theoryman

Here we go again! LVNV represented by Stenger & Stenger

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Well, got an answer in the mail.

 

Here it is...  Amounts rounded to $100, dates changed to 1st of the month.

 

NOW COMES Plaintiff/Counter-Defendant, LVNV Funding LLC (herein referred to as "Plaintiff) by and through its attorneys, Stenger & Stenger, P.C., and hereby enters its Response to the Counterclaim filed by Defendant/Counter-Plaintiff (herein referred to as "Defendant") and states as follows:

1. Plaintiff denies Defendant's allegation contained in the Counterclaim as untrue. As stated by the Defendant, pursuant to MCL 600.5807(8), the statute of limitations governing Plaintiffs claims as stated in the Complaint is six (6) years. Plaintiff indicates that the account at issue was opened on or about January 1,2007; however, Plaintiffs records indicate that the last payment was posted to the account at issue on June 1, 2008 and the account was charged-off January 1, 2009. As such, this matter is not barred by the applicable statute of limitations

WHEREFORE, Plaintiff respectfully request that this Honorable Court deny Defendant's requests for damages and/or costs and fees and dismiss Defendant's Counterclaim with prejudice and grant Plaintiff such further relief as this Court deems appropriate.

AFFIRMATIVE DEFENSES

Plaintiff serves notice that it may rely on the following Affirmative Defenses:

1. Defendant fails to state a claim upon which relief may be granted.

2. Defendant's Counterclaim may be barred in whole or in part by the doctrines of promissory estoppel and/or equitable estoppel.

3. Defendant's Counterclaim may be barred in whole or in part by the doctrines of quantum meruit and/or unjust enrichment.

4. Defendant's Counterclaim may be barred in whole or in part by his failure to mitigate damages.

5. Defendant's Counterclaim may be barred in whole or part by laches.

6. Defendant lacks standing to the bring the Counterclaim.

7. Defendant's Counterclaim is barred, in whole or in part, by the applicable statutes of limitations.

8. Defendant has not sustained any compensable damages.

9. Defendant's damages, if any, are the result of his own acts or omissions.

10. Plaintiff reserves the right to identify additional Affirmative Defenses before the close of discovery.

WHEREFORE, for the foregoing reasons, Plaintiff requests that this Court deny Defendant's requests for damages and/or costs and fees and dismiss Defendant's Counter-Complaint with prejudice and grant Plaintiff such further relief as this Court deems appropriate.
 

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Also, have Pre-Trial on Monday...

 

Comments on their answer...

 

They have provided more dates, but no documentation for them...  Without a new affidavit, aren't these just unsupported claims or hearsay?

 

It looks like they just cut and pasted a standard set of defenses...

 

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@theoryman

 

1. Plaintiff denies Defendant's allegation contained in the Counterclaim as untrue. As stated by the Defendant, pursuant to MCL 600.5807(8), the statute of limitations governing Plaintiffs claims as stated in the Complaint is six (6) years. Plaintiff indicates that the account at issue was opened on or about January 1,2007; however, Plaintiffs records indicate that the last payment was posted to the account at issue on June 1, 2008 and the account was charged-off January 1, 2009. As such, this matter is not barred by the applicable statute of limitations

 

What record shows that payment?    Is it shown on a credit card statement or on a spreadsheet or summary created by LVNV?

 

I'm assuming that the payment was not made by you?   If that's the case, you may need to get started on getting copies of your bank records from May and June of 2008 to show that the payment didn't come out of your bank account. 

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I didn't open the account or pay on it, but I see no way to prove that I didn't pay on it.  Example:  it could have been paid by Money Order or mailed cash or something else.  I have NO intention of putting my bank records into the court record.  That is just asking for more ID theft...

 

So far, they just claim those dates.  No documentation of any type for the date of last payment or date of charge off.  They do have one of those affidavits signed by an LVNV employee saying that 'this is what we got from the OC' that includes date of account origination and date of assignment, but of course, an employee of LVNV can't testify from personal knowledge about the OC procedures and record keeping ability's.

 

I figured I'd point that out to the judge at the pre-trial.

 

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@theoryman

 

If this account was opened as a result of ID theft, there probably won't be any payments made on it.  And as long as they don't have any documents that show a payment, I agree that you can use that against them. 

 

But if they were to have a cc statement that showed a payment (perhaps by an ex-spouse or girlfriend), then your bank records would help you.  It wouldn't open you up to more ID theft because bank records can be redacted in order to prevent that possibility.  That's why social security #s are redacted.

 

Since you could prove a payment didn't come out of your bank account, they'd have to prove you paid by some other means which, of course, they could not do.

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Dismissed with prejudice!!

And an oral agreement, on the record in front of the judge, that LVNV will remove their tradelines from my credit reports forthwith.

I think this counts as a win for the good guys!
Only $600 or so, but still a win!

 

They did not want to litigate the SoL issue at all.  They did not like the stuff I'd brought in about the Midland Funding case in Delaware.  They said it was not binding on a Michigan court.  I agreed it wasn't binding, but said that it was persuasive and that this judge is known to be very hard on proof for an account stated claim.

 

They then folded completely.  We went to the judge and I have the filed dismissal in hand and the judge said I should have the tradeline removal agreement in 14 days.

 

All in all a most happy result.

 

Thanks to all for the education and assistance.

 

I might even need to thank those bottom feeders at LVNV for the mostly free legal education I am getting!  ;)

 

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I was up against LVNV, not Midland, but they did not like the looks of that Delaware stuff at all...

 

After playing the tape back, I also noticed that he had commented on how hard it was proving account stated in western Michigan.

 

Wounder if there is starting to be a sea change here...

 

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Oops ............ sorry ........... cross thread reference ......... my bad!

 

Wounder if there is starting to be a sea change here...

 

 I'm noticing a lot more wins in MI lately ......... could be.

I'm thinking that bmc100 was responsible for most of them.

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So, today I get the settlement agreement in the mail...

 

A bit more expansive than I expected.

 

A line from the agreement:

 

'Consumer agrees that, from the date of execution of this Agreement, Consumer will keep strictly confidential the nature of this Action, the claims, the matters giving rise to this agreement and the substance of this Agreement.'

 

I read this as 'Once you sign this you can't talk about it or post about it or anything else.'  Right?

 

However, I am not required to go out and erase things I have already said or posted.  And I see nothing that would keep me from OCR'ing, redacting and then posting the agreement BEFORE I sign it.  Right?

 

I am not bound by confidentiality until ordered by a court or until I agree to it, correct?

 

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