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Good News and Bad News (help needed)


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Two good news items:

1. Thanks to help I received from here I successfully received the extension I needed due to being out of the country when a summons was received (thank you!)

2. I showed up for the court date for the Motion for Summary Judgement, but the lawyer for the collections agency didn't, therefore the judge denied their motion.

Bad News:

The item is still ongoing and I didn't give myself enough time to ask for additional help once I got home to review the items that they sent me along with the summons, so I was a little ill prepared when I went to court.

So I'm really hoping that you all can give me some additional help on how to proceed. I've been looking up things as much as I can on the internet, but at this point have been looking at so much, it all seems a little overwhelming and mind boggling. I'm gonna type up what I received and hope that someone can help me figure out how to respond. The case resides in Nebraska.

Journal Entry and Judgment

Plaintiff appears by and through counsel, Defendant appeared/failed to appear. The Court being fully advised in the premises finds as follows:

(NOTE: I have NO idea what the above is concerning, at no time have I ever failed to appear for anything)

1. That there was due and proper service of summons on the Defendant as prescribed by Nebraska Revised Statues.

2. That, under the law, there are no issues as to any material fact that remain and the Plaintiff is entitled to judgment as a matter of law.

3. That the court finds there is due from the Defendant to the Plaintiff the sum of $x plust interest in the sum of $x, plus Court costs. The Court finds generally in accordance with the prayer of the Plaintiff's Complaint.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that there are no genuine issues of material fact left to be tried and Plaintiff is granted judgment its favor and against the Defendant in the amount of $x together with pre-judgment interest in the amount of $x, for a total of $x, plus Court costs and post judgment interest at the rate of __% per annum as allowed by law.

I'll admit, I'm a little confused as to what this actually IS even. Any help with this item?

More items I received:

Motion for Summary Judgment No Genuine Issues

COMES NOW the plaintiff, by and through its attorney, and hereby moves the Court for a summary judgment against the Defendant(s) for the reason that there are no genuine issues of material fact left to be tried and Plaintiff is entitled to judgment as a matter of law.

WHEREFORE, Plaintiff prays for an order of summary judgment in its favor and against the Defendant(s) in accordance with the prayer for relief in its Complaint filed previously herein, plus any further relief the Court may deem just and equitable in the circumstances.

Notice of Intent

COMES NOW, the Plaintiff and hereby notifies the Defendant that it will, at the hearing on Plaintiff's Motion for Summary Judgement, offer the following evidence:

1. The Pre-judgement Interest Affidavit marked as Exhibit "A" and

2. The Plaintiff's Affidavit; with bate stamped statement(s) marked as Exhibit "B"

Affidavit (stamped as Exibit A)

The undersigned, being first duly sworn upon oath, hearby deposes and states as follows:

1. That the Affiant is authorized to provide this Affidavit in support of Plaintiff's Motion for Summary Judgement.

2. The amount shown by the Statement filed herin is justly due and owing by the Defendant to the Plaintiff and no part or portion of same has been paid, except as set forth is said Statement.

3. Plaintiff is entitled to pre-judgment interest in the amount of $x pursuant to Neb Rev. Stat. Section 45-104 for the reason that the principal prayed for in the Plaintiff's Complaint is a liquidated, non-contingent sum.

4. Affiant further states that the Defendant is not incompetent nor an infant, nor is Defendant a member of the military services of the United States or its allies.

Affidavit (stamped as Exhibit "B")

State of VA

City of Norfolk ss.

I the undersigned, (stamped name), Custodian of Records, for (Collection Agency Name) hereby depose, affirm and state as follows:

1. I am competent to testify to the matters contained herin.

2. I am an authorized employee of (collection agency) "Account Assignee" which is doing business at (address), and I am authorized to make the statements, representations and averments herin, and do so based upon a review of the business records of the Account Assignee and those records transferred to Account Assignee from (credit card) "Account Seller", which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business.

3. According to the business records, which are maintained in the ordinary course of business, the account, and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on (date). Further, the Account Assignee has been assigned all of the Account Seller's power and authority of said account, and the Account Seller has retained no further interest in said account or the proceeds thereof, for any purpose whatsoever.

4. According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary course of business by the Account Assignee, there was due and payable from (name) "Debtor and co-Debtor" to the account seller in the sum of $x with the respect to account number ending in xxxx as of the date of (date) with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date of the sale.

5. According to the account records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $x as due and owing as of the date of this affidavit.

6. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is not on active military service of the United States

-------------------------------------

Along with the above, they also sent me a copy of the signed invitation for the CC from 2000, copies of statements (in duplicate) ranging from 11/2004 to 10/2006 (in total well over 100 pages) and a 05/2010 computer printout that the top says "Cycle Fascimilie Report".

This it seems is their response to my request (which was made in Oct 2010!!) for full copies of statements from the original contract, a detailed account of how the debt was calculated and a copy of the letter of sale/assignment. I realized later that I did not request all of the items that I should have requested, but at this point am not sure if it is too late to go back and request further documentation. HOWEVER, they did not provide what I asked for, that I know for certain. They sent me only a select 2 year period of time's worth of statements, which don't even include the date the last payment was made (7/2007). I don't see anywhere where they sent me anything showing how the debt was calculated. And also no copy of the letter of sale/assignment.

I did speak with someone locally who 'loosely' offers advice in regards to this, and their response was basically:

1. To roll over and accept that there would be a judgment against me and look into filing bankruptcy if I could not afford to pay the debt.

2. I brought up the fact that the SOL has in fact passed according to the last date of payment and they told me that was a non-issue because of the fact that the lawyers office continues to send me collections notices, which re-date the SOL.

On that note, I am SOO lost. Help??

I've looked up information that said I should ask for the Affidavit to be stricken from the record, but I'm not exactly sure how to do this.

I also just found out that my Oct 2010 response to the Interrogatories and Request for Admissions is NOT a part of the court documents and because it included my request for discovery that I should seek to make it part of the court documents, but I don't know how to go about doing this.

Sorry for not knowing more about all of this stuff, but I could really use some help.

Thanks for taking the time to read AND for all the help I've received thus far since this nightmare started (Admin & legaleagle) I can't thank you enough! (as well as future assistance!)

*EDIT*

Also, the lawyer for the collections agency didn't even show UP for the court date, can I use that as a factor? (sorry, mind is racing and I forgot to bring that up)

*EDIT*

Forgot to include who the collections and original creditor were, Collections are through Port. Recov. a$$. and original creditor was good ol CrAPpyOne

Edited by Enigmatic
Forgot to include info!
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2. I brought up the fact that the SOL has in fact passed according to the last date of payment and they told me that was a non-issue because of the fact that the lawyers office continues to send me collections notices, which re-date the SOL.

On that note, I am SOO lost. Help??

That "advice" is not true. Collection notices do not reset the SOL.

What can reset it is your actions, depending on state law. Typically making a payment, admitting to the debt or promising to pay could reset the SOL.

Edited by nobk4me
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Nobk4me is absolutely correct. A dunning letter most certainly does NOT reset the SOL. That person doesn't know what they're talking about.

In my state, if one party files a motion for summary judgment, the other party must write an opposition to that motion. In your case, you'd write an Opposition to Plaintiff's Motion for Summary Judgment.

If that's what your rules require, did you do so? Also, did you use the SOL as an affirmative defense?

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To roll over and accept that there would be a judgment against me

I'd invite this dummy to lay down in front of my car so I could roll over him. The stuff they sent you appears to be a copy of what the plaintiff filed, which was denied, as you said. They will probably file a motion to reconsider and make up some excuse as to why they failed to come to court. Sad thing is, they usually get away with this. Then they'll just re-file the MSJ. You need to prepare an opposition to this. Discovery is not filed with the court as a general rule.

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Is this Portfolio Recovery Associates?? If so respond to the MSJ that they have not even proven that they have standing to file suit against any debtor due to the fact that they have not provided an authenticated bill of sale linking your name, the alleged account number, the alleged balance due and the amount of consideration paid by PRA to the alleged original creditor. This would be an Opposition to Plaintiff's Motion For Summary Judgment. Follow the platform they have used and finish with the fact that this MSJ should be denied as a matter of law. Further the "Affidavit" is bogus due to the fact the PRA employee has no first hand knowledge of any alleged debt.

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2. I brought up the fact that the SOL has in fact passed according to the last date of payment and they told me that was a non-issue because of the fact that the lawyers office continues to send me collections notices, which re-date the SOL.

On that note, I am SOO lost. Help??

That "advice" is not true. Collection notices do not reset the SOL.

What can reset it is your actions, depending on state law. Typically making a payment, admitting to the debt or promising to pay could reset the SOL.

Nobk4me is absolutely correct. A dunning letter most certainly does NOT reset the SOL. That person doesn't know what they're talking about.

In my state, if one party files a motion for summary judgment, the other party must write an opposition to that motion. In your case, you'd write an Opposition to Plaintiff's Motion for Summary Judgment.

If that's what your rules require, did you do so? Also, did you use the SOL as an affirmative defense?

I NEED to write up a response to their request for summary judgement, which is where I'm so lost. And I'm still a little confused in regards to the SOL. Bear with me, I've read a lot about it, enough that the information is both helpful and dangerous lol. SOL in Nebraska is 4 years, they originally started with the everything in late June 2010, at which time not knowing what to do I called the clerk of the court and told them that I had no job and no income, so I didn't know what to do with the complaint and couldn't afford a lawyer, they told me to respond and inform them that I'm not working, have no income or assets and that it was not likely to change, so that's what I did. They then came back in October 2010 requesting Admissions & Interrogatories, which I got help with her from Admin and at that time I also requested some items for discovery (tho not all I should have). Then in December 2010 received a notice of hearing for a request for summary judgment in which PR claimed that I never responded to their request for Admissions & Interrogatories, so I went to that court date with the Admissions & Interrogatories that I had previously mailed to them in hand and as soon as the lawyer saw them, he immediately withdrew the request for summary judgment. After that I heard nothing from them, received a letter in June 2011 from the court stating an Order to Show Cause and that the action would be dismissed 30 days from the date of the order unless good cause is shown in writing. PR's lawyers of course then submitted a response to order to show cause stating that they were still in ongoing discovery, so the case remained open. I called the clerk of the court and asked them how long they were allowed for discovery (I SO should have come here instead of calling them) and they told me as long as the judge will allow.

HOWEVER during this time, while the case was open, the SOL passed in July 2011 according to Nebraska SOL of 4 years. And of course they continue to send me statements 'for settlement purposes only', none of which I have responded to. But each of these comes not from PR, but from the attorney that is representing them, with a statement that 'their client' has authorized them to accept $x and all of the payment options are to said law firm, not PR, yet at the bottom of each it shows "Disclaimer: There was no attorney involvement in sending this letter". Um.. ok, cuz that's not a bit misleading at all, right? So can I still use the SOL in this case? And how? I've been looking through the forum trying to find similar cases and what others have used and I'm still not sure what I'm doing.

I know I need to respond to this asap, especially since they didn't even show up for the court date and are likely to take action again soon and I don't want to be ill prepared again. I got lucky that they didn't show up honestly, because at the time I was in court all I knew was that I was going to object to the items they were submitting to the courts, but couldn't fully explain why.

To roll over and accept that there would be a judgment against me

I'd invite this dummy to lay down in front of my car so I could roll over him. The stuff they sent you appears to be a copy of what the plaintiff filed, which was denied, as you said. They will probably file a motion to reconsider and make up some excuse as to why they failed to come to court. Sad thing is, they usually get away with this. Then they'll just re-file the MSJ. You need to prepare an opposition to this. Discovery is not filed with the court as a general rule.

Right, I figured it was a copy of what they filed, the first item is the only one that completely threw me for a loop. And yes, I fully expect that they will file a motion to reconsider, which is why I'm trying to get my ducks in a row so that I'm prepared for when they do and know what to do/say.

Even more sad, there was another case that was being handled by that same lawyer (also PR) and even without the lawyer there, the judgement was granted. I know the reason for this is because they are part of the legal system and such, but it still doesn't seem quite right.

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Is this Portfolio Recovery Associates?? If so respond to the MSJ that they have not even proven that they have standing to file suit against any debtor due to the fact that they have not provided an authenticated bill of sale linking your name, the alleged account number, the alleged balance due and the amount of consideration paid by PRA to the alleged original creditor. This would be an Opposition to Plaintiff's Motion For Summary Judgment. Follow the platform they have used and finish with the fact that this MSJ should be denied as a matter of law. Further the "Affidavit" is bogus due to the fact the PRA employee has no first hand knowledge of any alleged debt.

Yes, as a matter of fact it is. I was going to bring up in court that I had not yet been provided with proof that I owe them anything. So am I asking them to dismiss the motion for summary judgement or just opposing it?

As far as the Affidavit, I've been reading a lot about this and submitting a motion to strike the Affidavit from the record as most Affidavits are in fact bogus and they can't bring forth the Affiant to testify. Is this something I would submit to them now? Or wait until they call me back to court and object to it at that time?

the amount of consideration paid by PRA to the alleged original creditor.

Completely irrelevant and privileged.

Maybe... but can it be included?

I'm sure all my terms are off or improperly used (which probably makes you all cringe lol) but I'm tryin!

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Maybe... but can it be included?

Yes, but why would you want to make a request that is not proper and irrelevant?

Why give them something to object over or raise an issue about. If I into it with a collection agency, I'm looking for anything I can blow out of proportion. Why do this on purpose, although nothing really all that much will come out of it?

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Yes, but why would you want to make a request that is not proper and irrelevant?

Why give them something to object over or raise an issue about. If I into it with a collection agency, I'm looking for anything I can blow out of proportion. Why do this on purpose, although nothing really all that much will come out of it?

Point taken, I don't want to give them any reason to make any kind of a fuss.

Going to try to do a little write up that I will post back here to see if anyone has any input or suggestions.

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