frosted1

Asset Acceptance going for the jugular. Need Help!!

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HELP! I live in  Utah and am Being sued by Asset Acceptance.  Johnson Mark, LLC are the attorneys. I'm stressed to the max.  I have no job, no assets, suffer with a Crohns Disease-like ailment.   I live with my mother and am dependent on her at the present time.  She is living on Soc. Security.   Not good.  I know this request is lengthy, but i wanted to give you the background necessary to make appropriate suggestions.  I thank you for any help you can offer.

 

Summons/complaint received 01/21/2013. Plaintiff claims I have an account with Bank of America and have defaulted on it.  They, by assignment, now own the account.  I truly don't remember having this account.  I have no documentation of any kind to say that I do or did.

 

I had received two letters prior to complaint, to which I responded with denial of account knowledge and requests for validation of alleged account and debt.  Responded to complaint Feb 02, 2013 with another letter of denial and a copy of the original validation letter sent previously.  I then received a Certificate of Service and Plaintiff's Initial Disclosures sent Feb 25, 2013 which included a photocopy of a "Bill of Sale and Assignment of Loans" labeled Exhibit C, a partial cardholder agreement consisting of two pages, statement of a witness, Elizabeth Gamache, and computation of damages totaling approximately $4,954.00 including attorney's fees, balance, interest, etc.  

 

February 26, 2013 Plaintiff sent  First Set of Discovery requesting Production and Admissions, to which I responded March 20, 2013 with answers, mailed cmrr.  Then I got a service for Motion to Change Venue from St George to Salt Lake, which I agreed to.  That was probably a mistake on my part, but I did not contend it.  Motion to change venue was granted and then I was notified of a pre-trial conference hearing, which was a joke.  However, that's where my current problem begins.  During the hearing in June, I agreed to produce three years of bank records (2007 - 2009) for the plaintiff''s perusal. There were no payments of any kind to Bof A during any of those years and I did not feel there was an issue in releasing the records for that use.      

 

Since the commitment of those records at the hearing, I have received another dunner from another company that very possibly will be represented by the same attorneys currently representing Asset Acceptance, and no longer feel the security of sharing those records. As a result, I hesitated and did not respond in a timely manner to the opposing attorney.  I have just received service of Plaintiff's Statement of Discovery Issues, an unsigned order for production of the records, and a Motion to Extend Fact Discovery Deadline for three months and a Memorandum in support of Plaintiff's Motion to Extend.   The fact discovery deadline for this case was July 23, 2013.  I was also supposed to amend my answer, per the judge that attended the hearing (not the judge of the case).  I have been struggling with that, trying to figure out affirmative defenses.  The attorney is claiming that I did not repond to his  Discovery requests in February, but I did.  So I'm totally lost and have no idea how to combat this.  What options do I have?  Can I file an order to protect???  Do I stand on the defense that the Plaintiff must show proportionality?  I did read something about them having to prove that my bank records are crucial to their case.  In what way, other than to get ready to collect in the event there is a judgement approved?  Thank you again for any help you might be able to offer.  Hope KentWA is available to help.  I know he's an expert on Utah Law.

 

One more question, if the Plaintiff''s  request for extension is approved, does that allow me to continue with discovery also???  Can I ask for Production and Admissions as well?

Thanks again for any help.  I'm earnestly waiting...

 

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Look up bob fletcher, and SQL guy who both are/did fight suits with this firm JM. Those threads will also help you understand the procedure. Then com back and fill out the questions posted at the top of this forum titled when posting in this forum. (I think it's called that, hard for me to look on ipad, lol)

Tell us what they sent you in disclosure, and start reading Utahans rules for civil procedure. You are behind the 8 ball, hopefully we can dig u out. You should have sent them disclosure statement already, and propounded them with discovery. Hopefully the court will grant that extension so you can send them some, but start there, then come back.:)

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When you send anything always send certified mail return receipt requested so you have proof you sent it.

When you don't answer discovery in a timely manner you will lose by default.

You can not fight a lawsuit by avoiding it.

If you have discovery that needs an answer post it up and then get it turned in asap.

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This is not the time to become an ostrich. While its scary as all all get out, you must follow the advice already given, especially by that judge, and file your answer. Many, many of us started this journey with little to no knowledge and now have many wins under our belts. I understand this is probably causing your condition to become exacerbated but you simply cannot let them win. Always spend the extra money and send things certified mail, return receipt requested as racecar already said. That way they can't pull the, we didn't get it routine.

My first case, and then again when I was up against an OC, caused a lot of stress for me. The first time I was flat on my back recovering from surgery. The stress makes pain difficult to manage for me, so getting my hackles up so to speak, really does help me find my center and prevail. Use the time you have to begin researching your behind off, especially by the members here that you know can help you. Start by searching for your state to see what kind of help you can get from those who have gone before you.

Listen to racecar, the information they post is stellar. Oh, also begin reading your civil codes and start looking for things in their complaint that just don't seem right. It's always up to us to be proactive.

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Thanks to you all for your wonderful support and advice.  I really appreciate it!

 

I have been trying to read as much as possible.  My mind is starting to rebel, but I'll continue to do as you've suggested.  I did submit my response to their demand for Production and Admissions in their original Discovery.  I did send it Certified with return receipt.  They have not sent any other form of Discovery, except at the pre-trial conference, they did ask, again, for the bank statements.  I have not sent any discovery requests to them because they had sent me, early on, their Plaintiff's Initial Disclosures with their "Bill of Sale" and the partial credit card agreement, a little information on their expert witness, Elizabeth Gamache, who, I'm sure, works hand in hand with them.  The information I've been able to gather on her seems to be that she does testify, at least on paper, in a lot of these types of cases.  I think she works, or was working with Bank of America, and as such, is supposed to be able to verify their accounting methods. 

 

I will fill out the questionnaire and will continue to read as much as possible, but let me ask, am I correct in my understanding, if the court allows the extension the Plaintiff is requesting, it will be to my advantage also, that I can continue to request Discovery?  

 

Also, at the pre-trial hearing, the attorney told us that he did not have copies of the contract, the accounting, etc. yet, because they had not ordered them from the OC.  I don't know if it would be to my advantage to forget the discovery issue and request a denial of the extension and move to trial immediately in order to get a ruling of Lack of Standing.  What do you suggest?   

 

 

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Seems they really like to demand bank statements in your state. Interesting. Chances are whether or not you want them to get an extension, it will be granted by the court.

So let me get this straight; they re claiming they did NOT receive your discovery but you prove they did with a signed green card? Do I have that right?!

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you said you mailed your discovery to them cmrrr, that is your proof they received it, and you could send them a copy of your answers again along with a copy of your cmrrr receipt.  You could write up an opposition to the extension, but you would need to make it a good brief, and you would need to be ready to argue in court their lack of standing.  If you don't know how to object, if you don't have any case law to support your arguments, this may not be wise, you sound like you need time to really study up on your rules of civil procedure.  That call is up to you..

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JM claiming something like not receiving something is par for the course for these guys. They will lie and say all kinds of things in discovery since none of discovery in Utah is filed with the court. It sounds like you have proof of sending answers so don't worry about that. You have to be aggressive with these guys and not wait for their next move.  Their next move will be a MSJ! Recommend posting the "Bill of Sale" for comments. I would guess the BOS is an incomplete document and needs to be challenged. Send a meet and confer letter requesting information on their star witness.

 

I know it is overwhelming but you have to keep a step ahead of these guys. Try filing a motion for a security deposit. That is a good way to slow things up a bit as they have to respond. It is my experience they will take plenty of time to respond. Use this time to plan your next move.  Good Luck! JM is not used to working very hard.

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I've been reading constantly anything and everything that has been submitted here and thank you all for all your wise comments and help.  I've not been able to find the set of questions that Shellie98 mentioned I needed to fill out.  Could someone please direct me to that page.  I'm rather deficient in my computer skills, but I keep trying.  I have some more questions, but want to get the initial information put in for you, as directed by Shellie98 before I proceed.  Thanks again, so much!  I'm starting to understand a whole lot better, a good deal of the material I've been reading.

 

I am currently drafting a letter to the Plaintiff's attorney regarding the Statute of Limitations.  Do I want to refer to the Delaware rules in that letter or just let them figure it out?  The attorney I met with at the hearing stated that Utah's statute was six years for credit card collection, that some of the latest findings were supporting that limit.  I'm not sure where he got his info from, but certainly hope he was attempting to bluff or is just totally uninformed.  Laws do have a habit of altering  every now and then, so one never knows just how a judge will look at that.

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I don't recall the verbage to be used, but there is a way you can word your defense against having to send them your bank records as they do not pretain at this time. You should only submit them if they should get a judgement. Hopefully, someone else recalls the wording used in refusing to hand over bank records.

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I've been reading constantly anything and everything that has been submitted here and thank you all for all your wise comments and help.  I've not been able to find the set of questions that Shellie98 mentioned I needed to fill out.  Could someone please direct me to that page.  I'm rather deficient in my computer skills, but I keep trying.  I have some more questions, but want to get the initial information put in for you, as directed by Shellie98 before I proceed.  Thanks again, so much!  I'm starting to understand a whole lot better, a good deal of the material I've been reading.

 

I am currently drafting a letter to the Plaintiff's attorney regarding the Statute of Limitations.  Do I want to refer to the Delaware rules in that letter or just let them figure it out?  The attorney I met with at the hearing stated that Utah's statute was six years for credit card collection, that some of the latest findings were supporting that limit.  I'm not sure where he got his info from, but certainly hope he was attempting to bluff or is just totally uninformed.  Laws do have a habit of altering  every now and then, so one never knows just how a judge will look at that.

 

@frosted1

 

Here's the questions:

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

Just copy and paste.

 

Perhaps I missed it, but did you answer the complaint? 

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JM claiming something like not receiving something is par for the course for these guys. They will lie and say all kinds of things in discovery since none of discovery in Utah is filed with the court. It sounds like you have proof of sending answers so don't worry about that. You have to be aggressive with these guys and not wait for their next move.  Their next move will be a MSJ! Recommend posting the "Bill of Sale" for comments. I would guess the BOS is an incomplete document and needs to be challenged. Send a meet and confer letter requesting information on their star witness.

 

I know it is overwhelming but you have to keep a step ahead of these guys. Try filing a motion for a security deposit. That is a good way to slow things up a bit as they have to respond. It is my experience they will take plenty of time to respond. Use this time to plan your next move.  Good Luck! JM is not used to working very hard.

 Thank you so much for all your helpful suggestions.  I am very grateful to you.  You are right about the BOS  being incomplete.  I have it ready to attach to this file, as well as the copy of the credit card agreement, (consisting of two pages and still incomplete) that they sent to me.  I'm trying to find the page of questions I'm supposed to fill out for this post.  I will finish that as soon as I can find it.  In the meantime, do I send the attorney anything to explain why I did not provide them with my bank statements?  If so, what do I send?  Do I notify the court of anything that I send?  I only have two or three more days to respond to them, but I am not sure what I should be sending.  Any recommendations would be appreciated.  I'm sorry to be such a pest, but I've never had to deal with the courts before and I'm totally in the dark here.  Thanks again for all your time and effort.  You are a gift to us all!

post-128717-0-71824800-1374957094_thumb.

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@frosted1

 

Did you notice that the bill of sale references sections and documents that Asset probably hasn't provided to you?

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Hammer on the incomplete bill of sale...

 

 

Also as far as the bank statements go - state that they are not relevant at this time.

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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.)  Johnson Mark LLC

3. How much are you being sued for?  $4200

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

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

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?      

 

Received two letters from the attorneys, responded to the first with a denial of knowledge of account and requesting validation, to the second, with a denial and request for no further contact.

9. What state and county do you live in?      Utah, Salt Lake County.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)    Plaintiff's attorney says last payment made, per OC, was 10/2009.

11. What is the SOL on the debt? To find out:   Utah- the Plaintiff's attorney told me 6 years. I've been told 4, 6, or 1.  If Delaware Law rules, it would be 3 years.

 

Statute of Limitations on Debts

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).   It is my understanding that Utah is not online.

 

I'll have to call the court on Monday to get the status. Summons/Complaint served, Plaintiff's Initial  Disclosures sent, Discovery requested and responded to.  Did have a pre-trial conference in June.  I denied having knowledge of account.  Did ask attorney for validation again, was told they hadn't ordered the copies of contract or accounting yet.

 

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.

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?  No, this is the Claim as it was presented to me.

 

 

1. Defendant resides in this county and /or signed the contract giving rise to this action in this county.  Jurisdiction and venue are proper in this court.

2. Defendant entered into a contract with BANK OF AMERICA opening an account ending in xxxxxxxxxxxxxxxx, which contract was subsequently assigned to Plaintiff.

3. Defendant has defaulted on the obligation under the contract.

Only received request for Production and Admissions.

4. The amount due and owing to the Plaintiff is $xxxx.xx plus accrued interest of $xxx.xx as of October 10, 2012, at the rate of 10.00% per annum less any payments made.  In addition, Plaintiff is entitled to recover interest from October 10, 2012, until the date all amounts due are paid.

5. Plaintiff may be entitled to recover a reasonable attorney's fees as provided in the contract.  In the event Defendant fails to respond to this complaint, and default is entered, Plaintiff may seek attorney's fees in the amount of $xxx.xx pursuant to U.R.C. P. 73.  Said fees will not be shared in violation of Rule of Professional Conduct 5.4.

6. The Plaintiff may also be entitled to addtional attorney's fees for post-judgement services rendered in accordance with applicable law.

7. Further, equity requires Defendant to pay the value of the benefits received.

DEMAND: Plaintiff requests judgement as follows:

A.  For damages in the amount of $xxxx.xx plus accrued interest of $xxx.xx as of October 10, 2012, at the rate of 10.00% per annum less any payments made;

B.  For additional interest from October 10, 2012 until amounts dues are paid at the rate of 10% per annum;

C.  For reasonable attorney's fees (if any) in the amount of $xxx.xx pursuant to U.R.C.P. 73; 

D.  For post-judgement attorney's fees in accordance with applicable law;

E.  For costs of court both prejudgement and post-judgement; and

F.  And any other relief as the court deems just and equitable.

 

Dated:  october 10, 2012     Signed:xxxxx

 

I had responded to summons/complaint with a letter stating denial of account and a copy of the first validation letter I sent to them.  I then received the request for Productions and Admissions with the Discovery request.  I did respond as best as I knew how, but need to amend the original Answer.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

 

No evidence was sent with the Summons/Complaint.  Did receive an incomplete BOS and Assignment of Loans, along with an incomplete credit card agreement, in Plaintiff's Initial Disclosures.  They also sent me an accounting on plain paper, nothing from the OC.
 

17. Read this article: 

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

====================================================

 

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I'm ready to submit my amended answer.  Is this sufficient or overkill?  I hope I've done it correctly.  Any suggestions would be appreciated.   Do I send a copy of the Amended Answer to the court as well as the attorney?  And do I do that with all documents that I send to the attorney or do I just send cert of service.

THIRD DISTRICT JUDICIAL COURT.docx

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Posted Yesterday, 01:36 PM

I want to thank you all for your suggestions and beg your patience with me.  I'm so confused and my head swims with all the info I've been reading.  I've been preparing the Bond Request that was suggested and wasn't sure just how to address it.  Am I sending this just to the Plaintiff's attorney with a Cert to the Court, or do I send it to the Court with a Cert to the Plaintiff or to both, Cert.  Also, do I send the Amended Answer to the Court and/or the Plaintiff's attorney.  All will be sent cwrrr.

 

I was hoping someone would respond with the appropriate wording for me to send to the attorney regarding the bank statements as mentioned in Tom n Tex's suggestion, that being most time-sensitive right now.  I do have it partially prepared.

 

In answer to some of your questions, Complaint was received January 2013. I did respond with my Answer in a timely manner, quickly received Plaintiff's Initial Disclosures, followed by Plaintiff's Discovery demanding Production and Admissions.  Again, I responded in time.  My first answer was not a complete answer in the format required and during the June pre-trial conference I was told to amend. During all this, no time has been set for trial. There is no court date established that I am aware of.  I have answered your initial posting questions. I am certifying everything I mail and am reading everything you have suggested.  I don't always understand what I'm reading, but I continue to read.  I am noticing that some of the documentation Asset has sent to me, others have received the same, almost identical with the exception of names, dates and figures.  It seems their plan is not to provide any useful evidence, even on their own behalf.

 

I'm ready to submit my amended answer.  I have attached the file for your perusal.  Is this sufficient or overkill?  I hope I've done it correctly.  Any suggestions would be appreciated.   Do I send a copy of the Amended Answer to the court as well as the attorney?  And do I do that with all documents that I send to the attorney or do I just send cert of service.

 

Again, my deepest thanks.  I would not have been able to hang in there without your excellent expertise and guidance.

Attached Files

 

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I am currently drafting a letter to the Plaintiff's attorney regarding the Statute of Limitations.  Do I want to refer to the Delaware rules in that letter or just let them figure it out?  The attorney I met with at the hearing stated that Utah's statute was six years for credit card collection, that some of the latest findings were supporting that limit.  I'm not sure where he got his info from, but certainly hope he was attempting to bluff or is just totally uninformed.  Laws do have a habit of altering  every now and then, so one never knows just how a judge will look at that.

 

I have somehow been missing this thread, although life has been crazy busy lately. The attorney is dead wrong on the statute of limitations issue. Credit Cards in no way fall under the 6 year SOL in Utah when the statutes are read plainly. The attorney's for JDBs like to waive the terms and conditions around and say "written contract". Actually 78B-2-322 says written instrument. SO what is a written instrument?

 

Well 70A-9A-102 is the only place an instrument is defined and the lawyer can not pull some cure for that out of his hat. This section covers Securded Transaction which are most often things like a mortgage. The specific section is 70A-9A-102(47):

(47) (a) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment.

            (a ) "Instrument" does not include:
            (i) investment property;
            (ii) letters of credit; or
            (iii) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card.

 

 

Notice it basically says that credit card accounts are not instruments. Therefore it falls under 78B-2-307 Within Four Years. Yes I will concede there have been a few trial court decisions that say 6 years, but from what I have found so far none of those Pro Se have raised the definition of Instrument. They just counted that the court would see they have no signed contract, therefore the court must go with 4 years. That is very bad thinking, you always have to argue every possible angle and not expect the court to see what you think is as plain as your nose. If you can not show the court what the law says plainly, the judge will go with the badly trained lawyers opinion.

 

One question based on the things you posted earlier, has this lawyer asked you if you want to settle? If I was in your situation I would chuckle and ask him how he expected you to settle since you are permanently disabled, have no assets, no exempt income and only have a place to sleep due to kindness of family. Once he hears that, he is going to rethink spending time on an account he is likely to never be able to recover on.

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Mr KentWA,  

 

Thank you so much for your response today.  I do wish to clear up a misunderstanding.  I am not permanently disabled.  I do have severe health  issues,  to the point that it interferes with my being able to hold down regular work, but I am not totally disabled.  Unfortunately, you are correct that I have no assets, no income, and a place to sleep only due to kindness of family.

 

I have had no settlement offers from them.  I have drafted an SOL letter I'm attaching here.  I need to send it asap, but would appreciate it if you or the others could critic it for me.  I also was planning to send a response regarding the bank records they are requesting.  I'm just going to state that I find no relevance to the issues at hand and therefore will not be supplying those records at this time.  I hope that will be sufficient.

 

 

Again, I thank you for sharing your time and your wisdom with me.

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