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Statute of Limit. (Calif.) passed...Next Step?


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I posted about this in another thread, but that thread got hijacked by someone and I didn't get the answers I wanted.

I need to know what exactly to do next because the debt is time barred. I'm in California. I've also been told something about a big violation on the part of the plaintiff, but I'm unsure about this.

Here is a quick summary of my situation:
- A summons was filed with the court against me on 11/30/2012
- I replied with General Denial, BOP on 12/20/2012
- MTP was filed with the court on 01/14/2013 (BOP not received at this point)
- BOP arrived late AFTER I submitted my MTP
- There has been no judgement against me.

It turns out the statute of limitations on my debt has already elapsed because the last payment I made to the credit card company was on 10/10/2008, which means the statute of limitations expired on/around 10/10/2012 (more than a month before the summons was filed with the court).

I need to know what exactly to do next because the debt is time barred. I'm in California. I've also been told something about a big violation on the part of the plaintiff, but I'm unsure about this.

Thank you in advance for everyones help especially Seadragon. I think with just a little more effort I will be able to get through this.

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I don't have an answer that I feel 100% about but I'm sure someone else will come along to give better advice. Might need to do a Motion to Dismiss??

 

I wonder if you just gave them a call and flat out told them the situation and that you will file a MTD based on the grounds that the debt is time barred. They might just dismiss the case then on their own without getting the court involved.

 

Yes there is a FDCPA violation if it is time barred and looks like $1000.00 slap on the wrist, but someone else that knows the ins and outs will have to give you advice on that.

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I know nothing about CA procedure, but I'd see if there's a way to amend my answer to include a counterclaim for the FDCPA violation of filing a lawsuit on a time-barred debt.  They would probably want to dismiss at that point.  They might even be stupid enough to say that they'll drop their suit if you drop yours.  But the point is that they committed a violation.

 

1692e(2).

 

(2) The false representation of— (A) the character, amount, or legal status of any debt;

 

You should also check to see if they violated the Rosenthal Act.

 

Here's a case in which the 9th Circuit Court of Appeals affirmed a lower court's ruling that a collection law firm had violated the FDCPA by filing suit on a time-barred debt.  Why the Plaintiff didn't go after the JDB, as well, I don't know.

 

http://scholar.google.com/scholar_case?case=16771198243543575615&q=McCollough+v.+Johnson,+Rodenburg&hl=en&as_sdt=4,114,129,321,322,323,324

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First Step.

Motion to Dismiss Time Barred Complaint with Memorandum of Points and Authorities.

 

Second Step.

FDCPA lawsuit for violations 

 

Template:

 

Defendants Name

 Defendants Address

Anywhere, OR 97099

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

IN AND FOR THE COUNTY OF MULTNOMAH

 

ASSET ACCEPTANCE LLC,

                        Plaintiff,

            vs.

Joe Debtor

                        Defendant, Pro Se

)

)

)

)

)

)

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)

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Case No.: 999999

 

MOTION TO DISMISS IN LIEU OF ANSWER

FOR TIME-BARRED COMPLAINT AND

AWARD OF SANCTIONS FOR EXPENSES WITH MEMORANDUM OF POINTS

AND AUTHORITIES

 

CH 595, SEC 15 (1) ( B)

$10,921.56

 

 

MOTION TO DISMISS IN LIEU OF ANSWER FOR TIME-BARRED COMPLAINT

AND FOR AWARD OF SANCTIONS FOR EXPENSES

 

 

Now comes the Defendant, Joe Debtory, PRO SE, who moves this honorable Court for and order dismissing Plaintiff's time-barred Complaint with Prejudice, in Lieu of Answer, without leave.  The basis for the above captioned motion pursuant to Oregon Rule for Civil Procedure Rule 21A (4) and ORCP Rule 21A (8).

 

Defendant moves the court for an order dismissing all Counts of Plaintiff’s complaint, and the associated relief requested in Plaintiff’s Prayer for Judgment, Interest, Costs, Attorney Fees and Disbursements. Defendants following well grounded facts support motion:

 

 

  1. Plaintiff has not offered proof that complaint is other than time-barred under Oregon Title 2 Chapter 12, (statute of limitations for open accounts is 6 years). Commencement of action date June 29th, 2005 per ORS 12.010. Per the Plaintiff’s own summons,  date  of last payment was Dec 7th, 2005. Date of summons was Mar 7th, 2012.

 

  1. Plaintiff has not presented proof or has failed to state ultimate facts sufficient to constitute a claim either because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim as per Fed. R. Civ. P. 12( B)(1)[1] lack of subject matter jurisdiction or Rule 12( B)(6) failure to state a claim upon which  relief can be granted.

 

 

 

  1. Plaintiff has deficiency in their proof of standing excluding any right to sue, and further precluding subject matter jurisdiction the Oregon Circuit Court of Multnomah County in which the suit is filed.

 

  1. Plaintiff has failed to provide proof of any credit card agreement or evidence that it was offered, delivered, or that it's enforceable in order to prevail on any breach of contract or account stated. Plaintiff is deficient in proof of valid contract between parties of this immediate action.

 

  1. No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of the purported agreement, or that any transfer of title, or rights to the Original Creditors Claims, or ability to take action, are evident and remain unsubstantiated.

 

  1. Plaintiff is deficient in proof that they are the real party of interest. Rule 26A of the Oregon Rules of Civil Procedure requires that every action be prosecuted in the name of the real party in interest and that, relevant substantive law creating the right being sued upon, the suit has been commenced by the party holding the substantive right to relief. 

 

 

  1. False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Asset Acceptance LLC, to initiate time-barred suit on a debt it knew should or should have known was barred by the statute of limitations, constituting a false representation regarding the character or legal status of the debt and a false representation or deceptive means to collect a debt allege violations of 15 U.S.C. §1692(e)(2)(A)

 

 

WHERFORE, Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.  Defendant respectfully moves that the Court grant Defendant's Motion to Dismiss with prejudice in its entirety and allow sanctions for expenses incurred in making this motion.

 

///

 

///

 

///

 

 Dated this 8th day of March, 2012

 

 

 

 

 

Defendants Name

 Defendants Address

Anywhere, OR 97099

Phone Number

 

[1] Under a Fed. R. Civ. P. 12( B) (1) challenge to subject matter jurisdiction, “no presumptive truthfulness attaches to plaintiff’s allegations” —“the trial court’s jurisdiction is at issue,” and plaintiff has the burden of proof.

Mortenson v. First Federal Savings and Loan a$$’n, 549 F.2d 884, 891 (3d Cir.1977); see Anjelino v. The New York Times Co., 200 F.3d 73, 87 (3d Cir. 1999).

 

Memorandum:

 

 

 

 Address Here

City, State Here, Zip

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

IN AND FOR THE COUNTY OF MULTNOMAH

 

ASSET ACCEPTANCE LLC,

                        Plaintiff,

            vs.

Joe Defendant,

                        Defendant, Pro Se

)

)

)

)

)

)

)

)

)

)

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Case No.: 9999999999

 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

 

MOTION TO DISMISS IN LIEU OF ANSWER

FOR TIME-BARRED COMPLAINT AND

AWARD OF SANCTIONS FOR EXPENSES

 

CH 595, SEC 15 (1) ( B)

$10,871.56

 

 

 

 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

MOTION TO DISMISS IN LIEU OF ANSWER FOR TIME-BARRED COMPLAINT

AND FOR AWARD OF SANCTIONS FOR EXPENSES

 

I. Introduction

 

In support of this motion, Defendant relies on ORCP Rule 21A (4) and ORCP Rule 21A (8) and the declaration of Defendant filed herewith, and the following points and authorities:

 

Defendant, Joe M Defendant, Pro Se, moves the Court to dismiss this action because the Complaint fails to state a claim against Defendant upon which relief can be granted. Defense presents questions of law and well grounded facts that are common to this action. Despite Defendants best attempts, Plaintiff has willfully and intentionally ignored Oregon Rules 21A (4) and Rule 21A (8) concerning dismissal of knowingly filing time-barred Complaint. ORS 12.090.

 

II. Discussion

 

A. Background Facts

Asset Acceptance LLC is a Purchasing Plaintiff that has alleged ownership of a large pool of un-authenticated documents containing records of allegedly defaulted credit card contractual obligations, Robo-Signed for transfer of title, and claimed to have been purchased from Citibank, Inc., a Delaware Corporation.  Citibank, Inc is an Original Creditor operating under laws for the State of Delaware.  Citibank, Inc purportedly charged off such financial obligations for tax purposes and/or insurance settlements and has sold large quantities of high volume packaged lists of credit card debts, called "assignments", for pennies on the dollar to bad debt buyers such as Asset Acceptance LLC. No records of brokers, interim ownership, agents, or other claimed title owners have been identified. Plaintiff (Asset Acceptance LLC), trustee, contends they are now the owners for the assignment of title for the credit card account included in this instant action.  Proactive collection of thousands of these credit card accounts, from this pooled purchase, will be taken individually within the Court System, of local jurisdictions, for alleged financial obligations of each individual line item in the purchased assignment.  Defendants' time-barred charged off time-barred account allegedly is in this inclusion of account numbers and has been notified as of March 7th, 2012 of pending legal action to collect an unsubstantiated debt.

 

B. Dismissal Standard and Motion to File Reply

Council for Plaintiff has filed an unsigned Certified true copy of an advance Complaint/Notification of a pending 6 paragraph multiple allegation instant action with the Circuit Court of the State of Oregon for the County of Columbia preying for judgment and relief by which it's unfounded allegations should be granted. The complaint should be liberally construed in favor of the Defendant and its factual obligations should be taken as negative.

Defendant objects to all paragraphs and allegations in the Plaintiff's Complaint.  Defendant is filing this Motion to Dismiss with Prejudice in Lieu of Answer in compliance with Oregon Revised Statute 34.170. Defendant requests sanctions for the expenses incurred in preparation and filing of this motion to dismiss this time-barred complaint. ORS 12.090. Defendant also requests preservation of the right to file a 12( B) (6) motion for failure to state a claim upon which relief can be granted at some later date.

.. 

C. Analysis

 

1. The Complaint Fails To Establish The Existence Of A Contract

 

If this is a complaint for breach of contract, it should be dismissed for the following reasons:

 

A.     No contract is attached to the complaint, nor does the complaint state that no contract is available and explains its absence.

B.    The complaint alleges that plaintiff “purchased” the “account,” but no assignment or bill of sale is attached, nor is there any explanation for its absence.

C.    Instead of account agreements and assignments, plaintiff attaches a meaningless affidavit purporting to state that the defendant owes a sum of money.  The affiant is identified under the title “Media Supervisor.”

D.    Plaintiff has no application, agreement, or transactional documents bearing the defendant’s signature, and alleges no facts in support of the alleged agreement.  In fact, plaintiff’s complaint is devoid of anything manifesting the defendant’s actual agreement to any terms or amount due related to this alleged account. [if applicable: The purported contract attached to the complaint is generic boilerplate with no apparent connection to the defendant or the plaintiff.]

 

E.     In order to comply with The Truth in Lending Act (TILA), 15 U.S.C. § 1642, the original lender must have a signed request or application, or in absence of such writing, there must be a record detailing the date and circumstances of the request or application for credit.  15 U.S.C. § 1642.  The plaintiff’s complaint includes none of these requirements.

F.     Further, under federal law, “in any action by a card issuer to enforce liability for the use of a credit card, the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a) of this section, have been met.”  15 U.S.C. §§ 1643( B).      

G.    The unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action. Pollack v. Marathon Oil Co., 34 Ill. App.3d 861, 341 N.E.2d 101 (5th Dist. 1976).  Here, plaintiff alleges no facts supporting a claim for breach of contract, and therefore, the complaint should be dismissed.

     2. The Complaint Does Not Allege the Elements of Account Stated

 

If this is a complaint for account stated, it should be dismissed for the following reasons:

 

A.     A cause of action for an “account stated” must allege four elements:

            (a) transactions of a monetary character involving the parties to the action;

            ( B) the existence of accounts embodying such monetary transaction;

            © an agreement by the parties to such transactions that all items of such       accounts are true and that the balance is correct; and

            (d) a promise to pay such balance.  Canadian Ace Brewing Co. v. Swiftsure Beer     Serv. Co., 17 Ill.App.2d 54, 149 N.E.2d 447 (1st Dist. 1958); O’Neill v. Reamon,            335 Ill.App. 327, 81 N.E.2d 749 (2nd Dist. 1948).

B.    Plaintiff does not allege that it contacted the defendant at any time in regards to this purported debt, or that any agreement was reached as to the balance allegedly due.  Instead, plaintiff merely makes the conclusory allegation that the defendant is “in default” and an amount is allegedly due. 

C.    Plaintiff has failed to plead:

(a)   that there was any agreement between the parties regarding accounts representing previous transactions;

( B)   that there was an agreement that the items in an account were true;

©   that there was an agreement that the balance struck was correct; and

(d)   that there was a promise to pay such balance.  

D.    “In an action for an account stated the complaint should allege all the material facts on which the liability of the defendant depends.” ORS 72.7250. See Moorman Manufacturing Co. of California, Inc. v. Hall, 830 P. 2d 606 - Or: Court of Appeals 1992, W.E. Erickson Construction Inc. v. Congress-Kenilworth Corp.,  132 Ill. App.3d 260, 268, 477 N.E.2d 513, 519 (1st Dist. 1985); and see Allied Wire Products, Inc. v. Marketing Techniques, Inc., 99 Ill. App.3d 29, 40, 424 N.E.2d 1288, 1296 (1st Dist. 1981). .  

E.     Just as the unsupported statement that “a contract existed between plaintiff and defendant” fails to properly allege a contract cause of action, the bare allegation that an account is in default with a balance due does not adequately plead an account stated claim.  “An account stated is an agreement between parties who have had previous transactions of a monetary character that all the items of the accounts representing such transactions are true and that the balance struck is correct, together with a promise, express or implied, for payment of such balance.”  LaGrange Metal Products v. Pettibone Mulliken Corp., 106 Ill. App.3d 1046, 1053, 436 N.E.2d 645, 651 (1st Dist. 1983) (“The meeting of the parties’ minds upon the correctness of an account is usually the result of one party rendering a statement of account and the other party acquiescing thereto.”); See Palisades Collection LLC v. Haque, NYS (Queens County Civil Court, April 14, 2006). Here, there have been no previous transactions between plaintiff and defendant, and no subsequent agreement as to the correctness of the account.  

F.     For the foregoing reasons, the complaint fails to state a cause of action for account stated.  The complaint is therefore deficient at law and should be dismissed.

 

     3. Plaintiff’s Affidavit Is Incompetent

 

Finally, the affidavit upon which the complaint relies is utterly incompetent and legally insufficient and should be stricken and disregarded for the following reasons:

 

  1. 1Plaintiff’s complaint relies exclusively on an affidavit executed by employee KK, referred to as a “Media Supervisor” of Debt Buyer Partners.  The affidavit claims that as such, “she is authorized to make statements and representations herein.” Plaintiff Exhibit 1,  1.  However, the affidavit does not establish the affiant’s familiarity with the original source of information as to the alleged existence of the account and the amount allegedly due, nor does it establish her knowledge regarding the manner or methods of the plaintiff’s business dealings.  It does not attempt to, and as demonstrated below, cannot authenticate any documents upon which the conclusory statements are based.  The affiant is therefore entirely incompetent to testify as to the information contained in the affidavit, including any alleged amount due from the defendant.  Outboard Marine Corp. v. Liberty Mutual Ins. Co., 154 Ill.2d 90, 132, 607 N.E.2d 1204, 1223 (1992).

 

  1. ORS 40.315 Rule 602 requires that affidavits shall be “made from personal knowledge of the affiant; shall set forth with particularity the facts upon which the claim, counterclaim, or defense is based; shall have attached thereto sworn or certified copies of all papers upon which the affiant relies; and shall affirmatively show that the affiant, if sworn as a witness, can testify competently thereto.”  Outboard Marine Corp. v. Liberty Mutual Ins. Co., supra.  
  2. The affiant must have personal knowledge of the facts supporting the amount of the claim, i.e., how the original creditor’s business records were created and maintained, the entire account history, and how the claimed balance was calculated as to principal and interest.   Apa v. National Bank of Commerce, 374 Ill.App.3d 1082, 872 N.E.2d 490 (1st Dist. 2007).
  3. Plaintiff’s affidavit does not attach or suggest that plaintiff possess the business records of its assignor, nor could plaintiff’s employee competently testify as to the authenticity, accuracy or completeness of such business records of plaintiff’s assignor, if they did in fact exist.  Plaintiff’s affidavit is therefore utterly incompetent and insufficient. Apa, supra;  Cole Taylor Bank v. Corrigan,  230 Ill. App.3d 122, 595 N.E.2d 177, 181 (2nd Dist. 1992); Champaign Nat’l Bank v. Babcock, 273 Ill. App.3d 292, 298,  652 N.E.2d 848 (4th Dist. 1995) (affidavit allowed where affiant was personally familiar with band’s loan files, ledgers and records, and affidavit itemized payments made, interest charges, and principal balances from the date of inception); See also, In re Vee Vinhnee, 2005 WL 3609376 (BAP 9th Cir. 2005) (normal evidentiary foundation must be established for admission of business computer records, including familiarity with the way records are maintained, recognizing that computer records are not necessarily or automatically accurate);  C & W Asset Acquisition, LLC v. Somogyi, 136 S.W.3d 134, 139 (So. Dist. 2004) (records submitted by assignee of credit card company were inadmissible as business records because custodian of assignee served only as conduit in the flow of records, and was unable to attest to the identity and mode of preparation of records originally created by credit card company);  Citibank v. Martin, 807 N.Y.S.2d 284 (2005) (“affidavit must demonstrate personal knowledge of essential facts or the judgment will be assailable, even if the defendant defaults,” and must show principal balances and additional charges from the date of inception).Palisades Collection, LLC v. Gonzalez, surpa.
  4. Testimony, whether live or in the form of an affidavit, to the effect that the witness has reviewed a loan file and that the loan file shows that the debtor is in default is hearsay and incompetent.  Instead the actual records must be introduced after a proper foundation is provided.  Apa, supra;  Pell v. Victor J. Andrew High School, 123 Ill. App.3d 423, 462 N.E.2d 858, 866 (1st Dist. 2984) (letter from corporation A to corporation B is hearsay, and is thereby inadmissible as a business record of  corporation B, stating that “just because a document is retained in the files of a business does not qualify it as a business record if it was not generated by the business”);  Benford v. Chicago Transit Authority, 9 Ill. App.3d 875, 877-878 (1st Dist. 1973); Cole Taylor Bank v. Corrigan, supra;  Champaign Nat’l Bank v. Babcock, supra; C & W Asset Acquisition, supra; LLC v. Somogyl, supra.  It is the business records that constitute the evidence, not the testimony of the witness referring to them.  See In re A.B., 308 Ill.App.3d 227, 719, 719 N.E.2d 348 (2nd Dist. 1999).
  5. The court must disregard unsupported, conclusory statements in an affidavit.  Estate of Blakely v. Federal Kemper Life Assurance Co., 267 Ill. App.3d 100, 105, 640 N.E.2d 961, 965 (2nd Dist. 1994), appeal denied, 159 Ill.2d 566, 647 N.E.2d 1008 (1995) (a court will disregard all conclusions in an affidavit).
  6. Because the sole basis of plaintiff's claim, including the balance allegedly due and interesting rate acruint, is an inadmissible affidavit, the affidavit should be stricken in its entirety.

 

 

III. Conclusion

 

Therefore, Plaintiff has not established a claim for either breach of contract or for an account stated, and this time-barred complaint should thereby be dismissed with prejudice.

 

WHEREFORE, Defendant prays that this Honorable Count strike all Plaintiff's affidavits, bill of sale, assignments, credit card agreements, and all account statements in entirety and dismiss Plaintiffs Complaint with Prejudice and award sanctions.

 

 

 

 

 

 

 

 

 

Dated this 11th day of  July, 2012

 

 

 

 

Defendant Name Here

 Address Here

City, State Here, Zip

Phone Number

 
 
Recommend you look up California & 9th District Case Law
 
You'll need proof of service and notary etc.
 
HP
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  • 4 weeks later...

Unless you are prepared to authenticate the statement showing the last payment and filing a declaration stating that this is your account and that was the last payment, I might go another route.  Why not send one RFA:  Admit that the last payment made to ____[OC] on account ____ was made on ______.  And then one interrogatory:

 

1.   "If your response to RFA # ___ was anything other than an unequivocal admission, please state the date upon which you contend the last payment on  account ____was made.

 

And one RFP:

 

2.  If your response to RFA # ___ was anything other than an unequivocal admission, please produce all documents reflecting the date upon which you contend the last payment on  account ____ was made.

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