matt-in-oregon

Received Summons in Oregon - Capital One / Johnson Mark LLC - Help with Defenses

Recommended Posts

Hello. I'm new here... and I'm new to beating JDB's.


I received a Summons that has started much research
and ultimately led me to this website via Google.

The people on this website are obviously VERY knowledgeable.

HELP!

I want to beat these guys.

HERE ARE THE FACTS:


1. Who is the named plaintiff in the suit?

CAPITAL ONE BANK (USA), N.A.

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

JOHNSON MARK LLC

3. How much are you being sued for?

About $21,000

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

CAPITAL ONE BANK (USA), N.A.

5. How do you know you are being sued?

Process server at the door.

6. How were you served?

To my wife.

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?

None! They just came after me.

Although earlier I did get a letter from a debt collector DOUGLAS REAM
and sent him a DEBT VALIDATION letter. Then United Recovery Systems
mailed me the statements.

 

Now JOHNSON MARK is coming for me?
I don't know what's going on. Crazy.

9. What state and county do you live in?

Oregon

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

December 2012

11. What is the SOL on the debt? To find out:

We're in the SOL

12. What is the status of your case?

I need to "appear" and defend the Complaint by this FRIDAY.

I need to submit paperwork THIS Friday.

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.

YES

For this Credit Card I did get a letter from a debt collector DOUGLAS REAM
and send him a DEBT VALIDATION letter. Then United Recovery Systems
mailed me the statements. (Weird)

Then... "WHAM" I got the summons below from JOHNSON MARK (I typed it out)

15. How long do you have to respond to the suit?

This FRIDAY.

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

NOTHING is attached.

##########

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF EL GUAPO

CAPITAL ONE BANK (USA), N.A.

    Plaintiff,

    v.

ME,

    Defendant


Case No. 13XXXXXX


COMPLAINT
(Breach of Contract)
Claimed Amount $21XXX.XX
SUBJECT TO MANDATORY
ARBITRATION



Plaintiff asserts the following claims for relief against Defendant:

1.

Jurisdiction and venue are proper. Plaintiff is a lawfully organized business engaged in interstate commerce. Defendant resided in the county in which this action has been filed.

FIRST CLAIM FOR RELIEF
(Breach of Contract)

2.

Defendant is indebted to Plaintiff for credit extended to Defendant, Under the terms of the agreement between the Plaintiff and Defendant, Defendant acquired merchandise, services, and/or cash advances through the credit provided by the Plaintiff in conjunction with the credit account ending in XXXXXXXXXXXX4489. The Plaintiff performed its obligations to Defendant by providing the credit as agreed.

3.

The Plaintiff mailed statements to Defendant, showing all charges, credits, payments, fees and finance charges incurred during each preceding month while Defendant credit account (“Account”) was open. Defendant did not object or otherwise dispute said statements within the time prescribed by 15 U.S.C. § 1666. The Plaintiff and Defendant thereby established a stated balance of Defendant’s Account.

4.

Defendant agreed to make payments on the Account. Defendant breached the agreement with the Plaintiff by failing to make all payments as agreed. Such breach of agreement caused the Plaintiff to suffer damages in the amount of $21902.19 less any payment made. Upon default by Defendant, the Plaintiff requested full payment of the Account balance.

5.

Further, more than twenty days before filing this action, written demand was made on Defendant for payment of all sums due, but the balance remains unpaid.

SECOND CLAIM FOR RELIEF
(Quantum Meruit)

6.

IN THE ALTERNATIVE, Plaintiff pleads a claim of Quantum Meruit. Plaintiff incorporates into this claim paragraph 1. Principles of equity also require Defendant to pay for the benefit conferred on Defendant by the Plaintiff’s extension of credit. Defendant was fully aware of the benefit received. Under the circumstances, it would be unjust to allow Defendant to retain the benefit without requiring Defendant to pay the value thereof.

WHEREFORE, Plaintiff  prays for judgment against Defendant for the following amounts:
 * The Account balance of $21XXX.XX less any payments made.
 * Court costs.
 * Any other relief the Court deems just and equitable.

DATE: February 4, 2013

        
JOHNSON MARK LLC

----------------
Attorney Name and OSB#



##########


1st Question:

Is Capital One really the plaintiff OR is it Johnson Mark LLC?

The "Plaintiff" says Capital One Bank (USA), N.A. and Johnson Mark LLC
is the Attorney. But Johnson Mark LLC is a DEBT BUYER!

If Johnson Mark LLC is LYING, this is a major FDCPA violation I can
sue them for in Federal Court right?

The reason I know they're a "Junk Debt Buyer" (JDB) is
because I "Googled" them and that's what came up.

Plus, the cover letter of the COMPLAINT says:

"This communication is from a debt collector. If you wish to resolve
this matter please call Johnson Mark toll-free at blah, blah, blah."


2nd Question:

It would seem that my response should deny all knowledge of the debt,
AND state that I have NO CONTRACT with Capital One / Johnson?


3rd Question:

What should I state for affirmative defenses?



Thanks in advance. :)%
 

Share this post


Link to post
Share on other sites

It looks like the original creditor is the plaintiff.


"Although earlier I did get a letter from a debt collector DOUGLAS REAM
and sent him a DEBT VALIDATION letter. Then United Recovery Systems
mailed me the statements.

 

Now JOHNSON MARK is coming for me?"

 

Often times the OC will have a collection co send out a debt notice, and then if they don't collect, send it to an attorney to file suit.  I would call the OC and ask them if they own the debt, or look on your credit report and see if it lists it as sold, or just closed/ charged off.

 

It is harder to fight original creditors, but it can be done.  Did you get your summons a while back? usually they give you 20-30 days to answer, but I don't know Oregon's rules of civil procedure.  You need to start there.  Johnson LLC may be  a debt collector, but it doesn't mean he owns the debt, he just may be the lawyer for them in your state. 

 

read your rules, do a general denial for now, just to answer the suit, then read read read.  You may be able to request a BOP like in California for breach of contract, or you may have to go through discovery process.  Also look up the credit agreement online (search) and see if cap 1 has an arbitration clause, that might be worth investigating, search for linda 7's arb thread.  sorry I'm not of more help.

Share this post


Link to post
Share on other sites

Thanks shellieh98,

 

Yes, I checked my credit report and the

account has been charged off/is in collections

 

I filed a "Motion for Enlargement of Time" 3

weeks ago and now it's time for me to answer.

(Friday)

Share this post


Link to post
Share on other sites

Here is a Cookie Cutter Answer to Mark Johnson's canned complaint they use for everybody. Modify it to fit your situation. Many would argue the use of case law in your answer but I don't see where it matters. It's going to mandatory arbitration anyway and you will have to do it all over when you appeal to real Court. 

 

 

Huey Pilot

Your Address

Your City, St, Zip

 

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

IN AND FOR THE COUNTY OF COLUMBIA

 

Midland Funding LLC

A foreign corporation,

                        Plaintiff,

            vs.

Huey Pilot,

                        Defendant

)

)

)

)

)

)

)

)

)

)

Case No.: CxxxxxxxCV

 

ANSWER, AFFIRMATIVE DEFENSES

 

 

CH 595, SEC 15 (1) ( B)

Claim in Amount of $ 10,000.00

 

DEFENDANTS ANSWER TO COMPLAINT WITH AFFIRMATIVE DEFENSES

 

Now comes Defendant, Huey Pilot, Pro Se, who except as otherwise admitted or qualified herein, Defendant denies each and every allegation in the Complaint and puts Plaintiff to its strictest proof thereof. Defendant notes that this denial is due, among other things, to multiple allegations within a single paragraph of the Complaint:

I.  Defendant alleges:

1.

Jurisdiction and venue are proper. Plaintiff is a lawfully organized business engaged in interstate commerce. Defendant resides in the county in which this action has been filed.

 

ANS: Admit in part Deny in Part: Defendant admits that he/she resides in Washington

 

County, Oregon. Defendant further avers he/she lacks information to form a belief to the truth

 

or falsity of Paragraph 1 as to the structure of Plaintiff's business, its legal status, commercial

 

relationships with third parties, or of any rights of its foreign limited liability status to do

 

business in the State of Oregon or registration status with the Oregon Secretary of State and

 

therefore Denies..

 

 

 

Denial of First Claim for Relief (No Contract no Breach)

 

2.

Defendant was indebted to Citi(sic) (herein after 'Original Creditor') for credit extended to Defendant, Defendant acquired merchandise, services, and/or cash advances through the credit provided by the original Creditor in conjunction in the credit account ending in XXXX. The Original Creditor performed its obligations to Defendant by providing the credit as agreed.

 

ANS: Deny The alleged "original creditor" is a third party to this instant action and

Defendant lacks sufficient information about the accuracy of this information to form a belief as

 

to the  truth or falsity of Paragraph 2.  Defendant denies receiving or using any such credit

 

account, and that Defendant has no reasonable basis for anything other than a general denial.

 

Plaintiff is allegedly the assignee of the Original Creditor and therefore has no standing further

 

no reasonable basis exists for anything other than a general denial.

 

 

3.

The Original Creditor mailed statements to Defendant, showing all charges, credits, payments, fees, and finance chargers incurred during each preceding month while Defendant credit account ("Account") was open. Defendant did not object or otherwise dispute said statements within the time prescribed by 15 U.S.C. 1666. The Original Creditor and Defendant thereby established a stated balance of Defendant's Account.

 

ANS: Deny Defendant denies the allegations contained in Paragraph 3 as there is not nor has 

 

there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.  No 

 

debt validation from Original Creditor, or any of the alleged assignee(s), pursuant to

 

the FDCPA Act (§ 803.4) was supplied  with summons.  Plaintiff's protracted claims to

 

ownership, by assignment, have no standing for the allegedly defaulted debt and Defendant

 

owes not one penny to Plaintiff.

 

 

 

 

 

 

 

4.

 

Defendant agreed to make payments on the Account. Defendant breached the agreement with the Original Creditor by failing to make all payments as agreed. Such breach of agreement caused the Original Creditor to suffer damages in the amount of $XXXXX.XX less any payment made. Upon default by Defendant, the Original Creditor requested full payment of the Account balance.

 

ANS: Deny Defendant denies the allegations contained in Paragraph 4 as there is not nor has 

 

there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.

 

Allegation is compounded and materially deceptive. Any damages caused Plaintiff are self

 

inflicted and meritless therefore Defendant must deny.

 

5.

Further, more than twenty days before filing this action, written, demand was made on Defendant for payment of all sums due, but the balance remains unpaid. 

 

ANS: Deny Defendant denies the allegations contained in Paragraph 5. No debt validation from Original Creditor, or any of the alleged assignee(s), pursuant to the FDCPA Act (§ 803.4) was supplied previously or with summons.  Any alleged demands or claims for balance or sums due are unfounded. Plaintiff's protracted claims to ownership, by assignment, have no standing for the allegedly defaulted debt. Defendant owes not one penny to Plaintiff.

 

6.

As part of the Agreement, Defendant agreed to pay interest on the amounts borrowed. The applicable rate of interest is 9.00% based upon the agreement or as provided by ORS 82.010.

 

ANS: Deny No agreement exists between Defendant and Plaintiff that would violate terms of

 

aforementioned provisions of ORS statute. Plaintiff's lack of standing and/or proof of title

 

precludes any claims to the allegations contained in Paragraph 6 thus denied.

 

 

 

 

 

                                                                      

7.

Plaintiff acquired the Account from the Original Creditor or its lawful successors-in-interest through a valid purchase and assignment. Under Oregon Law, Plaintiff has full right to collect on the account in accordance with all of the terms and conditions of the Agreement.

 

ANS: Deny No agreement exists between Plaintiff and Defendant. Plaintiff's protracted claims

 

to ownership, by assignment, have no standing for the allegedly defaulted debt and Defendant

 

owes not one penny to Plaintiff. No purported chain of title, bill of sale, or forward flow

 

documents provided.   Plaintiff's allegations to claims in Paragraph 7 have no merit therefore

 

Defendant  Denies

 

DENIAL OF SECOND CLAIM FOR RELIEF (Quantum Meruit)

 

 

8.

IN THE ALTERNATIVE, Plaintiff pleads a claim of Quantum Meruit. Plaintiff incorporates into this claim paragraph 1. Principles of equity also require Defendant to pay for the benefit conferred on Defendant by the Original Credit's Extension of Credit. Defendant was fully aware of the benefit received. Under the circumstances, it would be unjust to allow this benefit without requiring Defendant to pay the value thereof.

 

ANS: Deny No established or implied valid contract or Agreement exist between Plaintiff and Defendant. Plaintiff's quantum meruit claims, in the alternative to perceived values, are not grounded or relevant for services not entitled, and are not valid. No alleged remedies for breach flow from any alleged contract and Plaintiff cannot recover in quantum meruit for matters covered by contract which he has not proved title. Plaintiff's claims for alleged breech are not mutually exclusive and render claims for quantum meruit not relevant and denied.

 

(Citing Prestige Homes Real Estate Co. v. Hanson, 151 Or App 756, 762, 951 P2d 193 (1997).

.

Defendant affirmatively states as follows:

 

12.

There is not, nor has there ever been any agreement, written, oral, or implied between

 

the Plaintiff and Defendant. The Defendant asserts that this action may be barred by

 

the applicable statute of frauds.

 

 

 

 

 

13.

Upon information and belief, Plaintiff may be liable for statutory damages pursuant to

 

FDCPA Act § 803.4 to include remedy for filing false affidavits. Eva Lauber et al. v.

 

Midland Funding LLC, Supreme Court CV-10-5132-LRS.

 

 

14.

Plaintiff included no evidence of proof with the complaint that Defendant's alleged debt to

 

Plaintiff exists. This includes specifically the alleged contract between the plaintiff and

 

Defendant or any other instrument constructed solely for the purpose of creating a loan

 

Agreement between the Plaintiff and Defendant bearing Defendants signature and/or

 

production of the contract that legally requires the Defendant to pay the amount entered

 

into complaint. Nor has the Plaintiff provided original or copy of the account agreement

 

that states interest rate, grace period, finance charge, assignment, and specifically the State

 

Law the alleged agreement and account are governed plus other important facts.

 

///

 

///

 

///

 

 

II. AFFIRMATIVE DEFENSES

 

Further the defendant asserts the following defenses and states:

 

 

As and for a First Defense

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.

.

 

 

 

As and for a Second Defense

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

 

As and for a Third Defense

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.

 

As and for a Fourth Defense

No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of and 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.

 

As and for a Fifth Defense

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. 

 

As and for a Sixth Defense

False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Professional Bureau of Collections of Maryland, inc, 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)

 

 

///

 

///

 

///

 

 

III. Defendant's Prayer for Relief

 

The Defendant has been injured by Plaintiff's actions:

 

 

 

 

 

 

 

WHEREFORE, Defendant prays that the Court allow Plaintiff to take nothing by virtue of its

 

Complaint and requests motion to dismiss plaintiffs claims for relief pursuant to ORCP 21A(8)

 

be granted as follows:

 

 

1. Deny Plaintiff's request for relief on this time barred complaint in the sum of $10,000.00, which includes principal and interest, plus usurious interest at the rate of 9.0% per annum from requested judgment date until Paid.

 

2. Deny Plaintiff's requests for Plaintiffs costs, disbursements and attorney's

fees incurred herein, with interest thereon from the date of judgment until paid;

 

3. Deny Plaintiff authorization for Plaintiff, its agents, attorneys and

assigns to contact third persons and entities for the purpose of collecting

its proposed judgment if entered in this Court and to reveal the existence of

Defendant's debt to such third persons and entities;

 

4. For judgment against Plaintiff for actual and statutory damages under

FDCPA.

 

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

 

6. It is further requested that [council for plaintiff] will kindly prepare an appropriate form of general judgment of dismissal with prejudice.

 

 

6. Such other remedies or sanctions the Court deems appropriate.

 

 

 

Dated this 29rd day of Jan, 2013

 

 

 

 

 

Huey Pilot

Your Address

Your City, St, Zip

 

 

 

 

 

 


[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).

  • Like 1

Share this post


Link to post
Share on other sites

If this is a Capital One law suit and they are the Plaintiff forget about any FDCPA or FCRA violations. Oregon is backwards and doesn't use the form system like California so plan on using the traditional approaches. Remember in Oregon we don't use interrogatories either.

 

 

 

  1. File your answer to their complaint
  2. Motion for private arbitration through JAMS if it's in the Cardholder Agreement (I doubt you will get it in Oregon)
  3. Request Production of Documents (all the evidence - use LeagleEagles templates with 14 questions)
  4. File and send off a request for 5 or 6 admissions. (You only get 30 total so save for after production)
  5. Motions to Strike Affidavit and other documents, Motions to exclude requested documents not furnished. Motion to Dismiss.
  6. Choose 2 of the 5 Mandatory Court Assigned Arbitrators.
  7. Court will assign an arbitrator and you then only have 45 days. Submit all documents to the arbitrator.
  8. Go to Arbitration and Loose your Butt (Consider it Dress Rehearsal)  so you can appeal to real Court. (Oregon Arbitration is rigged and it's a total old boy system for the Plaintiffs Attorney).
  9. File your appeal and do the whole thing all over again. Most likely your lawsuit will get dropped or they will try to negotiate a settlement. Oregon Arbitration is a kangaroo court so unless you have a SOL toll you most likely won't win. 
  10. After Plaintiff dismisses file your cost bill for expenses and prevailing party fee's.

HP

  • Like 1

Share this post


Link to post
Share on other sites

Hi Huey Pilot,

 

Wow, thanks for posting that template and all that helpful info.

 

I'll do it just like you said.

 

Plus, my wife just lost her butt in arbitration so we can use

your steps above to take that one to the next level (appeal).

 

We're done with credit cards and JDBs.

 

:)%

  • Like 1

Share this post


Link to post
Share on other sites

You only have a limited amount of days to file for vacation of arbitration award and appeal by trial de novo. 

 

See the attached form for your wife to fill out and file. Be sure to copy the plaintiff. 

 

you will also need a memorandum of points and authorities to accompany the request for trial de novo.

 

HP

Notice_of_Appeal_from_Arbitration_Award_and_Request_for_Trial_De_Novo - OR.pdf

  • Like 1

Share this post


Link to post
Share on other sites

Here's an update on this case.

I need a little advice (see below) Thanks.  :-)

 

Here’s a re-cap of the Case:

 

* Case complaint was from the OC (NOT a JDB) via OC’s lawyer.

* AFTER I sent a Debt Validation letter, another lawyer firm sent me a bunch of random papers, but no real solid evidence.

* I answered OC’s complaint and DENIED everything.

* This case has since been transferred to ARBITRATION.

* The strategy is to APPEAL if I lose in Arbitration. And I probably WILL lose in Arbitration.

 

LOOK AT THIS! >>>

 

I got a letter from the Plaintiff's Lawyer requesting me to do 2 things:

 

1) Admit or deny a bunch of stuff

 

2) Produce documents

 

So, basically I answered their COMPLAINT by

DENYING EVERYTHING and now they are requesting

that I ADMIT or DENY a bunch of questions/facts.

 

PLUS, they want me to cough up all related

applications/contracts/documents...

 

Here's how I think I should respond.

Any advice is much appreciated. Thanks. >>>

 

 

PLAINTIFF’S FIRST SET OF REQUESTS FOR ADMISSIONS

 

1. Admit that you had a credit account with Plaintiff.

 

ANSWER: Defendant lacks sufficient information about the accuracy of this information or debt validation provided from Original Creditor to form a belief as to the truth or falsity of this statement and therefore denies.

 

2. Admit that you received a copy of the terms for the credit account.

 

ANSWER: Defendant does not have in his possession any terms for a credit account provided from Original Creditor and therefore denies.

 

3. Admit that under the terms of the Account, you agreed to pay for the credit balance on the account.

 

ANSWER: Defendant does not have in his possession any terms if the Account provided from Original Creditor and therefore denies.

 

4. Admit that you used the Account to obtain goods, services, or money.

 

ANSWER: Defendant lacks sufficient information about the accuracy of this information or debt validation provided from Original Creditor to form a belief as to the truth or falsity of this statement and therefore denies.

 

5. Admit that you received periodic statements from Plaintiff regarding your account.

 

ANSWER: Defendant does not have in his possession any periodic statements provided from Original Creditor and therefore denies.

 

6. Admit that you did not object in writing to any charges or fees on the Account within 60 days of the receipt of the periodic statement. Reflecting and allegedly disputed charge/fee.

 

ANSWER: Defendant lacks sufficient information about any charges or fees from the Original Creditor and therefore denies objecting in writing to any charges or fees.

 

7. Admit that you stopped making payments on the account.

 

ANSWER: Defendant lacks sufficient information about any account from the Original Creditor and therefore denies.

 

8. Admit that you were notified that your account was in default.

 

ANSWER: Defendant does not have in his possession any notification that any account was in default with Original Creditor and therefore denies.

 

9. Admit that you are indebted to the Plaintiff for the full current Account Balance.

 

ANSWER: Defendant lacks sufficient information about the accuracy of this information or debt validation provided from Original Creditor to form a belief as to the truth or falsity of this statement and therefore denies.

 

10. Admit that you have no evidence to disprove or defend against Plaintiff’s claims in the action.

 

ANSWER: DENY. No debt validation was provided from Original Creditor so therefore Defendant denies that he has no evidence to disprove or defend against Plaintiff’s claims in the action.

 

 

PLAINTIFF’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS

 

1. Any documents that relate or refer to the Plaintiff’s claims or your defenses in this Action.

 

ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents.

2. Any agreements, applications, statements, receipts, proofs or payment or other documents related to the Account.

 

ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents.

3. Any correspondence with Plaintiff regarding the Account or this Action.

 

ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents.

4. Any correspondence with anyone related to this account, including without limitation, any witnesses, professionals, and experts (whether they have been retained to testify or not).

 

ANSWER: Defendant is unaware of any documents, therefore, Defendant is unable to provide Plaintiff with said documents.

5. Any documents you may present as evidence or exhibits in a trial of this Action.

 

ANSWER: Defendant does not intend to introduce any documents at the time of trial. However, Defendant reserves the right to provide plaintiff with such documents as may become available prior to the time of trial.

 

6. Any reports or exhibits prepared by any expert or lay witnesses pertaining to this Action.

 

ANSWER: Defendant does not intend to introduce any documents at the time of trial. However, Defendant reserves the right to provide plaintiff with such documents as may become available prior to the time of trial.

  • Like 1

Share this post


Link to post
Share on other sites

It all looks good. You haven't admitted anything and you don't have in your possession, availability, or control any documents requested by the Plaintiff. Plaintiff will have to make their own case. 

 

Your next move will be to pretty much send them the same request for admissions and request for production of documents. 

 

Good job,

 

HP

  • Like 1

Share this post


Link to post
Share on other sites

If you go through Oregon's monitory arb, you can count on losing unless you get the private arb of JAMS or AAA. Then, like HP said, you must immediately file for a trial DE nevo to get the ball rolling.

  • Like 1

Share this post


Link to post
Share on other sites

Johnson Mark, LLC,

 

If you can still file a motion for private arbitration through JAMS that would be your best option. It's doubtful you will get the Judge to allow but maybe. It's definitely worth a try. Oregon Arbitration is totally Corrupt. 

 

A fellow poster was on bereavement leave in Texas and requested a continuance of the arbitration date scheduled for today and received no notification what so ever from the Oregon Arbitrator. When our poster called the arbitrator was told they could not talk to our poster unless in conference with the Johnson Mark, LLC attorney. Unable to coordinate our poster left Texas and her family early to make this mornings arbitration. The Plaintiff, Johnson Mark, LLC, was not there our poster was. Our poster was then told that a letter was sent notifying of continuance and requesting new mutually available dates for a new arbitration. Had our poster not been there a judgment for the Plaintiff and default would have been entered. It went out either yesterday or today. Not only that but the very partial, creditor friendly arbitrator had an illegal conference with the arbitrator (without our poster) on the continuance. 

 

Our poster has some bar association justification against both Johnson Mark and the Arbitrator complaints and requests for sanctions  as well as good cause for case dismissal. 

 

This Johnson Mark outfit needs a serious spanking and hopefully your case will do it.

 

HP

 

  • Like 1

Share this post


Link to post
Share on other sites

It all looks good. You haven't admitted anything and you don't have in your possession, availability, or control any documents requested by the Plaintiff. Plaintiff will have to make their own case. 

 

Your next move will be to pretty much send them the same request for admissions and request for production of documents. 

 

Good job,

 

HP

 

OK, thanks Huey Pilot.

 

I filed and mailed it.

 

Now I go after them for their admissions and documents.

 

 

  • Like 2

Share this post


Link to post
Share on other sites

Matt,

 

I am unable to reply to your personal conversations for some reason. Kristy at Admin has been assisting but I still am unable to respond. 

______________

 

The motion for summary judgment is an expensive move for JDB Attorney's here in Oregon so it's normally not done. Mine cost me $150.00 to file at the Washington County Courthouse. My case was against Midland and at the point I filed Daniel N Gordon PC had not provided any of the discovery I had requested more than once. 
 
MSJ is a pleading filed to expedite proceedings based on the concept that there is no longer any material issues of triable fact and the Judge is requested to rule on the pleadings.  
 
You just need one issue usually to defeat that and to actually go to Court and go through a regular trial. If discovery is incomplete that usually is a MSJ breaker. 
 
Here is a link to some Oregon Case Law and the Oregon Rules for MSJ.
 
Best,
 
HP
 
I've attached some templates you can use for your opposition. You will have to look up Oregon Case Law for your opposition but there is plenty of that on the internet.  Do a google search for "Oregon + Opposition to Motion for Summary Judgement". 
 

 

Opposition to Motion for Summary Judgment.doc

Mich. opposition to summary judgment.doc

Opposition to Motion for Summary Judgment.doc

Caselaw Opposition to MSJ AZ - Fantastic Read.pdf

  • Like 1

Share this post


Link to post
Share on other sites

How do I file an "answer" to a summons in Oregon court?  Is there a form online?  I've never done this before.  I have no idea...HELP!?!?!

Share this post


Link to post
Share on other sites

How do I file an "answer" to a summons in Oregon court?  Is there a form online?  I've never done this before.  I have no idea...HELP!?!?!

 

Daizy,

You will first want to start your on string/post so we can find you and answer your questions on-going as they come up.  To answer a summons you will want to do three things with Johnson Mark. (JM) 

 

  1. File an answer using the same format as the JM complaint only in the Caption where the case number is type ANSWER.  Then Deny everything using DENY as a response to each individual allegation. 
  2. File your own Affidavit denying everything and stating you never had an account with this JDB or Johnson Mark.
  3. Make a statement of sworn denial.  

These statements should suffice for most of the individual answers to each allegation:

 

ANS: DENY Defendant is without sufficient information or knowledge to form an opinion
as to the truth and accuracy concerning the allegations contained in Paragraph 1, and,
therefore, denies them. Plaintiff has provided no documents to substantiate the
allegations in Paragraph 1.
 
~~~~
ANS: DENY Defendant lacks sufficient information or knowledge about the truth and
accuracy of the allegations in Paragraph ??, and therefore denies allegations contained in Paragraph 4, Plaintiff failed to provide proof of debt or documentation for alleged
charge off, or certification to substantiate any alleged balances. Upon information and
belief, Defendant alleges that Plaintiff is the purchaser of Chase Bank's bundled credit
card account's receivable sold to junk debt buyers and intentionally misrepresented in
value that may violate federal law via intentionally misrepresenting accounts and
balances. No credit card accounts ever opened or existed between Plaintiff and
Defendant.
 
CAUTION:
DO NOT ADMIT OR AGREE TO ANYTHING EXCEPT YOU NAME OR MAYBE YOUR ADDRESS. EVEN DENY THAT IF PARTIALLY WRONG. THESE GUYS PROBABLY BOUGHT THIS CREDIT CARD DEBT FOR LESS THEN 100.00 AND YOU DO NOT OWE THEM A THING. 
 
hp

 

Share this post


Link to post
Share on other sites

Here is a previous Answer to a Johnson Mark Oregon Lawsuit.  These guys aren't to original so I would assume yours is pretty much the same thing:

 

Here is a Cookie Cutter Answer to Mark Johnson's canned complaint they use for everybody. Modify it to fit your situation. Many would argue the use of case law in your answer but I don't see where it matters. It's going to mandatory arbitration anyway and you will have to do it all over when you appeal to real Court. 

 

 

Huey Pilot

Your Address

Your City, St, Zip

 

 

 

IN THE CIRCUIT COURT OF THE STATE OF OREGON

IN AND FOR THE COUNTY OF COLUMBIA

 

Midland Funding LLC

A foreign corporation,

                        Plaintiff,

            vs.

Huey Pilot,

                        Defendant

)

)

)

)

)

)

)

)

)

)

Case No.: CxxxxxxxCV

 

ANSWER, AFFIRMATIVE DEFENSES

 

 

CH 595, SEC 15 (1) ( B)

Claim in Amount of $ 10,000.00

 

DEFENDANTS ANSWER TO COMPLAINT WITH AFFIRMATIVE DEFENSES

 

Now comes Defendant, Huey Pilot, Pro Se, who except as otherwise admitted or qualified herein, Defendant denies each and every allegation in the Complaint and puts Plaintiff to its strictest proof thereof. Defendant notes that this denial is due, among other things, to multiple allegations within a single paragraph of the Complaint:

I.  Defendant alleges:

1.

Jurisdiction and venue are proper. Plaintiff is a lawfully organized business engaged in interstate commerce. Defendant resides in the county in which this action has been filed.

 

ANS: Admit in part Deny in Part: Defendant admits that he/she resides in Washington

 

County, Oregon. Defendant further avers he/she lacks information to form a belief to the truth

 

or falsity of Paragraph 1 as to the structure of Plaintiff's business, its legal status, commercial

 

relationships with third parties, or of any rights of its foreign limited liability status to do

 

business in the State of Oregon or registration status with the Oregon Secretary of State and

 

therefore Denies..

 

 

 

Denial of First Claim for Relief (No Contract no Breach)

 

2.

Defendant was indebted to Citi(sic) (herein after 'Original Creditor') for credit extended to Defendant, Defendant acquired merchandise, services, and/or cash advances through the credit provided by the original Creditor in conjunction in the credit account ending in XXXX. The Original Creditor performed its obligations to Defendant by providing the credit as agreed.

 

ANS: Deny The alleged "original creditor" is a third party to this instant action and

Defendant lacks sufficient information about the accuracy of this information to form a belief as

 

to the  truth or falsity of Paragraph 2.  Defendant denies receiving or using any such credit

 

account, and that Defendant has no reasonable basis for anything other than a general denial.

 

Plaintiff is allegedly the assignee of the Original Creditor and therefore has no standing further

 

no reasonable basis exists for anything other than a general denial.

 

 

3.

The Original Creditor mailed statements to Defendant, showing all charges, credits, payments, fees, and finance chargers incurred during each preceding month while Defendant credit account ("Account") was open. Defendant did not object or otherwise dispute said statements within the time prescribed by 15 U.S.C. 1666. The Original Creditor and Defendant thereby established a stated balance of Defendant's Account.

 

ANS: Deny Defendant denies the allegations contained in Paragraph 3 as there is not nor has 

 

there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.  No 

 

debt validation from Original Creditor, or any of the alleged assignee(s), pursuant to

 

the FDCPA Act (§ 803.4) was supplied  with summons.  Plaintiff's protracted claims to

 

ownership, by assignment, have no standing for the allegedly defaulted debt and Defendant

 

owes not one penny to Plaintiff.

 

 

 

 

 

 

 

4.

 

Defendant agreed to make payments on the Account. Defendant breached the agreement with the Original Creditor by failing to make all payments as agreed. Such breach of agreement caused the Original Creditor to suffer damages in the amount of $XXXXX.XX less any payment made. Upon default by Defendant, the Original Creditor requested full payment of the Account balance.

 

ANS: Deny Defendant denies the allegations contained in Paragraph 4 as there is not nor has 

 

there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.

 

Allegation is compounded and materially deceptive. Any damages caused Plaintiff are self

 

inflicted and meritless therefore Defendant must deny.

 

5.

Further, more than twenty days before filing this action, written, demand was made on Defendant for payment of all sums due, but the balance remains unpaid. 

 

ANS: Deny Defendant denies the allegations contained in Paragraph 5. No debt validation from Original Creditor, or any of the alleged assignee(s), pursuant to the FDCPA Act (§ 803.4) was supplied previously or with summons.  Any alleged demands or claims for balance or sums due are unfounded. Plaintiff's protracted claims to ownership, by assignment, have no standing for the allegedly defaulted debt. Defendant owes not one penny to Plaintiff.

 

6.

As part of the Agreement, Defendant agreed to pay interest on the amounts borrowed. The applicable rate of interest is 9.00% based upon the agreement or as provided by ORS 82.010.

 

ANS: Deny No agreement exists between Defendant and Plaintiff that would violate terms of

 

aforementioned provisions of ORS statute. Plaintiff's lack of standing and/or proof of title

 

precludes any claims to the allegations contained in Paragraph 6 thus denied.

 

 

 

 

 

                                                                      

7.

Plaintiff acquired the Account from the Original Creditor or its lawful successors-in-interest through a valid purchase and assignment. Under Oregon Law, Plaintiff has full right to collect on the account in accordance with all of the terms and conditions of the Agreement.

 

ANS: Deny No agreement exists between Plaintiff and Defendant. Plaintiff's protracted claims

 

to ownership, by assignment, have no standing for the allegedly defaulted debt and Defendant

 

owes not one penny to Plaintiff. No purported chain of title, bill of sale, or forward flow

 

documents provided.   Plaintiff's allegations to claims in Paragraph 7 have no merit therefore

 

Defendant  Denies

 

DENIAL OF SECOND CLAIM FOR RELIEF (Quantum Meruit)

 

 

8.

IN THE ALTERNATIVE, Plaintiff pleads a claim of Quantum Meruit. Plaintiff incorporates into this claim paragraph 1. Principles of equity also require Defendant to pay for the benefit conferred on Defendant by the Original Credit's Extension of Credit. Defendant was fully aware of the benefit received. Under the circumstances, it would be unjust to allow this benefit without requiring Defendant to pay the value thereof.

 

ANS: Deny No established or implied valid contract or Agreement exist between Plaintiff and Defendant. Plaintiff's quantum meruit claims, in the alternative to perceived values, are not grounded or relevant for services not entitled, and are not valid. No alleged remedies for breach flow from any alleged contract and Plaintiff cannot recover in quantum meruit for matters covered by contract which he has not proved title. Plaintiff's claims for alleged breech are not mutually exclusive and render claims for quantum meruit not relevant and denied.

 

(Citing Prestige Homes Real Estate Co. v. Hanson, 151 Or App 756, 762, 951 P2d 193 (1997).

.

Defendant affirmatively states as follows:

 

12.

There is not, nor has there ever been any agreement, written, oral, or implied between

 

the Plaintiff and Defendant. The Defendant asserts that this action may be barred by

 

the applicable statute of frauds.

 

 

 

 

 

13.

Upon information and belief, Plaintiff may be liable for statutory damages pursuant to

 

FDCPA Act § 803.4 to include remedy for filing false affidavits. Eva Lauber et al. v.

 

Midland Funding LLC, Supreme Court CV-10-5132-LRS.

 

 

14.

Plaintiff included no evidence of proof with the complaint that Defendant's alleged debt to

 

Plaintiff exists. This includes specifically the alleged contract between the plaintiff and

 

Defendant or any other instrument constructed solely for the purpose of creating a loan

 

Agreement between the Plaintiff and Defendant bearing Defendants signature and/or

 

production of the contract that legally requires the Defendant to pay the amount entered

 

into complaint. Nor has the Plaintiff provided original or copy of the account agreement

 

that states interest rate, grace period, finance charge, assignment, and specifically the State

 

Law the alleged agreement and account are governed plus other important facts.

 

///

 

///

 

///

 

 

II. AFFIRMATIVE DEFENSES

 

Further the defendant asserts the following defenses and states:

 

 

As and for a First Defense

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.

.

 

 

 

As and for a Second Defense

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

 

As and for a Third Defense

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.

 

As and for a Fourth Defense

No evidence or record appears in the complaint supporting facts, other than related assumptions, or that the Plaintiff is an Assignee of and 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.

 

As and for a Fifth Defense

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. 

 

As and for a Sixth Defense

False or misleading representations of a law suit for a "Stale Debt" (or threatening to file) by Professional Bureau of Collections of Maryland, inc, 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)

 

 

///

 

///

 

///

 

 

III. Defendant's Prayer for Relief

 

The Defendant has been injured by Plaintiff's actions:

 

 

 

 

 

 

 

WHEREFORE, Defendant prays that the Court allow Plaintiff to take nothing by virtue of its

 

Complaint and requests motion to dismiss plaintiffs claims for relief pursuant to ORCP 21A(8)

 

be granted as follows:

 

 

1. Deny Plaintiff's request for relief on this time barred complaint in the sum of $10,000.00, which includes principal and interest, plus usurious interest at the rate of 9.0% per annum from requested judgment date until Paid.

 

2. Deny Plaintiff's requests for Plaintiffs costs, disbursements and attorney's

fees incurred herein, with interest thereon from the date of judgment until paid;

 

3. Deny Plaintiff authorization for Plaintiff, its agents, attorneys and

assigns to contact third persons and entities for the purpose of collecting

its proposed judgment if entered in this Court and to reveal the existence of

Defendant's debt to such third persons and entities;

 

4. For judgment against Plaintiff for actual and statutory damages under

FDCPA.

 

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

 

6. It is further requested that [council for plaintiff] will kindly prepare an appropriate form of general judgment of dismissal with prejudice.

 

 

6. Such other remedies or sanctions the Court deems appropriate.

 

 

 

Dated this 29rd day of Jan, 2013

 

 

 

 

 

Huey Pilot

Your Address

Your City, St, Zip

 

Share this post


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