frosted1

Asset Acceptance going for the jugular. Need Help!!

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When does litigation begin??? The Complaint was served on 01/21/2013 and the actual filing with the court was dated 01/31/2013. There were letters sent prior to that time, but I thought litigation began with the filing with the Court and serving of Complaint. Am I off base here?

 

The filing of the lawsuit tolls the SOL, so in Utah if the last payment was 4 years before that date, SOL would make a good affirmative defense. It sounds like she may be confusing your case with some other case.  xhitwallx I'm sorry, but when are they saying the last payment was made on the alleged account??

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Hi Guys! I appreciate your responses!

Plaintiff claims last payment made on this account (made by phone?) was listed on the November statement as 10/2009. A credit report shows the same date. However, I think the Plaintiff is the one who did the reporting to the credit bureau, although the dates and monies don't show the same as the statements. Again, I'm still not sure that this account was mine. Also, my bank records show no payments of any kind to B of A in the three years they're talking about.

I found online a cardholder agreement for a later year that was put out by B of A as a result of a major merger. I'm thinking... it would preclude any and all previous cardholder agreements as the merger was significant. In that agreement, it states that Delaware is the Law of Rule. That is what I'm considering as a basis for any SOL issues. In which case, I could claim SOL on the Borrowing statute. Delaware uses last charge/purchase as opposed to last payment as their rule for deciding SOL timeframes. Am I in the ballpark here, or am I way off base? KentWA had posted some info regarding those rules.

Also, I'm asking again, when does litigation actually start? Isn't it at the time of Service of the Complaint or the filing of the suit?

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Also, I'm asking again, when does litigation actually start? Isn't it at the time of Service of the Complaint or the filing of the suit?

When you answer a lawsuit and start fighting it, then you are in litigation. A lawsuit might get filed, and then be ignored, so although it has been filed it is not in litigation (unless you count them filing for default).

 

If you get them to send you the terms (they say apply to your account) in a request from discovery, it will be easier to get it into evidence and use it against them (assuming it has a better SOL).

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Section 1 of this case discusses UT's Borrowing Statute

 

http://scholar.google.com/scholar_case?case=8582566568914951046&q=%2278-12-45%22&hl=en&scisbd=2&as_sdt=4,45

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Debtzapper, Thank you for the reference, but dense as I am, I've got to state that I had trouble following that case when it came to deciding the most significant relationship issue and substative vs tort.  CAn you explain it in simpler English?  Again, thanks for your help!

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Debtzapper, Thank you for the reference, but dense as I am, I've got to state that I had trouble following that case when it came to deciding the most significant relationship issue and substative vs tort.  CAn you explain it in simpler English?  Again, thanks for your help!

 

I know from your post on Sept 13 that your read this thread, but it might bear re-reading again.  It explain's UT's Borrowing Statute.

 

http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/

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Thanks Debtzapper, for the great reminder!

I had read that one early on, but had forgotten it. I read it yesterday and will re-read it again tonight. I do have a procedural question for all of you. I'm going into a hearing on a Motion for Default at the end of the month. What should I be preparing?

I sort of thought I should get a Motion to Dismiss ready, using both the issue of Standing and the SOL and submit them prior to the hearing. I can and would use the info from Starduster's case, but I want to know if I should do one motion for each or put them together in one motion? Or should I wait until I'm in front of the judge and then just bring it up at the hearing? Being in Utah, our procedures are a little different. So I'm not sure if there is something else I should preface with before moving to dismiss? Any suggestions or guidance would be appreciated. I await your replies.

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@frosted1

 

If you don't mind my asking, why didn't you comply with the court order? 

 

What did you state about the order in your opposition to the motion for default?

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Hi BV80,

Most of what I had read regarding bank records suggested never giving them up to the opposite side. I had filed oppositions using several objections, but the fact of the matter is, I was never informed that the orders had been signed until fifteen days after said signing, and then only in response to one of my objections that I filed.

I have several reasons for not complying. No.#1, I didn't want to give them up because I feel it's an invasion of my privacy. I don't feel this is my debt, but I do have another debt that this same attorney could end up representing. Having them nosing around in my records doesn't seem like a wise thing to allow. I have only banked at one place and have built a decent relationship with the people in my branch. I don't want to jeopardize that in any way. I also objected due to the issue of Standing. I had objected, but each time I objected, I also asked for a form of protection to show that I was willing to comply under more favorable circumstances such as In Camera or making sure that the records were viewed only by outside counsel and not the Plaintiff's counsel. The last requests I made included that same statement. I wouldn't mind the judge or his clerks checking the records. I just don't want the Plaintiff looking at them. Call me paranoid, but you and I both know they are not a trustworthy organization, to begin with. Am I being too protective?

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Hi All,

I do have a procedural question for all of you. I'm going into a hearing on a Motion for Default at the end of the month. What should I be preparing?

I sort of thought I should get a Motion to Dismiss ready, using both the issue of Standing and the SOL and submit them prior to the hearing. I can and would use the info from Starduster's case, but...

I want to know if I should do one motion for each or put them together in one motion? Or should I wait until I'm in front of the judge and then just bring it up at the hearing? Being in Utah, our procedures are a little different. So I'm not sure if there is something else I should preface with before moving to dismiss? Any suggestions or guidance would be appreciated. I await your replies.

Thanks for your help. Frosted1

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Am I being too protective?

 

While I agree with you completely, you don't want to get defaulted on. According to what you've told me, the bank records they want don't show any payments on the account. So at least as far as this case is concerned they aren't damaging. I'm also not convinced a judge would default you for not complying, but I've seen stranger things happen and you don't want to lose over this.

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I do have a procedural question for all of you. I'm going into a hearing on a Motion for Default at the end of the month. What should I be preparing?

 

You should be preparing your oral arguments which should be based on what you've filed in opposition. 

 

 

I sort of thought I should get a Motion to Dismiss ready, using both the issue of Standing and the SOL and submit them prior to the hearing. I can and would use the info from Starduster's case, but...

I want to know if I should do one motion for each or put them together in one motion? Or should I wait until I'm in front of the judge and then just bring it up at the hearing? Being in Utah, our procedures are a little different. So I'm not sure if there is something else I should preface with before moving to dismiss? Any suggestions or guidance would be appreciated. I await your replies.

 

A motion to dismiss is typically procedural in nature because the plaintiff has failed to meet the rules in some way. Have they failed to meet Utah's rules on standing? SOL would be viable as long as you have proof that they've filed the case outside of SOL. You're going to get into a battle over that alleged phone payment since that would require the use of the borrowing statue. You're going to need case law that backs up the use of that statue or prove that you never made the phone payment.

 

You can roll as many things into one motion as you want, so SOL & Standing in the same motion to dismiss is fine. If you're going to file a motion to dismiss, you need to file it with the court and request oral arguments since they aren't automatic in Utah. The motion for default would precede your motion to dismiss regardless as it was filed first.

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Thanks Spikey for your remarks.   I'm a little confused here....

 

What did you mean by "You're going to get into a battle over that alleged phone payment since that would require the use of the borrowing statute."?

 

Also, can you tell me... is there some form of paperwork I need to file before the hearing regarding the oral arguments or do I just show up prepared to present my arguments against Plaintiff's motion?

 

The hearing is on the 30th, Jan.

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What did you mean by "You're going to get into a battle over that alleged phone payment since that would require the use of the borrowing statute."?

 

So, you're going to say one of 2 things I assume. Either the phone payment is fake and that your last valid payment was beyond the 4 year Utah SOL. Or you're going to use the borrowing statue to claim that Delaware SOL is appropriate. Either way you're going to have to argue your case. The Plaintiff isn't going to just roll over based on your previous interactions with them. They're going to claim that the phone payment is valid and that the borrowing statue is inappropriate. You need to prepare your argument so that it's solid enough to withstand those attacks.  Tracking down good case law to support your arguments will go a long way.

 

Also, can you tell me... is there some form of paperwork I need to file before the hearing regarding the oral arguments or do I just show up prepared to present my arguments against Plaintiff's motion?

 

There's nothing you need to do for the 30th, oral arguments will be made then. Be prepared for it. What I was referring to was your planned motion to dismiss. You'll want oral arguments for that to refute the Plaintiff's rebuttal to your motion.

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Thanks Spikey for the clarifications!  I really appreciate it!

 

I have another question....  In the plaintiff's response to my first set of discovery, she lists  9 objections, number 8 being:  "For all objections, Plaintiff intends to seek a protective order pursuant to the URCP to prevent further discovery on the objectionable requests and may do so if Defendant attempts to compel the response to the objectionable requests.  She objects to the extent that my requests are not proportional to the matter as the cost and expense of responding  would be a substantial portion or even exceed the amount in controversy."

 

I asked for her to furnish the documents missing from, but listed in the BOS, all statements from the beginning to verify the amounts demanded.  Also send a complete cardholder agreement.   Is this just her bluff or does she really have a leg to stand on?

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Well, after looking back, they're suing you for $4,200. I find it highly unlikely that it would cost even 5% of that to request the paper work from the OC. They usually pay by the page. The bigger issue is how long it takes to get the paperwork, but that's not your problem. They're trying to bully you. 

 

My opinion, if they purchased your debt, they've stepped into the shoes of the OC and have access to those documents. They just don't want to pay for them and don't want you to see the full BOS, so they're making excuses. How a judge would rule if you filed a motion to compel is anyone's guess. If it was me, I'd file a motion to compel, unless the portion of the BOS you already have has a warranty clause on it. That's language is a big deal, if the OC refuses to validate the data they've included in the sale, how can the JDB claim that the information is accurate?

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The BOS states:  The undersigned Assignor ("Assignor") on and as of the date hereof absolutely sells, transfers, assigns, sets-over, quitclaims and conveys to Asset Acceptance, LLC, a limited liability company organized under the laws of Delaware ("Assignee") without recourse and without representations or warranties of any type, kind, character or nature, express or implied, subject to Buyer's repurchase rights as set forth in Sections 8.1 and 8.2, all of Assignor's right, title and interest in and to each of the Loans identified in the Loan Schedule attached hereto (the "Loans"), together with the right to all principal, interest or other proceeds of any kind with respect to the Loans remaining due and owing as of the Cut-Off Date applicable to such Loans as set forth in the Loan Sale Agreement pursuant to which the Loans are being sold (including but not limited to proceeds derived from the conversion, voluntary or involuntary, of any of the Loans into cash or other liquidated property).

 

My understanding is that according to Utah's Rules of Evidence #106, Plaintiff must provide a copy of the Loan Schedule and the  Loan Sale Agreement referenced in the BOS.  I'm aware there are no warranties given, but what does that actually mean in  reference to the legality of the Assignment and/or a court of law?  Also, does that mean she is able to seek a protective order if I move to compel her to produce the two aforementioned documents?

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@frosted1

 

without recourse and without representations or warranties of any type, kind, character or nature, express or implied, subject to Buyer's repurchase rights as set forth in Sections 8.1 and 8.2

 

 

"Without warranties or representations" appears to imply that the OC is not guaranteeing that the accounts are collectible or accurate.  BUT, that's our assumption.  The only way to know for sure would be to have access to Sections 8.1 and 8.2.  I would think those 2 sections would be in the referenced Loan Sale Agreement.

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@frosted1

 

 

"Without warranties or representations" appears to imply that the OC is not guaranteeing that the accounts are collectible or accurate.  BUT, that's our assumption.  The only way to know for sure would be to have access to Sections 8.1 and 8.2.  I would think those 2 sections would be in the referenced Loan Sale Agreement.

 

Right after that it says: subject to Buyer's repurchase rights as set forth in Sections 8.1 and 8.2, 

 

So it's only repurchase rights which I don't think has anything to do with the accuracy of the "loan schedule".

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@Spikey

 

I agree that it doesn't have anything to do with the loan schedule.  I think that document only shows which accounts were included in the sale. 

 

The repurchase rights could show under what circumstances the OC would repurchase an account from the JDB.  For instance, if the OC does guarantee the accuracy of accounts, but a JDB finds an account that contains inaccurate information, then OC might have to repurchase the account.

 

If the OC does not guarantee accuracy, then the JDB couldn't use that excuse to sell accounts back to the OC.

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Guys, I appreciate your quick responses.  Thank you!

 

I sent this Plaintiff a Meet and Confer back in Sept requesting the missing documents.  I also requested a complete cardholder agreement.  She has simply re-sent the documents she sent in the first place.  She did not send all the statements from day1 that I requested, only the last six or seven of 2009.  She never sent any information regarding any of her witnesses, such as names, addresses, contact numbers, etc, other than the name of the orginal one, the mysterious Elizabeth Gamache.  There has been no authentication from the OC  on any of the documents sent.  Should I wait until after the hearing or start now on an MTC? 

 

I'm borrowing a computer from a friend that has been kind enough to lend it to me, but it has Windows 8 operating system and I have Windows XP training.  It's been a killer, but I'm determined to accomplish this.  My brain is a bit fried, to say the least, but I'm hoping to spend the majority of my time readying my arguments for the hearing.  I will follow your advice, as you know best how to proceed. 

 

What is your advice re bank records?  Should I go ahead and secure them and get them ready to take to the court for the hearing?  I'm willing to place them in the hands of the Court, but not the Plaintiff's attorney.  I won't give them up, if I can't have the protection I've requested.  I did not do an official motion, just requested in my oppositions.  Awaiting your answers.

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I would start the MTC now so you can file it when you go to court. I'm all about saving trips to court if possible.

 

I don't have any further advice on your bank records beyond what I've said before, avoid the default.

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1. If it were me I would file the MTC ASAP.

2. Give them the records. Besides, they are not going to be looking to see if there are payments on your other account, he'll they probably don't even know you have another account with them. Only if they were suing you for both at the same time would I worry. They do so many cases a year, I doubt they will even remember you if they decide to sue you on account number 2.

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Thanks Guys!  I appreciate your responses!

 

I've been reading some instructions on MTC's and had another thought.  Discovery deadlines have come and gone twice.  I've sent several validations letters, a M&C letter, my RFA's and RFP's and Plaintiff has still not produced the documents I've requested.  How off base would I be to just go to the hearing and defend on the basis that they wouldn't produce those documents and (if they do at the hearing), object, because it's too late.  They can't use what they didn't produce in Discovery when they had the chance.  Would that not place them in jeopardy of being able to prove standing?  Or am I risking them being able to produce those documents at that time?

 

I'm curious as to your thoughts on this theory.  I await your responses.  Thanks again!

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This all depends on how critical the documents that they haven't produced are to your defense. With disclosure in Utah, if they don't produce them in a timely manner they can't just pull them out at trial and use them if you object. I think a MTC makes sense because of the way they've been bullying you and it turns the tables back on them. Ultimately it's up to you on what to do to get yourself lined up for trial.

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