Asset Acceptance wants to stike Exhibits and portions of Defendant's Answers

[Swatch]

Ok, so just received response from " Asset Nickle and Dime" and they have filed a motion to strike portions of Defendant's Answer and Exhibits.

Portions of Answer "Asset" wants stricken:

1. "Signature on Plaintiff's Affidavit and initials on Plaintiff's Statement of Account are not the same and are therefore fraud. However, Defendant does not state fraud as an affirmative defense to this cause of action. Defendant does not assert that he is the victim of fraud in this matter." ( In my answer I stated that the Signature on Plaintiff's Affidavit and initials on Plaintiff's Statement of Account are not the same and could possibly constitute possible forgery and/or fraud).

Exhibits "Asses" wants stricken:

1. " Furthermore, Defendant's exhibits C,E,F,G, and H to Defendant's Answer should be stricken as these exhibits are redundant, immaterial, impertinent and irrelevant to this cause of action." ( I realize some or all of these might be stricken but I wanted to show the judge how confusing it can be to figure out the real party of interest).

My Exhibits Included:

C ~ A letter from G and C representing "Asset" that was dated August 21, 2012 and I had to respond by August 27, 2012. The kicker here is G and C didn't even mail out until August 30, 2012; three days after I was supposed to respond. ( I included this under Asset Acceptance, LLC, Plaintiff is bound by their own conduct or by the conduct of it’s agents, representations and consultants). I actually received another letter from G and C Dated September 28, 2012, but was not mailed out until October 15th. I had not receive this letter until I had filed my motion to dismiss.

D ~ Decree between the FTC and Asset Acceptance. ( Apparently, G and C didn't read my full answer as they think I'm trying to collect under the Decree between the FTC and Asset Acceptance).

E ~ A print out of G and C Law Firm's website that states they are a Debt Collector.

F ~ A report from the BBB of Louisville that shows the "Alternate Business Name" is Asset Acceptance, LLC.

G ~ Asset Acceptance BBB report out of Louisville that states "aka G and C Law Firm.

H ~ FTC lawsuit against Asset Acceptance which Asset Acceptance settled in January of this year. ( I included this to show that anything provided by the Plaintiff needs to be highly scrutinzed not only by me but my the judge).

"Asset" included with their response:

1. a cc statement from March 2009, which it says closing date 03/20/09. So I'm assuming this is the last statement? The only "transaction" is a Late Fee for 39.00.

2. A second page not sure what is it, because "Asset" is nice enough not to lable anything:

Cut off date

Charge off Account Number

Charge off Date

Original Account Number

My information

Balance

Last Pay Amount

Last Pay Date

Open Date

Interest Rate

First Delq Date

Birth Date

Affinity

Conversion Account Number

Legacy

* The Original Account Number, Charge Off Account Number and the Conversion Account Number are all different. Wouldn't the Original Account number and the Charge Off Account number be the same if this was bought directly from the OC?

3. Bill of Sale and Assignment of Loans from Bank of America and signed by a Debra L. Pellicciaro, Vice President of Bank of America. The page is so faded it's kind of hard to read.

To be honest the part that has me really pissed off is that the attorney stated " Although, the Defendant wants to point incorrect procedural defects in Plaintiff's Complaint to slow down or stall this case from moving forward on the merits." Excuse me, but I'm the one that contacted the court because it had been almost three weeks and the judge still hadn't done anything after I had filed my motion.

They closed out their responds with my motion should be overruled or in the alternative, Plaintiff should be afforded and opportunity to amend the complaint.

So ladies and gents, do I have anything to work with here?

[BV80]

What was your purpose for including exhibits C,E,F,G and H?

[Swatch]

Hi BV80, I had listed the reasons but you might have missed them.

I included the reports from the BBB because to me that calls into question who the actual legal owner of debt is. Both C and G Law Firm and Asset Acceptance BBB reports mention one another. If the two entities are one in the same, then by Indiana Trial Rule 17:

(A) Real party in interest. Every action shall be prosecuted in the name of the real party in interest.

(1) An executor, administrator, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his own name without joining with him the party for whose benefit the action is brought, but stating his relationship and the capacity in which he sues.

I also included the FTC lawsuit and the Decree to show the business practices of Asset Acceptance and show that anything supplied by Asset needs to be harshly scrutinized.

Do you know if a Bill of Sale and Assignment of Loans from the OC has to be notarized?

[BrunoTheJDBkiller]

Do you know if a Bill of Sale and Assignment of Loans from the OC has to be notarized?

Probably not, but if they supply an affidavit that purports to authenticate these records, the affidavit has to be notarized. A bill of sale is basically private and is not a sworn statement.

Most of what you put here is irrelevant to your case at this point. You do not argue the case in the answer, you argue it in motions and in oral arguments.

could possibly

Never use this term in a pleading, it is pure speculation. Either make the charge and back it up or don't make it at all, especially a fraud charge.

[BV80]

I doubt the law firm and Asset are one in the same. It's possible that Asset may have in-house counsel but that doesn't mean the attorney is the Plaintiff. He's merely representing Asset in court.

As far as the FTC decree is concerned, I can see why they want to strike it. They're going to argue that nothing in that lawsuit is relevant.

For instance, did they commit any violations while attempting to collect from you? Are they suing on an out-of-statute debt? That lawsuit and decree outlines the violations. Are any of them relevant to your case?

You have to make the argument that it's relevant to the case.

[Swatch]

Thanks for the reply so far BV82 and Bruno!

Bruno, Exhibit C states:

Bill of Sale and Assignment of Loans

" The undersigned Assignor (" Assignor") on and as of the date hereof hereby absolutely sells, transfers, assigns, sets-over, quitclaims and conveys to Asset Acceptance, LLC a limited liability company organized under the laws of Delaware ("Assignee") without recourse and without representations or warranties of any type, kind, character or nature, express or implied, subject to Buyer's repurchase rights as set forth in Sections 8.1 and 8.2, and all of Assignor's right, title and interest in and to each of the Loans identified in the Loan Schedule attacher here to ( the "Loans"), together with the right to all principal, interest or other proceeds of any kind with respect to the Loans remaining due and owing as of the Cut-Off Date applicable to such Loans as set forth in the Loan Sale Agreement pursuant to which the Loans are being sold ( including but not limited to proceeds derived from the conversion, voluntary or involuntary, of any of the Loans into cash or other liquidated property). Date January 30, 2012., Post Agency Bulk 1/24/12.

Signed

Assignor: FIA Card Services, N.A.

Debra L. Pellicciaro

Vice President

BV80, thanks! I think another that has me a little uneasy is that they have started rotating the type of cases heard by the judges in the county where I live so the judges don't get "burned out". The judge in my case has been the primary Criminal judge and is now doing Civil cases.

[BV80]

Unless your rules or state laws say otherwise, a bill of sale usually isn't notarized.

[Swatch]

I'll let you guys know how the judge responds to the Plaintiff's response and hopefully we can take it from there!!

[saytar]

Thanks for the reply so far BV82 and Bruno!

BV80, thanks! I think another that has me a little uneasy is that they have started rotating the type of cases heard by the judges in the county where I live so the judges don't get "burned out". The judge in my case has been the primary Criminal judge and is now doing Civil cases.

Who knows, since he is used to criminial case's they are decided on "beyond a shadow of doubt". Civil is mostly decided on the perponderence of the evidence.

He may hold the CA to a higher standard.

[Swatch]

This quote that I received in a response from the Plaintiff in my case has been rubbing me the wrong way all day:

" Although, the Defendant wants to point to incorrect procedural defects in Plaintiff's Complaint to slow down or stall this case from moving forward on the merits." This statement is a bold face lie as I'm the one that had to get the ball rolling again after I filed my Motion to Dismiss.

Complaint Received on 9/6/2012

Filed my Motion to Dismiss 9/24/2012

Having not heard anything from the Court by 10/17/2012 I called the Clerk's Office to see what is going on and was told they didn't know what happened but they would pull my case and give it to the judge.

10/18/2012 Judge orders Plaintiff to respond to my motion and is given until 11/19/2012 @ 9am.

10/16/2012 I get my response in the mail from the Plaintiff.

Worth pursuing, yes or no?

[Swatch]

Entered a post in error.

Edited November 17, 2012 by Swatch

[saytar]

This quote that I received in a response from the Plaintiff in my case has been rubbing me the wrong way all day:

" Although, the Defendant wants to point to incorrect procedural defects in Plaintiff's Complaint to slow down or stall this case from moving forward on the merits." This statement is a bold face lie as I'm the one that had to get the ball rolling again after I filed my Motion to Dismiss.

Complaint Received on 9/6/2012

Filed my Motion to Dismiss 9/24/2012

Having not heard anything from the Court by 10/17/2012 I called the Clerk's Office to see what is going on and was told they didn't know what happened but they would pull my case and give it to the judge.

10/18/2012 Judge orders Plaintiff to respond to my motion and is given until 11/19/2012 @ 9am.

10/16/2012 I get my response in the mail from the Plaintiff.

Worth pursuing, yes or no?

Worth pursuing? Any reasonable Pursuit yes, an emotional response no.

Reread everything everyone has posted, then set down and coldly examine your dates, times, information received.............read carefully what the Civil Procedures and rules of evidence are. Don't read anything extra into what you read or read it with a certain bias, you can't twist the meanings to justify your feelings. Lookup Terminology you are unfamiliar with, then reread that section. Cold and calculating and persistance wins the day, along with a good bluff.

One day you will suddenly realize that with the courts you are playing poker and you will realize their rules. They are not the everyday worldly rules as the legal system live's in a world of their own. The cooler and more relaxed and informed most often take the pot.

[BrunoTheJDBkiller]

without recourse and without representations or warranties of any type, kind, character or nature, express or implied

This could be useful down the line. Compare this to the language in any affidavit Asset gives you. See if their affidavit in any fashion even hints at an attempt to swear that the records they got from BofA are accurate. If BofA won't guarantee the accuracy of their own records, how can Asset? This might make an interesting subject for a round of discovery.

[Swatch]

Bruno,

The Affidavit that was provided states:

1. I, employees name, am an employee of Asset Acceptance, LLC ("Asset"), and am competent to testify to the matters stated herein.

2. I am familiar with the manner and method by which Asset creates and maintains its business records, including computer records of its accounts.

3. Asset's business records demonstrate that Asset purchased the receivable at issue in this case from BOA.

4. The business records associated with the receivable demonstrate that our claim against Defendant is in the amount of $4,845.24 together with the interest at the statutory rate of 8.00.

[BrunoTheJDBkiller]

That thing is a joke. I'm familiar with my records too, and they say Bruno bought your account. That's just as good as their claim. I doubt that even makes the requirement for an affidavit, check the evidence section of the state statutes.

[ladyhunter]

Since you are pro se, AA (like always) is throwing around legal jargon and maneuvering to intimidate you. Can some of it stick? Possibly, but I doubt if they get all that they are asking. You have to be prepared to show the court WHY they should not get what they are asking.

When I realized at times I was getting too emotionally involved in my case, I would step back and pretend this was not my case. I pretended no matter what I did, it would have no impact on me. It was simply a test to see if I could get it right.

It helped me to see things more clearly as they really were, rather than how I would like them to be. It helped me formulate strategy and answers that fought back on legal grounds, rather than emotional ones.

And, as Bruno said, watch your language. It either IS or ISN'T - no in between.