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I have a friend being sued in small claims court here in Kansas.  The plaintiff has brought about 40 or so small claims actions so far this year in this district.  From his intepretation of KSA 61-2704 ( B) and KSA 61-2714 (d), it appears that the plaintiff automatically loses with prejudice if they in fact have submitted over 20 small claims actions this year. 

 

He responded with an answer to the petition with this afirmitive defense that the action is illegal and filed a defendant counter-claim for violation of the Kansas Consumer Protection Act (KSPA).  The defendant's answer and counter-claim were sent via certified mail to the plaintiff's counsel.  Violation of KSA 61-2714 (d) also means an automatic violation of KSPA under unconsionable acts and practices and allows for counter-claims by the defendant.

 

It's also noteworthy that the plaintiff's attorney has been barred by the attorney general of Colorado from performing collection activities there.  Should this be brought up at the hearing or when discussing the defendant's counter claim?

 

Is he interpreting the statutes incorrectly or is this really an automatic dismissal with prejudice?

 

I look forward to replies...

1. Who is the named plaintiff in the suit?

Ameri Best LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
No firm named, individual attorney is named and appears to practice out of their home.
3. How much are you being sued for?
$381.66
4. Who is the original creditor? (if not the Plaintiff)
Ameri Best LLC
5. How do you know you are being sued? (You were served, right?)
served papers by sheriff
6. How were you served? (Mail, In person, Notice on door)
in person
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?
A certified letter was sent alleging non-compliance with Kansas Consumer Protection act about 2 month's ago
9. What state and county do you live in?
Johnson County, Kansas
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
About 4 months ago.
11. What is the SOL on the debt? To find out:
Not close.  Original transaction was less than 6 months ago
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Served. Filed answer and counter-claim.  Motion for judgment filed today by plaintiff and a hearing was set in about 2 weeks.
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
Debt is not reported as of right now.
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). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits
I've responded.
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

None other than a simple accounting of the debt, plus interest, and fees.

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I have a friend being sued in small claims court here in Kansas.  The plaintiff has brought about 40 or so small claims actions so far this year in this district.  From his intepretation of KSA 61-2704 ( B) and KSA 61-2714 (d), it appears that the plaintiff automatically loses with prejudice if they in fact have submitted over 20 small claims actions this year. 

 

I'm not going to pretend I have knowledge of Kansas law but upon reading the statutes you cited, and if in fact plaintiff has exceeded the 20 suit maximum, it sure appears to me you have a winner. 

Edited by nascar
Plaintiff appears to be original creditor.
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Latest news is plaintiff's counsel has filed a Motion for Judgment on the Pleadings.  The crux of the argument is that she says the case is filed as a Limited Action and not a Small Claim.  Both fall under chapter 61 of the Kansas Statue, and thus not subject to the 20 case maximum.  I'm not exactly sure how he should have known it's not a small claims case as the original petition just stated chapter 61 and did not specify.  From the amount sought we assumed it was small claims.

 

He is working on filing his response to the motion and also for discovery.  In his original answer he referenced the Consumer Protection statute so we are still arguing that point, that fact that discovery has not happened, and this case is actually small claims (we'll see about that).  Any other ideas?

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In many states, mine included, while small claims is limited in the amount you can seek, simply having a small amount does not necessarily make it small claims. However, in California, filing a civil complaint costs anywhere from $380-435 depending on whether its limited or unlimited. Small claims can be anywhere from $50-75, which is also dependant on the amount sought. It can certainly be cheaper to file in small claims due to the small amount though, especially if your court has a similar price structure.

I would not assume that it's small claims based solely on the amount, and it seems to me that a call to the court would get to the bottom of this mystery. It certainly benefits you to do so. I would get the answer on that before claiming such in your opposition to their motion for judgment on the pleadings. And I would utilize every possible crack in their case to bust it wide open.

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It seems there are 3 types of cases. Chapter 60 civil cases, chapter 61 limited action $25k max, chapter 61 small claims $4k max. The original petition only referenced ch. 61.

If they say it's limited action then discovery is expanded and we will file a ton of that and supoena a witness.

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61-3101: Admission of facts and genuineness of documents; withdrawal or amendment of admission.

A request for admissions may not contain more than 10 requests unless permission of the court is obtained to increase the number.

61-3103: Interrogatories. (a) Any party may submit to any other party up to 10 interrogatories. The party receiving the interrogatories shall submit answers or objections, if any, to the party submitting the same within 15 days after the interrogatories are submitted to the receiving party. On motion, the court may allow a longer time to answer or may permit a greater number of interrogatories to be submitted.

Statute 60-226: General provisions governing discovery

61-3106: Production of documents. Production of documents and things for inspection shall be allowed in accordance with K.S.A. 60-234

(2) Limitations. (A) The frequency or extent of use of the discovery methods otherwise permitted under the rules of civil procedure shall be limited by the court only if it determines that: (i) The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source that is more convenient, less burdensome or less expensive; (ii) the party seeking discovery has had ample opportunity by discovery in the action to obtain the information sought; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the litigation and the importance of the proposed discovery in resolving the issues. The court may act upon its own initiative after reasonable notice or pursuant to a motion under subsection ©.

http://www.creditinfocenter.com/community/topic/302382-served-by-midland-funding-llc-in-ks-help/ good link for sending discovery admissions,rogs in Kansas

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Where does everyone go to find forms?  Right now I'm working on a discovery request, but I don't think this is actually filed with the court.  Do I just type it up and send it on over to the plaintiff's counsel?  I file a certificate of service right?  Where to I find an example of a certificate of service?

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In my state it is not filed with the court, hence, no form. We just use good ol', 28-line pleading paper in my neck of the woods. Of course if a motion to compel comes into play, then yes you do file the portion they ignored.

Seems like they should have been specific when filing, and you tipped your hat to that fact which resulted in their changing it to, "nah-uh! It's civil not small claims!" Or whatever you call it your jurisdiction. If you get to bury them with discovery now because its no longer SC, then by all means, grab your shovel. Make them wish they had filed SC for such a teeny amount to give them a way out.

They assumed you would just pay it, not challenge it.

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Well then I would first check to see how many days your friend has to respond to their motion. This is one of the things you would find in Kansas rules of civil procedure. The last thing you want to do is miss the deadline because an unopposed motion is not that different than your friend agreeing to whatever argument they made in the motion.

 

That would truly suck.

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In Kansas you will file it with the courthouse include a certificate of service with your requests and send certified return receipt .

 

1.A request for admissions may not contain more than 10 requests unless permission of the court is obtained to increase the number.

2.61-3103: Interrogatories. (a) Any party may submit to any other party up to 10 interrogatories.

3.The frequency or extent of use of the discovery methods otherwise permitted under the rules of civil procedure shall be limited by the court only if it determines that: The discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other source.

I would say no more than 15 requests for discovery.

 

Certificate of Service
On July 21, 2013, I my name caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

Law firm name and address here
By Certified U.S. Mail, Return Receipt Requested

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EXAMPLE

 In The District Court Of _______ County

 

plaintiff name

plaintiff

Vs.

defendant name

defendant

 k.s.a. chapter 61

division room 215

 

 

DEFENDANTS FIRST REQUEST FOR PRODUCTION OF DOCUMENTS DIRECTED TO PLAINTIFF

 

DEFINITIONS

The following words, when used with the initial letter capitalized, has the designated meaning:

(A) "Account" means the indebtedness alleged in your Complaint.

( B ) "Original Creditor" is the Person with whom the Account was originally created for Defendant.

 

Comes now Defendant, [Your Name(s)],pro se, and pursuant to K. S. A. §61.3106 and K.S.A §60.234, requests Plaintiff, to produce and permit Defendant to inspect and photocopy, within thirty (30) days after the date of service, at the offices of Plaintiff’s counsel, the documents described herein.

 

1. The original signed application establishing the Account from the Original Creditor.

2. Charge slips bearing defendant's signature which establish use of the account.

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

4. A complete history of the Account from day one, establishing the legitimacy of the balance sought.

5. Any document setting forth the choice of law provision.

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject Account went into default.

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes of the choice of law provision it seeks to enforce.

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

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

10. Proof of mailing of monthly statements to defendant.

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time.

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."


13. Documents establishing the chain of custody of the alleged debt, starting with the Original Creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. These documents should show the account number and name of the account holder.

14. The forward flow or media document(s) governing this transaction.

 

respectfully submitted,

 

 

Certificate of Service
On July 21, 2013, I my name caused the foregoing instrument to be served by delivering a copy to all counsel of record in this case as indicated below:

Law firm name and address here
By Certified U.S. Mail, Return Receipt Requested

 

my name

my address

my phone

my email

defendant signed name

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A hearing on the motion is scheduled for 8/1/13.  We're almost done with the opposition to the motion and will file that tomorrow along with the certificate of service relating to discovery requests.  The motion was filed less than a week ago so we should be good on time constraints.  The motion ignores his claim that they are violation of the KCPA so there are differences in materials of fact and no discovery has commenced.   

 

How does this look for rought draft of discovery?

 

  1. Any contracts or loan agreements signed by the defendant in association with any transaction or agreement with the plaintiff.
  2. Any physical or electronic files associated with the defendant at AMERI BEST LLC.
  3. Documents whether physical or electronic that outline general underwriting procedures for payday loan transactions at AMERI BEST LLC.
  4. A list of all credit bureaus accessed, credit scores obtained, and loan databases accessed used in conjunction with issuing credit to the defendant.
  5. Copies of credit reports, credit scores, and loan database information used when issuing credit to BLAIR MCCREA.
  6. Documents stating repayment policies, roll-over policies, loan renewing polices, refinance policies, and principal reduction policies at AMERI BEST LLC whether stored electronically or in physical format.
  7. All payday loan advertising used by AMERI BEST LLC.
  8. The number of new loans issued this year to all customers of AMERI BEST LLC, where a new loan is defined as a consumer entering into a loan agreement with the plaintiff where the consumer had no indebtedness to the plaintiff in the prior 48 hour period.
  9. The number of loans issued by the plaintiff this year that are renewed, refinanced, re-loaned, or rolled-over.
  10. The number of customers AMERI BEST LLC has sued or attempted to collect a debt on a past due loan this year.
  11. A complete and thorough accounting off all loans issued to the defendant at AMERI BEST LLC.
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http://kansasstatutes.lesterama.org/Chapter_16a/Article_2/

http://www.osbckansas.org/siteindex.html

http://www.osbckansas.org/DOCML/DOCMLApplications/docmlapplicationssupervisedlender.html

 

 

Chapter 16a: Consumer Credit Code Part 1 GENERAL PROVISIONS Article 2: Finance Charges And Related Provisions
Statute 16a-2-404: Payday loans; finance charges; rights and duties. (1) On consumer loan transactions in which cash is advanced:
(a) With a short term,
( b ) a single payment repayment is anticipated, and
( c ) such cash advance is equal to or less than $500, a licensed or supervised lender may charge an amount not to exceed 15% of the amount of the cash advance.
(2) The minimum term of any loan under this section shall be 7 days and the maximum term of any loan made under this section shall be 30 days.
(3) A lender and related interest shall not have more than two loans made under this section outstanding to the same borrower at any one time and shall not make more than three loans to any one borrower within a 30 calendar day period. Each lender shall maintain a journal of loan transactions for each borrower which shall include at least the following information:
(a) Name, address and telephone number of each borrower; and
( b ) date made and due date of each loan.
(4) Each loan agreement made under this section shall contain the following notice in at least 10 point bold face type: NOTICE TO BORROWER: KANSAS LAW PROHIBITS THIS LENDER AND THEIR RELATED INTEREST FROM HAVING MORE THAN TWO LOANS OUTSTANDING TO YOU AT ANY ONE TIME. A LENDER CANNOT DIVIDE THE AMOUNT YOU WANT TO BORROW INTO MULTIPLE LOANS IN ORDER TO INCREASE THE FEES YOU PAY.
Prior to consummation of the loan transaction, the lender must:
(a) Provide the notice set forth in this subsection in both English and Spanish; and
( b ) obtain the borrower's signature or initials next to the English version of the notice or, if the borrower advises the lender that the borrower is more proficient in Spanish than in English, then next to the Spanish version of the notice.
(5) The contract rate of any loan made under this section shall not be more than 3% per month of the loan proceeds after the maturity date. No insurance charges or any other charges of any nature whatsoever shall be permitted, except as stated in subsection (7), including any charges for cashing the loan proceeds if they are given in check form.
(6) Any loan made under this section shall not be repaid by proceeds of another loan made under this section by the same lender or related interest. The proceeds from any loan made under this section shall not be applied to any other loan from the same lender or related interest.
(7) On a consumer loan transaction in which cash is advanced in exchange for a personal check, one return check charge may be charged if the check is deemed insufficient as defined in paragraph (e) of subsection (1) of K.S.A. 16a-2-501, and amendments thereto. Upon receipt of the check from the consumer, the lender shall immediately stamp the back of the check with an endorsement that states: "Negotiated as part of a loan made under K.S.A. 16a-2-404. Holder takes subject to claims and defenses of maker. No criminal prosecution."
(8) In determining whether a consumer loan transaction made under the provisions of this section is unconscionable conduct under K.S.A. 16a-5-108, and amendments thereto, consideration shall be given, among other factors, to:
(a) The ability of the borrower to repay within the terms of the loan made under this section; or
( b ) the original request of the borrower for amount and term of the loan are within the limitations under this section.
(9) A consumer may rescind any consumer loan transaction made under the provisions of this section without cost not later than the end of the business day immediately following the day on which the loan transaction was made. To rescind the loan transaction:
(a) A consumer shall inform the lender that the consumer wants to rescind the loan transaction;
( b ) the consumer shall return the cash amount of the principal of the loan transaction to the lender; and
( c ) the lender shall return any fees that have been collected in association with the loan.
(10) A person shall not commit or cause to be committed any of the following acts or practices in connection with a consumer loan transaction subject to the provisions of this section:
(a) Use any device or agreement that would have the effect of charging or collecting more fees, charges or interest, or which results in more fees, charges, or interest being paid by the consumer, than allowed by the provisions of this section, including but not limited to:
(i) Entering into a different type of transaction with the consumer;
(ii) entering into a sales/leaseback or rebate arrangement;
(iii) catalog sales; or
(iv) entering into any other transaction with the consumer or any other person that is designed to evade the applicability of this section;
( b ) use, or threaten to use the criminal process in any state to collect on the loan;
( c ) sell any other product of any kind in connection with the making or collecting of the loan;
(d) include any of the following provisions in a loan document:
(i) A hold harmless clause;
(ii) a confession of judgment clause;
(iii) a provision in which the consumer agrees not to assert a claim or defense arising out of the contract.
(11) As used in this section, "related interest" shall have the same meaning as "person related to" in K.S.A. 16a-1-301, and amendments thereto.
(12) Any person who facilitates, enables or acts as a conduit or agent for any third party who enters into a consumer loan transaction with the characteristics set out in paragraphs (a) and ( b ) of subsection (1) shall be required to obtain a supervised loan license pursuant to K.S.A. 16a-2-301, and amendments thereto, regardless of whether the third party may be exempt from licensure provisions of the Kansas uniform consumer credit code.
(13) Notwithstanding that a person may be exempted by virtue of federal law from the interest rate, finance charge and licensure provisions of the Kansas uniform consumer credit code, all other provisions of the code shall apply to both the person and the loan transaction.
(14) This section shall be supplemental to and a part of the uniform consumer credit code.
History: L. 1993, ch. 75, § 1; L. 1999, ch. 107, § 20; L. 2001, ch. 50, § 1; L. 2004, ch. 29, § 1; L. 2005, ch. 144, § 12; July 1.

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