Jump to content

Atlantic Credit JDB Lawsuit Round 2


Recommended Posts

VICTORY! This second one ended with a dismissal with prejudice.

 

***********************************

 

Hello again.

 

Atlantic Credit and Finance has come back at me for round 2. They previously dismissed during the first case after my Motion for More Definite Statement was well taken. They previously sued with only an affidavit and a JDB generated statement.

 

This time they sued with the same affidavit but now 2 alleged statements from the OC attached. I already submitted a Motion for More Definite Statement as no contract was attached nor a true accounting the alleged debt they are seeking. This motion was not well taken. The judge that I have pretty much summarily denies all MMDS based on my research of all cases he had handled.

 

Now I have 14 days to submit my answer to the suit and will again pray for your help.

 

 

 

 

1. Who is the named plaintiff in the suit? Atlantic Credit and Finance

2. What is the name of the law firm handling the suit? Levy and Associates

3. How much are you being sued for? $10,000 ballpark

4. Who is the original creditor? GE Finance

5. How do you know you are being sued? Received complaint and confirmed on Clerk of Courts website

6. How were you served? USPS

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Previously sued by them and they dismissed so this is round 2. Previously sent a Debt Validation Letter and they sent 2 old statements.

9. What state and county do you live in? Ohio

10. When is the last time you paid on this account? 2010; Still within statute.

11. What is the SOL on the debt? 6 Years

12. What is the status of your case? Suit served? Motions filed? Motion for More Definite Statement denied (worked in first case); 14 days to submit answer

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) OC, yes; JDB, no

14. Did you request debt validation before the suit was filed? After first case was dismissed

15. How long do you have to respond to the suit? 14 days to submit answer

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? An affidavit attesting to the validity of the debt and 2 alleged statements

 

Link to comment
Share on other sites

Arbitration might be a possibility, especially considering this is a JDB, but considering the amount claimed, I'm not sure.   For that amount, the JDB might be willing to fight.  Linda7 is the resident arbitration expert.

 

Whatever you do, you need to get your answer in on time.  If you want to post the allegations and cause(s) of action, I'm sure you'll get suggestions for your responses.

Link to comment
Share on other sites

Maybe a motion to reconsider would work. Attach the memo of decision from the other judge. These motions usually are not reviewed by the judge who made the ruling. Judges don't like conflicting rulings in the same court. You may get on the wrong side of the judge by doing this, but who cares. Maybe he'd like  being overturned on appeal better.

  • Like 1
Link to comment
Share on other sites

Maybe a motion to reconsider would work. Attach the memo of decision from the other judge. These motions usually are not reviewed by the judge who made the ruling. Judges don't like conflicting rulings in the same court. You may get on the wrong side of the judge by doing this, but who cares. Maybe he'd like  being overturned on appeal better.

 

The OP stated that "They previously dismissed during the first case after my Motion for More Definite Statement was well taken."  I took that to mean the JDB dismissed the case.  That means the judge would not have made a ruling, correct?

  • Like 1
Link to comment
Share on other sites

The judge in the first case ruled that the motion for more definite statement was well taken stating:

 

"Althought this rule does not state what must be included in this account, Ohio case law gives guidance as to what a proper account should look like. Arthur v. Parenteau states:

 

"In an action on an account, a Plaintiff must set forth an actual copy of the recorded accont. The records must show the name of the party charged and must include the following: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due. Moreover, the account must be appended to the claimant's complaint."

 

102 Ohio App.3d 302, 657 N.E.2d 284 (1995)

 

In the case instanter, the Plaintiff did not attach the account to the complaint in accordance with the above requirements. The Court finds Defendant's motion to be well taken. Therefore, Defendant's Motion for a Definite Statement is GRANTED and Plaintiff will have fourteen days to respond to Defendant's Motion. All other motions and issues not specifically addressed by this order are herein denied.

 

Plaintiff’s attorney dismissed without prejudice after their time to respond expired and they were not able to meet above requirements.

 

Fast forward several months and Plaintiff’s attorney sue me again. The only difference is instead of attaching an in house Atlantic Credit and Finance statement, they attached copies of two statements which allegedly existed right at charge-off.

 

But those two attached statements do not appear to meet the requirements listed above…


Thoughts? Should I do a Motion to Reconsider citing above and attaching the old case as an Exhibit?

Link to comment
Share on other sites

New Complaint

 

  1. Defendant(s) resides in, and all activities rise to the claims stated herein occurred in XX County, Ohio. Plaintiff, Atlantic Credit and Finance Inc is the assignee of Defendant’s GE Money account, account #XXXXXXXX (“Account”)
  2. Defendant owes Plaintiff the sum of Ten Thousand Plus for money owed to Plaintiff via Defendant’s use of Account provided to Defendant.
  3. Defendant breached the Account’s agreement by failing to make payment on the Account as required.
  4. As a result of said breach, Defendant owes Plaintiff the sum of Ten Thousand Plus. A copy of a statement is attached hereto, and incorporated herein, as Exhibit “A”.
  5. Plaintiff, or its agents, has made demand on Defendant, but Defendant has failed to comply with such demand.
  6. Defendant(s) received benefit from said Account.
  7. Said Account was not conferred gratuitously, Defendant was expected to pay on said Account, and as a result Defendant(s) has been unjustly enriched, all in the sum of Ten Thousand Plus.

 

Wherefore, Plaintiff demands judgment against Defendant(s), jointly and severally if more than one, in the sum of Ten Thousand Plus, plus interest at 3% from day of default, costs expended herein, and all other proper relief.

Link to comment
Share on other sites

The only difference between complaint 1 and 2 is the wording of Paragraph 4. The first complaint stated:

 

"As a result of said breach, Defendant owes the Plaintiff the sum of Ten Thousand Plus. A copy of a statement created by Plaintiff, Atlantic Credit and Finance Inc, from the electronic records provided to it evidencing the sum owed by Defendant to Plaintiff is attached hereto and incorporated herein as Exhibit "A".

 

(Exbibit A was an Atlantic Credit and Finance created statement.)

 

The second complaint states:

 

"As a result of said breach, Defendant owes Plaintiff the sum of Ten Thousand Plus. A copy of a statement is attached hereto, and incorporated herein, as Exhibit “A”."

 

(Exhibit A is now a GE Money statement)

 

That is the ONLY change between suit 1 and suit 2 which does not seem to meet the burden imposed by the order from suit 1.

Link to comment
Share on other sites

" Citibank v.  Kovach," 157 Ohio Misc. 2d24. Ohio Court of Common Pleas, (2010), on paragraph #15, goes into more detail of what must be in a complaint to meet the requiremnts your judge cited in "Arthur v. Parenteau."

 

"Statements begin with a zeo balance, show itemized list of charges, payments and credits, the total balance, periodic finance charges, fees, minimum amount due and a payment due date."

 

Was the new Complaint you received as detailed as that?  I will note that here Kovach lost his appeal against Citibank, but nevertheless, the court did provide more detail on on the kind of financial documentation that is needed.

  • Like 1
Link to comment
Share on other sites

The judge denied your motion, so I'd think you need to get your answer in within the allotted time. 

 

The case law provided is great case law, but look at the highlighted phrase:

 

"In order to establish a prima facie case for money owed on an account, `"an account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due."'

 

Do the billing statements from GE show an ending balance that matches the claim in the complaint?  If so, it could be that because they provided GE statements instead of just their own company printout, the judge considered that to be enough to deny your motion.

 

What do the statements show exactly?

  • Like 1
Link to comment
Share on other sites

That's what I was thinking. I think that the problem in their first complaint was attaching a JDB generated statement which was cured in the second suit when they attached an OC generated statement.

 

The statement attached is the last statement before a charge off showing a total balance with a past due amount. Granted, it isn't a sum starting at $0 showing all charges, I don't think a motion to reconsider will work at this point.

 

As such, I believe my best course of action is to file an answer with limited admit for paragraph 1 and denials for the remainder.

Link to comment
Share on other sites

As such, I believe my best course of action is to file an answer with limited admit for paragraph 1 and denials for the remainder.

 

Admit in part and deny in part.

 

1.  Defendant(s) resides in, and all activities rise to the claims stated herein occurred in XX County, Ohio. Plaintiff, Atlantic Credit and Finance Inc is the assignee of Defendant’s GE Money account, account #XXXXXXXX (“Account”)

 

"all activities rise to the claims stated herein occurred in XX County, Ohio.".  That means that the "activities" that led to the claims occurred where you live.  You don't want to admit to any "activities". 

 

"Plaintiff, Atlantic Credit and Finance Inc is the assignee of Defendant’s GE Money account, account #XXXXXXXX (“Account”)".   They're claiming they own the account.  Don't admit to that.

 

I might state:

 

1.  Defendant admits in part and denies in part.  Defendant admits he/she resides in _______ County, OH.  Defendant denies the remainder of the claims in Plaintiff's allegation.

 

Something like that.

Link to comment
Share on other sites

In Citibank v. Perz, Ohio Appellate Court, Court of Appeals No. L-10-1033, Trial Court No. CVF 05-06847, the Court noted: “On February 15, 2006, appellee filed a motion for summary judgment on the outstanding account balances…In support of its motion, appellee attached the following documents: (1) the entire account history for each of appellant's credit cards (Exhibits A and B B)

 

In Citibank v. Lesnick, Court of Appeals, Eleventh Appellate District, Ohio, Case No. 2005-L-013, the Court stated: “In order to establish a prima facie case for money owed on an account, “[a]n account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum)……”

 

 

In Citibank v. Kovach, 157 Ohio Misc. 2d 24 - Ohio: Court of Common Pleas 2010, the Court stated: “The documentary evidence before the court includes copies of the following: monthly account statements for the account ending in number 9344, detailing account activity from March 2001 through July 2009; monthly account statements for the account ending in number 9271, detailing account activity from March 2001 through July 2009; the credit-card agreements for both accounts; proof that defendant made payments on the accounts…”

 

In Asset Acceptance Corp. v. Proctor, 2004 Ohio 623 - Ohio: Court of Appeals, 4th Appellate District, the Court stated: “In order to adequately plead and prove an account, "[a]n account must show the name of the party charged. It begins with a balance, preferably at zero, or with a sum recited that can qualify as an account stated, but at least the balance should be a provable sum.  (emphasis added) citing Brown v. Columbus Stamping & Mfg. Co., 9 Ohio App. 2d 123 - Ohio: Court of Appeals 1967.

Link to comment
Share on other sites

New question reference this... I am submitting my answer to their complaint on Monday as that is the due date to prevent a default hearing which the judge indicated would be held shortly thereafter should I fail to answer... Fat chance of that.

 

But as I prepare my answer, I am thinking of a possible counter claim to this. The only one I think I have is an FCRA violation if its even applicable. I would love your opinion. After the first suit was dismissed, I sent Plaintiff counsel a DV letter reference the debt disputing it... On my CR, it was never reported as disputed. What say you?

Link to comment
Share on other sites

If the account was already being reported before you disputed, they might not have to update it as disputed.  Some courts have ruled that they only have to report the debt as disputed if they receive your dispute before they start reporting the account to the CRAs.

 

You need to see how your courts have ruled.

Link to comment
Share on other sites

The FCRA is commonly used against credit reporting agencies. The law generally covers the people who give out the information, not those who receive it. It can also cover erroneous reporting. It's hard to prove.  Courts are split on whether there is even a private right of action. You're better off looking for FDCPA violations.

Link to comment
Share on other sites

The FCRA is commonly used against credit reporting agencies. The law generally covers the people who give out the information, not those who receive it. It can also cover erroneous reporting. It's hard to prove.  Courts are split on whether there is even a private right of action. You're better off looking for FDCPA violations.

 

Bruno, you know I rarely disagree with you, but the courts aren't split on a private right of action under certain parts of the FCRA because the FCRA specifies under which sections a consumer has a private right of action.  Violations of 15 USC 1682s-2(B) allows for a private right of action.  There's also case law to support it.

 

The above is also why we tell posters to dispute FIRST with the CRAs.  In order to have a private right of action under that section of the FCRA, the furnisher's (OC/CA/JDB) first notice of a dispute of an entry must come from the CRAs...not directly from the consumer.

 

I'm not saying that applies to this case.  I just wanted to point out the FCRA does specify that we have private rights of action, and it is easy to prove. 

 

You usually don't respond to credit report posts.  Since you can whomp me on procedures, it me makes me feel better that I knew something that perhaps you didn't know.  :)

Link to comment
Share on other sites

Bruno, you know I rarely disagree with you, but the courts aren't split on a private right of action under certain parts of the FCRA because the FCRA specifies under which sections a consumer has a private right of action.  Violations of 15 USC 1682s-2( B) allows for a private right of action.  There's also case law to support it.

 

The above is also why we tell posters to dispute FIRST with the CRAs.  In order to have a private right of action under that section of the FCRA, the furnisher's (OC/CA/JDB) first notice of a dispute of an entry must come from the CRAs...not directly from the consumer.

 

I'm not saying that applies to this case.  I just wanted to point out the FCRA does specify that we have private rights of action, and it is easy to prove. 

 

You usually don't respond to credit report posts.  Since you can whomp me on procedures, it me makes me feel better that I knew something that perhaps you didn't know.  :)

 

BV80 is right.   "Boggio v. USAA Federal Savings Bank," (6th Cir. 2012) discusses the elements of a FCRA claim for the OP's circuit.

Link to comment
Share on other sites

You are probably right, I'm trying to remember where I saw this. I think it was this statute, but I could be wrong. I'm pretty sure it was, and the issue was that although there is a private right of action as you correctly pointed out, there was an issue........let's see......okay, I think it was connected to the TYPE of violation and against whom it was filed. I believe it had to do with someone who wanted to sue a law office under this statute because they pulled a credit report improperly, but the court ruled that the suit could not go forward because the statute only provides that an action can be maintained against the person furnishing the information, not the person who receives it because the recipient is not doing any reporting. I think that is where the courts were divided. I seem to remember that it was the 9th circuit, it's been a while since I looked at it. You are correct, some of these stautory cases put me to sleep. I do remember this one, though. It's information overload for me, like trying to put five pounds of sausage into a three pound bag. I have two brains.......one is lost and the other one is out looking for it.

Link to comment
Share on other sites

Got Plaintiff's Discovery Requests, Interrogatories and Requests for Admissions. Help would be greatly appreciated in answering.

 

Request for Admissions

 

1.Admit that Defendant applied for a credit card and/or charge account with GE money, Account XXXXX.

 

2. Admit that you were issued a credit card/charge account by GE Money, account XXXXX.

 

3. Admit that you received monthly statements from GE Money indicating all of the charges you made on said account.

 

4. Admit that you charged items on the Account with GE Money, account XXXXX.

 

5. Admit that Defendant has never notified GE Money or Plaintiff of any dispute concerning the debits or credits to this Account.

 

6. Admit that Defendant is not entitled to any credits, offsets or deductions that have not already been granted by GE Money and Plaintiff.

 

7. Admit that Plaintiff is the owner of Defendant’s GE Money Account, account XXXXX.

 

8. Admit that you owe Plaintiff the sum of $XX,XXX.XX plus interest at the rate of 3% from Month, Day, Year on Defendant’s GE Money Account which is the subject of this action.

 

9. Admit that there are no documents, writings, letters, records or papers of any sort which Defendant intends to utilize as evidence of or as the basis for any defense in this action.

 

10. Admit that there are no facts upon which Defendant relies as a basis for any defense in this action.

 

11. Admit that every statement or allegation in Plaintiff’s Complaint is true and correct.

 

12. Admit that Atlantic Credit and Finance has complete authority to sue, collect, settle, adjust, compromise and satisfy the Account.

 

13. Admit that the balance herein sued for is due and owing by Defendant to Plaintiff and that you have made no payments to either Plaintiff or GE Money to be applied against the balance on credit card/charge account XXXXX since Day, Month, Year.

Link to comment
Share on other sites

Plaintiff’s Request for Production of Documents

 

1.  Produce and permit Plaintiff to inspect and copy all statements, written records, or other documents that Defendant received from Plaintiff and/or GE Money.

 

2. Produce and permit Plaintiff to inspect any and all documents, ledgers, checks, and check registers, that would indicate any payments made by Defendant to Plaintiff.

 

3. Produce and permit Plaintiff to inspect and copy any and all statements, written records, or other documents, that Defendant intends to introduce as evidence at the trial of this matter.

 

4. Produce and permit Plaintiff to inspect and copy any and all statements, written records, correspondence, or other documents, from Defendant to Plaintiff in reference to the accounts, which are the subject of this action.

 

5. Please produce all documents that Defendant intends to use at trial.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.