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Sued by LVNV Funding - SOL Question


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Good evening,

 

I have been browsing this website recently, but have now come forward to share some information and hopefully get great insight from the members here.

 

I appreciate your time and any responses I receive.

 

------

 

I have not been served as of yet, however I was tipped off that I was named as a defendant in a credit card lawsuit when attorneys in my area flooded my mailbox with advertisements for representation. I confirmed this by logging on to my county's Common Pleas docket page and found some basic case information and am now expecting the complaint to arrive via certified mail any day now.

 

Again, I don't want to post too many details at this time, but would rather get down to the bottom of this as I believe the plaintiff is attempting to collect on a time-barred debt that has already passed Ohio's open-ended account SOL of 6 years.

 

What I need to determine, or gather advice on is how I can definitely determine that the SOL has passed. I'm trying to recall, but I likely defaulted with the original creditor sometime early 2007, if not the latter part of 2006. Not long after, I entered into a debt settlement program that made partial, smaller payments to this creditor, along with my other creditors. By early 2008, I declined to continue with the program because I could not continue the monthly payments, and my account went to crap after that.

 

I pulled a copy of my credit report today, and the original creditor was no longer on there, so I had no way to verify how they reported my account to the bureaus during this time period. I've read some different websites and cannot determine if partial payments towards a (past due / defaulted) account restarts the SOL, or if it started when I initially defaulted on the account.

 

This information will be key in my defense. If this is too much of a fine line, I plan on fighting the lawsuit on other merits.

 

Thank you!

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Thanks for the reply. Let me please add some additional information.

 

Tonight I pulled all three major credit reports. None still shows the original creditor, Citibank. 

 

The debt purchaser, LVNV is on all 3 reports. LVNV lists on all reports that "their" account was opened in 1/2010 (Using the same account number as my old Citibank card). In addition, on one of the credit reports their is a field that says "Date of First Delinquency" (Within the LVNV information box) and the date given is 4/2007. This is a direct contradiction to when the LVNV account was listed "opened".

 

I'm assuming the 4/2007 date refers back to my days with Citibank, and that's the only information I have available that documents how old the original creditor account was, and when I started to not make regular / full payments on that account.

 

When I file my answer, I don't know if it's wise to go straight to the SOL card with this meager evidence. Then again, the burden of proof is them to show this account is still collectible. For the record, I have not made a single payment directly to LVNV or the attorney's office collecting on their behalf.

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Sorry, in Ohio, they do reset the SOL.  Here's ORC 2305.08:

 

2305.08 Partial payment.

 

 

If payment has been made upon any demand founded on a contract, or a written acknowledgment thereof, or a promise to pay it has been made and signed by the party to be charged, an action may be brought thereon within the time limited by sections 2305.06 and 2305.07 of the Revised Code, after such payment, acknowledgment, or promise.

Effective Date: 10-01-1953

 

I would look into the arbitration strategy for this one.  JDBs hate arb because of the costs.

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Thank you for the response!

 

I did receive my complaint today, and feel VERY optimistic about my chances of having this case dismissed. I will elaborate later, but minimal evidence was supplied by the JDB (nothing remotely official)

 

On top of that, I have affirmative defense for all 5 claims made against me.

 

I'm trying to figure this one nugget out. On the unofficial statement the JDB has included, there is a last payment date shown: 10/26/2007. If I take the whole 28 days to file my answer, does that put this case past the SOL? I'm not sure if me being served on 10/11/2013 means that the Plaintiff has the right to collect if say a judgment is rendered 3 months from now. Or can the SOL pass as the court process takes place, and this whole case can just be thrown out. Can anyone elaborate? 

 

Thanks!

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Very interesting, I am not saying I agree with the 10/26 date either as the last payment date, but that was what the generic statement belonging to the JDB showed. I don't know if I can call that date into question at some point, to prove the actual date, but I'm holding on to that card as a last resort. First I'd like to attack the claims against me as they have no merit or no proof attached.

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------

 

 

What I need to determine, or gather advice on is how I can definitely determine that the SOL has passed. I'm trying to recall, but I likely defaulted with the original creditor sometime early 2007, if not the latter part of 2006. Not long after, I entered into a debt settlement program that made partial, smaller payments to this creditor, along with my other creditors. By early 2008, I declined to continue with the program because I could not continue the monthly payments, and my account went to crap after that.

 

 

Thank you!

The settlement company you used. Have you any idea how long they made any payments for you?

 

Did this company's name begin with a C? Owned by a B.D.?

 

Are they still in business? If so they may still have last payment records for you.

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Hello again everyone.

 

I have spent a lot of time reading member: OhioOhio's thread regarding the suit brought forth by Asset Acceptance and find myself at a similar crossroads in regards of my next step of action. 

 

Answer vs. Motion to Dismiss / Motion for a More Definite Statement

 

The complaint as follows:

 

Plaintiff  (LVNV FUNDING LLC)

 

vs.

 

Defendant

 

 

DEFENDANT

 

1. The Plaintiff is the owner of the Defendant's Citibank account, account # XXXXXXXXXXXXLAST4

 

2. By use of the account, the Defendant became bound by the Account's agreement.

 

3. Defendant breached the Account's agreement by failing to make payments on the Account as required.

 

4. The amount now due and owing is XXXXX.XX. A copy of the STATEMENT is attached as Exhibit A.

 

5. Although demand has been made upon the Defendant to liquidate the balance due and owing, the Defendant failed to do so.

 

Wherefore, the Plaintiff prays for judgment against the Defendant for the balance due of XXXXX.XX together with accrued interest of XXXX.XX through September 26, 2013 plus interest thereafter on the balance due at the rate of 3.00% per annum and costs.

 

JDB ATTORNEY SIGNATURE

 

*********

 

Exhibit A is a generic and proprietary document submitted by LVNV Funding.

 

The very top and bottom of the document says: "This statement is an account summary. It is not a credit card statement. This statment has been generated on behalf of LVNV Funding LLC, account owner."

 

The body of the document just shows an owing principal balance of $XX,XXX.XX without any other accounting.

 

The remainder of the exhibit consists of arbitrary dates of when the account with the OC was originated, last payment date to the OC, JDB purchase date, Statement closing date.

 

My name and address that I haven't lived at for roughly 5 years is listed on the exhibit.

 

Below that is a field that appears as follows:

 

TRANSACTIONS

Transaction Date                                       Description                                                     Amount

 

with nothing filled out, all is blank.

 

Just below that there is a notation that states:

 

"This statement is not an original."

 

**********************************************

 

Well, what do you savvy forum members think.

 

The pleading is very basic and vague and would be simple to answer along with affirmative defenses. I'm just not sure if I should go this route, or attempt to dismiss the complaint as I believe the complaint as it stands does not fulfill the obligations set forth by Ohio Rule 10 (d) (1)

 

Thank you for any replies!

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I also wanted to add, based on the simplicity of the complaint brought forth, lack of evidence and the fact that the SOL was rapidly approaching (based on Plaintiff's belief of last date of payment according to exhibit A). That the Plaintiff along with attorney quickly and carelessly initiated litigation hoping for a default judgment. Can't blame them for trying. I am sure out of 10 similarly filed cases, 9 defendants earn a default judgment or otherwise fail to exercise their rights to defend themselves.

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I hope this isn't too over the top, but in an effort to arm myself with as much knowledge possible, I have browsed my county's Common Pleas docket for civil cases where LVNV Funding was listed as the Plaintiff. I've so far read a countless amount of dockets trying to get an idea of when/if LNVN Funding backs down during the process. I have taken into account how several judges rule on certain motions, particularly the judge assigned to my case. I'm learning a lot just from that method alone. At least as a means to familiarize myself with the process and lingo.

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@Debtinate

 

We need some more information.  Who is the original creditor?   At least one OH appeals court has ruled that the choice of law provision in a credit card agreement applies to the SOL.  Knowing the name of the OC would enable us to determine the SOL of OC's state of incorporation.

 

Also, if you were to lose and had to appeal, to which court would you appeal? 

 

We need to see how that court has ruled on the SOL of a choice of law provision and how they've ruled about credit card agreements in general.  We need to know if your appeals court  they considers a credit card to be a written agreement or an open account.  I read a case in which an appeals court reversed a summary judgment because no written agreement (cardmember agreement) had been provided by a JDB.  Therefore, the JDB had not proven that the account was subject to the 15-year SOL.

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@Public Enemy

 

 

For an $18,000 account?

 

I just might have to get into the junk debt buying game myself  :eek:

 

As I'm sure you know, JDBs purchase accounts in bulk (portfolios).   At least 2 factors,  in determining the cost of a portfolio is the number of accounts in the portfolio and the "freshness" of those accounts.

 

If the purchase is from an OC, then the chances are that all of the accounts are still within the SOL.  They are still "fresh".  More than likely, the JDB will pay more than a few cents on the dollar because their chances of recouping their investment is higher.   They can sue on accounts that are within the SOL and garnish wages in states that allow garnishment.

 

If the JDB purchases accounts from another JDB, then the chances are higher that at least some of the accounts are outside the SOL and not collectable in a court action.   Therefore, they'll pay less for that portfolio.

 

Then you divide the number of accounts into purchase price, and you get your average cost per account.

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@BV80

The original creditor was Citibank.

The case is filed with the Common Pleas court of my county if that helps.

For now I've moved on from the SOL issue as I have no definitive evidence as of yet that the debt is not legally collectible.

I'm not sure if you have had a chance to review the complaint as posted on the previous page of this thread. I'm still not sure if I should proceed right to an answer, or if I should bring forward a motion for a More Definite Statement.

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Read all you can on the strategy and steps of arbitration.

Read your credit agreement.

PLEASE READ THIS PROVISION OF THE AGREEMENT

CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE

RESOLVED BY BINDING ARBITRATION. ARBITRATION

REPLACES THE RIGHT TO GO TO COURT, INCLUDING

THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE

IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION,

A DISPUTE IS RESOLVED BY AN ARBITRATOR

INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES

ARE SIMPLER AND MORE LIMITED THAN COURT

PROCEDURES.

 

arbitration must choose one of the following two arbitration

firms and follow its rules and procedures for initiating and

pursuing an arbitration: American Arbitration Association or

JAMS. Any arbitration hearing that you attend will be held

at a place chosen by the arbitration firm in the same city as

the U.S. District Court closest to your then current billing

address, or at some other place to which you and we agree in

writing. You may obtain copies of the current rules of each of

the arbitration firms and forms and instructions for initiating

an arbitration by contacting them as follows:

American Arbitration Association

800-778-7879 (toll-free)

Website: www.adr.org

JAMS

800-352-5267 (toll-free)

Website: www.jamsadr.com

 

At any time you or we may ask an appropriate court to

compel arbitration of Claims, or to stay the litigation of Claims

pending arbitration, even if such Claims are part of a lawsuit,

unless a trial has begun or a final judgment has been entered.

Even if a party fails to exercise these rights at any particular

time, or in connection with any particular Claims, that party

can still require arbitration at a later time or in connection

with any other Claims.

 

Who pays? Whoever files the arbitration pays the initial filing

fee. If we file, we pay; if you file, you pay, unless you get a

fee waiver under the applicable rules of the arbitration firm.

If you have paid the initial filing fee and you prevail, we will

reimburse you for that fee. If there is a hearing, we will pay

any fees of the arbitrator and arbitration firm for the first day

of that hearing. All other fees will be allocated as provided by

the rules of the arbitration firm and applicable law. However,

we will advance or reimburse your fees if the arbitration firm

or arbitrator determines there is good reason for requiring

us to do so, or if you ask us and we determine there is good

reason for doing so. Each party will bear the expense of that

party’s attorneys, experts, and witnesses, and other expenses,

regardless of which party prevails, but a party may recover

any or all expenses from another party if the arbitrator,

applying applicable law, so determines.

https://www.citicard...ards/acq/cma.do  citi credit agreements

http://www.creditinf...of-arbitration/ linda7's posts on arbitration

http://www.jamsadr.com/rules-clauses/ rules of jams

 

 

 

 

 

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It's possible you could file a motion for a more definite statement because they may not have satisfied the requirement in Rule 10(D)(1).  Again, if you could tell us which court of appeals is your court, we could check out some case law from that court.

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