Paradise954

Being sued by ASSet Acceptance in Florida

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Not one of those bills of sale mentions your name and account number.

"This Bill of Sale and Assignment, dated MARCH 28, 2011, is between Citibank (South Dakota), National Association, a national banking association organized under the laws of the United States, located at 701 East 60th Street North, Sioux Falls, SD 57117 (the "Bank") and Sherman Originator III, LLC, located at Sherman Capital Markets, LLC, 200 Meeting Street, Suite 206, Charles, SC 29401 ("Buyer")

For value received and subject to the terms and conditions of the Purchase and Sale Agreement dated JUNE 28, 2010, between Buyer and the Bank (the "Agreement"), the Bank does hereby transfer, sell, assign, convey, grant, bargain, set over, and deliver to Buyer, and to Buyer's successors and assigns, the Accounts listed in Exhibit 1 and the final electronic file.

Regarding the dates, the purchase and sale agreement between Citi and Sherman was allegedly June 28, 2010. We don't know for sure because it hasn't been provided. The bill of sale is dated March 28, 2011.

"Sherman Originator III LLC ("SOLLC III"), without recourse, to the extent permitted by applicable law, transferred, sold, assigned, conveyed, granted and delivered to Sherman Originator LLC ("SOLLC") all of its right, title and interest in and to the receivables and other assets (the "Assets") identified on Exhibit A, in the Receivable File dated March 21, 2011 delivered by Citibank (South Dakota), N.A. on March 28, 2011 for the purchase by SOLLC III on March 28, 2011. The the transfer of the Assets included electronically stored business records.

According to Sherman, there's a purchase and sale agreement from Citi dated June 28,2010, but the bill of sale is not dated until March 28, 2011. Above, they state that there's a file dated March 21, 2011 that was delivered by Citibank. So on the same date the bill of sale from Citi is dated (3/28/2011), Sherman allegedly sells the account to LVNV based on a file dated 3/21/2011. That file nor that date (3/21/2011) was not mentioned in the first bill of sale.

"LVNV Funding LLC ("LVNV"), without recourse, to the extent permitted by applicable law, hereby transfers, sells, assigns, conveys, grants and delivers to Sherman Acquisitions, L.L.C. ("SALLC") all of its right, title and interest in and to the receivables and other assets (the "Assets") identified on Exhibit A, in the Receivable File dated May 31, 2011. The transfer of the Assets included electronically stored business records.

Two months later, LVNV sells it back to Sherman? Hmmm...

The last bill of sale allegedly sells it to Asset.

You need to answer the complaint. I'd deny everything that I could truthfully deny. If they stated they own the account or you owe them money, simply deny.

If one of the allegations is that you had a cc with Citi, I might state, "Defendant has insufficient information to admit or deny and, therefore, denies."

Discovery with this one could actually be fun. Did they provide any cc statements? What was the date of your last payment?

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BV80 - thanks for the response.

No, not any additional info, including any statements were provided with the summons. Just the 4 documents I discussed above and a horrible copy of the "CARD AGREEMENT", but again, nothing with my name and account # referenced.

I will post the Counts listed in the summons so you can review, but basically they are all DENIED. I will add in the additional remark when it comes to any allegation of me having a CC with Citi that you provided.

I agree that discovery should prove interesting and I thought that there was intentional convolution of the facts behind the alleged "sale" of this debt with it being moved around so much in such a short time.

Also, none of these JDB's contacted me regarding being assigned or purchased this alleged debt. Most importantly, Asset did not send me any notification prior to their filing of this lawsuit as Florida law requires.

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Oh, it may be interesting to know that this lawsuit went unserved for 10 months and the court notified the attorney of Asset this month that they were about to dismiss due to lack of persecution unless they took action within 60 days. I am not sure why they were unable to serve me with the lawsuit ten months ago, but they didn't and took action once the court threatened them.

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Oh, it may be interesting to know that this lawsuit went unserved for 10 months and the court notified the attorney of Asset this month that they were about to dismiss due to lack of persecution unless they took action within 60 days. I am not sure why they were unable to serve me with the lawsuit ten months ago, but they didn't and took action once the court threatened them.

The word is supposed to be "prosecution" but in the case of JDBs, "persecution" is actually very fitting. :)

When was your date of last payment on the account?

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The word is supposed to be "prosecution" but in the case of JDBs, "persecution" is actually very fitting. :)

When was your date of last payment on the account?

Sorry, yes Prosecution. Honestly, I do not know when the last payment occurred and do not have any statements that I am able to locate. I will use SOL in my affirmative defenses. I will also request any statements they may have during discovery when it comes to that point.

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Sorry, yes Prosecution. Honestly, I do not know when the last payment occurred and do not have any statements that I am able to locate. I will use SOL in my affirmative defenses. I will also request any statements they may have during discovery when it comes to that point.

Look on your credit report to find the date of last payment.

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Look on your credit report to find the date of last payment.

I will check that later and post that info then. Thanks.

Edited by Paradise954

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Quote from BV80: "Discovery with this one could actually be fun."

This is very true.

AA typically makes many, many errors. If you pick through the crap, you will find some treasures. They most likely will give you enough ammo by THEIR answers to your discovery to shoot them down.

When did AA first notify you that they owned the debt? I'm also waiting to see what your last date of payment was.

AA must notify you they own the debt at least 30 days before they sue. Otherwise, they cannot sue.

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Quote from BV80: "Discovery with this one could actually be fun."

This is very true.

AA typically makes many, many errors. If you pick through the crap, you will find some treasures. They most likely will give you enough ammo by THEIR answers to your discovery to shoot them down.

When did AA first notify you that they owned the debt? I'm also waiting to see what your last date of payment was.

AA must notify you they own the debt at least 30 days before they sue. Otherwise, they cannot sue.

They never did notify me of them acquiring the alleged debt. I intend to go after this point in my discovery and admissions to them. As far as the when last payment was made, they claim it was in May of 2009, but I cannot confirm that. I will look at my credit report later today and confirm what Citi listed as the date of last activity. I did also intend to use SOL in my affirmative defenses once I can firm that date.

While I did move in the last 12 months, I was at my old address for over 2 months after they filed this lawsuit originally, last October 2011. This address was in another county, but none the less, still in Florida. I moved back here to Broward county this past January 2012. Again, they served me this month after the court threatened to dismiss the case as it had sat with no activity for 10 months.

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Quote from BV80: "Discovery with this one could actually be fun."

This is very true.

AA typically makes many, many errors. If you pick through the crap, you will find some treasures. They most likely will give you enough ammo by THEIR answers to your discovery to shoot them down.

When did AA first notify you that they owned the debt? I'm also waiting to see what your last date of payment was.

AA must notify you they own the debt at least 30 days before they sue. Otherwise, they cannot sue.

Also, I am wondering if I should mention in my affirmative defenses?:

"Defendant affirmatively alleges that the Plaintiff's action is barred as a matter of law, as the Plaintiff, Asset Acceptance, did not provide written notification to the Defendant that they had acquired the alleged debt at least 30 days prior to any action being taken to collect the alleged debt, as required by Florida Statute 559.715."

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Oh, it may be interesting to know that this lawsuit went unserved for 10 months and the court notified the attorney of Asset this month that they were about to dismiss due to lack of persecution unless they took action within 60 days. I am not sure why they were unable to serve me with the lawsuit ten months ago, but they didn't and took action once the court threatened them.

what? I ain't sure but I belive they got 180 days to serve you if they didn't do it, you should file a motion to dismiss. I'll check the rules of civil procedure. What is the amount? if it's less than 5000, you are in small claims, if it's more then the full civil procedure rules apply. I'll check both and see. Also if the case has no activity in 6 months the clerk should dismiss it, I ain't sure why they gave them a second chance. I'll check. Let me know o what court you are, small claims or circuit.

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Rule 1070 of Florida rules of Civil Procedure:

(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action with-out prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neg-lect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismis-sal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the me-rits under rule 1.420(a)(1).

I'll check small claims but i think is the same.

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Rule 1420

(e) Failure to Prosecute. In all actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 10 months, and no order staying the ac-tion has been issued nor stipulation for stay approved by the court, any interested person, whether a party to the action or not, the court, or the clerk of the court may serve notice to all parties that no such activity has oc-curred. If no such record activity has occurred within the 10 months immediately preceding the service of such notice, and no record activity occurs within the 60 days immediately following the service of such notice, and if no stay was issued or approved prior to the expiration of such 60-day period, the action shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

The clerk did fine is 10 months.

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Small claims Failure to Prosecute, is 6 months, so I'm guessing is more than 5k, rule is 7110(e). Let us know.

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Small claims Failure to Prosecute, is 6 months, so I'm guessing is more than 5k, rule is 7110(e). Let us know.
I will check that later and post that info then. Thanks.

I am a bit confused on this last payment made... AA states in the complaint that the last payment made was May of 2009, but I check my credit report and under their trade line, they list the 1st major delinquency as July 2011?? I guess I will have to find a better way to confirm this date.

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I am a bit confused on this last payment made... AA states in the complaint that the last payment made was May of 2009, but I check my credit report and under their trade line, they list the 1st major delinquency as July 2011?? I guess I will have to find a better way to confirm this date.

I can for sure confirm that the date was not at anytime in 2011... I am going to search the files and see if I can locate the info on last payment made.

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2011 is probably one of AA's dates, not your last payment. If your last payment was in 2009, you are still within SOL. In Florida, CC debt is 4 years.

If you believe AA did not communicate with you prior to your lawsuit, which is what they did in my case, you can use that as grounds for dismissal. However, AA also may fraudulently come up with a letter and claim they sent it to you on time if you file a MTD on those grounds alone.

In my case, I got a copy of their letter from them in discovery PRIOR to using it as a defense (Request for Production of Documents). You may request a copy of their initial communication with you concerning the debt. Then look at the date. That date must be at least 30 days before they filed the lawsuit, not when you were served. Give them the rope to hopefully hang themselves.

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I would get a lawyer is easy for one of them to file a motion to dismiss based on the fact that they didn't serve you within the 180 days allowed. I'm not sure how to do such motion, but is clear from the rules of civil procedure that they failed to serve you and didn't carry out thier due deligence. Maybe one of the lawyers here can look on that or some of the more expertice proses, but I would go that way.

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I would get a lawyer is easy for one of them to file a motion to dismiss based on the fact that they didn't serve you within the 180 days allowed. I'm not sure how to do such motion, but is clear from the rules of civil procedure that they failed to serve you and didn't carry out thier due deligence. Maybe one of the lawyers here can look on that or some of the more expertice proses, but I would go that way.

I thought the same, but as I understand it, the court notified their attorney that there was going to be a dismissal of their suit if they did not proceed and serve me within 60 days. I will have to go back and check the date their attorney was notified by the court, but I believe it was in September and they had until early November to serve me. Seeing they did serve me last week and within the time (60 days) the court required, they are safe from a dismissal due to lack of prosecution.

Again, as I understand this, they were allowed basically 10 months to sit with no activity....and at the point, the court allows 60 more days after the warning is given in order to proceed or lose their case.

Edited by Paradise954

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OK, so here is my draft of my answers and complaint... any input is appreciated. Filing this Friday with the clerk. I believe the form and content follows Florida's Rules of Civil Procedure:

ANSWER TO COMPLAINT AND SUMMONS

COMES NOW, the Defendant JOHN DOE, answers the Plaintiff, ASSET ACCEPTANCE, LLC and answers:

1. Denied.

2. Denied; Unknown, Defendant demands strict proof of Plaintiff’s authorization to do business within the State of Florida.

3. Admit.

4. Denied.

5. Defendant has insufficient information to admit or deny and, therefore, denies.

6. Denied.

7. Defendant repeats and restates each and every material answer as contained in answers 1 through 6 above.

8. Denied.

9. Denied.

10. Denied.

11. Denied.

12. Denied.

13. Denied.

14. Denied.

15. Denied.

16. Denied.

17. Denied.

18. Denied.

19. Defendant repeats and restates each and every material answer as contained in answers 1 through 18 above.

20. Denied.

21. Denied.

22. Denied.

AFFIRMATIVE DEFENSES

FURTHER, the Defendant asserts the following defenses and states:

23. The Plaintiff provided no validation of the alleged debt to the Defendant in their complaint. There is no validation of a partial payment on or about May XX, 2009, including no validation of the amounts claimed to be owed by the Defendant. There were no copies of a signed Credit Card Agreement (contract), canceled checks, signed receipts, and copies of any other pertinent document(s) that show the Defendant agreed to pay what is allegedly owed.

24. Since the Bill of Sale and Assignment provided was not notarized nor was any affidavit provided, the Defendant is not able to agree that the actual sale of the credit card to the Plaintiff ever occurred.

25. Plaintiff did not provide any validation that an original Agreement was ever mailed to the Defendant.

26. Plaintiff did not provide any validation that the Defendant ever signed a credit card and that the credit card was ever in the possession and control of the Defendant.

27. Plaintiff did not provide any validation of what the alleged amounts owed were for or how the amounts were calculated by providing canceled checks, signed receipts, copies of accounting procedures, etc.

28. Plaintiff did not provide any validation of periodic statements by the Defendant.

29. Plaintiff incurred no damages from Defendant. Any alleged damages to Plaintiff were caused by their own actions by knowingly purchasing an alleged debt that was already in default.

30. Plaintiff did not provide any validation of any business transactions between Plaintiff and the Defendant.

31. Defendant affirmatively alleges that the Plaintiff’s action is time-barred.

32. WHEREFORE, the Defendant, JOHN DOE respectfully requests the Court to dismiss the entire Complaint by Plaintiff ASSET ACCEPTANCE, LLC, with prejudice.

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