Sign in to follow this  
trynrest

Chess with Calvary Portfolio / Schindler Law HELP w/ next move!

Recommended Posts

First and foremost a huge THANK YOU to everyone here that has helped us get this far. Especially gwheelock915 and Linda7 who took so much of there time to help me one on one.

Well we had our first hearing. Because we made a few mistakes we filed a motion to dismiss late in the game. The Judge granted Schindler Law Firm two weeks to file a response. We received it yesterday.

After reading the response and attachments I am again asking for help. The background thread is "HELP Illinois Small Claims Filed in TIME CRUNCH"

The response is lengthy, but here it goes:

The Plaintiff, Calvary Portfolio Services, LLC, as and for its Response to the Defendants Motion to Dismiss, states as follows:

Defendant's motion to dismiss is pursuant to 735 ILCS 5/2-615 generally and then specifically pursuant to 735 ILCS 2-606. Defendant's main argument here is that Plaintiff fails to attach to its complaint Chain of Title documentation. Defendant cites to Razor Capital v. Antaal, 2012 Ill. App. Lexis 571, 2012 IL App(2nd) 110904 (July 11, 2012). Defendant also moves to strike Plaintiff's affidavit stating that it is incompetent. Defendant raises hearsay objections in its motion to dismiss. Defendant correctly points out that they need leave of court to file such a motion. Plaintiff

Defendant claims that Calvary Portfolio services LLC's interest in this matter is unclear. Plaintiff clearly pleads the interest that Calvary Portfolio Services LLC has in this matter. Paragraph 3 States that Citifinancial sold and assigned its right title and interest to defendant's account to Calvary SPVI, LLC. Then paragraph 4 states that Calvary SPV I, llc assigned it's right to pursue collection of Defendant's account to Plaintiff (Plaintiff being Calvary Portfolio Services LLC. Defendant cites to a newly published opinion Razor Capital v. Antaal,Id. Razor Capital is a case that originated in the ARBITRATION Division of DuPage County, thus differentiating this case from that one. This is a small claims case. " Disposition of small claims cases is intended to be relatively simple and expedient. Motion practice is explicitly limited. To dismiss a small claims complaint for the mere forbearance of a plaintiff to attach a copy of the written obligation would inject into small claims litigation an element of technicality, gamesmanship and increased litigation that Part 1 procedures were obviously designed to avoid." (10-SC-2210, 10-LM-1250, 10-LM-1403, Memorandum of Opinion and Order from Champaign County Circuit Court, attached hereto.) For these reasons and the other reasons cited by The Champaign County Judge, it was found that motions to dismiss a small claims complaint for failure to comply with section 2-206 of the Code of Civil Procedures were facially meritless. This is because of Illinois Supreme Court Rule 282(a) which supplants 2-206. Further a motion to dismiss a complaint pursuant to 282(a) is flawed because the proper remedy is not to dismiss bot to strike the complaint or allow plaintiff to produce the written instrument in question. The court also cited to Porter v. Urbana-Champaign Sanitary District, 237 Ill. App.3d 296 (1992). If Defendant believes that Plaintiff cannot prove standing, then Plaintiff will lose at trial. Plaintiff should not have to prove things at the pleading stage especially at a small claims case pleading stage.

Further, Section 8b of the Illinois Collection Agency Act, 225 IlCS 425/8b, while establishing the requirements for an assignment to be valid, does not require that an assignment be attached to the complaint.

Defendant alleges that the Plaintiff's complaint relies on an incompetent affidavit. The affidavit is a verification in support of the allegations in the complaint. The Court may rely on the facts contained for the purpose of a prove-up of damages when a defendant is id default, but if the case proceeds to trial the Plaintiff will have to prove its case through written evidence and witness testimony.

In a MOtion to Dismiss, the law in Illinois is clera that all well-pleaded facts are taken as true. Defendant is only entitled to dismissal with prejudice if no facts alleged could setablish Plaintiff's cause of action. Defendant has not met its burden here to show that no set of facts would enable Plaintiff to prove its case. Defendant is attempting to point out flaws in Plaintiff's Complaint. Further, Defendant attempts to make objections to admissibility of evidence as if this were a trial. Whether Plaintiff will be able to prove its case at trial is not the issue here.

Defendant moves to dismiss pursuant to 1-215 and 1-206 with prejudice complaining of defects in the Plaintiff's complaint. If plaintiffs small claims complaint is defective, then Plaintiff should be afforded an opportunity

to amend its complaint and re-file.

Defendant's motion should not be allowed as this is a small claims case and the case should be decided expeditiously. Further, even if Defendant's motion to dismiss is allowed to go ahead it should be denied as Plaintiff is in possession of complying Assignments as required by 8(B). Defendant's objections on grounds of hearsay are not proper at the pleading stage of this law suit.

WHEREFORE, Plaintiff respectfully requests that defendant's Motion to Dismiss be denied //////////////////////////////////////////

It is then signed by a member of the firm. Do I respond, if so what should I say? Thanks again.

Edited by trynrest
change title

Share this post


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