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Please Help Review my response - LVNV IN WISCONSIN


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I got some pretty good help with some of the questions had asked here, and one of @nascar previous posts somewhere else helped me in writing my response.  I was hoping ya'll could help review it? FYI, WI has a response form for the basic info that gets attached to this.  I had another thread here 

http://www.creditinfocenter.com/community/topic/321547-lvnv-funding-represented-by-messerli-and-kramer-in-wisconsin/ where I outlined the case.  Again, I spoke with a personal banker and the bank manager at a branch and they have no record of me having any account there and spent nearly 45 minutes trying to find anything.  They recommended I immediately dispute the entry on my credit report.

 

Also, I am trying to think of any affirmative defenses, and laches actually seems applicable.  If understand it, laches is the underlying judicial doctrine for statutes of limitations, with a large part of the justification being that evidence can be lost over time.  As such, it becomes impossible or at least extremely difficult for the defendant to furnish evidence which assists in his/her defense.  In this case, even if all of the plaintiff's claims are true (which i know they arent), the fact that none of the original records exist anymore definitely prevents me from disproving any number elements of their claim, including interest accrual, account balance, and any fees associated with the account, let alone any original agreements that govern those transactions.

 

Anywho, feeling like a long-winded post, but trying to get my head on straight here. Any other thoughts on affirmative defenses or anything really would be greatly appreciated.

 

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFF’S COMPLAINT

 

COMES NOW the defendant ---------, Pro se (hereinafter referred to as "Defendant"), submits Defendant’s Answer and Affirmitive Defenses to Plaintiffs' Complaint.

 

The allegations of plaintiffs complaint, italicized and numbered for ease of response, and subsequent answers.

 

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

 

Answer: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation,  and therefore deny the same, putting Plaintiff to their proof thereon.

 

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.

 

Answer: Deny.  Defendant has no financial obligation to Plaintiff, whether past, present, or future.  Defendant never received goods or services nor did defendant enter into any agreement, whether contractual or otherwise, which could be grounds for relief. 

 

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.

 

Answer: Deny.  Defendant has never had a Wells Fargo Bank charge account, nor has the defendant had any accounts with Wells Fargo Bank.  Additionally, the term “charge account” is ambiguous, and as such Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation, putting plaintiff to their proof thereon.

 

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

 

Answer: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation, putting plaintiff to their proof thereon.

 

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.

 

Answer: Deny.  Having never had an account with Wells Fargo, defendant could not be in default on said account.  Additionally, defendant never had payments due on an account with Wells Fargo as such account does not, nor has it ever, existed.

 

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.

 

Answer: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation, putting plaintiff to their proof thereon.

 

 

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

 

1.Answer: Defendant admits that Plaintiffs purport to bring this action as indicated in the Complaint, but denies that there is any legal or factual basis for such relief.

 

 

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

 

Answer: Paragraph 4 attempts to state a legal conclusion to which no response is required. To the extent that a response to this paragraph is deemed necessary, the allegations are denied

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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Below i posted an updated version of my response which i think is much better.  Feedback would be great as always!  I had thought i was going to mail this in, but I think i am just going to appear and present it.

 

ALSO, I am considering 2 pretrial motions -

 

1) A motion for more definitive statement.  I believe the term "charge account" is incredibly vague, and my answer will vary greatly based on what that is defined as.  I have been unable to find the term defined in any legal capacity.

 

2) MTD for failure to state a claim upon which relief can be granted.  Because the complaint fails to reference any sort of agreement whether it be created "by express terms, course of performance, course of dealing, or usage of trade"(language in wisconsin code), the plaintiff forces the court to infer or deduct that an agreement exists.

 

 

 

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFF’S COMPLAINT

 

COMES NOW the defendant -----------, Pro se (hereinafter referred to as "Defendant"), submits Defendant’s Answer to Plaintiffs' Complaint.

 

The allegations of Plaintiff’s complaint, italicized and numbered for ease of response, and subsequent answers.

 

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

 

Answer: Defendant admits that Plaintiffs purport to bring this action as indicated in the Complaint, but denies that there is any legal or factual basis for such relief.

 

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

 

Answer: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegation, and therefore deny the same, putting Plaintiff to their proof thereon.

 

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

 

Answer: Defendant denies having ever had a charge account or any account with Wells Fargo Bank. Defendant denies having made purchases on a “charge account” issued by Wells Fargo Bank, and denies having been issued said account.                                             

 

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

 

Answer: Paragraph 4 attempts to state a legal conclusion to which no response is required. To the extent that a response to this paragraph is deemed necessary, the allegations are denied

 

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.

 

Answer: Defendant denies having ever had a charge account nor any bank account with Wells Fargo Bank. Defendant additionally denies having been in default on the alleged account. Defendant demands proof of alleged default, including specific dates.

 

6. Plaintiff demands judgment against Defendant(s) for the principle sum of $--------, plus accrued interest in the amount of $-------- representing interest on the outstanding principal balance at the account rate of 5.00% per annum from ----- through the date of the service of the Complaint, for a total amount of $---------, 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.

 

Answer: Answer: Defendant denies having ever had a charge account nor any account with Wells Fargo Bank. Defendant denies having made purchases on a “charge account” issued by Wells Fargo.  Plaintiff fails to reference any agreement by which Defendant is obligated to Plaintiff whether it be by express terms, course of performance, course of dealing, or usage of trade.  Additionally, Defendant denies the existence of such agreement, putting Plaintiff to their proof thereon.

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