Spikey

Asset Acceptance vs. Me in IL: Update 6/6/13 Asset BEATEN!

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Hello to all,

 

I've been under siege by JDBs for a few years now. Until recently I didn't think I had any recourse but to bend over and take it. I stumbed accross this site while settling with another JDB and have decided that enough is enough. I won't be bullied by these companies any more. I've been reading this site for about a month now as well as doing research. The information contained here is invaluable. I've started this thread to get some advice as I prepare to fight back

 

Starting with the questions:

 

1. Who is the named plaintiff in the suit?

Asset Acceptance, LLC

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

Fulton, Friedman & Gullace, LLP

3. How much are you being sued for?

$12,000 <- greater than $10,000 therefore not small claims court

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

Bank of America

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

Saw filing on county website while looking into another JDB suit against me.

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

Waived service. I was in court to settle on another JDB suit, waived service in order to have more time to read this site and prepair my answers.

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

Not Applicable - See 6

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

Standard JDB form letter claiming they owned the debt, miscellanous phone calls which I didn't answer.

9. What state and county do you live in?

St. Clair County, Illnois

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

Approximately 2009

11. What is the SOL on the debt?

10 years on written contracts in IL

12. What is the status of your case? Suit served? Motions filed?

Suit Served. Appearance and Answers to be filed today (12/17)

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).

Answer due by December 20th.

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

Addidavit of Account by JDB as follows:

 

Exhibit "A"

 

State of Michigan

County of Macomb

 

Affidavit of Account

1) I am an employee of ASSET ACCEPTANCE, LLC ("Plaintiff"), A DELAWARE LIMITED LIABILITY COMPANY, and am competent to testify to the facets set forth in this affadavit.

 

2) I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records pertaining to this account. These repords are kept in the regular course of business and were created at or near the time of the event. To the best of my knowledge and belief and upon review of records in my possession, Spikey ("Defendent") establish an account with BANK OF AMERICA herein under account number XXXXXXXXXXX-last 4 digits of account.

 

3) That after establishing said account, Defendant(s) incurred charges and or fees and or intests upon said account.

 

4) defendant (s) defaulted on their payment onligations with regard to said account.

 

5) Upon information and belif, Plaintiff's predecessor(s)-in-interest performed all of the conditions of the contract required by said contract.

 

6) Thereafter, Plaintiff purchased said account for value and is now the owner of said account.

 

7) That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $12,000.00 together with interest at the statutory rate.

 

Signed by JDB Affiant

Notarized

 

The Complaint Reads as follows:

 

Asset Acceptance, LLC

vs.

Spikey

 

Complaint at Law

 

ASSET ACCEPTANCE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, doing business in MACOB County, MI, ("Plaintiff"), by and through consel, complains of Spikey ("Defendants"). as follows:

 

1. Pursuant to 735 ILCS 5/2-403, Plaintiff is proceeding in this cause as an assignee of BANK OF AMERICA.

 

2. BANK OF AMERICA and Defendant(s) entered into CREDIT CARD ("Contract"), account number XXXXXXXXXXX-last 4 digits, wherein Defendants voluntarily agreed to pay monthly payments until the contract was paid in full.

 

3. Upon information and belif, Defendant(s) resides in SAINT CLAIR County, Illnois.

 

4. Thereafter, Defendant(s) breached the contract by failing and refusing to  make payments under th terms and conditions of the contract.

 

5. As set forth in the Affidavit of Plaintiff, attached hereto, there is due and owning form Defendant(s) to Plaintiff in the sum of $12,000.00, of which no part has been paid, although duly demanded.

 

WHEREFORE, Plaintiff ASSET ACCEPTANCE, LLC, demands a judgement against the Defendant(s) Spikey in the sum of $12,000.00 plus interest and court costs.

 

Signed by JDB Attorey

 

My answers to be filed today:

ASSET ACCEPTANCE, LLC.

Plaintiff,

v.

Spikey

Defendant

 

Answer

I, Spikey, Defendant, hereby enters an answer to Plaintiff's complaint.

 

The Defendant(s) say(s) that:

 

1. DENY. Pursuant to Collection Agency Act 225 ILCS 425/8b, Defendant has not been provided sufficient documentation validating the assignment.

 

2. DENT. Pursuant to 735 ILCS 5/2-602, Defendant has not been procided sufficient documentation of stated contract.

 

3. ADMIT

 

4. DENY. Pursuant to 735 ILCS 5/2-602, Defendant has not been procided sufficient documentation of stated contract.

 

5. DENY. This request calls for admission of matter defendant has denied and this is improper

 

Under penalities as provided by law.....etc.

 

Signed Spikey

 

Moving Forward:

1. I'm going to file my appearance and answer today. They're technically not due till the 20th but I have today off of work and it's impossible for me to make it to the courthouse to file documents otherwise. I'm also going to send the documents to the JDB's attorney by certified mail with return reciept.

 

2. I've been trying to read the civil code of procedue as well as try to find as much caselaw as I can to defend myself. I'm pretty apprehensive about the whole thing as trying to get up to speed on the law and court proceedures is very stressful. It doesn't help matters that this case is above the limit for Small Claims court.

 

3.The next court date is January 22, 2013, which is a status hearing.

 

4. I assume my next move is to prepare to file for discovery. I'm also considering filing to strike the JDB's Affadavit. The Affiant never worked for the OC and has no personal knowlege of the alleged debt beyond whatever the JDB has on file. I checked out their work history on Linkedin, they've worked for the JDB since 2011, before that they worked for a doctors office and something else unrealted.

 

5. Per other cases on this forum, I'm assuming I'll likely be seeing a MSJ from the JDB in the near future, unless I get lucky and they drop the suit.

 

Thank you for any advice in advance. I plan to keep this thread updated as things progress. Asset Acceptance as been filing la lot of cases in Illinois, so I'm sure there are others in the same boat as I am.

 

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No explanation is necessary when you deny an allegation.

 

You can list your defense, lack of standing.

 

You seem to be in good shape. No bill of sale was sent? Nice.

 

Yes, file your answer and prepare for discovery.

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I've read on here that listing a defense in the answer can cause issues. They definetly have a lack of standing though.

 

Yes, no bill of sale or any substatitive evidence other than their Affadavit for their own Affaint.

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Every state is different. Perhaps someone from Illinois can chime it. Some states require you list your defenses of you waive your right to use them. Best to check your state rules of procedure.

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Hello to all,

 

I've been under siege by JDBs for a few years now. Until recently I didn't think I had any recourse but to bend over and take it. I stumbed accross this site while settling with another JDB and have decided that enough is enough. I won't be bullied by these companies any more. I've been reading this site for about a month now as well as doing research. The information contained here is invaluable. I've started this thread to get some advice as I prepare to fight back

 

Starting with the questions:

 

1. Who is the named plaintiff in the suit?

Asset Acceptance, LLC

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

Fulton, Friedman & Gullace, LLP

3. How much are you being sued for?

$12,000 <- greater than $10,000 therefore not small claims court

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

Bank of America

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

Saw filing on county website while looking into another JDB suit against me.

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

Waived service. I was in court to settle on another JDB suit, waived service in order to have more time to read this site and prepair my answers.

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

Not Applicable - See 6

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

Standard JDB form letter claiming they owned the debt, miscellanous phone calls which I didn't answer.

9. What state and county do you live in?

St. Clair County, Illnois

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

Approximately 2009

11. What is the SOL on the debt?

10 years on written contracts in IL

12. What is the status of your case? Suit served? Motions filed?

Suit Served. Appearance and Answers to be filed today (12/17)

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).

Answer due by December 20th.

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

Addidavit of Account by JDB as follows:

 

Exhibit "A"

 

State of Michigan

County of Macomb

 

Affidavit of Account

1) I am an employee of ASSET ACCEPTANCE, LLC ("Plaintiff"), A DELAWARE LIMITED LIABILITY COMPANY, and am competent to testify to the facets set forth in this affadavit.

 

2) I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records pertaining to this account. These repords are kept in the regular course of business and were created at or near the time of the event. To the best of my knowledge and belief and upon review of records in my possession, Spikey ("Defendent") establish an account with BANK OF AMERICA herein under account number XXXXXXXXXXX-last 4 digits of account.

 

3) That after establishing said account, Defendant(s) incurred charges and or fees and or intests upon said account.

 

4) defendant (s) defaulted on their payment onligations with regard to said account.

 

5) Upon information and belif, Plaintiff's predecessor(s)-in-interest performed all of the conditions of the contract required by said contract.

 

6) Thereafter, Plaintiff purchased said account for value and is now the owner of said account.

 

7) That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $12,000.00 together with interest at the statutory rate.

 

Signed by JDB Affiant

Notarized

 

The Complaint Reads as follows:

 

Asset Acceptance, LLC

vs.

Spikey

 

Complaint at Law

 

ASSET ACCEPTANCE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, doing business in MACOB County, MI, ("Plaintiff"), by and through consel, complains of Spikey ("Defendants"). as follows:

 

1. Pursuant to 735 ILCS 5/2-403, Plaintiff is proceeding in this cause as an assignee of BANK OF AMERICA.

 

2. BANK OF AMERICA and Defendant(s) entered into CREDIT CARD ("Contract"), account number XXXXXXXXXXX-last 4 digits, wherein Defendants voluntarily agreed to pay monthly payments until the contract was paid in full.

 

3. Upon information and belif, Defendant(s) resides in SAINT CLAIR County, Illnois.

 

4. Thereafter, Defendant(s) breached the contract by failing and refusing to  make payments under th terms and conditions of the contract.

 

5. As set forth in the Affidavit of Plaintiff, attached hereto, there is due and owning form Defendant(s) to Plaintiff in the sum of $12,000.00, of which no part has been paid, although duly demanded.

 

WHEREFORE, Plaintiff ASSET ACCEPTANCE, LLC, demands a judgement against the Defendant(s) Spikey in the sum of $12,000.00 plus interest and court costs.

 

Signed by JDB Attorey

 

My answers to be filed today:

ASSET ACCEPTANCE, LLC.

Plaintiff,

v.

Spikey

Defendant

 

Answer

I, Spikey, Defendant, hereby enters an answer to Plaintiff's complaint.

 

The Defendant(s) say(s) that:

 

1. DENY. Pursuant to Collection Agency Act 225 ILCS 425/8b, Defendant has not been provided sufficient documentation validating the assignment.

 

2. DENT. Pursuant to 735 ILCS 5/2-602, Defendant has not been procided sufficient documentation of stated contract.

 

3. ADMIT

 

4. DENY. Pursuant to 735 ILCS 5/2-602, Defendant has not been procided sufficient documentation of stated contract.

 

5. DENY. This request calls for admission of matter defendant has denied and this is improper

 

Under penalities as provided by law.....etc.

 

Signed Spikey

 

Moving Forward:

1. I'm going to file my appearance and answer today. They're technically not due till the 20th but I have today off of work and it's impossible for me to make it to the courthouse to file documents otherwise. I'm also going to send the documents to the JDB's attorney by certified mail with return reciept.

 

2. I've been trying to read the civil code of procedue as well as try to find as much caselaw as I can to defend myself. I'm pretty apprehensive about the whole thing as trying to get up to speed on the law and court proceedures is very stressful. It doesn't help matters that this case is above the limit for Small Claims court.

 

3.The next court date is January 22, 2013, which is a status hearing.

 

4. I assume my next move is to prepare to file for discovery. I'm also considering filing to strike the JDB's Affadavit. The Affiant never worked for the OC and has no personal knowlege of the alleged debt beyond whatever the JDB has on file. I checked out their work history on Linkedin, they've worked for the JDB since 2011, before that they worked for a doctors office and something else unrealted.

 

5. Per other cases on this forum, I'm assuming I'll likely be seeing a MSJ from the JDB in the near future, unless I get lucky and they drop the suit.

 

Thank you for any advice in advance. I plan to keep this thread updated as things progress. Asset Acceptance as been filing la lot of cases in Illinois, so I'm sure there are others in the same boat as I am.

 

Spikey, check your rules, i would certainly file affirmative defenses.  I am being sued in Michigan by the same group.  your rules may and probably are different than ours, but I would make sure to file those defenses.  I was not given an Assignemnt and Bill of Sale on the initial complaint either, but after my interoggertories. they did supply one.  We exchanged Interrogs they could not provide prooof linking them to the purchase of the account, or in there words did not have those documents now but would produce them at trial.  During our pre Trial they were instructed to provide those documents within 30 days(Decemeber 21st)  so far nothing has been produced, they did not file an MSJ.  Look for my post it may help guide you somewhat, you will get fantastic help on this forum thought

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Okay, here's what I found on http:http://www.illinoislegaladvocate.org

 

 

Answer

If the defendant is required to file a written Answer to the Complaint, then the Answer must be filed within a specified period of time, which is determined by the type of case. The defendant's Answer may be due as early as the date for the filing of the Appearance, or it may be due 10 days after the deadline for filing the Appearance, or it may be due by a date set, or extended by the judge. IL SCR 181.


In the Answer, the defendant will admit or deny or state "insufficient knowledge to either admit or deny" to each statement in the Complaint. If the defendant states that he or she has insufficient knowledge to any portion of the Complaint, the defendant must attach an affidavit as to the truth of that statement. 735 ILCS 5/2-610.


The defendant may raise new matter by way of a defense in the Answer, known as an Affirmative Defense. An example might be Statute of Limitations. The Affirmative Defense should also have a prayer for relief. If the defendant raises new matter in an Affirmative Defense, the plaintiff must reply. 735 ILCS 5/2-602. See also 735 ILSC 5/2-613(d).


The defendant may also raise claims against one or more plaintiffs, or against one or more co-defendants. It shall be called a Counterclaim. 735 ILCS 5/2-608. The Counterclaim shall be part of the Answer.

 

After reviewing 735ILCS 5/2-602 and 5/2-613(d), I don't have to file affirmative defenses with the answer.

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I think I would file the affirmative defenses right along with it, hit them with work and make them prove they own the debt.  I would send those close to the day they are do along with copies to the court Ceritified Mail Return Reciept Requested

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 (d) The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that the negligence of a complaining party contributed in whole or in part to the injury of which he complains, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute or by reason of nondelivery, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply. 
(Source: P.A. 84-624.)

 

Uh, read that again. It looks like you are required to put any defenses in your answer.

Am I reading that wrong?

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 (d) The facts constituting any affirmative defense, such as payment, release, satisfaction, discharge, license, fraud, duress, estoppel, laches, statute of frauds, illegality, that the negligence of a complaining party contributed in whole or in part to the injury of which he complains, that an instrument or transaction is either void or voidable in point of law, or cannot be recovered upon by reason of any statute or by reason of nondelivery, want or failure of consideration in whole or in part, and any defense which by other affirmative matter seeks to avoid the legal effect of or defeat the cause of action set forth in the complaint, counterclaim, or third-party complaint, in whole or in part, and any ground or defense, whether affirmative or not, which, if not expressly stated in the pleading, would be likely to take the opposite party by surprise, must be plainly set forth in the answer or reply. 

(Source: P.A. 84-624.)

 

Uh, read that again. It looks like you are required to put any defenses in your answer.

Am I reading that wrong?

I took it as such, unless there are different local court rules?

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We usually recommend that posters use no special defenses unless expressly required. In some states you lose the defense if you fail to assert it. The problem is that only a couple of them are valid for credit card cases, and once you use something, it's your burden of proof. Standing can be premature, until discovery is complete, how do you know they don't have the paperwork required? Sometimes they do, altho it is rare for a JDB. Some courts will accept just about anything in the way of evidence, and so will some judges.

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$146 later (they don't take personal checks for filing fees), my documents are filed. It took forever, there were several lackies there filing huge piles of paperwork.

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Hello to all,

 

I've been under siege by JDBs for a few years now. Until recently I didn't think I had any recourse but to bend over and take it. I stumbed accross this site while settling with another JDB and have decided that enough is enough. I won't be bullied by these companies any more. I've been reading this site for about a month now as well as doing research. The information contained here is invaluable. I've started this thread to get some advice as I prepare to fight back

 

Starting with the questions:

 

1. Who is the named plaintiff in the suit?

Asset Acceptance, LLC

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

Fulton, Friedman & Gullace, LLP

3. How much are you being sued for?

$12,000 <- greater than $10,000 therefore not small claims court

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

Bank of America

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

Saw filing on county website while looking into another JDB suit against me.

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

Waived service. I was in court to settle on another JDB suit, waived service in order to have more time to read this site and prepair my answers.

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

Not Applicable - See 6

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

Standard JDB form letter claiming they owned the debt, miscellanous phone calls which I didn't answer.

9. What state and county do you live in?

St. Clair County, Illnois

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

Approximately 2009

11. What is the SOL on the debt?

10 years on written contracts in IL

12. What is the status of your case? Suit served? Motions filed?

Suit Served. Appearance and Answers to be filed today (12/17)

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).

Answer due by December 20th.

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

Addidavit of Account by JDB as follows:

 

Exhibit "A"

 

State of Michigan

County of Macomb

 

Affidavit of Account

1) I am an employee of ASSET ACCEPTANCE, LLC ("Plaintiff"), A DELAWARE LIMITED LIABILITY COMPANY, and am competent to testify to the facets set forth in this affadavit.

 

2) I am familiar with the manner and method by which ASSET ACCEPTANCE, LLC creates and maintains its business records pertaining to this account. These repords are kept in the regular course of business and were created at or near the time of the event. To the best of my knowledge and belief and upon review of records in my possession, Spikey ("Defendent") establish an account with BANK OF AMERICA herein under account number XXXXXXXXXXX-last 4 digits of account.

 

3) That after establishing said account, Defendant(s) incurred charges and or fees and or intests upon said account.

 

4) defendant (s) defaulted on their payment onligations with regard to said account.

 

5) Upon information and belif, Plaintiff's predecessor(s)-in-interest performed all of the conditions of the contract required by said contract.

 

6) Thereafter, Plaintiff purchased said account for value and is now the owner of said account.

 

7) That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $12,000.00 together with interest at the statutory rate.

 

Signed by JDB Affiant

Notarized

 

The Complaint Reads as follows:

 

Asset Acceptance, LLC

vs.

Spikey

 

Complaint at Law

 

ASSET ACCEPTANCE, LLC, A DELAWARE LIMITED LIABILITY COMPANY, doing business in MACOB County, MI, ("Plaintiff"), by and through consel, complains of Spikey ("Defendants"). as follows:

 

1. Pursuant to 735 ILCS 5/2-403, Plaintiff is proceeding in this cause as an assignee of BANK OF AMERICA.

 

2. BANK OF AMERICA and Defendant(s) entered into CREDIT CARD ("Contract"), account number XXXXXXXXXXX-last 4 digits, wherein Defendants voluntarily agreed to pay monthly payments until the contract was paid in full.

 

3. Upon information and belif, Defendant(s) resides in SAINT CLAIR County, Illnois.

 

4. Thereafter, Defendant(s) breached the contract by failing and refusing to  make payments under th terms and conditions of the contract.

 

5. As set forth in the Affidavit of Plaintiff, attached hereto, there is due and owning form Defendant(s) to Plaintiff in the sum of $12,000.00, of which no part has been paid, although duly demanded.

 

WHEREFORE, Plaintiff ASSET ACCEPTANCE, LLC, demands a judgement against the Defendant(s) Spikey in the sum of $12,000.00 plus interest and court costs.

 

Signed by JDB Attorey

 

My answers to be filed today:

ASSET ACCEPTANCE, LLC.

Plaintiff,

v.

Spikey

Defendant

 

Answer

I, Spikey, Defendant, hereby enters an answer to Plaintiff's complaint.

 

The Defendant(s) say(s) that:

 

1. DENY. Pursuant to Collection Agency Act 225 ILCS 425/8b, Defendant has not been provided sufficient documentation validating the assignment.

 

2. DENT. Pursuant to 735 ILCS 5/2-602, Defendant has not been procided sufficient documentation of stated contract.

 

3. ADMIT

 

4. DENY. Pursuant to 735 ILCS 5/2-602, Defendant has not been procided sufficient documentation of stated contract.

 

5. DENY. This request calls for admission of matter defendant has denied and this is improper

 

Under penalities as provided by law.....etc.

 

Signed Spikey

 

Moving Forward:

1. I'm going to file my appearance and answer today. They're technically not due till the 20th but I have today off of work and it's impossible for me to make it to the courthouse to file documents otherwise. I'm also going to send the documents to the JDB's attorney by certified mail with return reciept.

 

2. I've been trying to read the civil code of procedue as well as try to find as much caselaw as I can to defend myself. I'm pretty apprehensive about the whole thing as trying to get up to speed on the law and court proceedures is very stressful. It doesn't help matters that this case is above the limit for Small Claims court.

 

3.The next court date is January 22, 2013, which is a status hearing.

 

4. I assume my next move is to prepare to file for discovery. I'm also considering filing to strike the JDB's Affadavit. The Affiant never worked for the OC and has no personal knowlege of the alleged debt beyond whatever the JDB has on file. I checked out their work history on Linkedin, they've worked for the JDB since 2011, before that they worked for a doctors office and something else unrealted.

 

5. Per other cases on this forum, I'm assuming I'll likely be seeing a MSJ from the JDB in the near future, unless I get lucky and they drop the suit.

 

Thank you for any advice in advance. I plan to keep this thread updated as things progress. Asset Acceptance as been filing la lot of cases in Illinois, so I'm sure there are others in the same boat as I am.

I think what you are referring to is 735 ILCS 5/2-606  (Section 2-606 of the Illinois Code of Civil Procedure, where there is no contract attached to the complaint, nor does the complaint states that no contract is available and explain its absence).

 

 IL collection agency act requires the collector to provide " consideration paid for the account".

 

225 ILCS 425/8b) (from Ch. 111, par. 2011b)

(Section scheduled to be repealed on January 1, 2016)

Sec. 8b. Assignment for collection. An account may be assigned to a collection agency for collection with title passing to the collection agency to enable collection of the account in the agency's name as assignee for the creditor provided:

(a) The assignment is manifested by a written agreement, separate from and in addition to any document intended for the purpose of listing a debt with a collection agency. The document manifesting the assignment shall specifically state and include:

(i) the effective date of the assignment; and

(ii) the consideration for the assignment.

(B) The consideration for the assignment may be paid or given either before or after the effective date of the assignment. The consideration may be contingent upon the settlement or outcome of litigation and if the claim being assigned has been listed with the collection agency as an account for collection, the consideration for assignment may be the same as the fee for collection.

© All assignments shall be voluntary and properly executed and acknowledged by the corporate authority or individual transferring title to the collection agency before any action can be taken in the name of the collection agency.

(d) No assignment shall be required by any agreement to list a debt with a collection agency as an account for collection.

(e) No litigation shall commence in the name of the licensee as plaintiff unless: (i) there is an assignment of the account that satisfies the requirements of this Section and (ii) the licensee is represented by a licensed attorney at law.

(f) If a collection agency takes assignments of accounts from 2 or more creditors against the same debtor and commences litigation against that debtor in a single action, in the name of the collection agency, then (i) the complaint must be stated in separate counts for each assignment and (ii) the debtor has an absolute right to have any count severed from the rest of the action.

 

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I just double checked the actual document and I did quote the wrong section in my answer. Can I amend my answer or am I stuck with what I filed?

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Request by motion , but  It's up to the judge to grant it, if he/she decides. Ask clerk if judge does rules on paper or a hearing is required . Make sure to notify your opponent.

 

I think most judges rule on this kind of motions on paper , but it's best to be sure.

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I suggest you read Daniel Edelman's articles just Google his name, web site has excellent techniques for dealing with JDB.

 

BTW, IL has 5 yrs SOL b/c credit card agreements are considered oral contract this was decided on 2009 (Portfolio acquisitions LLC vs Feltman )

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I was finally able to get input from the court on the issue of my answer since the court clerk was on vacation. What I was told to do is to file an amended answer, titled as Amended Answer. No filing fee since I already have an answer filed.

 

While I'm at it, I need to start discovery. For those that know the procedure, do I need to file a copy of my request for documents, interrogatories and admissions with the court? Or just send them to the Plaintiff? Or something else entirely?

 

My current "Requests to Produce" list is:

 

1. The alleged credit application from Account Numbers ### bearing the defendant’s signature;

2. Any signed charge slips establishing use of the Account Number ###, signed by the defendant;

3. The original written agreement in which defendant allegedly assented to the terms of the account;

4. All documents evidencing the exact date of the alleged default;

5. A complete and legible copy of the applicable Cardmember Agreement disclosed by the Plaintiff that states interest rate, grace period, terms of repayment, and all of the amendments that were made to that agreement;

6. A contract, agreement, assignment, or other means demonstrating that Asset Acceptance had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number ###;

7. Any canceled checks or copies of canceled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial;

8. Proof of mailing of monthly statements on the Account Number to the Defendant;

9. Evidence of any payment on the account, by the defendant;

10. A complete copy of both of the Credit Card Account Purchase Agreements and Forward Flow Agreements that are referenced in the Plaintiff's Complaint and "Affidavit of Account"

 

11. A list of all witnessed the Plaintiff plans to introduce at trial.

 

I could use some direction on what to ask for interrogatories and admissions since I have so little currently from the Plaintiff, I'm not sure what to ask yet.

 

Also, per 735 ILCS 5/2-615, I believe that the Plaintiff's complaint is defective per 735 ILCS 5/2-606 since no "contract" is attached or mention of why it wasn't made available with the complaint. Assuming I am reading this correctly, should I file a motion detailing the defect and requesting dismissal (with prejudice of course) of the case?

 

Thank you in advance

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Just to screw with them, I'd request copies of all credit card billing statements allegedly created by Bank of America for Account #************ including, but not limited to, the first billing statement issued when the alleged account was allegedly opened and the final billing statement issued on the alleged account.

 

Check your discovery rules, but most courts don't require discovery requests to be filed with the court.  You keep a copy for yourself and send another copy to the attorney for plaintifff.   In my state, we write up and include a "Certificate of Service" verifying that we mailed the requests by U.S. mail on whatever date.  I always sent mine by certified mail.

 

Also, see if your rules allow you to send requests at different times or if they must all  (Interrogatories, Request for Docs and Request for Admissions) be sent at the same time.  If they can be sent at different times, it's usually better to wait to send your admission requests after you receive their responses to your document requests.  That way, you can tailor your admissions to their responses based upon what they did and did not provide.

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Also, per 735 ILCS 5/2-615, I believe that the Plaintiff's complaint is defective per 735 ILCS 5/2-606 since no "contract" is attached or mention of why it wasn't made available with the complaint. Assuming I am reading this correctly, should I file a motion detailing the defect and requesting dismissal (with prejudice of course) of the case?

 

 

No, you'll never get a dismissal for this, it is a curable defect. All the court will do is order them to produce the contract. You could file a motion for a more definite statement and cite the rule, ask for the alleged contract. If they don't have it, maybe then you could get the case tossed.

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I'm going to amend my answer as follows (bold items are what I plan to change);

 

ASSET ACCEPTANCE, LLC.

Plaintiff,

v.

Spikey

Defendant

 

Amended Answer

I, Spikey, Defendant, hereby enters an answer to Plaintiff's complaint.

 

The Defendant(s) say(s) that:

 

1. DENY. Pursuant to Collection Agency Act 225 ILCS 425/8b, Defendant has not been provided sufficient documentation validating the assignment.

 

2. DENY. Pursuant to 735 ILCS 5/2-606, Defendant has not been procided sufficient documentation of stated contract.

 

3. ADMIT

 

4. DENY. Pursuant to 735 ILCS 5/2-606, Defendant has not been procided sufficient documentation of stated contract.

 

5. DENY. This request calls for admission of matter defendant has denied and thus is improper

 

Defenses

 

1. Plaintiff's pleading is legally insufficient per 735 ILCS 5/2-606 as no contract was attached to the Complaint.

 

2. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

Under penalities as provided by law.....etc.

 

Signed Spikey

 

 

Just to screw with them, I'd request copies of all credit card billing statements allegedly created by Bank of America for Account #************ including, but not limited to, the first billing statement issued when the alleged account was allegedly opened and the final billing statement issued on the alleged account.

 

Check your discovery rules, but most courts don't require discovery requests to be filed with the court.  You keep a copy for yourself and send another copy to the attorney for plaintifff.   In my state, we write up and include a "Certificate of Service" verifying that we mailed the requests by U.S. mail on whatever date.  I always sent mine by certified mail.

 

Also, see if your rules allow you to send requests at different times or if they must all  (Interrogatories, Request for Docs and Request for Admissions) be sent at the same time.  If they can be sent at different times, it's usually better to wait to send your admission requests after you receive their responses to your document requests.  That way, you can tailor your admissions to their responses based upon what they did and did not provide.

Okay, I've updated my "Requests to Produce" list now is:

 

Pursuant to 735 ILCS 5/2-1003 & IL SCR 214, Defendant hereby requests that the Plaintiff produce each and every document and item requested here below, no later than twenty-eight (28) days from the date of Defendant's mailing.
Dated January 4, 2013.

1. The alleged credit application from Account Numbers ### bearing the defendant’s signature;

2. Any signed charge slips establishing use of the Account Number ###, signed by the defendant;

3. The original written agreement in which defendant allegedly assented to the terms of the account;

4. All documents evidencing the exact date of the alleged default;

5. A complete and legible copy of the applicable Cardmember Agreement disclosed by the Plaintiff that states interest rate, grace period, terms of repayment, and all of the amendments that were made to that agreement;

6. A contract, agreement, assignment, or other means demonstrating that Asset Acceptance had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number ###;

7. Any canceled checks or copies of canceled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial;

8. Proof of mailing of monthly statements on the Account Number to the Defendant;

9. Evidence of any payment on the account, by the defendant;

10. A complete copy of both of the Credit Card Account Purchase Agreements and Forward Flow Agreements that are referenced in the Plaintiff's Complaint and "Affidavit of Account".

 

11. A list of all witnesses the Plaintiff plans to introduce at trial.

 

12. Copies of all credit card billing statements allegedly created by Bank of America for   Account #************ including, but not limited to, the first billing statement issued when the alleged account was allegedly opened and the final billing statement issued on the alleged account.


Any other suggestions? I'll need to sign this obviously.

 

After reviewing the discovery rules in the civil procedure and IL SCR 213, I don't see anything that would preclude sending multiple discovery requests. Also nothing regarding filing with the court.

 

No, you'll never get a dismissal for this, it is a curable defect. All the court will do is order them to produce the contract. You could file a motion for a more definite statement and cite the rule, ask for the alleged contract. If they don't have it, maybe then you could get the case tossed.

 

I had a feeling that would be the case, thanks Bruno.

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Also, per 735 ILCS 5/2-615, I believe that the Plaintiff's complaint is defective per 735 ILCS 5/2-606 since no "contract" is attached or mention of why it wasn't made available with the complaint. Assuming I am reading this correctly, should I file a motion detailing the defect and requesting dismissal (with prejudice of course) of the case?

 

There is an IL case in which a higher reversed the ruling of a lower court due to the improper pleading of the plaintiff.  The cause of action was breach of contract but the complaint did not include certain details.

 

"Therefore, here, plaintiff's unwritten-contract cause of action was not properly pleaded. While it might very well be true that the generic agreement attached to plaintiff's complaint accurately reflects the terms of their unwritten contract and that defendant accepted those terms when she used the card after the agreement was communicated to her, the complaint includes no allegations or documents reflecting as such. Indeed, plaintiff wants this court to instruct the trial court that "a cause of action sounding under breach of an unwritten contract does not prohibit a plaintiff from recovering pursuant to the terms and conditions which were mailed to a consumer without a written contract (emphasis added)"; however, it did not plead that the terms attached to the complaint were even mailed to defendant (let alone to defendant's last known billing address) or that she used the card thereafter."

 

The court reversed and remanded the case back to the lower court so the Plaintiff, if they chose to, could amend the complaint.   Whether or not you can use 735 ILCS 5/2-615 could depend upon what was stated in the complaint.

 

Here's the case:

 

Razor Capital v. ANTAAL

 

http://scholar.google.com/scholar_case?case=10444451316436443790&q=RAZOR+CAPITAL+v.+ANTAAL,+Ill&hl=en&as_sdt=4,14

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So, I filed my amended answer with the court clerk and send a copy (CMRR of course) of it along with my requests to produce to the Plaintiff's attorney on January 2nd. I have not received the return receipt as of yet. Considering it's been 12 days now, should I be concerned? And if so, what should I do? My next court date is the 22nd, so a week from tomorrow.

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Minor update: I got the return receipt back today. So I'm all good. 7 days till my next hearing.

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Update: Had the status hearing update today. The court was a zoo, huge docket from what I over-heard. Asset's attorney called me over after 45 minutes, looked over my answer and then told me that we needed to set a date for Arbitration. One thing that I overlooked was that the case was set for Mandatory Arbitration rather than a trial. The arbitration date is set for 06/11/13. Discovery to be completed by 5/11/13. All motions to be filed by 06/01/13. I didn't get to speak with the judge, he was covering 2 court rooms at the same time and was in the other court room.

 

So, I've already made a request to produce documents, Asset has approximately a week left to respond. I have no clue what to expect with an arbitration. Can someone point me in the right direction?

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