FailedBiz

My case with a major JDB started today

Recommended Posts

1. Who is the named plaintiff in the suit?

A major JDB with initials AA

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

A northwest law firm initials JM.

3. How much are you being sued for?

About $37,000

4. Who is the original creditor? (if not the Plaintiff)

NAVY FEDERAL CREDIT UNION

5. How do you know you are being sued? (You were served, right?)

I was served a Summons

6. How were you served? (Mail, In person, Notice on door)

In person

7. Was the service legal as required by your state?

Yes - according to the table provided on this site.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They sent me a letter stating that a lawyer hadn't yet reviewed the information, amount I owe, interest owed, federal law requires that they treat me fairly.. blah blah.

9. What state and county do you live in?

OR, Deschutes

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

March, 2008

11. What is the SOL on the debt? To find out:

The debt was obtained in California.. and it is 4 years there. I only moved here to Oregon a couple years ago.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Suit served, and I filed my answer denying all except who they say I am and that they sent me a letter.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

I have already filed my answer to the complaint and paid the filing fee. I did not receive a questionnaire.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence at all.. not Affidavits. No statements from the OC, no contract, the complaint seemed like a form pleading.

I wanted to chronicle my case with a major JDB with Initials AA (I'm doing this so that someone can't search on their name and find this thread.)

I received the summons by some old guy who delivered it to me at my front door. I then hopped on this site to do some research. With the help of this site, I was able to find the court's answer format and was able to write it up and file it today. The clerk complimented me on the the work I had done, but I was thinking.. "Thanks to CreditInfoCenter."

Their summons seemed very much like a form pleading. There are 8 paragraphs to the complaint:

1. That Jurisdiction and venue are proper. That Plaintiff (AA) is an lawfully organized business engaged in interstate commercer. That I live in the state and county noted.

2. That the credit union extended me the credit and listed the credit card number masked out except for the last 4 numbers.

3. That I received statements and didn't object

4. That I agreed to make payments and breached the agreement.

5. That more than 20 days before filing this action, they sent me a written demand.

6. That I agreed to pay interest on the amounts borrowed at applicable 9%.

7. Plaintiff acquired the Account from the Original Creditor or its lawful successors-in-interest through a valid purchase and assignment. Under Oregon law, Plaintiff has full right to collect on the Account in accordance with all of the terms and conditions of the Agreement.

8. (And this is incredible) Quantum Meruit.

So my Answer denied everything, except for who I am and that they sent me the letter, and that I prayed for a judgement of dismissal with Prejudice. The filing cost me $240, but I figure it is better than getting a complete judgement against me.

In 2008-2009 my business failed and I lost everything including my house. I also incurred this debt as it was being used to buy food and pay bills for that year. It killed me to go through all of it - especially since I knew it was hurting my Navy comrades in some way.

Anyway.. my questions to the group are:

1. Should I file a motion for discovery now or wait until the pretrial conference in January.

2. Do I need to file a countersuit when I file the motion for discovery? The court clerk said she would be happy to file any motions I wanted to at the time I filed the Answer.

3. Does anyone have an example motion for discovery from which I could glean?

Thanks for trudging through this long post and being so helpful to this community.

Share this post


Link to post
Share on other sites

I believe that discovery may be different for this OC due to it being a FCU. They may have some maybe all the documenttation they need. what they may lack is a competent witness.

I would move for discovery sooner than later to see if they have records.

also isn't this SOL in Or?

You are doing good for this.

Share this post


Link to post
Share on other sites
Guest usctrojanalum

if you have hearing in January, I'd wait it out until then. Sit back for now see what goes down at the hearing. If they bring nothing and just pushing you to settle, after the hearing i'd ask them for documents. You have a long journey ahead of you being that the amount if $40k

Share this post


Link to post
Share on other sites
if you have hearing in January, I'd wait it out until then. Sit back for now see what goes down at the hearing. If they bring nothing and just pushing you to settle, after the hearing i'd ask them for documents. You have a long journey ahead of you being that the amount if $40k

AA sent me their letter in May 2012 that they had acquired and now own the account. But there was never any documentation other than that. I figured that I have a fight ahead of me.

Share this post


Link to post
Share on other sites
I believe that discovery may be different for this OC due to it being a FCU. They may have some maybe all the documenttation they need. what they may lack is a competent witness.

I would move for discovery sooner than later to see if they have records.

also isn't this SOL in Or?

You are doing good for this.

This is a question I had as well. The debt was accumulated originally in CA. I moved to Oregon only a few years ago. SOL in OR is 6 years, while only 4 in CA.

If only 4 in CA, I think I am outside SOL. But who would I consult on that?

Share this post


Link to post
Share on other sites

Everybody knows who Asset Acceptance is, and Johannes & Machol, no need to disguise their names. They're very popular names here. Let them read the posts, who cares. They can't do anything about the law. First thing I see is that this may be out of the statute of limitations. Oregon has a statute 12.430 that says that when a contract specifies that the laws of another state apply, the SOL of that state will also apply. There is a narrow exception under 12.450.

Since you probably incurred this debt through their San Diego office, you should be able to invoke the CA SOL of 4 years. You obviously didn't move to Oregon to help them have more time to sue you. We also need to know what kind of debt this was, they do everything from credit cards to mortgages. If this was a credit card issued by someone with a six year SOL, you may have a problem. For this amount, you better play every card you have, they will fight this one, JDBs don't get that many debts of this size.

Edited by BrunoTheJDBkiller

Share this post


Link to post
Share on other sites
Everybody knows who Asset Acceptance is, and Johannes & Machol, no need to disguise their names. They're very popular names here. Let them read the posts, who cares. They can't do anything about the law. First thing I see is that this may be out of the statute of limitations. Oregon has a statute 12.430 that says that when a contract specifies that the laws of another state apply, the SOL of that state will also apply. There is a narrow exception under 12.450.

Since you probably incurred this debt through their San Diego office, you should be able to invoke the CA SOL of 4 years. You obviously didn't move to Oregon to help them have more time to sue you. We also need to know what kind of debt this was, they do everything from credit cards to mortgages. If this was a credit card issued by someone wioth a six year SOL, you may have a problem. For this amount, you better play every card you have, they will fight this one, JDBs don't get that many debts of this size.

I thank you for your input.

It was all credit card debt. And I opened the card and ALL of the debt was incurred while I lived in San Diego. The law office is not who you guessed, but is Johnson Mark LLC, an northwest firm in 3 northwest states.

I didn't invoke SOL in my answer, but now I'm trying to figure out how to bring it up. I'm thinking that I should bring it up in the pre-trial conference. I can prove that the last payment I made was in March of '08. I still have all the statements. But I want to be careful how I bring it up. I'm thinking I would bring it up by stating, "If the plaintiff is referring to an account I had with this OC, I have proof that his action falls outside the SOL for the state in which the debt was incurred." Even if we use the FCU's home address which is in Virginia, they only have a 3 year SOL. I'm thinking that the SOL is my only hope.

Share this post


Link to post
Share on other sites

In the letter we received from Asset Acceptance, they say that the last payment date to the OC was November 4th, 2008. I thought we were in a good spot when all of MY statements say February 19, 2008 was our last payment.

Well, when I reviewed the account statements, I find that there was a credit to our account on Nov. 4th, 2008 in the amount of $0.18 - whereby they took whatever was available in our other checking and savings accounts when they closed them and put it toward this Credit Card account.

I'm feeling pretty low here now. Can that be really considered a "payment" since they weren't accepting any partial payments from us and we never initiated this "payment"? My gut tells me that it will be considered a payment and that I'm up the creek since the Complaint was filed againts me on October 3rd, 2012.

Do I have any argument based on standing? Will I need to bring that up at the Pre-Trial conference? Oregon has a mandatory arbitration rule, so my thought is that I won't be able to bring up any arguments in the pre-trial conference - just clutching at straws.

Share this post


Link to post
Share on other sites

As to the amount of the debt, mine was almost that much, and I won! So whether it is a small amount or a large amount, AA can still be beat.

I am not familiar with OR or CA Civil Rules of Procedure, but when fighting a JDB such as this, I like to throw everything I have at them. Some of it will stick, some may not. I would definitely bring up MY last payment and have the bank statement to show it. As for the $.18, even though it is addressed in their lawsuit, I would not address it unless specifically asked a question under oath. When asked anything about a last payment, I would keep bringing up MY last payment. If I was forced into addressing the $.18 payment, I would have no knowledge of any $.18 payment or it was an unauthorized seizure and payment, or it was their making a payment in order to redate the delinquent account, etc.

I would call a CA or OR consumer attorney and ask the question about whether or not CA's SOL would come into play here.

Just some thoughts . . .

Share this post


Link to post
Share on other sites

That's no payment, nobody in their right mind would write a check for that amount. Obviously it is some sort of credit. Even if it was a payment, it does not satisfy the requirement in the agreement. Accounts are in default the minute you miss a scheduled payment. The only way to get the account out of default is to pay all back payments, interest, late charges, etc. and bring the account current. Otherwise it is in default.

If you did not specify the SOL as a defense in your answer, you may be able to amend the answer and add it in. Otherwise, you'll have to file a motion to dismiss as a time barrred debt. Then you can sue them for an FDCPA violation, see the US Federal Trade Commission v. Asset Acceptance.

Share this post


Link to post
Share on other sites

If you did not specify the SOL as a defense in your answer, you may be able to amend the answer and add it in. Otherwise, you'll have to file a motion to dismiss as a time barrred debt. Then you can sue them for an FDCPA violation, see the US Federal Trade Commission v. Asset Acceptance.

Interesting point.. once I say that I believe the debt is time barred, am I not admitting to everything, rendering my original Answer as incorrect? In other words, I would like this thing to go away, but if I file a motion for dismissal, and they want to contest the $0.18, am I not basically skipping the whole discovery requirement?

Share this post


Link to post
Share on other sites

Expect that $0.18 cents to become an issue that will be raised by the plaintiff.

Oh yeah, and expect the plaintiff to come to court with your cancelled check for eighteen cents. Sure, that could happen. Bookkeeping entries do not constitute voluntary payments made by the account holder in response to a billing statement. Anything less than the scheduled payment puts the account into default, that's where you make your argument, you did not make this payment period. Funny, isn't it, you get sued for not paying, they try to say you paid, and your defense against the suit is that you never paid. Well if I paid, why is my account not current as of the date of the 18 cents? More discovery, according to the cardholder agreement does an 18 cent payment NOT made by the cardholder remove the account from default?

Oh here comes the objection, calls for a legal conclusion. Yes, and since you are suing me based upon this idiotic principle and hanging your hat on this supposed payment, the conclusion requested is reasonable. It does not require any great analysis. Conclusions based upon the law are not prohibited in discovery.

Filing a time barred motion does not constitute an admission to anything. It simply says the case is zombie debt and never should have been filed, this is procedural.

Oddly enough, it does not appear that interrogatories are used in your state.

A Discovery methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission.

Make it an admission. Read the cardholder agreement, find the right part, quote it and attach it, and make them admit what it says.

A Request for admission. After commencement of an action, a party may serve upon any other party a request for the admission by the latter of the truth of relevant matters within the scope of Rule 36 B specified in the request, including facts or opinions of fact, or the application of law to fact, or of the genuineness of any relevant documents or physical objects described in or exhibited with the request. Copies of documents shall be served with the request unless they have been or are otherwise furnished or made available for inspection and copying. Each matter of which an admission is requested shall be separately set forth. The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request for admissions shall be preceded by the following statement printed in capital letters of the type size in which the request is printed: “FAILURE TO SERVE A WRITTEN ANSWER OR OBJECTION WITHIN THE TIME ALLOWED BY ORCP 45 B WILL RESULT IN ADMISSION OF THE FOLLOWING REQUESTS.”

Share this post


Link to post
Share on other sites

Ok, I found out yesterday that I can file an amended answer with the court as I am still within the time to do so. I am claiming an SOL affirmative defense and I am thinking of writing it up as shown below.. Any suggestions would be appreciated.

AFFIRMATIVE DEFENSES

Further the defendant asserts the following defenses and states:

9.

Plaintiff’s action is barred by the applicable statute of limitations. Breach of contract complained of took more than 4 years prior to the filing of this action and is, pursuant to ORS 12.430, barred.

WHEREFORE, defendant prays for judgment of dismissal with prejudice as set forth above.

DATED this 25th day of October, 2012

I'll file this tomorrow unless anyone has any other suggestions.

Share this post


Link to post
Share on other sites

That's okay, but now the defenses just sits there until trial. Why not get rid of this with an MTD? That gives you a chance to see what they say in response.

Share this post


Link to post
Share on other sites
That's okay, but now the defenses just sits there until trial. Why not get rid of this with an MTD? That gives you a chance to see what they say in response.

I see.. The request for dismissal is not the same as a Motion For Dismissal in the Answer.

Share this post


Link to post
Share on other sites

So the Asset Acceptance attorney sent me a Request for Admissions with the following requests:

1. Admit that you had a credit account with NFCU

2. Admit that you received a copy of the terms of the credit account

3. Admit that under the terms of the Account, you agreed to pay for the credit balance on the Account

4. Admit that you used the Account to obtain goods, services or money

5. Admit that you recieved periodic statements from NFCU regarding your account

6. Admit that you did not object in writing to any charges or fees on the Account within 60 days of the receipt of the periodic statement reflecting an allegedly disputed charge/fee

7. Admit that you stopped making payments on the account

8. Admit that you were notified that your account was in default

9. Admit that you are indebted to the Plaintiff, the lawful assignee of NFCU, for the full current Account Balance stated above

10. Admit that you have no evidence to disprove or defend against the Plaintiff's claims in the action

11. Admit that under the terms of your agreement with the FCU, you agreed to pay interest at the rate stateed in the Compaint on the principle balance of your account, plus any additional court costs incurred to enforce the agreement

I was going to file my AMENDED answer stating the debt is time barred tomorrow, that is free. But I also intend to file a MTD -once I figure out how to do that. I have 30 days to respond to these items, so I have some time I believe.

Now, there are a lot of problems that I feel the attorney has with those 11 items. One of them being #10 - I thought it was the Plaintiff's job to produce proof, not mine. A fact on which my confusion is compounded because at the same time they sent the request for admissions, they also sent a request for production of documents. WHAT?????!!! Why is it MY burden to produce documents?

Their request for documents state:

1. Any documents that relate to or refer to the Plaintiff's claims or your defenses in this Action.

2. Any agreements, applications, statements, receipts, proofs of payment or other documents related to the Account.

3. Any correspondence with NFCU or the Plaintiff regarding the Account or this Action.

4. Any correspondence with anyone related to this account, including without limitation, any witnesses, professionals, and experts (whether they have been retained to testify or not)

5. Any documents you may present as evidence or exhibits in a trial of this Action.

6. Any reports or exhibits prepared by any expert or lay witnesses pertaining to this Action.

This blows me away.. Well, I knew they were going to come at me with everything, but I didn't think they would want me to produce everything for them.

Am I still in a good position to file my amended answer? I'm still within the 30 days required. Also, is it a good idea now to file a MTD? If I do, will I still have to answer these request for admissions and production of documents?

Share this post


Link to post
Share on other sites

I finished drafting my amended answer and MTD.

Unless anyone has any suggestions, I will be filing my amended answer to include my Affirmative Defense of time barred debt due to the statute of limitations. Also, I'll be filing a Motion to Dismiss if the court allows it. From my research, I think I can file a motion to dismiss at any time during litigation.

Anyone have any suggestions before I file tomorrow? Thankfully, the court is only about 10 minutes from my house so it's not a big inconvenience.

Share this post


Link to post
Share on other sites

Papers filed with court clerk. I was pleased to find out that the MTD did not have a filing fee, and that the cost to file the amended answer did not cost anything either. Now I'll wait to see what the judge says to my MTD before I try to respond to the Plaintiff's Request for Admissions. I have 30 days on that.

Share this post


Link to post
Share on other sites
This is a first that I have heard of a CU selling debt to JDBs...

ya, same here. It seem like its always those big guys whos selling their debts.

Share this post


Link to post
Share on other sites
Everybody knows who Asset Acceptance is, and Johannes & Machol, no need to disguise their names. They're very popular names here. Let them read the posts, who cares. They can't do anything about the law. First thing I see is that this may be out of the statute of limitations. Oregon has a statute 12.430 that says that when a contract specifies that the laws of another state apply, the SOL of that state will also apply. There is a narrow exception under 12.450.

Do those people come and read the posts here?! What for?

Makes me feel I shouldn't talk to much about my case here or otherwise they would find out about me and use it against me somehow...

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.