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Riverwak Holdings files motion to dismiss, then refiles under name of ACM Riverwalk IV B LLC


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Riverwalk Holdings filed a suit against my wife in January 2011. It was filed in Indiana, alleging she owed $11,847.52 and claiming US Bank National Association as the OC. We responded to the complaint and interrogatories pre se and by January of 2012, the attorneys for the plaintiff filed a motion to dismiss.

 

Now move ahead to September 2013 and suddenly we get sued in the state of Indiana by ACM Riverwalk IV B LLC alleging my wife owed $11,847.52 and claiming US Bank National Association as the OC.

 

I did notice that a different set of attornies is handling this case, compared to the last case.

 

Before I send them ANY replies, I would like to find out if res judicata applies, ie, proventing them from filing suit a second time, for the exact same amount, in the same state and claiming the same creditor.

 

BTW,  the paperwork on the suit lists ACM Riverwalk IV B LLC as being located in Texas, however I can not find any listing of a Texas state license under that name. Everything in Texas comes back to the name Riverwalk Holdings and every search I conducted for any license listed to ACM Riverwalk IV B LLC comes back with a Georgia address, so I am not sure what type of games they are playing or who they are trying to hide from, but I assure you I will make them prove they have a valid Texas license under their new name.

 

Thanks in advance for any suggestions.

OB

 

 

 

 

 

 

 

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Res judicata does not apply - the matter never went to trial and a judge did not decide it. 

 

Answer and deny...

 

 

As far as games, debt buyers use multiple LLCs to offset any potential liability (ie FDCPA claims). 

Thanks for the feedback. Wasn't sure if Res Judica would apply or not, but wanted to find out before I file my answer.

 

I will deal with making them prove certain facts about the name they are using later, but for now I will simply deny everything..

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@old biker

 

When was the date of last payment?  What is the SOL in Indiana?

The SOL in Indiana is 6 years and according to the "Affidavit of Debt" signed by Jay, he is alleging the last payment was made 12/27/2007. Of course, as this case progresses, I will make him show proof of that "final payment" date.

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Just deny everything...

 

 

Then, at some point, you will need to subpoena the affiant to appear for cross examination - grill him on his lack of knowledge, etc. and see how fast the case falls apart - that is of course, if he's available - since 99% of the time, these affiants do not show. 

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Would anyone like to check my reply and offer any creative additions or subtractions?

 

I might add, the specific reason I use the term "no memory" is because my wife is disabled due to a severe stroke and in addition to the loss of certain physical abilities, she  has also lost much of her memory.

 

ANSWER TO COMPLAINT

 

Comes the Defendant, xxxxxxxx, acting PRO  SE , entering an appearance and answer to the Complaint filed herein against her in this action, and demands notice of all further proceedings.  The Clerk of the Court and the opposing party will be informed of any change in address. 

 

1.            Defendant has no memory or knowledge of signing any paperwork or application with US Bank National Association and/or ACM Riverwalk IV  B LLC.

 

2.            Defendant has no memory or knowledge of receiving any type of statement or invoice from a company named US Bank National Association or ACM Riverwalk IV  B LLC.

 

3.            Defendant has no memory or  knowledge of becoming indebted to US Bank National Association and/or ACM Riverwalk IV  B LLC as a result of charging $11,847.52 worth of goods, wares, merchandise and/or services.

 

 

Defendant swears the above statements are true to the best of her knowledge and  reserves the right to assert additional defenses.

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It is hard to comment on your answer when we don't know what the complaint looks like. can you post it?

Sorry about that, Here is a copy of the complaint. It's pretty simple with only 3 points. I am not impressed with their attorney's.

 

Plaintiff alleges:

 

1. That defendant(s) is (are) indebted to plaintiff in the sum of $11847.52 for goods, wares, merchandise and/or services sold and delivered by plaintiff's assignor at defendant's special instance and request, and/or for necessary and essential goods, wares, merchandise and/or services furnished by plaintiff's assignor to defendant(s) or individuals whose condition, comfort and health, defendant(s) was (were) responsible to support and maintain.

 

2. That the balance due to this plaintiff is based on assignment{s) by original creditor(s) to this plaintiff. That plaintiff is the actual and bonafide owner of the account.

 

3. That the sum of $11847.52 is now due and unpaid together with interest and costs pursuant to Indiana law.

 

WHEREFORE, plaintiff demands judgment against the defendants for the sum of $11847.52 plus accrued interest in the amount of $.00 , plus additional interest at the rate of .00 % per annum from June 20, 2013 I and costs and all other proper re1ief.

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Here is an address for their business manager listed on a case from Tennessee. According to this Riverwalk hired a Knoxville firm to defend them in an FDCPA lawsuit and then refused to pay their attorney fees. Nothing like a debt collector that doesn't pay its own bills :ROFLMAO2:

 

http://docs.justia.com/cases/federal/district-courts/tennessee/tnedce/3:2012cv00058/63138/18

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Would anyone like to check my reply and offer any creative additions or subtractions?

 

I might add, the specific reason I use the term "no memory" is because my wife is disabled due to a severe stroke and in addition to the loss of certain physical abilities, she  has also lost much of her memory.

 

ANSWER TO COMPLAINT

 

Comes the Defendant, xxxxxxxx, acting PRO  SE , entering an appearance and answer to the Complaint filed herein against her in this action, and demands notice of all further proceedings.  The Clerk of the Court and the opposing party will be informed of any change in address. 

 

1.            Defendant has no memory or knowledge of signing any paperwork or application with US Bank National Association and/or ACM Riverwalk IV  B LLC.

 

2.            Defendant has no memory or knowledge of receiving any type of statement or invoice from a company named US Bank National Association or ACM Riverwalk IV  B LLC.

 

3.            Defendant has no memory or  knowledge of becoming indebted to US Bank National Association and/or ACM Riverwalk IV  B LLC as a result of charging $11,847.52 worth of goods, wares, merchandise and/or services.

 

 

Defendant swears the above statements are true to the best of her knowledge and  reserves the right to assert additional defenses.

 

Take a look at your Indiana Rules for Civil Procedure regards what must be included in your Answer to this Complaint.

 

Probably stating "Defendant is without sufficient information or knowledge to form an opinion as to the truth and accuracy concerning the allegations contained in paragraph 1, and therefore denies”. “The Plaintiff has provided no documents to substantiate the allegations in paragraph 1” Might serve you better.

 

Paragraph 2.

 

Paragraph 3. etc…….

 

This is more general and says the same thing (which is absolutely nothing) and at the same time denies the allegation. 

 

I would also include a sworn statement of denial and secondly an affidavit denying ever having an account with ACM Riverwalk IV B LLC with your answer. Keep running the cost bill up and show them you are in for the fight. They have dismissed once - did you file for a judgment of dismissal that you have a copy of???

 

HP 

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I want to thank those individuals that have offered such great information, suggestions and ideas. As a result of your help, I have revised my answer to the complaint and am posting it below.

 

Under my answer, I am also plosting a copy of the "Affidavit of Debt" that was included with the Complaint. Until I file a discovery, I "might" be able to use the attorney's mistakes in the AOD to make them work harder, expecially since I discovered that Indiana passed a new law taking effect in Jan 2011 that lists the type of information that is supposed to be included in a AOD. "

 

Thanks again to all that have offered input and as always, I am open to new and constructive ideas.

OB

___________________________________________________

ANSWER TO COMPLAINT

 

Comes the Defendant, ---------, acting PRO  SE , entering an appearance and answer to the Complaint filed herein against her in this action, and demands notice of all further proceedings.  The Clerk of the Court and the opposing party will be informed of any change in address. 

 

  • Defendant is without sufficient information or knowledge to form an opinion as to the truth and accuracy concerning the allegations contained in Paragraph 1 of the Complaint and therefore denies.

 

  • Defendant denies the allegations contained in Paragraph 2 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignments and entitlements.

 

  • Defendant is without sufficient information or knowledge to form an opinion as to the truth and accuracy concerning the allegations contained in Paragraph 3 of the Complaint and therefore denies.

 

Defendant swears the above statements are true to the best of her knowledge and  reserves the right to assert additional defenses.

_______________________________________________

AFFIDAVIT OF DEBT

Comes now affiant, and states:

 

I JAY LEDFORD am an employee of ACM RIVERWALK IV B LLCAS a$$IGNEEOF U.S. BANK NATIONAL

ASSOCIATION ND, Plaintiff, or servicing agent for Plaintiff.

 

 I am of adult age and am fully authorized to make

the below representations. I am familiar with the record keeping practices of ACM RIVERWALK IV B LLC AS

ASSIGNEEOF U.S. BANK NATIONAL ASSOCIATION ND.

 

I have reviewed documents kept in the normal course

of ACM RIVERWALK IV B LLCAS ASSIGNEEOF U.S. BANK NATIONAL ASSOCIATION ND's business and/or have

personal knowledge of the following:

 

------, Defendant has an account balance of $ 11847.52, which is owed to the Plaintiff on account

XXXXXXXXXXXX----.

 

This account was opened on 9/1/2005. The last payment was received from the Defendant on 12/27/2007

and the last payment amount is unknown.

 

The type of account is:

• Credit card account (i.e. Visa, MasterCard, Department Store, etc.)

• Company issuing credit card: U.S. BANK NATIONAL ASSOCIATION ND

 

The Plaintiff:

has obtained this debt from U.S. BANK NATIONAL ASSOCIATION ND and the original owner of this

debt was U.S. BANK NATIONAL ASSOCIATION ND.

 

This account balance includes:

• Late fees in the amount of $ 0.00 accruing from date of charge off 5/30/2008.

• Interest at a rate of 0.00 % beginning from date of charge off 5/30/2008.

 

The Plaintiff:

may be seeking attorney's fees and additional evidence will be presented to the court prior to entry

of judgment on attorney's fees, if requested in the Complaint or Notice of Claim.

I swear or affirm under the penalties of perjury that the foregoing representations are true.

 

JAY LEDFORD

CFO

State of Texas

County of Tarrant

__________________________________________________________________

Here is a copy of the Indiana Law regulating the information required on an Affidavit of Debt.

 

Effective January 1, 2011, the Indiana Supreme Court amended Trial Rule 9.2 and Small Claims Rule 2 to requiring parties to file an Affidavit of Debt if the case is based on an account. Under Trial Rule 9.2(A) and Small Claim Rule 2(B), a party must include an Affidavit of Debt when filing a pleading founded on an account. An “account” includes all types of accounts and is not limited to written accounts.

A form affidavit, found in Appendix A-2 in the Trial Rules and Appendix A in the Small Claims Rules, is the same for both plenary and small claims cases. The Affidavit of Debt must include details about the debt, such as:

·         if the debt was obtained from someone else and who that person is;

·         who is the original debt owner of account;

·         how much is the unpaid balance;

·         when was the account opened;

·         how much was the last payment and when was it made;

·         what type of an account is it (credit card, utility, medical bill, a judgment issued by a court, or any other account which must be explained);

·         are late fees being claimed and how much are they;

·         is interest being claimed and how much is it;

·         whether or not plaintiff is seeking attorney fees, etc.

 

 

 

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Take a look at your Indiana Rules for Civil Procedure regards what must be included in your Answer to this Complaint.

 

Probably stating "Defendant is without sufficient information or knowledge to form an opinion as to the truth and accuracy concerning the allegations contained in paragraph 1, and therefore denies”. “The Plaintiff has provided no documents to substantiate the allegations in paragraph 1” Might serve you better.

 

Paragraph 2.

 

Paragraph 3. etc…….

 

This is more general and says the same thing (which is absolutely nothing) and at the same time denies the allegation. 

 

I would also include a sworn statement of denial and secondly an affidavit denying ever having an account with ACM Riverwalk IV B LLC with your answer. Keep running the cost bill up and show them you are in for the fight. They have dismissed once - did you file for a judgment of dismissal that you have a copy of???

 

HP 

HP, I forgot to answer your question about the previous dismissal.

The original suit was filed by attorneys by the name of Wright & Lerch out of Fort Wayne, Indiana. They were originally representing Velocity Investments, (which I understand is a part of a subsidiary of Riverwalk) before they filed suit representing Riverwalk Holdings and these lawyers are the ones that filed for the dismissal w/o prejudice.

 

This new suit was filed by Bowman, Heintz, Boscia and Vician, P.C. attorneys from Merrillville, Indiana and they are representing ACM Riverwalk IV  B LLC. So I am not sure WHY the former attorneys dropped this case. It may be due to having trouble getting paid by Riverwalk or it could have been for any number of other reasons.

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Does anyone have any suggestions as to how I should reply to the following comment that was attached to the bottom of the complaint ?

 

"WHEREFORE, plaintiff demands judgment against the defendants for the sum of $11847.52 plus accrued interest in the amount of $.00 , plus additional interest at the rate of .00 % per annum from June 20, 2013 I and costs and all other proper re1ief."

 

I figured that I would simply add one more bullet point to the bottom of my reply, but I am not sure how to format it.

 

I also have one other question. It seems to me that I read something in our state law, mentioning that either a "debt collector" or a "collection agency" that is trying to collect a debt over a certain amount, (around $1500 I think) MUST use an attorney. Yet the "complaint" from the attorneys has this statement at the bottom of the sheet.

 

"This communication is from a debt collector and this is an attempt to collect a debt and any information obtained will be used for that purpose."

 

So, if the attorney is a debt collector, would they have to use a seperate law firm for the court case? 

 

Thanks

OB

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No because many states state that attorney's who file a litigation are doing it to collect a debt, so they are in fact debt collectors. And even if they are filing for an original creditor, some states while the original creditor is not subject to the rules of the FDCPA, the attorney handling the case is.

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Thanks for the additional information Shellieh.

 

As an update, I have revised my "answer to the complaint" in order to include a responst to the plaintiff's "demand for judgment", so if anyone has any further input, it would be appreciated. I plan on filing this with the court on Monday unless I have made any type of major flub that will hurt me later.

 

ANSWER TO COMPLAINT

 

Comes the Defendant, xxxxx, acting PRO  SE , entering an appearance and answer to the Complaint filed herein against her in this action, and demands notice of all further proceedings.  The Clerk of the Court and the opposing party will be informed of any change in address. 

 

  • Defendant is without sufficient information or knowledge to form an opinion as to the truth and accuracy concerning the allegations contained in Paragraph 1 of the Complaint and therefore denies becoming indebted to US Bank National Association and/or ACM Riverwalk IV  B LLC as a result of charging $11,847.52 worth of goods, wares, merchandise and/or services.

.

 

  • Defendant denies the allegations contained in Paragraph 2 of the Complaint as Defendant is without information or knowledge sufficient to form an opinion as to the truth and accuracy of alleged assignment and entitlements.

 

  • Defendant is without sufficient information or knowledge to form an opinion as to ever signing an applications or loan agreements with or ever receiving any bills or statements from ACM Riverwalk IV  B LLC or U.S. Bank National Association, and therefore she denies the allegations contained in Paragraph 3 of the Complaint stating she owes Plaintiff $11847.52.

 

  •  Since Defendant suffered a MAJOR stroke, leaving her permanently handicapped, including but not limited to such disabilities as partial loss of memory and the use of her right hand, thus preventing her from writing or signing her name with that hand, she requests judgment against her in any amount be denied until some type of documentation from the plaintiff, containing the defendants signature, is provided.

 

Defendant swears the above statements are true to the best of her knowledge and  reserves the right to assert additional defenses.

 

 

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You may want to search out in your court rules if you can do a power of attorney affidavit any represent her for any legal proceedings due to her handicap. In colorado we can do that, but your state may be different, it would help her in that you would be allowed legally to " fill her shoes" in any legal matters.

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