Asset Acceptance Vs. Me in IL. 2.0 (Spikey please help!!!)

[JKAC]

My wife recently received a summons to appear in small claims court in DeKalb County in Illinois.  The Plaintiff in the case is Asset Acceptance, LLC.  I did some research and came across the post by "Spikey" detailing his experience with these guys in Illinois.  I'm really new to this type of thing and was confused by some of the wording in Spikey's posts on the subject.  If you guys can help us, we'd really appreciate it.

 

1. Who is the named plaintiff in the suit?

Asset Acceptance, LLC

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

Fulton, Friedman & Gullace, LLP

3. How much are you being sued for?

$5,850

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

FIA Card Services N.A. a subsidiary of Bank of America

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

I was served in person at my house.  As I stated above, this my wife is the defendant in the case, but I took possession of the paperwork.

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

In person.

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

Not sure.

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

Letters from FIA Card Services and telephone calls that were not answered.

9. What state and county do you live in?

DeKalb County, Illinois

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

Approximately 2008 or early 2009

11. What is the SOL on the debt?

10 years on written contracts in IL?  Or 5 years?

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

Not sure?  (Like I said, I'm new to this).  I'm assuming Suit Served. The paperwork says she is required to appear and answers on 7/10/2013.  Can this be done earlier?

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork).

Answer due by 07/10/2013.

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

Addidavit of Account by JDB as follows:

 

Exhibit "A"

 

State of Michigan

County of Macomb

 

Affidavit of Account

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

 

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

 

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

 

4) Defendant (s) defaulted on their payment obligations with regard to said account.

 

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

 

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

 

7) That as a result of Defendant(s) payment default, the Defendant(s) named herein is/are justly indebted to the Plaintiff in the amount of $5,850.00 together with interest at the statutory rate.

 

Signed by JDB Affiant

Notarized

 

The Complaint Reads as follows:

 

Asset Acceptance, LLC

vs.

JKAC

 

Complaint at Law

 

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

 

1. Pursuant to 735 ILCS 5/2-403, Plaintiff is proceeding in this cause as an assignee of FIA CARD SERVICES N.A..

 

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

 

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

 

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

 

5. As set forth in the Affidavit of Plaintiff, attached hereto, there is due and owning form Defendant(s) to Plaintiff in the sum of $5,850, of which no part has been paid, although duly demanded.

 

WHEREFORE, Plaintiff ASSET ACCEPTANCE, LLC, demands a judgement against the Defendant(s) JKAC in the sum of $5,850 plus interest and court costs.

 

Signed by JDB Attorey

 

My answers to be filed today:

ASSET ACCEPTANCE, LLC.

Plaintiff,

v.

Spikey

Defendant

 

 

***As I said, I read Spikey's thread and he took the following action, filing this answer:

 

Answer

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

 

The Defendant(s) say(s) that:

 

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

 

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

 

3. ADMIT

 

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

 

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

 

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

 

Signed Spikey

 

***My question is, can I or my wife file an answer similar to this before the 07/10/2013 court date that has been provided?  As I said, as much help as can be provided will be greatly appreciated.  We are thankful and willing to learn.

 

[Spikey]

@JKAC Small claims is a little different from my case but the same issues still apply. @gwheelock915 is much more experienced in small claims than I am, hopefully he'll stop by and give you some further input.

 

You'll need to review your county rules a bit to make sure there aren't any wrinkles but the general procedure is to respond to the suit which requires only an appearance form to be filed. Per Supreme Court Rule 286 (http://www.state.il.us/court/supremecourt/rules/Art_II/ArtII.htm#286), unless you are court ordered to fill an answer, filing only an appearance is a general denial and any defense is allowed to be used without specifically pleading it. After that you can move immediately for a motion to dismiss based on the deficiencies of Asset's complaint (lack of proof of standing and lack of a contract that proves breech of contract). That does require "leave of the court" which is the judges permission to do it though.

 

I suggest reading this thread: http://www.creditinfocenter.com/community/topic/319068-update-case-dismissed-against-asset-acceptance-in-il/?hl=ddd333

@ddd333 did a great job in his case and his motion to dismiss which is located in that thread is excellent.

[gwheelock915]

We can help, for sure.

 

I need you state what the summons says exactly, verbatim. I've never seen a SC summons require an answer, but if its not required, I think you are better served by filing a mtd and set the hearing for the return date so you can kill multiple AA birds with one stone.

 

We'll get you through this, no trouble.

[Spikey]

11. What is the SOL on the debt?

10 years on written contracts in IL?  Or 5 years?

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

Not sure?  (Like I said, I'm new to this).  I'm assuming Suit Served. The paperwork says she is required to appear and answers on 7/10/2013.  Can this be done earlier?

 

 

SOL is 5 years for a credit card in Illinois. 

 

You can file before 7/10, I believe you need to file at least an appearance form before that date.

[JKAC]

Thank you to Spikey and gwheelock915!  I cannot tell you how amazing it feels to have some guidance on this topic.

 

gwheelock915, here is what the summons says, verbatim:

 

IN THE CIRCUIT COURT OF DEKALB COUNTY THE TWENTY-THIRD JUDICIAL

CIRCUIT

 

CASE NO:  XXXXXXX

ASSET ACCEPTANCE, LLC

AMOUNT CLAIMED  $5,849.55

                      VS

 

JKAC

 

SMALL CLAIMS SUMMONS

TO EACH DEFENDANT:

 

 YOU ARE SUMMONED AND REQUIRED TO APPEAR before this Court in Coutroom 100 in 133 WEST STATE STREET SYCAMORE IL 60178 at 9 AM, on 7/10/13, to answer the complaint of the Plaintiff(s), a copy of which is attached to this summons.  If you fail to do so, a judgement by default will be taken against you for the amount claimed.

 

WITNESS      5/31, 2013

 

Signed by the clerk of the Circuit Court

 

NOTICE TO DEFENDANTS

 

At the time and place shown above, you must appear either in person or by an Attorney and make your presence known to the Court.  If you do not appear as required, the allegations of the complaint will be taken as confessed and a judgment may be entered against you for an amount not to exceed the amount claimed by the Plaintiff to be due.

 

The case will not be tried on the date set for your appearance unless ordered by the Court.  If you wist to contest the claim. you must appear at the time and place fixed by the Court for the trial, with the witnesses, books or documents you require to establish your defense.

 

To the Officer:  This summons must be returned by the officer or other person to whom it was given for service with endorsement of service and fees, if any, after service and not less than three days before the date of appearance.  If service cannot be made, this summons shall be returned so endorsed.

 

Attorney or Party, if not represented by an attorney

Name  BRADLEY SAYAD

ARDC#  XXXXXXXX

Firm Name Attorney  FULTON, FRIEDMAN & GULLANCE, LLP

For  ASSET ACCEPTANCE, LLC

Address  5 EAST VAN BUREN, SUITE 214

City and Zip  JOLIET, IL 60432

Telephone  (877) 386-5383

 

****That is the summons.  As an aside, my wife is the defendant in the case, and will be out of town on 7/10/13 for a work obligation that cannot be missed.  Any help is deeply appreciated.

[Spikey]

 As an aside, my wife is the defendant in the case, and will be out of town on 7/10/13 for a work obligation that cannot be missed.

 

This is going to be problematic if you want her to proceed as a pro se, because she has to show up to the court date as far as I know and you can't appear for her. It's one thing if it was the trial date, since you could potentially motion for a continuance, but you pretty much can't get around the initial appearance, again as far as I know.

[gwheelock915]

I wouldn't worry about her not being there for work. You need to show up and speak with the goon attorney and "say she denies the allegations of the complaint and would like a trial date for 90 days out, however, she is out of town. She also told me to ask the judge to ask for leave to file a motion to dismiss under 2-615.  

 

Then ask the attorney if they will dismiss on their own after saying that.

[JKAC]

Spikey and gwheelock915:  I cannot thank you enough for your quick responses and willingness to help.  I truly appreciate it.  As I said, this is my first experience with this type of thing, so please excuse my ignorance as I learn.  For example, I did not know what gwheelock915 was referring to when he used the acronym "mtd" in an earlier post (I googled it and now know it means motion to dismiss, but I still don't know what "AA" means).  Like I said, pretty ignorant, but very motivated to learn.

 

It seems like you two have differing opinions on whether or not I can appear on my wife's behalf based on the summons above.  Would you be willing to elaborate upon your thoughts on this?  As I stated, she has a work obligation several miles away and will not be able to attend.  If she has to miss work for this, it could potentially be problematic for her employment status.

 

Thank you

[gwheelock915]

AA in your case is Asset.

 

I appeared on my wifes behalf in a small claims case here in Will county, and no one made any issue of it. Worst case scenario is that no one goes, you get a default, then you have to motion to vacate it, which will be granted so long as its within 30 days of the default, but you need to avoid that since there is a lot of work involved in vacating a default.

 

If your wife is out of town, shes out of town. There's nothing to be done about it. You risk nothing by showing up and repeating what I had stated in the previous post. You risk a lot more if you do nothing.

 

Alternately, you could call FFG (attorney for asset) and ask them to motion up for a change in return date.

[Spikey]

@JKAC gwheelock915 knows better than me and has more experience, so his advice is going to be correct. That's why I added "as far as I know" to my statements, and thankfully he knows better.

[HobbesMG]

You are required to appear in court on the appearance date as an ANSWER to the filed complaint.  You cannot act on behalf of your wife if you are not an attorney.  But both you and her can respond to this complaint and summons by filing a motion to dismiss.  This is technically an answer without being an answer.  It covers your wife not being there and also should just get the case dismissed from the start.  This case is defective on its face from Unifund CCR Partners v Shah, appeal from the Circuit Court of Cook County, No. 1-10-0855.  They did not comply with the Illinois Collection Agency Act therefore the complain is invalid.  File this BEFORE your court date

 

A section 2-619 motion would be allowed without leave of court. Only section 2-619 motions and motions pursuant to section 5/2-1001of the IL Code of Civil Procedure are allowed without leave of Court.

 

A Complaint may be objected to if the pleading itself is defective. 735 ILCS 5/2-615. Examples of defective pleadings are:

• The pleading is legally insufficient (e.g., no copy of alleged contract is attached);
• The pleading requires more detail and definition;
• The complaint contains immaterial matter which should be stricken;
• Necessary parties should be added; or
• Mis-joined parties should be dismissed.

The Motion must point out the specific defects. The relief sought must be stated, such as striking the pleading or a portion of a pleading or dismissing the Complaint. The Court may permit or require pleading over or may allow the plaintiff to amend its Complaint, or the Court may terminate the litigation in whole or in part.

So file this below with the court and that is effectively you and your wife's response to the complaint and she will not be negatively impacted by not being there.

 

STATE OF ILLINOIS

IN THE CIRCUIT COURT OF THE TWENTY-THIRD JUDICIAL CIRCUIT

DEKALB COUNTY, ILLINOIS

 

ASSEST ACCEPTANCE, LLC

                             Plaintiff

 

vs.                                                                        Case No. XXXXXX

 

JKAC, JKAC SPOUSE

                             Defendant

 

 

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

 

 

          NOW COMES the Defendant, JKAC, appearing pro se, and JKAC SPOUSE, appearing Pro se, and moves the court to dismiss this complaint pursuant to 735 ILCS 5/2-619.  Defendant affirmatively states as follows:

 

1.   The plaintiff has failed to comply with the requirements of the Collection Agency Act (225 ILCS 425/8b (West 2008)). The plaintiff has not met the requirements necessary for filing a complaint and initiating any action against Defendant.  In Unifund CCR Partners v Shah, appeal from the Circuit Court of Cook County, No. 1-10-0855, the Court stated in part:

We hold that, under section 8b of the Collection Agency Act (225 ILCS 425/8b (West 2008)), a collection agency can establish an assignment of accounts receivable for collection purposes through documents attached as exhibits to the plaintiff's complaint where the identification of the accounts transferred, the consideration paid, and the effective date of the transfer of particular accounts are in multiple incorporated documents. However, such documents must be in the form of contracts of assignment or documents that are incorporated by reference into those contracts, rather than in the form of an affidavit.

 

         

2.   Plaintiff has not provided any documentation with the complaint except for an affidavit.

 

WHEREFORE, Defendants, JKAC and JKAC SPOUSE, respectfully requests that this Honorable Court dismiss the Plaintiff’s complaint for violations of the Collection Agency Act.

 

Respectfully,

 

 

JKAC

Address

JKAC SPOUSE

Address

[HobbesMG]

Spikey and gwheelock915:  I cannot thank you enough for your quick responses and willingness to help.  I truly appreciate it.  As I said, this is my first experience with this type of thing, so please excuse my ignorance as I learn.  For example, I did not know what gwheelock915 was referring to when he used the acronym "mtd" in an earlier post (I googled it and now know it means motion to dismiss, but I still don't know what "AA" means).  Like I said, pretty ignorant, but very motivated to learn.

 

It seems like you two have differing opinions on whether or not I can appear on my wife's behalf based on the summons above.  Would you be willing to elaborate upon your thoughts on this?  As I stated, she has a work obligation several miles away and will not be able to attend.  If she has to miss work for this, it could potentially be problematic for her employment status.

 

Thank you

 

 

You cannot appear on your wife's behalf and you cannot argue for her.  That not being made an issue of in gwheelock's case is a rare exception more then a standard.  Thats why I suggest filing a motion to dismiss in lieu of an answer.  That must be addressed by the courts before you need to file an answer.  

[HobbesMG]

 

My answers to be filed today:

ASSET ACCEPTANCE, LLC.

Plaintiff,

v.

Spikey

Defendant

 

 

***As I said, I read Spikey's thread and he took the following action, filing this answer:

 

Answer

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

 

The Defendant(s) say(s) that:

 

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

 

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

 

3. ADMIT

 

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

 

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

 

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

 

Signed Spikey

 

***My question is, can I or my wife file an answer similar to this before the 07/10/2013 court date that has been provided?  As I said, as much help as can be provided will be greatly appreciated.  We are thankful and willing to learn.

 

 

 

I hope you didnt file this answer yet. If you didn't, then don't before you look at the MTD I talked about.  If you did, you can still file a MTD but added more work for yourself

[Spikey]

A 2-619 motion would make sense since it doesn't require leave of the court, but you can only attack them on standing under that rule. If they come back with a Bill of Sale the judge may deny the motion. Be prepared to argue that @JKAC, there's some good case law for that in my Motion for Summary judgement.

 

If that fails, then get permission and hit them with a 2-615 on the lack of a contract. 

 

It would take an extra step, but then your wife wouldn't have to show up for court on the answer date since motions are typically heard on a different day and the clerk should allow you to pick motion day of your choosing.

 

I hope you didnt file this answer yet. If you didn't, then don't before you look at the MTD I talked about.  If you did, you can still file a MTD but added more work for yourself

 

He shouldn't file it at all since it's small claims.

[gwheelock915]

Yes, echoing Spikey, don't file an answer. They are not required in Small Claims.

 

Im also not sure that I would file a one paragraph motion to dismiss. It doesnt leave you a lot of room for error or argument. In my readings, I'm not sure that the courts look at the ICAA as an affirmative defense.

[Spikey]

Yes, echoing Spikey, don't file an answer. They are not required in Small Claims.

 

Im also not sure that I would file a one paragraph motion to dismiss. It doesnt leave you a lot of room for error or argument. In my readings, I'm not sure that the courts look at the ICAA as an affirmative defense.

 

He should expand upon @HobbesMG motion to include how they haven't complied with Section 2-403 citing Business Service Bureau, Inc. v. Webster, Ray v. Moll & Illinois Midland R. Co. v. Farmers State Bank of Newark. Section 2-403 is more appropriate than ICAA as a starting point, but there's no reason not to work ICAA in to motion.

[gwheelock915]

Agreed, but Assets complaints are so facially defective its hard to want to even attack it affirmatively, other than a brief sentence in passing.

 

We all know that Assets complaint does not meet the pleading standard of 2-403, and we also know that they repeatedly complain of breach of contract, without of course attaching the contract which runs afoul of supreme court rule 282(a) which tracks the language of 2-606.

 

So he should appear on his wifes appearance date, or motion up for a continuance and ask for leave to file a 2-615 motion, or in the alternatve a 2-619.1 mixed motion which puts the two into one.

 

I would go simple. Hes new at this, admittedly lacking a lot of knowledge (though with a desire to learn) and I think he should just motion for leave and dismiss under 2-615.

[Spikey]

Agreed, but Assets complaints are so facially defective its hard to want to even attack it affirmatively, other than a brief sentence in passing.

 

We all know that Assets complaint does not meet the pleading standard of 2-403, and we also know that they repeatedly complain of breach of contract, without of course attaching the contract which runs afoul of supreme court rule 282(a) which tracks the language of 2-606.

 

So he should appear on his wifes appearance date, or motion up for a continuance and ask for leave to file a 2-615 motion, or in the alternatve a 2-619.1 mixed motion which puts the two into one.

 

I would go simple. Hes new at this, admittedly lacking a lot of knowledge (though with a desire to learn) and I think he should just motion for leave and dismiss under 2-615.

 

While I have some concerns about his wife not being available on the appearance date, I would think that as long as they file the appearance form, it should be okay since that is notice that she plans to oppose the suit. It's possible that my "favorite" Asset attorney   wouldn't even have her see the judge and just set a date for trial. Of course I haven't opposed a small claims case yet so it may be different.

[gwheelock915]

File a motion to dismiss, set the hearing prior to the return date, moot the return date, case closed.

[JKAC]

You guys are all amazing.  (Admittedly I don't quite grasp about 95% of what you're talking about yet, but I will!)  Thank you for all of your help to this point.  I will review the thread in the next 24 hours and ask for more assistance, undoubtedly.

 

Again, you guys are appreciated more than I can express!

[HobbesMG]

Yes, echoing Spikey, don't file an answer. They are not required in Small Claims.

 

Im also not sure that I would file a one paragraph motion to dismiss. It doesnt leave you a lot of room for error or argument. In my readings, I'm not sure that the courts look at the ICAA as an affirmative defense.

 

The length of a response is irrelevant.  This is the exact same motion I have used to get rid of 3 claims years ago.  There is no need to state anything more then the what is a defect in their pleadings.  Courts are more open to that arguement then the "kitchen sink" method.

 

I also agree to dont file an answer.  I just stated that because I thought I read that the OP was looking to file an answer.

[HobbesMG]

Agreed, but Assets complaints are so facially defective its hard to want to even attack it affirmatively, other than a brief sentence in passing.

 

We all know that Assets complaint does not meet the pleading standard of 2-403, and we also know that they repeatedly complain of breach of contract, without of course attaching the contract which runs afoul of supreme court rule 282(a) which tracks the language of 2-606.

 

So he should appear on his wifes appearance date, or motion up for a continuance and ask for leave to file a 2-615 motion, or in the alternatve a 2-619.1 mixed motion which puts the two into one.

 

I would go simple. Hes new at this, admittedly lacking a lot of knowledge (though with a desire to learn) and I think he should just motion for leave and dismiss under 2-615.

 I agree and I should have clarified this point so thanks.  This should be filed as a 2-619.1 motion since you cant technically file a 2-615 without the courts permission and you cant get the courts permission until they have jurisdiction over you, which they cant have until you answer or appear.

 

If this motion gets denied, then file the same motion under the 2-615 rule.  

 

I agree go simple in general but in this case (all cases of this type) it is my belief that is is best to make the complaint go away without ever having to technically be involved in it.  Saves time and costs other side more money if they really want to push it.  If the MTD is granted, which it should be based on case law, then the case is over.  AA has to file again and pay additional fees against someone that has already beaten them.  If an appearance is recognized before the MTD and defendant gets permission to file under 2-615, technically AA can ask for leave to file an amended answer to try to correct.  This just saves that possibility

[HobbesMG]

While I have some concerns about his wife not being available on the appearance date, I would think that as long as they file the appearance form, it should be okay since that is notice that she plans to oppose the suit. It's possible that my "favorite" Asset attorney   wouldn't even have her see the judge and just set a date for trial. Of course I haven't opposed a small claims case yet so it may be different.

  The wife not being able to be present is an addition reason to file the MTD instead.  Technically if the wife doesnt show and they dont file a MTD beforehand, the judge can order a default ruling for not answering against the wife.   The chance of that is slim but I prefer to keep my odds at 0% over anything else, even if it is 1%

[Cmort1026]

I hate to jump in because I am new to this also. About 6 months ago I was at a SC's hearing in DuPage and the boyfriend of the defendant appeared in her place for the reason she was unable to attend because of work.  He requested the judge for a continuance and immediately it was granted.  Plaintiff didn't even flinch. Now from what  I see this might be more of the exception than the rule.  Just my two cents.