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LVNV motion for judgement denied now what??


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First i would like to thank everyone for being a huge help with this matter, this is my 1st post but i have been reading for weeks now and the information here just helped me get LVNVs motion for final summary judgement DENIED!!!!!

OK heres the situation, I received a summons a couple months ago attatched was a one sheet statement/ account summary. I replied with my answers in which I denied all.

Next I recieved a motion for final summary judgement attached was an affidavit in support of plaintiffs claim. In which i filed a opposition to motion for final summary judgement denying knowledge of the account with LVNV and the OC and questioning the Account summary as hearsay and the Affidavit as hearsay and no personal knowledge.

next i recieved a order setting hearing. that was today at 11 am by telephone with the judge. The judge let the plaintiffs atty. begin in which he recapped everything in his motion for FSJ.

Then my turn, I argued that the statement that came with the summons was hearsay and the judge agreed, next i argued that the affidavit was not based on personal knowledge but instead on best of their knowledge and belief. Judge agreed.

Here is where im a little confused, the judge agreed with me, did not allow their affidavit because it was not a legal document, but said she could not strike it because there was no motion to strike?

Judge also denied their motion for FSJ. not sure what to do now.

1. do I file a motion to strike on both documents now, even though she did not allow it anyway?

2. do I now file a motion to dismiss?? What is next best move? think it will make to trial, this is all they presented as evidence.

All of your help is greatly appreciated!!

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First i would like to thank everyone for being a huge help with this matter, this is my 1st post but i have been reading for weeks now and the information here just helped me get LVNVs motion for final summary judgement DENIED!!!!!

OK heres the situation, I received a summons a couple months ago attatched was a one sheet statement/ account summary. I replied with my answers in which I denied all.

Next I recieved a motion for final summary judgement attached was an affidavit in support of plaintiffs claim. In which i filed a opposition to motion for final summary judgement denying knowledge of the account with LVNV and the OC and questioning the Account summary as hearsay and the Affidavit as hearsay and no personal knowledge.

next i recieved a order setting hearing. that was today at 11 am by telephone with the judge. The judge let the plaintiffs atty. begin in which he recapped everything in his motion for FSJ.

Then my turn, I argued that the statement that came with the summons was hearsay and the judge agreed, next i argued that the affidavit was not based on personal knowledge but instead on best of their knowledge and belief. Judge agreed.

Here is where im a little confused, the judge agreed with me, did not allow their affidavit because it was not a legal document, but said she could not strike it because there was no motion to strike?

Judge also denied their motion for FSJ. not sure what to do now.

1. do I file a motion to strike on both documents now, even though she did not allow it anyway?

2. do I now file a motion to dismiss?? What is next best move? think it will make to trial, this is all they presented as evidence.

All of your help is greatly appreciated!!

I assume the next step is to go to trial? You need to do your due diligence in discovery, and then after their disclosure, you need to make a written motion in limine to exclude each item of hearsay evidence and witnesses. They will likely argue for business records exception to the hearsay rule and you will need to be prepared (again) to defeat them. Did the attorney for the plaintiff offer the business record exception during your hearing?

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Great job, Anthony -

If I may ask, how much are they asking for? I ask because I was able to beat LVNV funding very easily - I didn't have to go through everything you're going through. During pre-trial, LVNV's attorney called my name (while I was waiting for the pretrial conference) and she told me that LVNV wants me to agree to dismiss the case with prejudiced which I did.

So I'm wondering why LVNV did not proceed to fight me fully and let the case go to trial.

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I assume the next step is to go to trial? You need to do your due diligence in discovery, and then after their disclosure, you need to make a written motion in limine to exclude each item of hearsay evidence and witnesses. They will likely argue for business records exception to the hearsay rule and you will need to be prepared (again) to defeat them. Did the attorney for the plaintiff offer the business record exception during your hearing?

First timer.....Actually the judge brought up the daily business record exception rule and said it would not apply to the affidavit due to it not being a legal document anway do to no personal knowledge. these 2 items were their only evidence, that is why i was wondering if i should file a motion to strike even though she didnt accept it as evidence anyway? and file a motion to dismiss due to lack of evidence??

the amount is for over $5k

Edited by anthony2219
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First timer.....Actually the judge brought up the daily business record exception rule and said it would not apply to the affidavit due to it not being a legal document anway do to no personal knowledge. these 2 items were their only evidence, that is why i was wondering if i should file a motion to strike even though she didnt accept it as evidence anyway? and file a motion to dismiss due to lack of evidence??

the amount is for over $5k

I'm not sure if you can file a motion to dismiss. The rules mention a dismissal by the Plaintiff, but not by a Defendant. You could always file your own MSJ.

Did they provide a bill of sale from the OC to LVNV? You're real argument is that they can't prove they own the account. It doesn't matter how many cc statements they provide. If they can't prove ownership of the account, those statements are meaningless.

You could also just wait for a trial date. LVNV might show up, they might not bother to appear, or they could dismiss before then.

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You don't have grounds for a motion to dismiss. You do have a great case to win at trial.

Personally, why strike the affidavit. It's going to be inadmissible, the judge flat out has agreed (like any judge would/should). Let them show up to trial with garbage evidence. What do you want them to do, show up with evidence that can beat you.

You strike their affidavit, what's left, them getting a live witness to court? Why force their hand to strengthen their hand to one that might actual be able to beat you. They are holding a losing hand at this time. Don't re-deal the cards and given them a chance to better their hand.

On a side note, no matter what you do, LVNV most likely is throwing the in towel. They took a run at it and they failed (as they usually do when somebody challenges them).

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At this point in time the court is waiting for the Plaintiff to file their next motion, it could be a continuance, it could be an amended complaint, it could a dismissal, or any thing else.

Do not file anything until you find out what they are going to do, they are waiting to see if you jump the gun and make it easier on them. Just wait and see what they do next.

Do not do anything that will put the burden of proof on you, as long as they are the ones filing motions they have to prove what they claim.

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You strike their affidavit, what's left, them getting a live witness to court?

I was thinking he should get it stricken. The judge practically gave him the go ahead. What live witness will they get, the dummy who wrote the affidavit? He's no better than the affidavit. These judges get moved around, retire, etc. The judge could drop dead tomorrow, and he could get some new judge who hates credit card debtors, like the one that screwed Mamacaldo. 2 posts? We don't know enough about this guy to advise him to start crossing affiants.

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You might want to think about a motion to strike the cc statement. Get that stricken, not only is there no evidence LVNV purchased the debt, there's no evidence of the amount.

It would really surprise me if LVNV continued with this case at this point, because they know their affidavit is unacceptable. But, if they're stupid enough to keep going, getting the cc statement stricken might be enough to activate someone's brain cell enough to make them realize they have nothing.

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  • 4 weeks later...

You should really read the findings of the Maryland Office of the Commissioner of Financial Regulation in case number DFR-FY2012-012. It is about 40 pages but it goes into detail on how exactly LVNV Funding LLC (and other Sherman owned companies) do business. I have read it several times. The most interesting stuff starts about half way through the case document. You can read or download the case document in PDF format from the State Of Maryland web site. I am new here so they will not allow me to post any links yet but just go to Google and search on "Maryland DFR-FY2012-012" or "LVNV DFR-FY2012-012" and you will find it.

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  • 1 month later...

OK Update...I just recieved a Request for Admissions, Do I just deny all of them seeing that every one of them is pretty much asking me to admit to something that is not true, like me applying to GE for a credit card. there are 20 of them, the only one i can answer without denying are why did i not object to the complaint before the time i was served? not sure how i am supposed to answer their request for admissions.

Also attatched is a Request to Produce.

some are as follows, billing statements, cancelled checks, contracts and all memeranda between me and GE and lvnv funding, I have none of these, what am i supposed to do?

they want an accounts payable ledger, are you kidding me? who keeps one of those.

I should be asking them for all of these things to prove their case.

They are also asking for evidence proving I do not owe them any money?

Like I said before all of their evidence was not permitted by the judge. They have nothing and are now trying to get me to give them evidence to sue me? not sure how to proceed seeing I have none of the documents they are asking for?

Please help I am growing very tired very fast as that is what they are counting on! thanks in advance.

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If you don't have the documents, you don't have them. You might respond by stating:

After conducting reasonable search, Defendant is unable to locate such documents.

If they're asking for documents you never had in the first place, state that you've never been in possession of such documents.

You can post the admissions, if you'd like, and I'm sure you'll get plenty of suggestions for responses.

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Do I answer yes/no, true false, admit/ deny?

Request for Admissions,

1. you applied to ge for a credit card.

2. an account was established in your name and a credit card issued to you.

3. you agreed to the terms and conditions of the written contract entitled cardmember agreement.

4. you agreed that you would be responsible for all charges in connection with the credit card

5. charges were incurred on your account in the amount of$****

6. Demand has been made for the amount of $**** by credit and you have failed and have refused to pay the amount or any sums whatsoever.

7. the exhibits attatched to the complaint filed in this action are true docs that correctly represent your charges.

8. the charges described in the exhibits were made by you.

9. you made no payments towards the reduction of the amounts due and owing as stated on the exhibits attached to the complaint filed in this action.

10. you received all the credits for payments made by you that you are entitled to receive and that relate to the transactions complained of in plaintiffs complaints and exhibits attached thereto.

11. you received copies of the exhibits attached to the complaints filed in this action shortly after the dates on the same.

12. you did not object to the exhibits attached to the complaint filed in this action prior to the time payment was required to be made.

13. you did not object to the exhibits attached to the complaint filed in this action prior to the time you were served with process in this cause.

14. you owe GE the unpaid balance due in owing according to the exhibits attached to the complaint filed in this action.

15. prior to the initiation of the lawsuit you recieved notification from the plaintiff that the plaintiff is now the owner of this account.

16. you owe GE the amount demanded in the complaint filed herein.

17. you owe the plaintiff the amount demanded in the complaint filed herein.

18. there were no objections to the charges made by you or your authorized designee.

19. you have not paid in full the amount sued upon by the plaintiff in this case.

20. you have not paid any portion of the amount sued upon by the plaintiff in this case.

request to produce to follow this.

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