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New Lawsuit- Hit them hard from the start?


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Hi again everyone. I'm hoping that a new lawsuit entitles me to a new topic here. If not, moderators please combine this with my last.   : )

 

So Midland filed again on a new card, and I still need to get to the courthouse as I have not been served yet. What I found on my credit report is concerning. It shows that I had ANOTHER Chase card with a credit limit of $30K! This is news to me! There is no way that I had such a credit limit, and I never had this other card!

 

Guessing that they are claiming another Chase credit card debt, with similar charges as last lawsuit, I am hoping I can hit them hard right from the beginning. 

 

Along with my answer and general denial/affirmative defenses, is there anything I can file with this to try and get the case dismissed? If so, can anyone direct me to an example here on the forum?

 

Thank you all! I will fight with all I have, but I really need help!

 

 

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You are only going to be able to make that decision once you have the documents and possible after their initial disclosures. I am not a fan of MTD in lieu of answer unless it is obvious on its face. So if there are documents for an address you never lived at, then you file a police report and include that in your MTD. However my tactic would be to counter claim for a Declaratory Judgement under 78B-6-401 that the debt is not mine and the JDB can not sell, assign or otherwise transfer the alleged debt. That puts them into a pickle where they can not just turn coward and run and have to prove up their case immediately or take a judgement against themselves. Then the police report becomes enough to immediately file a Motion for Summary Judgement.

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So your husband refused to accept service on your behalf? That is not an issue in Utah. Yes I would most definitely move to quash service, just as a matter of principle, it will also make them do a bunch of additional work, and show the court right up front that they have no issue in mis-stating the facts. However I would have answer prepped and in hand for once the court rules on your motion.My answer would also have the requisite motion for cost bond attached as well. 

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they would just reserve, and most courts would say if you knew about it, you should have answered it.  If I were you, I would just go get it, and answer it, unless you want to stall for some reason.  If so, then you could file a motion to quash, but it may be denied if the judge thinks you got it even if you were not served properly.  Now if they had a default judgement, that would be different.

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I found out some information-

 

it's a simple two page complaint.

 

Midland is asking for interest at the accrued rat from the date of April 2009. That was my last payment. So I should use SOL as a defense, correct?

 

Do I just write in my affirmative defenses "alleged debt is beyond the statute of limitations." And can't they get in trouble for that?

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Do I just write in my affirmative defenses "alleged debt is beyond the statute of limitations." And can't they get in trouble for that?

 

Yes they can, it would be an FDCPA violation and I would counter claim for it as well as make it an affirmative defense. An interesting things is supposed to happen under Midland Retainer agreements, when FDCPA is counter claimed a new attorney comes in and takes over the case. His whole job is to settle out the FDCPA claims and he does not give a darn about the alleged debt. He might try to bargain with it a bit during settlement talk, but in the end he will toss it to get a settlement.

 

When you have something that clearly defines the date of last payment like this, that is when you raise it.  Be prepared for them to waive the terms and conditions around and try to claim Written contract. You will need to be fully prepared to show that the SOL reads Written Instrument and an Instrument is ONLY defined in the Secured Transactions section of the UCC. That definition explicitly says credit card terms and conditions can not be an instrument.

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Thanks as usual kentwa for helping me with Utah law! Another question. How should I write up SOL as an affirmative defense? Simply:

 

Plaintiff's case is time-barred/past SOL.

 

Do I need to provide case law with this?

 

Also, do you know of an example of this and or a cross-complaint for SOL? I'm thinking there is something on the forum here.

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Plaintiff's claim is barred by the applicable Statute of Limitations.

 

Do not cite code, case law etc, that will tie you into specific sections and interpretations.

 

The legislative intent of 78B-2-309 is very clear. The legislature pick very specific wording in using the term "contract, obligation, or liability founded upon an instrument in writing". They could have stated simply omitted the word Instrument. However the courts can not assume language is superfluous. Looking to 70A-9A-102 you find the only definition of what an instrument is. This definition very clearly states that credit card terms and conditions are not an instrument.

 

I put the above in here for others that come along, but make sure you save it. Every JDB attorney attempts to use the 6 year SOL and several have won because people do not clearly tie the to statutes together and speak of the legislative intent. Pointing out just how specific the language of 78B-2-309 is, will call attention to the weakness of their argument.

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I don't know UT procedures for a counterclaim, but in general, a FDCPA counterclaim would be something like this:

 

COUNTERCLAIM

 

VIOLATION OF THE FAIR DEBT PRACTICES COLLECTION ACT (FDCPA), 15 U.S.C. 1692

 

1. Defendant realleges all paragraphs of her Answer.

2. This court has juridiction under 15 U.S.C. 1692k

3. Defendant is a natural person residing in----county, Utah.

4. Defendant is a "consumer" as that term is defined by the FDCPA.

5. Defendant is allegedly obligated to pay a debt, as the term is defined by the FDCPA.

6. Plaintiff is a foreign corporation in the business of collecting debts in Utah.

7. Plaintiff is a "debt collector" as that term is defined by the FDCPA.

8. Plaintiff has violated the FDCPA as follows:  The filing of a time-barred action is deceptive, unfair, and unconscionable and violates 15 U.S.C. 1692f

9. As a result of the foregoing violation, plaintiff is liable to the defendant for statutory damages under the FDCPA, as well as for actual damages under the FDCPA for the anger, anxiety and distress caused by plaintiff's illegal actions.

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  • 3 weeks later...

I answered the complaint and one of my affirmative defenses is that its past SOL. In my answer I filed a cross-complaint (was that the wrong place to do it????). I didn't put when the last payment was made because I didn't know or even think about it.

 

I just received initial disclosures with generic bill of sale, etc. The print screen with info says the account was charged off in Sept of 2009. This means that I last paid prior to that, at least a few months if not a year.  

 

What do I do now? File a MTD based on SOL, and I obviously need to find out when the last payment was made on the account, right?

 

I have too much going on now again, I have very little time to handle this so any help is greatly appreciated! I need to give these guys a good thai kick to the head!

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I obviously need to find out when the last payment was made on the account, right?

 

Absolutely.   Whether or not the date they claim shows that an account is outside the SOL,  I would not depend upon the JDB's word that the last payment occurred on a certain date.  Verify the date by looking at your own records. 

 

Also, Chase is, I believe, out of DE which has a 3 year SOL. 

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This is Portfolio Recovery Services. What should I do next? I have nothing to provide for initial disclosures except for my credit report...if I should provide that. So will the judge look at my affirmative answers and counterclaim and see that its SOL? Or do I need to file a MTD based on SOL....?

 

Yes, I meant counterclaim.   : )

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So if this is your account, you could provide bank records showing the last payment, a certified copy of your credit report showing what they have as last payment.  I would only do this if you are absolutely sure you are out of SOL, it is proof, but you are also admitting to the debt.

But it would bode well for your counter claim, and they would want to have a mutual dismissal, but I would put a stipulation in that you would do a mutual dismissal as well as they pay you the 1000.00.  :)  To late for a MTD I believe you already answered, but you could file a motion for summary judgement.

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I have renamed this thread to kick em in the jimmies thaiboxgirl.

 

This victory is golden!

Law of Delaware and SOL

 

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

The agreement (“Cardmember Agreement”) explicitly states “THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT”. The agreement does not explicitly alter, modify or waive the Delaware statute of limitations. The agreement explicitly includes “THE LAW OF DELAWARE” without expressly excluding anything from “THE LAW OF DELAWARE”. The Delaware statue of limitations is a part of the law of Delaware.

The U.S. Supreme Court has stated "It may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability. They are free to do so." (Nevada v. Hall, 440 U.S. 410, 420-27 (1979))

The Delaware statute of limitations is applicable.

1. The agreement establishes that the governing law of Delaware is to be used.

2. The agreement does not alter, modify or waive the Delaware statute of limitations.

3. A credit card account was created based on the agreement and it was maintained under the jurisdiction of Delaware. Chase Bank USA, N.A. exported and used the interest rate statutes of Delaware (Delaware Code Title 5, Chapter 9), in accordance with 12 U.S.C. § 85 (Rate of interest on loans, discounts and purchases), on the account since the creation of the account.
4. Chase Bank USA, N.A. is incorporated in Delaware. Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”.
5. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action.

6. The plaintiff’s cause of action would be barred in Delaware.

7. Accordingly, the plaintiff’s cause of action is barred in Utah by Utah’s statute of limitations. Utah Code §78B-2-103. (Action barred in another state barred in Utah.) A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.  

 

        PERTINENT UTAH CODES

Utah Code §70A-5-116. Choice of law and forum.

(1) The liability of an issuer, nominated person, or adviser for action or omission is governed by the law of the jurisdiction chosen by an agreement in the form of a record signed or otherwise authenticated by the affected parties in the manner provided in Section 70A-5-104 or by a provision in the person’s letter of credit, confirmation, or other undertaking. The jurisdiction whose law is chosen need not bear any relation to the transaction.

Utah Code §78B-2-103. Action barred in another state barred in Utah.

A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.

PERTINENT DELAWARE CODES

Delaware Code Title 5, Chapter 9, § 956. Governing law.

A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State.

Delaware Code Title 10, Chapter 81, § 8106 Actions subject to 3-year limitation.

(a) No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.

Delaware Code Title 10, Chapter 81, § 8108 Mutual running accounts.

In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current.

Delaware Code Title 10, Chapter 81, § 8117. Defendant’s absence from State.

If at the time when a cause of action accrues against any person, such person is out of the State, the action may be commenced, within the time limited herefore in this chapter, after such person comes into the State in such manner that by reasonable diligence, such person may be served with process. If, after a cause of action shall have accrued against any person, such person departs from and resides or remains out of the State, the time of such person’s absence until such person shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action.


CITED CASES

Gresty v. Briggs, 127 Kan. 151 (Kan. 1928)

Nevada v. Hall, 440 U.S. 410, 420-27 (1979)

Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981.

Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955

Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).          

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Since they produced nothing in their disclosures concerning last payment and are required to by Rule 26, the only date they have alleged is over 4 years in the past so it is past the Utah SOL (if this is a credit card) you could go for Summary Judgement on all counts. However I would wait out the deadline for them to answer your counter claim. Most likely they will not even notice you have a counter claim and default on it, or call in an FDCPA defense attorney to take over the case who will just work to make the whole thing go away.

 

For your Disclosures you can list that you current have nothing identified and will supplement as discovery continues. But do send them a disclosure notice.

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Thanks everyone for your advice. You know, I didn't even think of the fact that they need to answer my counterclaim. So if they don't answer within the prescribed amount of time I can get a default judgment? And if so, would the judge just dismiss the case?

 

I did try the DE 3 year SOL MTD on another case a while ago and the judge denied it. This is a wells fargo card, not sure where their primary place of business is.

 

So I should send a letter for initial disclosures saying I have none as of this time but I'll continue to supplement as necessary? I will send them a copy of the credit report that shows the last payment date.

 

I'm nervous on this one because they caught me off guard. My backup plan is BK, however I can't afford the fees.

 

Sorry if my questions are out of order and ambiguous. I'm really busy and really tired of all of this debt!

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