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Received "stipulation and order for dismissal with prejudice" - please help review


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So, i filed a motion to dismiss with prejudice and alternatively a motion for a more definite statement as my response to the case here:

 

http://www.creditinfocenter.com/community/topic/321547-lvnv-funding-represented-by-messerli-and-kramer-in-wisconsin/

 

this is the motion i filed:

 

Pursuant to Wis. Stat. § 802.06(2)(B) (2012) Defendant xxxxxx, hereby referred to as Defendant request that the court dismiss Plaintiff LVNV Funding LLC’s Complaint with prejudice, on the ground that Plaintiff’s case fails to state a claim upon which relief can be granted.  Alternatively, pursuant to § 802.06(5), Defendant moves that Plaintiff be required to provide more definite statement and comply with the rules of pleading.

            This Motion is supported by the following Memorandum of Points and Authorities.

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

I.          BACKGROUND

 

Plaintiff filed its Complaint on xxxxxxxx naming xxxxxxx as Defendant. Plaintiff contends that Defendant “owe(s) Plaintiff $xxxxx” for “purchases made on Defendant(‘s’) charge account...issued to Defendant(s) by Wells Fargo Bank” Complaint at ¶ 2.  Additionally, Plaintiff alleges that “Defendant(s) is/are in default for failing to make required payments on the charge account as they came due on two or more occasions within a twelve month period” Complaint at ¶ 4. 

Defendant alleges that the term “charge account”, which is undefined in legal code and statute, is unduly vague. Defendant believes that he should not be forced to speculate as to the meaning of “charge account.” Additionally, Defendant the term “default” only obtains its meaning by reference to a specific type of credit account.

 

II.        ARGUMENT

 

            a.  Standard of Review for Motion to Dismiss

            Wis. Stat. § 802.06 provides that certain defenses may be presented as motions at the option of the pleader.  A pleading for dismissal for failure to state a claim on which relief can be granted can be made as a motion Wis. Stat. § 802.06(2)(a)6., and a motion on said grounds “shall be made before pleading if a further pleading is permitted” Wis. Stat. § 802.06 (2)(B)

The purpose to a motion to dismiss is to test the legal sufficiency of a claim. Evans v. Cameron, 121 Wis. 2d 421, 426, 360 N.W.2d 25 (1985). When considering a motion to dismiss, alleged facts and reasonable inferences made on said facts are taken to be true.  Town of Eagle v. Christensen, 191 Wis. 2d 301, 311-12, 529 N.W.2d 245 (Ct. App. 1995).  However, the extent of the courts review should be limited only to the contents of the Complaint.  Allarcom Pay Television, Ltd. v. Gen Instrument Corp., 69 F.3d 381, 385, (9th Cir.  1995).  Finally,  “The Complaint should be dismissed as legally insufficient if it is clear from the facts as pleaded and the inferences reasonably derived therefrom that under no circumstances can the non-moving party prevail.”  Turkow v. DNR, 216 Wis. 2d 273, 280, 576 N.W.2d 288 (Ct. App. 1998).        

            Plaintiff fails to adequately define charge account.  Defendant contends that the term “charge account” is not defined in the legal statutes, and is used to refer to a largely varying category of consumer transactions and associated agreements. In common parlance, “charge account can be construed to mean nearly any number of credit agreements, including revolving accounts, regular accounts, installment accounts, and budget accounts." Defendant contends that this vagueness forces the court to make unreasonable inferences as to the nature of said account in order to grant relief. Additionally, as the Plaintiff’s Complaint fails to reference, either directly or in any tertiary way, any alleged agreement that would govern said “charge account”, the Defendant contends that any assumptions made regarding the existence and the nature of any possible agreement governing the alleged “charge account” could only be achieved by more unreasonable inference and speculation as to its potential contents.

            The definition of the term default varies greatly based on the type of consumer credit transaction, Wis. Stat. § 425.103(2)(a-c).  Without specifying the type of consumer credit transaction and “charge account”, Defendant contends that Plaintiff has no grounds on which to claim that Defendant is in default, and therefore no cause of action “shall accrue in favor of [Plaintiff].”  Wis. Stat. § 425.103(1).  Additionally, Wis. Stat. § 425.105(1) prevents Plaintiff from taking action against Defendant without the issuance of a notice of the right to cure default pursuant to Wis. Stat. § 425.104.   

            By failing to state the type of “charge account”, the existence of any agreement that governs said account, the nature of said agreement, and the proper terms by which that account has fallen into default, Plaintiff fails to establish that said facts are grounds for relief.  Defendant contends that there is no agreement presented, and no agreement implied, without the necessity for unreasonable inference and speculation, which would obligate the Defendant to provide Plaintiff relief.

 

            b.  In the Alternative, Plaintiff Should be Required to Provide a More Definite Statement Regarding the Nature of Plaintiff’s Claims

 

            Even if the Court declines to dismiss Plaintiff’s Complaint, the Complaint is written in such a way as to force Defendant to make unreasonable assumptions as to what Plaintiff is actually asserting against Defendant.  “If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, the party may move for a more definite statement before interposing a responsive pleading. The motion shall point out the defects complained of and the details desired.” Wis. Stat. § 802.06(5).

            Defendant has previously pointed out the following defects in Plaintiff’s Complaint:  Plaintiff’s use of the term “charge account” is needlessly vague, and the Plaintiff fails to reference any agreement by which Defendant is obligated to Plaintiff in relation to said “charge account.”  Defendant requests that at minimum, Plaintiff further specify the nature of alleged “charge account” and the nature of any agreement purported to govern the alleged “charge account.”  Additionally, if applicable, Defendant asks that Plaintiff specify any branding or other information associated with the account(for example if its allegedly a Visa card).

 

III.       Conclusion

 

            For the foregoing reasons, Defendant respectfully requests that this Court dismiss Plaintiff’s Complaint with prejudice. Alternatively, Defendant moves this Court for an order requiring Plaintiff to submit an amended Complaint in compliance with the pleading requirements of the Wisconsin Rules of Civil Procedure, and with a more definite statement of the nature of their claim, within 10 days of the Court’s Order.  Should Plaintiff fail to do so, Defendant respectfully requests Court dismiss Plaintiff’s Complaint, with prejudice.


Today, i received in the mail a "stipulation and order for dismissal with prejudice", which is quite a relief as it is definitely a victory, but I just want to make sure that it doesn't allow anything in the future regarding this bogus debt.

 

The meat and potatoes of the motion they sent me:

 

Plaintiff agrees to release and forever discharge Defendant from any and all claims, demands, damages, actions, causes of action, or suit(s) of any kind or nature whatsoever with respect this case and specifically to CREDITOR account number xxxxxx.

 

Defendant agrees to release and forever discharge Plaintiff including its past, present and future agents, heirs, executors, administrators, assignors, assignees, insurers, attorneys, and all other persons, firms or corporations liable or who might be claimed to be liable (collectively Plaintiff), none of whom admit any liability to Defendant, but all expressly deny any liability, from any and all claims, demands, damages, action, causes of action, or suit(s) of any kind or nature whatsoever, whether common law, equitable, statutory, contractual or otherwise, which they now have, ever had, or may hereinafter, acquire against Plaintiff arising out of or in consequence of or based upon any matter or thing whatsoever from the beginning of time to the date of this agreement.

 

So, the things I am unclear about:

 

1) Does this prevent them, or anyone from bringing suit against me on the same case? It would assume that because of how they define plaintiff it cannot be assigned to anyone in the future right?

 

2) Does this mean i can demand it be removed from my credit report? (that would seem to be a claim to the debt right?)

 

3) Most importantly, i suppose, should i sign it? Any other thoughts?

 

I think this is interesting, and I haven't seen the strategy i used anywhere on this site or the response i received.  Thanks to everyone though, as I did have another answer prepared from the help i received, and I wouldnt even have known where to start if it weren't for ya'll.

 

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I am thinking they must have violated something like the fdcpa, or other consumer collection practice as they sent you a nice we will never sue you and you agree not to sue us stipulation. :)

Yes this means they can't sell it, sue you on it, it is dead in the water. Don't know about the credit trade line though. If you want it over, sign it, or you can try putting or adding tha stipulation about no trade lines. Sweet! Congrats

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I had tossed a variation of this approach out a couple of weeks ago, but before reading this topic, I had never known anyone that actually tried it.

 

You didn't even outright deny the debt, so they probably have no idea it's bogus and just think you're being coy.  I think they looked at your Motion and realized it was going to cost them a bunch of time and money to pursue the debt and figured it wasn't worth it.  For every one of you there are 200 others that don't fight.   $1,500 is not enough for them to screw around for a year with you when they know in the same period of time they will get $5,000,000 in default judgments for doing next to nothing.  They know the resources it would cost to respond to your Motion would be better spent sending you a stipulation to dismiss.

 

To answer your questions, as to #1, I would ask them to include a statement that Plaintiff will immediately instruct any CRA to whom the debt has been reported to delete the account from your credit report, and Plaintiff will otherwise not communicate, sell, assign or transfer the debt to any other person at any time.  This covers you if it THEY (see #2) placed it on your credit report.  If you dispute it with the CRAs, they cannot communicate the debt, and it will have to get deleted.

 

For #2, they only way a trade line can be removed from your credit report is if the organization that placed it instructs the CRAs to remove it, or the CRAs determine it should be removed (reporting error, obvious inaccuracy, fraud, identity theft, etc).  A JDB cannot instruct a CRA to remove a trade line placed by an OC.

 

And #3, I would take the deal with the addition of #1.

 

Did you have to pay a fee to file your Motion?  You might try to get them to reimburse you for this.

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Plaintiff agrees to release and forever discharge Defendant from any and all claims, demands, damages, actions, causes of action, or suit(s) of any kind or nature whatsoever with respect this case and specifically to CREDITOR account number xxxxxx.

 

Defendant agrees to release and forever discharge Plaintiff including its past, present and future agents, heirs, executors, administrators, assignors, assignees, insurers, attorneys, and all other persons, firms or corporations liable or who might be claimed to be liable (collectively Plaintiff), none of whom admit any liability to Defendant, but all expressly deny any liability, from any and all claims, demands, damages, action, causes of action, or suit(s) of any kind or nature whatsoever, whether common law, equitable, statutory, contractual or otherwise, which they now have, ever had, or may hereinafter, acquire against Plaintiff arising out of or in consequence of or based upon any matter or thing whatsoever from the beginning of time to the date of this agreement.

 

Your motion to dismiss argues that you cannot determine from the face of the complaint what account you're being sued on. That being the case, how do you know what account LVNV purports to release you from? In other words, what's to stop them from assigning another account number to the file and suing you again, or selling the account to someone else who sues you under a different account number? The release is equally as vague as the complaint. The release should identify the original creditor's account number (e..g., Wells Fargo account #xxxxxxxx).

 

Next, I always caution against granting such a broad release. While releases using this language are common, I point out that you do not know the identity of the persons or entities to whom you are releasing, and you are releasing these individuals from claims not necessarily related to the account which is the subject of the lawsuit. In short, you're releasing everyone in the universe from every conceivable claim, regardless the subject. Arguably, such a broad release may be too vague to be enforceable, but why agree to such a thing in the first place. The simple solution is to change to release to based upon any claim arising from or relating to Plaintiff's attempts to collect the debt identified herein as Wells Fargo account #xxxxxxxxx.

 

If Plaintiff is acting in good faith, there is no reason not to agree to narrow the scope of the release.

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So how would I go about amending the release? Should I just retype the entire thing, with my amendments, sign it, and send it back to them?  I would then have to file the documents with the court correct?

 

@Harry Seaward

 

I didnt have to pay to file the motion, I actually filed it as my response to the initial complaint.  I am currently challenging the OC items on my credit report, but i am assuming that by discharging all claims in relation to the case (even if they specify an account number of theirs) that it would mean the wells fargo account assigned to lvnv funding for the specific dollar amount (i believe that wells fargo and lvnv have the same acct # listed on the credit report).

 

@nascar

 

I guess i see my motion as being a little more nuanced than that.  I think it could be reasonably argued that an account with a balance and a specific account number could exist (which in this case i deny also), but that by failing to specify the type of account those pieces of information reference, the claims they make do not 1) necessarily follow from one to the next,and 2) have any meaningful content. I hope that makes sense, I know i may not be explaining my thought process so well this late at night.

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Yep type it up, sign it and have a place for them to sign. Then send a note telling them you agree but you changed the wording of the stipulation in terms you understand. :-)

 

Don't sign anything until you have a mutually agreeable version. 

 

The most common way to submit your changes is to provide a redlined version; strikethrough the objectionable language, with your revisions underlined.

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So like this?

 

          Defendant agrees to release and forever discharge Plaintiff including its past, present and future agents, heirs, executors, administrators, assignors, assignees, insurers, attorneys, and all other persons, firms or corporations liable or who might be claimed to be liable (collectively Plaintiff), none of whom admit any liability to Defendant, but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action, or suit(s) of any kind or nature whatsoever, whether common law, equitable, statutory, contractual or otherwise, which they now have, ever had, or may hereinafter, acquire against Plaintiff arising out of or in consequence of or based upon any matter or thing whatsoever Plaintiffs attempts to recover the debt with respect this case, and specifically, CREDITOR account number 30394896, from the beginning of time to the date of this agreement;

 

And then I should send the copy to them.  Will they need to sign it and send it back to me, for me to file?

 

Also, Im not sure of the rules of procedure here, but when this is filed with the court, does that cancel all hearings and dates?  I just have one set for a motion hearing and pre-trial conference, but I assume those will be unneccessary.

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Send them an unsigned copy first and see if they agree to it.  If they do, they will sign it and send it to you for signature.  Once you sign it and send it back, they should file a Motion to Dismiss.  In the mean time, be sure to attend any scheduled court hearings lest they try to backdoor a default judgment.

 

"CREDITOR" should be replaced with the name of the OC when you send them the changes.

 

I also think I would insert actual names instead of 'defendant' and 'plaintiff'.  Something like this:

 

 

          I, chiaguy222 ("me", "I"), agree to release and forever discharge LVNV Funding, L.L.C. including its past, present and future agents, heirs, executors, administrators, assignors, assignees, insurers, attorneys, and all other persons, firms or corporations liable or who might be claimed to be liable (collectively "LVNV"), none of whom admit any liability to me, but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action, or suit(s) of any kind or nature whatsoever, whether common law, equitable, statutory, contractual or otherwise, which I now have, ever had, or may hereinafter acquire against LVNV ...

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Send them an unsigned copy first and see if they agree to it.  If they do, they will sign it and send it to you for signature.  Once you sign it and send it back, they should file a Motion to Dismiss.  In the mean time, be sure to attend any scheduled court hearings lest they try to backdoor a default judgment.

 

"CREDITOR" should be replaced with the name of the OC when you send them the changes.

 

I also think I would insert actual names instead of 'defendant' and 'plaintiff'.  Something like this:

Make sure you identify the account by a number or something in that letter, if you don't they have an agreement for any future debts they may acquire for a different account.

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