Please Critique my Bill of Particulars to JDB LVNV (I am based in NY)

[jony12590]

First, Thank you for taking the time to review and provide advice. It is much appreciated! I will be submitted a Bill of Particulars to the plaintiff (LVNV) next week and would like your thoughts on content, format etc...anything else I may be missing?

My goal is to get this stuff in evidence-as we have a date in Mid-October for a status update/conference with the Judge, and I want them to know I intend to fight this and proceed to court. My belief is they will drop this as its a $2000 debt that is way out of SOL.

Here it is:

Supreme Court of the State of New York County of XXXX

JUNK DEBT BUYER (PLAINTIFF)

vs.

JONY 12590 (Defendant)

Case No.: [XXXX-XX]

Demand for Bill of Particulars

Defendant's Demand for Bill of Particulars:

To Plaintiff, JUNK DEBT BUYER, LLC and its attorneys or record herein: DEMAND IS HEREBY MADE UPON Pursuant to New York State CPLR 3041 to furnish to the defendant, JONY 12590 within 30 days details of the account on which the cause of action [for goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based.

Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure (“FRCP”) Defendants request Plaintiff to produce and permit the inspection and/or copying of the documents specified below, within (30) days of service, to JONY 12590 at ADDRESS______

As used in this Demand for Bill of Particulars , the term “documents” includes statements, writing and recordings of every kind (mechanical, electronic, typed or written), including, but not limited to, letters, correspondence, maps, diagrams, photographs, pictures, memoranda, notes, reports and transcriptions.

If you decline to produce any of the requested documents or things on the ground of privilege, please provide a descriptive list of each such document or thing and state the grounds for your refusal to produce each such document or thing.

DOCUMENT REQUESTS

1. The alleged credit application from Account Number ending in XXXX File # XXXX bearing the Defendant's signature.

2. The alleged credit agreement from Account Number ending in XXXX File # XXXX that states interest rate, grace period, terms of repayment, transfer of debt agreement, etc.

3. Itemized statements or credit card statements Account Number ending in XXXX File # XXXX that demonstrates how the alleged amount of $1933.84 was calculated. (Note: to be honest, I asked for this in 2009 and they sent a few statements, but they dont add up in terms of the $ of money they are suing me for-can I ask for this again?)

4. A contract, agreement, assignment, or other means of demonstrating that LVNV Funding LLC has the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number ending in XXXX File # XXXX [i](Note: I asked for this in 2009 and they sent me "declaration of account Transfer" and "Bill of sale, assignment and assumption agreement"-I think I should remove this then?)

5. Letter(s) sent to Defendant by LVNV Funding LLC demonstrating an attempt to collect on the alleged debt from Number ending in XXXX File # XXXX

6. A notarized statement, if presently exhibiting or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally.

7. Any and all further documents that you believe establish that Plaintiff had an outstanding account or debt related to Number ending in XXXX File # XXXX

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant's liability and/or responsibility to the alleged debt.

9. Proof of the Date of Last Activity (DOLA) as evidenced by date of the last payment made on alleged account Number ending in XXXX File # XXXX , check # or draft #, amount paid and copies of the DOLA as reported on Defendant's credit report. If these dates do not correlate or match, please provide evidence as to why the discrepancy.

10. Any and all written communication, received by Plaintiff and/or Plaintiff's attorney from the Defendant, regarding the reporting of the alleged account to any credit reporting agency or agencies, as well as Plaintiff's and/or Plaintiff's attorney accessing of Defendant's credit report(s).

11. Any and all communications from Plaintiff and/or Plaintiff's attorney to the Defendant explaining why Plaintiff and/or Plaintiff's attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining Defendant's credit report.

12. Any and all credit report(s) Plaintiff and/or Plaintiff's attorney obtained from any credit reporting agency concerning the Defendant.

13. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the Defendant and/or Number ending in XXXX File # XXXX

14. Provide proof that the alleged debt is not time-barred according to the statute of limitations in the State of New York (Note: the statements they did provide show last date of activity on this accoun to be Nov April 2005-this is out of SOL which is 6 years for NY)

15. Provide proof that the Plaintiff is licensed to collect debt in the State of State and has procured a bond as required by the State of State.

16. Provide proof that the Plaintiff is licensed and authorized to solicit the right to collect or to receive payment for the claim of another in the State of New York.

[BrunoTheJDBkiller]

5 and 10-15 will be objected to and probably sustained. They are burdensome, irrelevant, immaterial, not likely to lead to admissible evidence, etc. 4 is weak, this is standing, you can let it in, but it's their obligation to prove ownership, not yours to disprove. 50-50 on this one. They don't need a license to sue you as the creditor. There are better ones here you could send.

[jony12590]

All,

Thank you for your advice and support while I navigate this process! I wanted to provide an update on this case. I submitted a requst for Bill of Particulars to LVNV on 9/13/12.I did not get a response in the time allotted. I then sent a letter to them notifying them about their failure to respond to by BOP (on October 15th). I received their repsonse on 10/26

Mind you, we had a return date to court on 10/29. That date was adjourned due to super storm Sandy here on the east cost, we are due back in court for a status conference on 11/21.

As you can see from viewing the attachement- they only sent copies of statements. which show the alleged date to be about $300 less then they are suing for, and it clearly establishes the date of last activity as March 17, 2005- outside of SOL for NY State which is 6 years.

They essentially stated for all other items in my BOP that they will provide information "prior to trial of the issies herein if available".

So, my question is-what is my next option? They didnt address the other points in my BOP-and I am not paying them a dime! Should I have a motion to dismiss in hand when I go to court next week? They have not really complied with my request..... THANK YOU for any advice or comment you can provide on my next moves....

MY BOP and LVNV RESPONSE:

September 12, 2012

From: me

To: Attorneys for Plaintiff

Re: Case No.: xxxxx

To Plaintiff, LVNV Funding, LLC A/P/O Citibank and its attorneys or record herein:

DEMAND IS HEREBY MADE UPON Pursuant to New York State CPLR 3041 to furnish to the defendant, xxxxxx at xxxxxx (address) within 15 days details of the account on which the cause of action [for goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based:

1. The alleged credit application and credit agreement from Account Number ending in xxx File # xxxxxxxxxx which states interest rate, grace period and terms of repayment bearing the defendants signature and agreement assigning the account at issue to the plaintiff.

LVNV RESPONSE TO #1: PLAINTIFF SHALL PROVIDE THIS INFORMATION PRIOR TO TRIAL OF THE ISSUES HEIN IN AVAILABLE

2. Itemized statements or credit card statements from Account Numbers ending in XXXX File # xxxxxxxxxx that demonstrates how the alleged amount of $1933.84 was calculated.

LVNV RESPONSE TO # 2: ATTACHED AS “EXHIBIT A” TO PLAINTIFF’S RESPONSE IS A COPY OF STATEMENTS ASSOCIATED WITH THIS ACCOUNT ENDING IN xxxx RANGING FROM DATES 9/14/04 THROUGH 3/17/2005 WHICH IS THE SUBJECT ACCOUNT OF THIS SUIT. ADDITIONAL DOCUMENTATION SHALL BE PROVIDED PRIOR TO A TRIAL OF THE ISSUES BEREIN IF APPLICABLE AND AVAILABLE

3. Any and all further documents that you believe establish that Plaintiff had an outstanding account or debt related to Account Number ending in XXXX File # xxxxxxxxxx.

LVNV RESPONSE TO # 3: PLAINTIFF OBJECTS TO THIS DEMAND AS ITS OVERBOAD, VAGUE AND AMBIGUOUS

4. Any further documentation, beyond what has been previously requested, that clearly establishes defendant's liability and/or responsibility to the alleged debt.

LVNV RESPONSE TO # 4: ATTACHED AS “EXHIBIT A” TO PLAINTIFF’S RESPONSE IS A COPY OF STATEMENTS ASSOCIATED WITH THIS ACCOUNT ENDING IN xxxx RANGING FROM DATES 9/14/04 THROUGH 3/17/2005 WHICH IS THE SUBJECT ACCOUNT OF THIS SUIT. ADDITIONAL DOCUMENTATION SHALL BE PROVIDED PRIOR TO A TRIAL OF THE ISSUES BEREIN IF APPLICABLE AND AVAILABLE

5. Proof of the Date of Last Activity (DOLA) as evidenced by date of the last payment made on alleged account number ending in XXXX File # XXXXXXXXXXXX, check # or draft #, amount paid and copies of the DOLA as reported on Defendant's credit report. If these dates do not correlate or match, please provide evidence as to why the discrepancy.

LVNV RESPONSE TO # 5: ATTACHED AS “EXHIBIT A” TO PLAINTIFF’S RESPONSE IS A COPY OF STATEMENTS ASSOCIATED WITH THIS ACCOUNT ENDING IN xxxx RANGING FROM DATES 9/14/04 THROUGH 3/17/2005 WHICH IS THE SUBJECT ACCOUNT OF THIS SUIT. ADDITIONAL DOCUMENTATION SHALL BE PROVIDED PRIOR TO A TRIAL OF THE ISSUES BEREIN IF APPLICABLE AND AVAILABLE

6. Provide proof that the alleged debt is not time-barred according to the statute of limitations in the State of New York under NY CPLR § 213.

LVNV RESPONSE TO # 5: ATTACHED AS “EXHIBIT A” TO PLAINTIFF’S RESPONSE IS A COPY OF STATEMENTS ASSOCIATED WITH THIS ACCOUNT ENDING IN xxxx RANGING FROM DATES 9/14/04 THROUGH 3/17/2005 WHICH IS THE SUBJECT ACCOUNT OF THIS SUIT. ADDITIONAL DOCUMENTATION SHALL BE PROVIDED PRIOR TO A TRIAL OF THE ISSUES BEREIN IF APPLICABLE AND AVAILABLE

I appreciate your timely attention to this matter,

Sent via CERTIFIED MAIL, RETURN RECEIPT

[1stStep]

If, based on what LVNV provided is accurate about the last payment date, file a motion to dismiss based on the SOL elapsing. Also, file a counterclaim for an FDCPA violation - suing on a time barred debt.

[Guest usctrojanalum]

If you are in Supreme Court I wouldn't even bother with pushing for addtional discovery at this point. A discovery order is eventually going to be issued by the judge if you guys can't settle after a few status conferences.

Take $45 and do a motion for summary judgment to dismiss the complaint.