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Summary judgement by LVNV funding should I appeal?


Imadashell
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Read your Rules of Civil Procedure regarding appeals or a reconsideration. You only have a certain amount of time to do those things. Also, it could depend upon how you responded to their actions, and whether or not you followed the proper procedure (rules of court).

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OK, I don't want you to feel unwelcome or neglected.

Probably you're not getting a response because no one wants to be the bearer of bad news.

Because, while you haven't posted any details, I would think that if the plaintiff has been granted a Summary Judgment, you're toast. But for your sake, I'd like to be wrong.

More details might be helpful.

But if you were served...

And you filed an Answer denying their claims and asserting Affirmative Defenses...

And they filed a Motion for Summary Judgment...

And you filed a Motion in Opposition to Summary Judgment, stating that there were material issues of fact in dispute...

And after all that, the judge granted their MSJ...

I don't know what you can do. And if you didn't do the things you should have, unfortunately, it might be too late.

Regretfully,

DH

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It all depends on what your appeal is based on. Not being properly educated in the law and now knowing what you're doing, and wanting a "do-over" is not grounds for appeal.

What did the court do wrong and did you raise the issue at the trial court level (in other words object on the record) are going to be 95% of your answer on if you would be successful on appeal.

If they just won with b.s. evidence that went unchallenged, then save your time and money. However, if you showed there was a true material fact in dispute (not that you would have won, just a material fact in dispute) where reasonable minds would differ, and they still got their summary judgment, then you need to look into an appeal.

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Thank you sOOO much for responding. I guess I needed to know this was being read and where to start. I totally admit I went about this all wrong.

Page 1. I was summoned by an Indiana attorney representing LVNV.

Page 2. Attached was a Complaint spelling out the alleged debt etc If this part is really important I'll get back to it later.

Page 3 , 4. and 5. non military service from attorney blah blah.

Page 6. BS affidavit of debt from employee of Resurgent Capital servicing agent for Plaintiff regarding recordkeeping practices, that debt was obtained from CitibankEtc HOWEVER, not notorized, no account number ETC. ALL BS

Page 7. Affidavit of transfer. Authorized Rep of Sherman Originator III . Again no account but notorized. Also mentions something about aquisition of account from Sherman Originator III LLC to Sherman Originator LLC

Page 8 another BS affidavit Again no account number but Transferred from

Sherman Originator LLC to LVNV Funding.

Page 9. 3 page copy of alleged statement with my name on it with no account number, but also no payment .

I responded with the standard Sworn Denial. Things were quiet for a bit until they sent a motion for summary judgement without hearing.

I freaked and sent a request to strike affidavits because they are all fill in the blank here BS and also that the affiants are not authorized or have personal knowledge of Original Creditor.

Then I objected to the request with no hearing.

The judge then set a hearing where I appeared and I repeated my objection to the affidavits as hearsay and was prepared to supoena said employees. I commented that there were no account numbers. and this should not be considered evidence.

Needless to say this fell on deaf ears. The attorney mumbled jibberish about legal affidavits that I could not hear and bam Summary Judgement ...

I am afraid I have little hope of an appeal also I can't find the time limit for my state (Indiana) 15 business days? OR calender days if so I'm at 13 I guess I'm toast.

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It seems that while you put up more of a fight than most, you were fighting out of your weight class.

I think the best advice I can give you is: get help!

Talk to a lawyer, get a professional opinion as whether an appeal has a chance to succeed. Hopefully, you can find a lawyer who will give you a free or cheap intial consultation. There are lawyers who specialize in consumer advocacy, and they belong to the National Association for Consumer Advocates, NACA. They have a website where you can search for member attorneys in you area. The site is National Association of Consumer Advocates | Consumer Protection Advocates and Attorneys - Help for Consumers.

Good luck.

DH

Edited by debtorshusband
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I advise you try to settle. If you didnt show up to the hearing and knew about it. No matter what bs they gave to the judge to get that. You didnt show up to challenge it. I am going thru something similar. Except I never knew they took me to court. Never no letter to attempt to collect. Never even knew they got a judgement against me. UNTIL 4 years later when I recieve a package saying they are domesticating it. Even with all the grounds I had for them not to be able to bring it here to my jurisdiction. ( which by the way I WASNT EVEN A RESIDENT of the state they got the judgement in. WITH a BS affadavit to get that judgement) THERE ISNT jack I can do about it. But bow out gracefully and give the vultures money. But let some sucka come after me again IM READY! I think you have a very very short window to appeal. Its not worth the money to go and fight them back where they got the judgement.

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Thank you sOOO much for responding. I guess I needed to know this was being read and where to start. I totally admit I went about this all wrong.

Page 1. I was summoned by an Indiana attorney representing LVNV.

Page 2. Attached was a Complaint spelling out the alleged debt etc If this part is really important I'll get back to it later.

Page 3 , 4. and 5. non military service from attorney blah blah.

Page 6. BS affidavit of debt from employee of Resurgent Capital servicing agent for Plaintiff regarding recordkeeping practices, that debt was obtained from CitibankEtc HOWEVER, not notorized, no account number ETC. ALL BS

Page 7. Affidavit of transfer. Authorized Rep of Sherman Originator III . Again no account but notorized. Also mentions something about aquisition of account from Sherman Originator III LLC to Sherman Originator LLC

Page 8 another BS affidavit Again no account number but Transferred from

Sherman Originator LLC to LVNV Funding.

Page 9. 3 page copy of alleged statement with my name on it with no account number, but also no payment .

I responded with the standard Sworn Denial. Things were quiet for a bit until they sent a motion for summary judgement without hearing.

I freaked and sent a request to strike affidavits because they are all fill in the blank here BS and also that the affiants are not authorized or have personal knowledge of Original Creditor.

Then I objected to the request with no hearing.

The judge then set a hearing where I appeared and I repeated my objection to the affidavits as hearsay and was prepared to supoena said employees. I commented that there were no account numbers. and this should not be considered evidence.

Needless to say this fell on deaf ears. The attorney mumbled jibberish about legal affidavits that I could not hear and bam Summary Judgement ...

I am afraid I have little hope of an appeal also I can't find the time limit for my state (Indiana) 15 business days? OR calender days if so I'm at 13 I guess I'm toast.

SOrry I didnt read that part that you showed up. I would go up to the court and file an appeal PERIOD! and while you wait then get a lawyer

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Appeals are a whole different ballgame. You have to get the transcript and appeal matters only contained in the transcript. You can't bring up anything new, positive or negative.

Here is the kicker. Unlike at trial where it starts out even with both parties on a level playing field. In an appeal, the appeal starts with the assumption the party not appealing is right, and the facts are looked at in the light most favorable to the party NOT appealing.

In other words you have to not only be right but have to almost meet a standard (not quite) like you would in criminal court. You have to not just tip the scales in your favor. You have to overcome the assumption that the other side is right.

Matters of opinion (they call it judge's discretion) have to be abuse for the court to overrule.

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  • 2 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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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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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.

You can't rasie this on appeal.

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Thank you sOOO much for responding. I guess I needed to know this was being read and where to start. I totally admit I went about this all wrong.

Page 1. I was summoned by an Indiana attorney representing LVNV.

Page 2. Attached was a Complaint spelling out the alleged debt etc If this part is really important I'll get back to it later.

Page 3 , 4. and 5. non military service from attorney blah blah.

Page 6. BS affidavit of debt from employee of Resurgent Capital servicing agent for Plaintiff regarding recordkeeping practices, that debt was obtained from CitibankEtc HOWEVER, not notorized, no account number ETC. ALL BS

Page 7. Affidavit of transfer. Authorized Rep of Sherman Originator III . Again no account but notorized. Also mentions something about aquisition of account from Sherman Originator III LLC to Sherman Originator LLC

Page 8 another BS affidavit Again no account number but Transferred from

Sherman Originator LLC to LVNV Funding.

Page 9. 3 page copy of alleged statement with my name on it with no account number, but also no payment .

I responded with the standard Sworn Denial. Things were quiet for a bit until they sent a motion for summary judgement without hearing.

I freaked and sent a request to strike affidavits because they are all fill in the blank here BS and also that the affiants are not authorized or have personal knowledge of Original Creditor.

Then I objected to the request with no hearing.

The judge then set a hearing where I appeared and I repeated my objection to the affidavits as hearsay and was prepared to supoena said employees. I commented that there were no account numbers. and this should not be considered evidence.

Needless to say this fell on deaf ears. The attorney mumbled jibberish about legal affidavits that I could not hear and bam Summary Judgement ...

I am afraid I have little hope of an appeal also I can't find the time limit for my state (Indiana) 15 business days? OR calender days if so I'm at 13 I guess I'm toast.

Have you been served with a copy of the judgment yet? You have 30 days to appeal from the time the judgment is served.

look at this:

Indiana Rules of Appellate Procedure

Indiana Rules of Appellate Procedure

this has good info:

http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2586&context=ilj&sei-redir=1&referer=http%3A%2F%2Fwww.google.com%2Furl%3Fsa%3Dt%26rct%3Dj%26q%3Dindiana%2520post%2520trial%2520motions%26source%3Dweb%26cd%3D1%26sqi%3D2%26ved%3D0CCQQFjAA%26url%3Dhttp%253A%252F%252Fwww.repository.law.indiana.edu%252Fcgi%252Fviewcontent.cgi%253Farticle%253D2586%2526context%253Dilj%26ei%3D0b1_T9n3FMqsiAKcuqCwAw%26usg%3DAFQjCNFgcqiPe3yVF93XqRZkbPUsKhil_w#search=%22indiana%20post%20trial%20motions%22

Rule 59. Motion to correct error

(A) Motion to correct error--When mandatory.

A Motion to Correct Error is not a prerequisite for appeal, except when a party seeks to address:

(1) Newly discovered material evidence, including alleged jury misconduct, capable of production within thirty (30) days of final judgment which, with reasonable diligence, could not have been discovered and produced at trial; or

(2) A claim that a jury verdict is excessive or inadequate.

All other issues and grounds for appeal appropriately preserved during trial may be initially addressed in the appellate brief.

(

B) Filing of motion.

The motion to correct error, if any, may be made by the trial court, or by any party.

© Time for filing: Service on judge.

The motion to correct error, if any, shall be filed not later than thirty (30) days after the entry of a final judgment is noted in the Chronological Case Summary. A copy of the motion to correct error shall be served, when filed, upon the judge before whom the case is pending pursuant to Trial Rule 5. The time at which the court is deemed to have ruled on the motion is set forth in T.R. 53.3.

(D) Errors raised by motion to correct error, and content of motion.

59

Where used, a motion to correct error need only address those errors found in Trial Rule 59(A)(1) and (2).

Any error raised however shall be stated in specific rather than general terms and shall be accompanied by a statement of facts and grounds upon which the error is based. The error claimed is not required to be stated under, or in the language of the bases for the motion allowed by this rule, by statute, or by other law.

(E) Statement in opposition to motion to correct error.

Following the filing of a motion to correct error, a party who opposes the motion may file a statement in opposition to the motion to correct error not later than fifteen [15] days after service of the motion. The statement in opposition may assert grounds which show that the final judgment or appealable final order should remain unchanged, or the statement in opposition may present other grounds which show that the party filing the statement in opposition is entitled to other relief.

(F) Motion to correct error granted.

Any modification or setting aside of a final judgment or an appealable final order following the filing of a Motion to Correct Error shall be an appealable final judgment or order.

(G) Cross errors.

If a motion to correct error is denied, the party who prevailed on that motion may, in the appellate brief and without having filed a statement in opposition to the motion to correct error in the trial court, defend against the motion to correct error on any ground and may first assert grounds for relief therein, including grounds falling within sections (A)(1) and (2) of this rule. In addition, if a Notice of Appeal rather than a motion to correct error is filed by a party, the opposing party may raise any grounds as cross-errors and also may raise any reasons to affirm the judgment directly in the appellate brief, including those grounds for which a motion to correct error is required when directly appealing a judgment under Sections (A)(1) and (2) of this rule.

(H) Motion to correct error based on evidence outside the record.

(1) When a motion to correct error is based upon evidence outside the record, the motion shall be supported by affidavits showing the truth of the grounds set out in the motion and the affidavits shall be served with the motion.

(2) If a party opposes a motion to correct error made under this subdivision, that party has fifteen [15] days after service of the moving party’s affidavits and motion, in which to file opposing affidavits.

(3) If a party opposes a motion to correct error made under this subdivision, that party has fifteen [15] days after service of the moving party’s affidavits and motion, in which to file its own motion to correct errors under this subdivision, and in which to assert relevant matters which relate to the kind of relief sought by the party first moving to correct error under this subdivision.

(4) No reply affidavits, motions, or other papers from the party first moving to correct errors are contemplated under this subdivision.

(I) Costs in the event a new trial is ordered.

The trial court, in granting a new trial, may place costs upon the party who applied for the new trial, or a portion of the costs, or it may place costs abiding the event of the suit, or it may place all costs or a portion of the costs on either or all parties as justice and equity in the case may require after the trial court has taken into consideration the causes which made the new trial necessary.

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  • 2 weeks later...

I don't know what I was thinking but I got a bug up my a** when I had requested my transcripts within 10 days of the judgment and the court reporter said when do you need them ? I replied well as soon as possible. How much? well are you filing an appeal? I said i think so, she said ok that will move things along faster. On my last day to appeal I asked if transcripts were done , "no, did you file an appeal?" Like I HAVE to FILE AN APPEAL TO GET MY TRANSCRIPTS. So flying by the seat of my pants I filed.Post marked on the 30th day> No I will fininsh reading , thanks for your reply in advance.

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I did request a reconsideration from the court. Legitimately my mother passed away during this ordeal which left me little time to concern myself with this suit which then seemed so unimportant to me personally. Time I would never have gotton back. I also mentioned in my request, that I had pointed out in court that there were no account numbers anywhere in their "evidence" and the judge said account numbers were on his, (?) and that their affidavit was in accordance with the law. I also mentioned that I had pieces of evidence that my private information had been breached, (no BS) unfortunately I forgot about it (nervous) and straining to hear the plaintiffs attorney. The very same day after I filed the request of reconsideration I filed the appeal.

Edited by Imadashell
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