILCS 5/2-1007) (from Ch. 110, par. 2-1007)

Sec. 2-1007. Extension of time and continuances.

On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.

The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules. However, in actions involving building code violations or violations of municipal ordinances caused by the failure of a building or structure to conform to the minimum standards of health and safety, the court shall grant a continuance only upon a written motion by the party seeking the continuance specifying the reason why such continuance should be granted.

It is sufficient cause for the continuance of any action that any party applying therefor or his or her attorney is a member of either house of the General Assembly during the time the General Assembly is in session, or if any party's attorney is a bona fide member of a religious faith that dictates that the individual refrain from normal business activity or attend religious services as a part of the observance of a religious holiday and requests a continuance to observe such religious holiday when the date of a scheduled court proceeding conflicts with the date of such holiday, or if any party applying therefor or his or her attorney is a delegate to a State Constitutional Convention during the time the Constitutional Convention is in session, if the presence of such party is necessary for the full and fair trial of the action and, in the case of his or her attorney, if such attorney was retained by such party prior to the time the cause was set for trial.

(Source: P.A. 84-931.)

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Thanks for the quick reply. The reason given is a scheduling conflict.

Don't worry, pretty common. If you play your cards right they will a ton more scheduling conflicts. ;)

I filed numerous pleadings at different times throughout the case, therefore having varying dates on when the pleadings were ripe to be heard for oral arguments.

I had them in court every other week over something. Just when something would be resolved on one issue it was time to head back to court for other round of what I like to call the BOHICA game (google the term if you don't know what it means).

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I had them in court every other week over something. Just when something would be resolved on one issue it was time to head back to court for other round of what I like to call the BOHICA game (google the term if you don't know what it means).

::spew:: ::spew:: ::spew:::roflmao: :roflmao: :roflmao:

oh mio dios..... Coltfan, you are an original!

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Keep an eye on the case to see what the judge gives them. If they asked for six months or something really out of line, you could object. Scheduling conflict for a jdb? Usually that means that the inhabitants of the local monkey house are not wearing mini skirts, but the ones two states over are. It is February, could be mating time for the jdb's species.

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Don't worry, pretty common. If you play your cards right they will a ton more scheduling conflicts. ;)

I filed numerous pleadings at different times throughout the case, therefore having varying dates on when the pleadings were ripe to be heard for oral arguments.

I had them in court every other week over something. Just when something would be resolved on one issue it was time to head back to court for other round of what I like to call the BOHICA game (google the term if you don't know what it means).

BOHICA, Man coltfan, you must have been in the dirty 9th brigade...

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So, there was no contract attached to my summons as required by Illinois law. I filed a motion to dismiss in lieu of an answer based on that, the judge gave the JDB 21 days to respond. I will be going back to court soon. Anything I should bring with me? An answer perhaps? I am pretty sure they will come up with nothing, but they could use my signature from another loan that has since been paid in full and closed. What should I expect in court? Will I have time to respond to what they bring as "proof"?

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.

I think you have an impartial judge, and you really took them by surprise with the motion to dismiss. You are going to have to answer this so post the amended complaint and know this they are going to want to stretch this out. Think about what the others have said, and weigh heavily a counterclaim.

Personally it sounds like the court is glad that you are defending but if you file a counterclaim, the court might think on one hand it is cute to see a pro per defend, it is another to lock them into trial when the court very clearly is signaling take this crap out of my court room.

Just playing devils pro se here but if the court is making good rulings now a counterclaim may piss them off.

And well played on the motion to dismiss. You smacked them good.

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

So, brave to actually admit that

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

I hope so, you work for them.

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

So you bought it, big deal. Just because you buy some thing on the market does not mean it is not defective, hell we buy defective items all the time don't we. I hope it came with a warranty.

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

In your opinion maybe, lets see the evidence to back up that claim.

I say the affidavit is moot, it don't prove a darn thing.

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.

I do not see a claim stated any where in the complaint, it fails to state a claim for which relief can be granted.

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  • 1 month later...

Thanks for all of the replies. Tomorrow is the big day and we shall see. A month is all the judge gave them. What should I bring in case

1. They do find something? Can I ask for time to read over the amended claim? Do I need to have something formal drafted?

2. If they bring nothing?

or

3. If they ask for another continuance?

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You were too worried about them coughing up something and trying to force you to answer right there and you missed the possibility that they would just ask for more time. If you had of thought of that you could have had a very strong argument for the judge to boot it right out the door since they seemed incapable of following basic rules.

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  • 3 months later...
We've been back twice since. What can I do now. They still have nothing and keep getting continuances. Should I motion for summary judgement?

You can file a MSJ. That's an option.

The better approach however is to object to the continuances. By not objecting to them you are agreeing to them. Your states rules of civil procedure likely has some language about unreasonable delay. But because you have agreed to these continuances they are not unreasonable.

The person you need to complain to is the judge, not us. He's the one that can put a stop to it.

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I am willing and able to pay for the counterclaim against them, but I seem to have a good repiore with the judge and would like to keep it that way. In order to object, can I just state something like, "I've been very patient, and I don't want to waste any more of the courts time, but my patience is running thin and I am considering filing a counterclaim against the plaintiff for FDCPA violations"?

What is the proper procedure for objecting?

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