Noodle517

LVNV Michigan JDB - Just Served

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I'm just starting my reasearch here and would welcome any thoughts or advice on how to proceed.  I was just served yesterday so I haven't filed an answer.  The complaint consists of 6 paragraphs with a single exhibit.  I see most people talk of affidavits, statements, bill of sale included with complaint, but I received nothing like that so this is all still a bit confusing to me.  Back to studying bmc100's sticky...

1. Who is the named plaintiff in the suit?
LVNV Funding, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Weltman, Weinberg and Reis Co., LPA

3. How much are you being sued for?
$637

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

5. How do you know you are being sued? (You were served, right?)
Served September 13

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

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

9. What state and county do you live in?
Michigan, Jackson

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
2010

11. What is the SOL on the debt?
MI 6 years

12. What is the status of your case?
Summons and Complaint just served yesterday

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No

14. Did you request debt validation before the suit was filed?
No

15. How long do you have to respond to the suit?
21 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
6 page copy of a card agreement brochure(Exhibit A), nothing else.

 

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I believe in MI they have to have an affidavit with the complaint stating it is true based on personal knowledge, and it must be dated within 10 days of the complaint filing.  Is this regular court or small claims court?  The rules may not be the same.   Also did they plead the assignment in the complaint"  Meaning did they list the original creditor, and state that lvnv is the assignee?  If not, that is a reason to file a motion to dismiss in lieu of an answer. 

 

They only sent you a credit agreement that may or may not go with this account? Nothing with your name on it? no billing statements?

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I believe in MI they have to have an affidavit with the complaint stating it is true based on personal knowledge, and it must be dated within 10 days of the complaint filing.  Is this regular court or small claims court?  The rules may not be the same.   Also did they plead the assignment in the complaint"  Meaning did they list the original creditor, and state that lvnv is the assignee?  If not, that is a reason to file a motion to dismiss in lieu of an answer. 

 

They only sent you a credit agreement that may or may not go with this account? Nothing with your name on it? no billing statements?

 

I'm unfamiliar with small claims court.  The Summons and Complaint states 12TH District Court so I'm not sure how I would know whether it was the small claims division.

 

"Original creditor HSBC" is listed in the Plaintiff heading of the complaint underneath LVNV and paragraph 1 of the complaint states that they are owner of the account through purchase.  I've found the exact template used by this attorney in at least one other post on this forum.  Same six paragraphs, different names and amounts.

 

Yes, they only included an exhibit with an agreement brochure, a customer directory of phone numbers, etc.  Nothing with my name, no affidavit, no statements, nothing.  I know it's a Deapartment Store card(Younkers).only because I can match the amount to my credit report. 

 

There's just nothing here to work with.  Thank you for your response.

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I believe in MI they have to have an affidavit with the complaint stating it is true based on personal knowledge, and it must be dated within 10 days of the complaint filing.  Is this regular court or small claims court?  The rules may not be the same.   Also did they plead the assignment in the complaint"  Meaning did they list the original creditor, and state that lvnv is the assignee?  If not, that is a reason to file a motion to dismiss in lieu of an answer. 

 

They only sent you a credit agreement that may or may not go with this account? Nothing with your name on it? no billing statements?

 

They don't have to supply an affidavit.

MCL 600.2145

 

The compiled law just states that if an affidavit is made, it must be timely in order to be used as prima facie evidence.

Defendant can provide her own timely affidavit along with her answer disputing the complaint.

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post the complaint. You have me for 2 days. On Thursday, I go in for eye surgery. I am supposed to be on vacation this week.

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@debtzapper  Yes, thank you.  That was the sticky I was referencing in my OP.

 

@bmc100  I have attached the complaint.  Thank you for your time and reply.

post-145054-0-71304000-1379345718_thumb.

post-145054-0-51515700-1379345721_thumb.

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My question is what is their primary cause of action? They state the terms and conditions of the agreement were broken. Are they suing you for a breach of contract? Account Stated? Unjust Enrichment?...etc.

 

Look to see when those terms are dated. These JDBs will attach any terms they come up with. Make sure the terms they attached to the complaint are actually associated with the account.

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I guess my answer to their cause of action would have to be that it is not stated?  I have a summons, the 2 page complaint I posted and a 9 page copy of credit card agreement.  That's all.

 

The terms are dated February 1, 2006 and are from HSBC.  Account was opened 10/1/2007 per credit report but August 2007 seems more likely to me.

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I just wrote a thorough post but it was autodeleted. Not sure why. don't have time to retype. Suffice to say we are in the fraudclosure game in 17 states and credit cards are sideline. They are easy to win 100% of the time since the purported "creditor" cannot prove their claim with admissible evidence.

 

Attack jurisdiction. We always attack jurisdiction. Even though you were "served" due to your misunderstanding and ignorance of your rights attack in personam jurisdiction.

 

Hope it's ok to share docs. Just paying forward. Caveat- read and UNDERSTAND what you use before you use it. That is the only stipulation. Do you research and be a prudent consumer, not reckless like the deadbeat "debt" collectors who file sham claims on a daily basis.

 

Here is Motion to Quash the summons/ complaint- copy/paste into Word doc, make sure it fits your situation/info and know and understand the tool you are using.  This is in the public record with creative commons license to use.

 

http://www.scribd.com/doc/168900965/Sample-Motion2Quash

 

Keep referring back as the group helps you worth through this. If you hit the bully square between the eyes (legally speaking) the thugs will disappear. Stick with it.

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Shellie- attacking jurisdiction puts brakes on and shuts case down. That buys time to get debt val out, default them, serve discovery and move for summary judgment when they don't answer.

 

I can't name names here but we've attacked jurisdictiion in multiple states in both fraudclosure and credit card cases. I am an "accidental litigator" out of necessity when hurricane Katrina wiped out our $3M real estate development business. After burning through over (to date) $300k servicing "debt" on  purported "loans" on vacant damaged properties and almost losing everything out of necessity I had to figure out what was really going on. Despite having an MBA I had no idea how the financial system really worked.  In the past 8yrs I've spent at least 7,000 hours figuring things out.

 

The goal is to make things easy for those that are working, running a business, raising a family, and just getting through life, to figure out thte quickest way to turn their problem around and then put that problem to rest as fast as possible.

 

We've spent the last 2yrs putting together information with the singular goal of helping consumers quickly understand how they are being scammed with "credit cards", student "loans" , auto "loans" as well as "mortgages".  The fraudclosure racket is same as the credit card racket. The vehicle of choice with credit card securitization is a FASIT (financial asset securitization investment trust) that pools cc accounts, student "loans", auto "loans" and mobile home "loans" just as a REMIC (real estate mortgage investment conduit) pools notes to securitize.

 

The above means there is NEVER a real party in interest suing the consumer on a purported "credit" card account. It's one big racket and with knowledge of just a few rules of procedure (standing, real party in interest), a few rules of evidence (requirement of originals, authenticated documents by a competent witness with first hand knowledge) every consumer can blow these crooked debt collectors out of the water 100% fo the time and put their problem to rest quickly.

 

I used to also be a small private lender when I was a full time developer and if any builder or rehabber thought I was taking advantage of them I could produce the books and records of the transaction and verify those business records as well as authenticate documents because I am a credible competent witness with first hand knowledge of the transaction.

 

These crooked "debt" collectors and the purported original "creditor" can never validate the purported "debt" or extension of "credit" with any admissible evidence.

 

I'm really busy but we have a team and I will try to recycle that Motion to Quash with MI rules/ code since it's easy to convert. We are working with a homeowner in MI on state and federal court case (he sued the bank) so we have been in MI rules/code (state and federal) and have Lexis account.

 

Will gladly help where I can and try to leverage as much as I know so the information is actionable and not useless factoids.

 

The goal is to communicate first how you, me, and the rest of the consumers are getting swindled, everything we were told about the "financial" system is a lie and most important with some basic understanding consumers can effectively fight back.

 

I've personally dealt with LVNV, PYOD and Northland Group, Inc. and they are all related companies. I have Notice to Sue and pro forma complaint I'm going to file in about 2 weeks (2 of them) if they don't bring settlement offer to the table.

 

Hope this is helpful. Will try to conver that MTQ and repost for the consumer that hopefully will put it to use.

 

One of the best investments one can make is Jurisdictionary. It's the best $250 one will ever spend on their education. It will last a lifetime. and give consumers the tools to fight back no matter what comes their way.

 

I am speaking from first hand knowledge. When you know how to handle yourself when facing a legal challenge (without or with an attorney) it totally changes the game and increases your probabillity of success 1000%.

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affidavits are hearsay per MI. Evid. Rule 802 and are inadmissible as long as you object. The reason the affidavit is inadmissible is the affiant is not in court for you to examine under oath as to their personal first hand knowedge of the purported "account".  They have no personal knowledge and most likely the shill that signed the affidavit works in the mailroom.

 

If you do use that MTQ and I can't repost one with MI rules/ code just delete the Pa. code rules and leave the cases. Most unrepresented consumers and even lazy attorneys don't cite rules/code. You can literally drop the Pa info but there are Supreme court cases in that MTQ that go directly to the jurisdiction of the court.

 

Most dumbo "debt" colllectors are used to the 95% default rate when consumers are sued for credit card cases. Just the fact you are challenging jurisdiction telegraphs to the dumbo debt collector you are not a huckleberry. The message you are sending is as important if not more than the actual tool being used

 

Hope that helps.

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@ToddW

 

You've posted quite a bit of nonsense.  Either support your claims with court precedent or cease making them.  This is a warning.

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affidavits are hearsay per MI. Evid. Rule 802 and are inadmissible as long as you object. The reason the affidavit is inadmissible is the affiant is not in court for you to examine under oath as to their personal first hand knowedge of the purported "account".  They have no personal knowledge and most likely the shill that signed the affidavit works in the mailroom.

 

If you do use that MTQ and I can't repost one with MI rules/ code just delete the Pa. code rules and leave the cases. Most unrepresented consumers and even lazy attorneys don't cite rules/code. You can literally drop the Pa info but there are Supreme court cases in that MTQ that go directly to the jurisdiction of the court.

 

Most dumbo "debt" colllectors are used to the 95% default rate when consumers are sued for credit card cases. Just the fact you are challenging jurisdiction telegraphs to the dumbo debt collector you are not a huckleberry. The message you are sending is as important if not more than the actual tool being used

 

Hope that helps.

 

@ToddW Affidavits are not hearsay, what they are trying to authenticate is hearsay if they are not properly written.  If they are properly written you need to subpoena the affiant and bank on that he will not show to get it excluded.  If he does show, you ask him questions that would show he is in no position to authenticate the material he says he is.  This poster is not that far into this case, so no sense in confusing him at this point.

Challenging jurisdiction could easily backfire on him, and make it look like he has no clue as to what he is doing, making him look like a huckleberry, unless jurisdiction is clearly wrong on its face, or he has evidence to that effect.  Most of the posters here are new, don't even know their state has rules, much less what there are.  

 

My personal opinion is we need to keep it simple for those, and at the same time do procedure correctly for them to come out as a win.  There are no short cuts (most of the time) to winning these cases, and unless proper procedure is followed, the poster will end up with a judgement against him/her.  Your tactics might bode better in a thread of your own where you could post what you did to win in your case, and really should not be in this posters thread, I (my opinion) think it would just confuse him more. 

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@shellieh98

 

Actually, affidavits are hearsay, but they can be admissible hearsay.   However, Todd said that all one has to do is object and an affidavit will be inadmissible.  That's not true.  If an objection was all that was needed, no affidavit would ever be admissible in court because the other party would always object to it.

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Well correct, I get the concept BV80, but not if the person who made the affidavit testified, then it is personal knowledge, except we know that these people making the affidavit no more read the contents they are attesting to than I did.

Other cases such as one I did an expert witness for, the affidavit I made could have been considered hearsay, but if they would have called me, or deposed me, then it is not....but then again I guess they wouldn't need an affidavit lol.

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@shellieh98

 

It would be personal knowledge depending on your testimony when you testify.   Live testimony doesn't automatically mean personal knowledge.   You can depose a JDB affiant to show they don't have personal knowledge.   Here's a transcript of a deposition in a JDB case in which attorney Philip Stern deposed a JDB witness:

 

http://www.philipstern.com/files/2011.01.13.Galic_Deposition_Transcript.REDACTED.pdf

 

HIs questions are very detailed, and he won the case for the defendant.

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@BV80 yes I realize that, I guess I need to be more specific. I have seen that list of questions , and that would be impeaching the witness. In my case, they could try, the knowledge called upon to testify would have been backed up by standards of care, another witness testifying to the same things. For every witness stating one thing based on personal knowledge, they could have one saying the opposite, I guess it would depend on who the judge or jury thought was more credible, In talking about a case from a JDB they would ultimately need a witness from each assignor up to the original creditor to testifying as to the contents of the records, based on personal knowledge, and even then, if you are good like Phil stern, you could impeach them all.

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Well correct, I get the concept BV80, but not if the person who made the affidavit testified, then it is personal knowledge, except we know that these people making the affidavit no more read the contents they are attesting to than I did.

Other cases such as one I did an expert witness for, the affidavit I made could have been considered hearsay, but if they would have called me, or deposed me, then it is not....but then again I guess they wouldn't need an affidavit lol.

 

I think it's important to point out the obvious: that a very small percentage of cases go to trial. Folks like to talk about this and that being admissible, or not admissible, but the fact is, prior to trial, the admissibility argument is pretty much worthless.

 

An affidavit, regardless whether it is admissible at trial, is sufficient to support a pretrial dispositive motion. At summary judgment, for example, the evidence need not be admissible on its face, so long as it is potentially admissible. Affidavits are admissible in summary judgment proceedings if they are made under penalties of perjury; only unsworn documents purporting to be affidavits may be rejected. 28 U.S.C.A. § 1746 (West Supp.1984); See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 n. 16, 90 S.Ct. 1598, 1608 n. 16, 26 L.Ed.2d 142 (1970).

 

The focus needs to be more on defense of the case pretrial. It's fun to talk about going to court and making a fool of that so-and-so on the stand, or instructing the judge on the law; truth is, however, that rarely if ever happens the way folks claim it does. As pro se litigants, you guys are miles ahead if you focus your efforts on pretrial litigation, and less on the courtroom stuff.

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As pro se litigants, you guys are miles ahead if you focus your efforts on pretrial litigation, and less on the courtroom stuff.

 

Such as ............what pretrial litigation???

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Such as ............what pretrial litigation???

 

 

Rule 12 motions, answers, counterclaims, affirmative defenses, discovery, dispositive motions, for example.

 

If you plan only for trial, odds are you'll never get to trial.

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My wife just received a new summons and complaint from Midland yesterday being represented by Weltman. I am sure the complaint is fairly similar to yours. It does not state a cause of action, it just states that the terms and conditions of the account were broken....etc. They did not attach the terms to the complaint. 

 

I will start my own thread on this, but I wanted to let you know.

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