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Summons in NJ


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"Plaintiff has not proven standing to sue, that the amount claimed is valid, and that the amount is due and owing to Plaintiff".

This part would not apply, this only works with junk debt buyers.

The MSJ I posted is a sample of the format, just change it to suit your situation.

they say they have no access to it

They don't? What does this mean? No access = no case.

Finally, there was no answer to the request for documents. Is there a penalty for this?

No, but it should stop MSJ, which is improper if discovery is incomplete. Without going back, how much is this for?

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Bruno,

Thanks for the imput, but I am confused. Is this just and example of how to phrase my opposition and then push for a MSJ and dismissal? Wouldn't my agruement for the MSJ be that they do not have the necessary documents to successfully show that the debt is mine?

Also, if the OC still owns the account (and I think they may even though they say they have no access to it), why would they not just print off the necessary documents?

Finally, there was no answer to the request for documents. Is there a penalty for this?

Thanks again, ALL!

LA

To find out if the OC still owns the account, check your credit report. If the OC's entry shows the account has been sold or transferred, they don't own it.

You can also tell by checking the date the OC last updated. If they stopped updating around the date the JDB claims to have purchased the account, the OC sold it.

"First, we find that the trial court improperly granted summary judgment without permitting plaintiff to complete discovery." Laidlow, supra, 170 N.J. at 619, 790 A.2d 884.

"The numerous cases interpreting summary judgment motion practice, R. 4:46, adhere to the principle that summary judgment should not be granted when discovery is incomplete. See Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193, 536 A.2d 237 (1988), (reaffirming the principle that '[g]enerally, we seek to afford `every litigant who has a bona fide cause of action or defense the opportunity for full exposure of his case'" (citations omitted)).

Salomon v. Eli Lilly and Co., 98 N.J. 58, 61, 484 A.2d 320 (1984) (holding that on the facts presented, "[w]ithout deciding whether or when this matter will be ripe for summary judgment, it is clear that the case is not in a suitable posture for summary adjudication at this time").

Standing to Sue

"It is axiomatic, however, that to maintain a cause of action, 'a plaintiff must have suffered an injury in fact[.]'" In re D'Aconti, 316 N.J. Super. 1, 12 (App. Div. 1998).

In other words, without proof they purchased any account related to you, they haven't proven they've suffered an injury by not being paid the money they claim you owe them.

I don't know the cause of action, but here's a debt buyer case:

"To collect on a revolving credit card debt, LVNV is required to provide the transactions for which payment has not been made, any payments that have been made, the annual percentage and finance charge percentage rates and the billing cycle information." LVNV FUNDING, LLC v. Colvell, 22 A. 3d 125, 129 - NJ: Appellate Div. 2011.

LVNV FUNDING, LLC v. Colvell - Google Scholar

Check out this case, as well:

CAVALRY PORTFOLIO SERVICES, LLC v. Sharma - Google Scholar

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The OC owns it, but won't talk to me about it and the first time I called, the guy I spoke with claimed they no longer held it. Credit report says the OC owns it. WOuldn't Colvell still apply?

In Colvell, the court ruled that LVNV had not provided proof of any credit transactions. In other words, they didn't provide any billing statements from the OC. More than likely, in your case, the OC can provide billing statements if they haven't already.

They can also provide a copy of the applicable cardmember agreement. The applicable agreement would be the one that was in effect when the account went into default.

OCs are not impossible to defeat, but it depends upon the situation. Unless you have a defense such as identity theft or a valid dispute about the amount (invalid late fees, payments not credited, etc.), you may have an uphill battle.

It's possible that the reason the rep claimed they no longer hold the account is because a law firm is now handling it for them.

It appears you checked your credit report. Are they still updating? What are they reporting as the date they last updated?

Edited by BV80
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They have 35 days to respond, see rule 4-18. If they do not, see this part of 4-18:

(4) Objections; Failure to Respond; Motions. General objections to the request as a whole are not permitted and shall be disregarded by the court and adverse parties. The party upon whom the request is served may, however, object to a request on specific grounds and, if on the ground of privilege or accessibility of electronically stored information, the objection shall be made in accordance with R. 4:10-2(e) and (f) respectively. The requesting party may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to any objection to or other failure to respond to the request or any part thereof or any failure to permit inspection as requested. The provisions of R. 4:23-1© apply to the award of expenses incurred in relation to motions made pursuant to this rule.

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They have 35 days to respond, see rule 4-18. If they do not, see this part of 4-18:

(4) Objections; Failure to Respond; Motions. General objections to the request as a whole are not permitted and shall be disregarded by the court and adverse parties. The party upon whom the request is served may, however, object to a request on specific grounds and, if on the ground of privilege or accessibility of electronically stored information, the objection shall be made in accordance with R. 4:10-2(e) and (f) respectively. The requesting party may move for an order of dismissal or suppression or an order to compel pursuant to R. 4:23-5 with respect to any objection to or other failure to respond to the request or any part thereof or any failure to permit inspection as requested. The provisions of R. 4:23-1© apply to the award of expenses incurred in relation to motions made pursuant to this rule.

Are there any samples of this. Nothing has come from them except the MSJ.

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Ok. Just to clarify, I have to file an opposition to MSJ by this Saturday (which means I need to write it tomorrow). The OC owns the account, but only the standard one page printout and affidavit from Georgia were included with the MSJ. My production of documents was not answered and no agreement, statements, payments, and so on, were provided.

HOW DO I PROCEED?

I plan on using Covell in my opposition answer as I requested these documents and they were not provided. I also plan on noting that they did not answer my production for documents. SHould I then motion for dismissal with prejudice or then file to arbitrate?

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OK, so I HAD to finish this today to be mailed tomorrow and argues the following as my opposition to the MSJ:

First, in the paperwork of the MSJ they refer to the alleged account as an Old Navy Revolving CC and then have the one page printout of an Old Navy Visa card. This is a discrepancy.

Second, they failed to answer the Demand for Production of Docs (I oncluded the crtified mail info).

Thrid, the only other evidence is an affidavit from Georgia. I argue it is hearsay (and it is not completely filled in).

PLEASE feel free to leave comments. I think I should file this and then elect arbitration. The OC still owns this, but they can't access it.

Also, my case is remarkably similar to another in NJ from last year filed bythe same attorney office. Don't think it went well for them :(

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Bruno,

Thanks for the response. I had to mail it off yesterday, but will write up the motion tonight and send it out tomorrow with the fee. I didn't use the Covell case yet and feel that in addition to the rule violation, they failed to meet the standard set by that case. Should they provide all the documents, I might make an immediate motion for arbitration via JAMs.

Will keep everyone updated.

LA

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How do judges treat ARB applications in NJ? It is usually based upon how far into litigation you get. The judge expects pro ses to know the law. If you're smart enough to wage war on a JDB for six months, you should have been smart enough to know arbitration applied. It's the litigant's responsibility to act according to the rules of procedure and not waste the court's time. A last minute attempt at ARB is viewed as desperation and is usually denied. The part of the agreement that says ARB can be invoked right up to the last minute is fine, but it is conditional upon the court allowing it. CC agreements don't trump a judge's authority in his own court.

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Bruno, I really don't know. This is the OC, not JDB and I was served at the end of June with a late September court date. The lawyers didn't even contact me (and by contact I mean leave automated messages) until mid to late May. This all happened really fast. I realize it is a desperate attempt, but I am just that: desperate! Honestly, I had been able to scrounge up almost half the amount they sued for and they claim the client feels that's not enough. I think this firm has some shady dealings happening becuse I know GE Retail is more than happy to settle at a fraction of the amount owed. All I can go on is that another member here asked for the arbitration and it was granted. Maybe the judge just wants to clear the day? Maybe I'll be that lucky.

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