Jump to content

LVNV Funding represented by Messerli and Kramer in Wisconsin.


Recommended Posts

I recently received a summons and complaint in Wisconsin from Messerli and Kramer representing LVNV funding.  The first page is a basic form provided by the circuit court in my county and the complaing appears on the following page as follows:

 

Plaintiff, by its Attorneys, seeks to enforce a cause of action arising from a consumer credit transaction.

            Defendant(s) owe(s) Plaintiff $1xxx.xx for goods and services sold and delivered to Defendant(s), plus continued interest through and including the date of service of the Complaint. Said purchases were made on Defendant(‘s’) charge account bearing account number XXXXXXXX which was/were issued to Defendant(s) by Wells Fargo Bank.

            LVNV Funding LLC purchased this account and is successor in interest to Wells Fargo Bank.

            Defendant(s) is/are in default for failing to make the required payments on the charge account as they came due on two or more occasions within a twelve month period.

Plaintiff demands judgment against Defendant(s) for the principle sum of $1xxx.xx, plus accrued interest  in the amount of $xxx.xx representing interest on the outstanding principal balance at the account rate of 5.00% per annum from January 30, 2009 through the date of the service of the Complaint, for a total amount of $xxxx.xx, plus continued interest on the outstanding principal balance at the account rate until the date of entry of judgment, and thereafter post judgment interest, and Plaintiffs costs, disbursements, and fees pursuant to Wisconsin Statute §814.04.

 

First, and foremost, I am 99.999% certain that i never had a credit card with wells fargo. 

 

Additionally, from the research i have done, this appears to be one of the laziest written summons that i have seen.  I wish to challenge this in court, and am looking for some advice on where to begin.  I know i want to challenge the assignment of the debt, as well as the proof that is even mine in the first place.  Also, how should i go about requesting disclosure of the documents they intend to present? Ihave to eithere appear or respond in writing by the middle of September. Should i request disclosure when i send my response?

 

Thanks for any help you can give me!

---------------------------------------------------

Update  I did find a charged off account on my credit report from wells fargo.  I still am nearly certain i never had any type of account with wells fargo.  however, that account is listed as a loan and not a charge account as stated in the summons.  this seems like a pretty big discrepancy. 

 

Also, i have seen in other parts of the forum that there is case law from the 7th district court (i believe) that states the plaintiff must provide complete payment history, but that link is no longer working.  If anyone could help direct me to that case it would be of great help. 

 

Finally, If there is no documentation or evidence cited in the summons and complaint should i file a motion to dismiss for lack of documentation with my response to the summons?  If so, how should i go about doing that and what should i cite?

Link to comment
Share on other sites

This below are from your rules of civil procedure. They are located here. (At least the part about how to answer, etc.) http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=2203&context=mulr

You need to deny each statement in the summons, and state your defense of that denial. Ie: "Defendant is without knowledge or information sufficient to form a belief as to the truth of an averment, therefore denies"

Get it answered, then we will help you through requesting docs, and finding out what evidence they have.

(2) DEFENSES; FORM OF DENIALS. A party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies. If he is without knowledge or information suffi- cient to form a belief as to the truth of an averment, he shall so state and this has the effect of a denial. Denials shall fairly meet the substance of the averments denied. The pleader shall make his denials as specific denials of designated aver- ments or paragraphs, but if a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.

(3) AFFIRMATIVE DEFENSES. In pleading to a preceding pleading, a party shall set forth affirmatively any matter con- stituting an avoidance or affirmative defense including but not limited to the following: accord and satisfaction, arbitra- tion and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of a condi-tion subsequent, failure or want of consideration, failure to mitigate damages, fraud, illegality, immunity, incompet- ence, injury by fellow servants, laches, license, payment, re- lease, res judicata, statute of frauds, statute of limitations, superseding cause, and waiver. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, if justice so requires, shall permit amendment of the pleading to conform to a proper designa- tion. If an affirmative defense permitted to be raised by mo- tion under s. 802.06 (2) is so raised, it need not be set forth

in a subsequent pleading.

(4) EFFECT OF FAILURE TO DENY. Averments in a pleading

to which a responsive pleading is required, other than those as to the fact, nature and extent of injury and damage, are admitted when not denied in the responsive pleading. Aver- ments in a pleading to which no responsive pleading is re- quired or permitted shall be taken as denied or avoided.

(5) PLEADINGS TO BE CONCISE AND DIRECT; CONSISTENCY. (a) Each averment of a pleading shall be simple, concise, and direct. No technical forms of pleading or motions are re- quired.

(B) A party may set forth two or more statements of a claim or defense alternatively or hypothetically, either in one claim or defense or in separate claims or defenses. When two or more statements are made in the alternative and one of them if made independently would be sufficient, the pleading is not made insufficient by the insufficiency of one or more of the alternative statements. A party may also state as many separate claims or defenses as he has regardless of consist- ency and whether based on legal or equitable grounds. All statements shall be made subject to the obligations set forth in s. 802.05.

Link to comment
Share on other sites

So if I am thinking about this correctly, should i respond to the following claims individually?:

 

1. Plaintiff, by its Attorneys, seeks to enforce a cause of action arising from a consumer credit transaction.

 

2. Defendant(s) owe(s) Plaintiff $1xxx.xx for goods and services sold and delivered to Defendant(s), plus continued interest through and including the date of service of the Complaint.

 

3.Said purchases were made on Defendant(‘s’) charge account bearing account number XXXXXXXX which was/were issued to Defendant(s) by Wells Fargo Bank.

 

4.LVNV Funding LLC purchased this account and is successor in interest to Wells Fargo Bank.

 

5.Defendant(s) is/are in default for failing to make the required payments on the charge account as they came due on two or more occasions within a twelve month period.

 

6. Plaintiff demands judgment against Defendant(s) for the principle sum of $1xxx.xx, plus accrued interest  in the amount of $xxx.xx representing interest on the outstanding principal balance at the account rate of 5.00% per annum from January 30, 2009 through the date of the service of the Complaint, for a total amount of $xxxx.xx, plus continued interest on the outstanding principal balance at the account rate until the date of entry of judgment, and thereafter post judgment interest, and Plaintiffs costs, disbursements, and fees pursuant to Wisconsin Statute §814.04.

 

How should i answer the information on the Summons and Complaint SC-500 form? I know that I must admit and deny certain things pertaining to my identity as the sean p dineen they are looking for.

 

Also, it seems to me like claim 5 is there just to preempt the notice to cure default required in Wisconsin.  I certainly never received that nor any communication from wells fargo in regards to this.  Im wondering if i should attempt to contact Wells Fargo regarding this, would/could that in any way hurt my defense?

Link to comment
Share on other sites

 

Not at all. If you're certain that the account is not yours, don't be afraid to call Wells Fargo confirm that they have no record of you. Don't be surprised if they don't want to help you, though. They'll want to protect their kissin' cousin debt collector buddies before they help you. The ideal situation would be to get something in writing from Wells Fargo indicating you've never been an account holder with them. 

Link to comment
Share on other sites

Hey all, first and foremost i want to appologize for not previously posting the questionaire answers.  I missed that when i first when throught the boards, so I have posted them below.  Also, just a couple of questions:

 

In answering the summons, is it better to do it in writing or in person?  I assumed each has its advantages and disadvantages.  I understand that the rules of civil procedure in the county require the plaintiffs to have copies of all evidence they intend to present in support of their case on that date.  Is it better to go there simply to obtain those documents?

 

Also, if i chose to respond in writing, how should i go about breaking up their complaint into claims?  Could I simply number the sentences and answer each one based on those numbers?  Or can i make a general denial of all the claims based on lack of knowledge?

 

Again, thanks for any guidance you can provide!

 

1. Who is the named plaintiff in the suit?

LVNV funding as successor in interest to Wells Fargo Bank

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

Messerli and Kramer PA

3. How much are you being sued for?

 

$1500 (give or take)

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

 

Wells Fargo Bank?(nearly positive I never had any account with them, is it possible they purchase a debt from someone else?)

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

 

Summons

6. How were you served? (Mail, In person, Notice on door)

 

By mail

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?

 

None that I am aware

9. What state and county do you live in?

 

Wisconsin, Ozaukee County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

 

Never as far as I know – not even sure what it is or when the account is from.  Summons claims the outstading principle balance is from January 30th 2009 but im certain I did not obtain any sort of credit account near that date.

11. What is the SOL on the debt? To find out:

 

From what I have seen, Wisconsin is 6 years and South Dakota(which I believe Wells Fargo Card agreements state as the governing state) is also 6 years. 

12. What is the status of your case? Suit served? Motions filed?

 

Suit has been served and there is a adjourned return date.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

 

No, but I may attempt to find out from wells fargo any information I can on the original account.  There is nothing from wells fargo on my credit report, only lvnv funding.

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.

 

No

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?

 

Must respond by the middle of September either in writing or in person.  There was no interrogatory, just a county form for the summons and the aforementioned complaint.

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

 

The summons lists no evidence.  Simply the complaint shown in my first post.

Link to comment
Share on other sites

Please help anyone who can, its greatly appreciated!

 

A couple of things im really looking for an answer to before i write my response to the summons

 

1.  If the summons and complaint mischaracterize the debt as a credit card when my credit report seems to indicate it is some type of loan, is this a violation of the FDCPA? Also, how should i respond to that aspect of the complaint?(I am still very certain it is not a legitimate debt)

 

2. Given the format of the complaint, how should i go about answering the specific points outlined? Can I just respond with the provided court form and a general denial or should I in some way break up the few paragraphs in the complaint.

 

3.  The complaint lists no evidence at all.  Should I attempt to file a MOTD because of this?

 

Again, thanks for any help you can give me!

Link to comment
Share on other sites

My credit report shows a debt from wffinance that has the same account number and is listed as a personal loan. I can account for all the other debts i have ever had an are on my report, so i know its not another debt that has been purchased by wells fargo.  im certain it is not a loan i ever took out, as the only loans i have ever had have been student loans through us bank and a car loan i have had paid off for years.  it seems that the debt is being misrepresented by lvnv? I feel like thats a pretty big issue right?

Link to comment
Share on other sites

@chiaguy222

 

Read Nascar's post (#4). 

 

Hopefully, WF will be able to shed some light on the situation.  Be sure to tell them that they reported this account on your CR.  If they say they have no record of the account, see if you can get it in writing.  It would be useful at a later date to dispute that account with the credit reporting agencies.  WF can't verify an account if they have no record of it.

 

That being said, if WF has no information, either the account didn't exist, or they cleared you out of their records when they sold the account.  Who knows?

 

As far as an FDCPA claim is concerned, it would depend upon what you can find out from WF.  If it's not an account that allowed you to make charges, I'd say that LVNV is misrepresenting the account.  However, if WF has no information, you might need to conduct discovery to see LVNV's so-called evidence.

 

Read your rules about a MTD.  Usually, you can file a MTD in lieu of an answer, but their lack of documentation with the complaint may not be grounds for dismissal UNLESS your court rules state that some sort of evidence must be included with the complaint, and that the failure to do so will result in a dismissal.  If a dismissal is denied, you have to answer the complaint.

 

Carefully read your rules if you decide to file a MTD.  You want to follow them to the letter.

  • Like 1
Link to comment
Share on other sites

So, today i went into a local branch off Wells Fargo.  They were unable to find any record of me being a customer, or anything linked to my ss# or drivers license in relation to any accounts i have ever had with them.  The banker who was helping me, and the branch manager both expressed confusion and a fair amount of exasperation when they were unable to locate anything.  The only information they were able to find in relation to the alleged debt was from my credit report, which they strongly urged me to dispute immediately.

 

The banker who was helping my had asked whoever he was talking to over the phone (presumably the accounts department) if he could print out the information he was looking at and give it to me so that I "could leave with something" and they told him not to.

 

What should i do with this information?  I'm now 100% certain this is not a legitimate debt, as the closest thing they could find were accounts from California and Colorado that shared my same middle initial. 

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.