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My midland case so far-thank goodness I was prepared!


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Just got back from court. Not a bad outcome but not what I'd hoped which was of course win or dismissal. The rent a lawyer, Stuart Rine shows up and wants to put me on the stand because of my admissions (I admitted my address and that I had the card) Then he blathered on about the witness not being served. The judge said its right here, she did, better get your docs from your boss in order. Haha

The judge was pretty mean, told me this wasn't a game (no idea what he meant by that). I explained that I had tried to work things out with OC, they agreed to reducing interest from 28% (they slammed me right before anti-slamming law came into effect), i made a good faith payment of $330 before new interest rate was in effect and then never heard from them again until lawsuit. He said their evidence looked fine to him and I started to freak out but took the advice of not speaking unless absolutely necessary. He asked me if I could prove what I just told him. I said I would have to pay my bank hundreds of dollars to get records of electronic payments.

Then he stopped, looked through docs and said "the witness needs to be here. I will continue this and the plaintiff has to bring a witness. And a good one, not just someone who has seen the papers. The plaintiff will have a hard time doing this. He looked at rent a lawyer and told him to tell his employers that he was going to stop allowing ccp 98 and that he was aware of target vs. rocha.

He said he was new at these "lowly" cases and this was the first time he'd seen someone like me use it.

He told me to come back in November with a statement.

Lets see if they dismiss or actually bring a credible witness. I won't start collecting bank statements - burden of proof is on them.

Guess it'll be my word against theirs.

I thought this would be over today but I think I still have a good chance?

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All they may have is a copy of some unverified statements, excel spreadsheet with some numbers, CD Disk with maybe your name, address, last four of your social security. They would need a witness from the original creditor to testify at the hearing. Never happen.

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I hope this case helps people:

 

LVNV Funding, L.L.C. v Colvell   Case No. A-1313-10T3 (NJ Superior Ct. App. Div., Jul. 12, 2011)
Defendant Mary B. Colvell appeals from an entry of summary judgment on July 22, 2010, in favor of plaintiff LVNV Funding, L.L.C. (LVNV), a collection agency that was assigned a $12,060.75 balance she purportedly owed on her Citibank Sears Gold MasterCard (MasterCard), and denial of reconsideration on September 29, 2010. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand, concluding that the proofs submitted by LVNV were insufficient to grant summary judgment. In particular, when suing to collect the balance allegedly owed on an unpaid revolving credit card account, the creditor must prove more than merely the total amount remaining unpaid. Instead, as required to obtain a default judgment by Rule 6:6-3(a), the creditor must set forth the previous balance, and identify all transactions and credits, as well as the periodic rates, the balance on which the finance charge is computed, other charges, if any, the closing date of the billing cycle, and the new balance. We also conclude that the trial court erred by failing to afford defendant the oral argument she requested. 

LVNV is a credit agency, which purchased a portfolio of debt from Citibank on January 10, 2008, which included Colvell’s MasterCard account. After purchasing the account from Citibank, all ownership rights were assigned to LVNV, including the right to collect the balance owed, plus any interest accrued at the rate specified. 

In its complaint, LVNV alleged that defendant was indebted to LVNV in the amount of $12,060.75, including interest, service charges, costs and attorney fees, which defendant had agreed to pay in her MasterCard agreement. LVNV claimed that demand for payment had "been made and gone without heed." In her answer, defendant denied all of LVNV’s allegations. 

LVNV sent defendant interrogatories. She responded to essentially every question by saying that she was "not aware of any written agreements or contracts with LVNV." She also stated that she "did not receive billing statements from [p]laintiff," and that she "made no agreements with [p]laintiff to resolve alleged indebtedness." A trial date was set for August 31, 2010. 
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uly 26, 2011

Previously published on July 22, 2011
 

In a recent decision approved for publication, the New Jersey Superior Court, Appellate Division, clarified the standard of proof required to obtain summary judgment in a suit to collect on a revolving credit card account. In LVNV Funding, L.L.C. v. Colvell, A-1313-10 (July 12, 2011), the court held that the creditor must "prove more than merely the total amount remaining unpaid" and must set forth: (a) the previous balance; (B) all transactions and credits; © the periodic rates; (d) the balance on which the finance charge is computed; (e) any other charges applied; (f) the closing date of the billing cycle; and (g) the new balance.

The plaintiff, LVNV Funding, L.L.C. ("LVNV"), was a credit agency that purchased a portfolio of debt from Citibank, including the MasterCard account of defendant Mary B. Colvell ("Colvell"). LVNV brought suit in the Special Civil Part for $12,060.75 in damages, including interest, service charges, costs and attorney fees. Prior to trial, LVNV moved for summary judgment, attaching a computer-generated report supporting its claim as to the amount due. The court granted LVNV's motion. Colvell appealed.

Colvell argued that the computer-generated report attached to LVNV's motion did not meet the requirements set forth in New Jersey Court Rule 6:6-3(a), which governs entry of judgment by default and requires the inclusion of "forms of proof, consistent with federal regulations for credit card account periodic billing statements." Specifically, the rule requires that, where the plaintiff's records are maintained electronically and the "claim is founded on an open-end credit plan," the plaintiff must attach "a copy of the periodic statement for the last billing cycle" or a "computer-generated report setting forth the previous balance, identif[ying] ... transactions and credits, if any, periodic rates, [the] balance on which the finance charge is computed, the amount of the finance charge, the annual percentage rate, other charges, if any, the closing date of the billing cycle, and the new balance." The Appellate Division found that, although Rule 6:6-3 "does not generally apply in a summary judgment situation," it "provides a guide to the proofs necessary to grant summary judgment in a credit card collection matter."

The court found the statement provided by LVNV did not comply with Rule 6:6-3(a). It did not specify any transactions comprising the debt owed and, in fact, the only transaction listed on the statement was LVNV's purchase of the account. "Additionally, and incredibly," the statement indicated that the finance charge percentage rate, annual percentage rate, and other fees were zero. The statement also failed to include the closing date of the billing cycle. Accordingly, despite that Colvell did not dispute that she used the card or held the account, the Appellate Division reversed the trial court's grant of summary judgment.

While the LVNV Funding decision sets forth a clear and concise blueprint, the court's decision may have limited application. Rule 6:6-3 applies only to matters in the Special Civil Part, which does not hear cases in which the amount in controversy exceeds $15,000. The Appellate Division in LVNV Funding did not comment on whether its holding would have broader application to matters not brought in the Special Civil Part. Additionally, the court did not opine on whether the standard set forth in Rule 6:6-3 would govern proof at trial. However, the court did note that the requirements ofRule 6:6-3(a) were also "set forth in federal law." In any event, the standard established by LVNV Funding is not a difficult one to meet, and creditors seeking judgment on a revolving credit card account in situations not expressly covered by Rule 6:6-3 or the LVNV Funding decision may thus want to consider conforming to that standard in order to avoid challenges to their proofs.

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Thanks for your replies.

I think the lesson here is some judges will allow crap robo signed evidence/ccp 98 so you have to be prepared to "counter" that with demand for cross examination of witness. The judge can't say no to that. It's due process!

Also, it's better to do the work up front than appeal later because judge doesn't know his law or sides with banks/debt collectors.

Do the work, be prepared. Because I had a "cranky" judge, if I hadn't served witness, prepared motion in limine, I think he would have accepted debt collectors word. The rent a lawyer did nothing to help debt collector, it was as if the judge had already decided because they had a handful of statements. Scary.

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Yes My story is similar. Went to trial prepared on 6/20  Had already won my MOSJ and thought I was totally prepared.  Judge was unfamiliar with new laws since having a pro tem fill in for 6 months. Stopped in the middle of trial and said we will continue but I will not make a decision. Both sides do a memorandum of case law.  Over a month later no decision.

I called the witness on affadavit that they listed.

I really thought these judges had to rule on case law.

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Honestly I don't think many judges know what the case law is. My judge seemed to flip flop, evidence that he didn't know if you ask me.

He even admitted these cases were new to him. He was flipping through statements, like, seems plaintiff is above board.

Luckily, he didn't just rule for plaintiff, seemed like he was for a second there.

Bottom line is there has to be a witness. Problem is if by some strange chance someone shows up, will he consider them credible? As race car said, it has to be someone from original creditor, otherwise it's my word against theirs.

I just can't believe the judge will believe the amount they claim is legit. With all the mounting state lawsuits against jdbs, they have to know they're crooks trying to sidestep due process, while tacking on interest.

Gotta wait til November. Sigh.

Good luck to you hot in az.

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Rare for them to bring a witness. Very rare. As for being seen a creditable witness, well its all about you doing your job and hammering a witness if they brig one. I'd use this time to prep and be on bad mother if they do bring one. They are going to hope this time makes you freak out and you cave

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True. Their offense is hammer til you cave or the judge says enough of this crap.

They really aren't out much, reusing documents over and over and paying a paralegal $12 an hour to prep and file docs.

If they bring a witness, I will hammer: incomplete evidence, credibility, etc.

I think if I counter sued this judge would lay me out. Again I was shocked at how he side stepped and continued the case.

The burden of proof turned to me. Oi vey.

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