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Hi! For the past few weeks I have been browsing this site and I have come across some useful information. So I decided to ask you all for some help. I am currently at the CMC stage and I am a lot of what forms to fill out and how to go about preparing the right documentation and not looking like i don't know what I am doing. Any help is much appreciated :0 Thank you!! 

 

 

 

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.) 
Limited Civil
3. How much are you being sued for? 
$2700 plus 10% statutory rate and Plantiff's attorney fees
4. Who is the original creditor? (if not the Plaintiff) 
Citibank (originally Sears)
5. How do you know you are being sued? (You were served, right?) 
I was served a summons on Sept 1, 2013
6. How were you served? (Mail, In person, Notice on door) 
mail and they delivered the papers to my boyfriend when i was at work
7. Was the service legal as required by your state? 
To my knowledge, yes.
Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 
I don't think I had any correspondence
9. What state and county do you live in? 
San Luis Obispo County, CA
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 
I don't remember paying them at all. :(
11. What is the SOL on the debt? 
Charge Off account opened on 7/13/2008. They (LVNV) claims my last payment was 07/15/2009. 

According to my credit report, Sears claims the last payment was 07/18/2008. Which I am assuming was LVNV taking my debt?
12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or    B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 
A CMC has be scheduled for November 18, 2013.

After receiving their summons, I filed an Answer and Proof of Service. Then I received a notice of CMC in the mail on October 4. 
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 
No. i did have the debt with Sears. 
14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 
No because I didn't know how
15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 
 

I did not receive anything from LVNV after submitting my Answer on Oct 1, 2013. I want to file a discovery, but I am at lost of how to go about doing that. I don't know what to do next. Doing this myself is taking a lot of time away from my school studies, but this is a very important matter and i don't have the money to hire a lawyer, so I am trying to do this all myself. 


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

I just have the summons. i don't have a statement or a contract from Citibank. Just the summons which has a Complaint and a cause of action. 

 

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last payment was 07/18/2008  "Which I am assuming was LVNV taking my debt?"

 

 

 They don't mind collecting after SOL has run on the account.

 

Even if the statute of limitations has expired,

 

They're hoping you don't know about the statute of limitations and you'll pay them if they scare you enough.

 

If you are certain the statute of limitations has expired, and you can prove it you can use that fact to get the case dismissed.

 

IF LNLV Funding knows or should have known the debt is past SOL you might have some unfinished busine$$ with them.

 

The SOL for open accounts-credit cards is four years.

California Code of Civil Procedure Section 337 deals with statute of limitations for credit card debts.

 

The statute of limitations for credit card debts in California is 4 years in case of a written contract or an open ended account.

 

The time limit of 4 years runs from the date of the last transaction on the card.

 

The transaction may be a purchase made on the card or a payment made to the credit card company towards the dues.

 

If the credit card contract is an verbal contract (which is extremely rare) the statute of limitations is 2 years under California law.

 

You would plead that as an affirmative defense in your answer to plaintiffs complaint.

 

You might send a meet and confer letter to the plaintiffs attorney and tell them they are suing for a debt that is past the statute of limitations and see if they will dismiss the case and you will take no further action against them.

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Welcome,

As far as your next step you didn't state what common counts you are being sued for, ie..breach of contract, account statedm money lent etc...

If the complaint mentions anything other than account stated send a Request for Bills of Particulars (bop), if the complaint just says account stated then start your discovery.

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It also helps to know what they used as grounds to sue,,,breach of contract, open account, account stated, common counts,etc etc...

 

You have the SOL defense use it once you claim that the sol has expired it will up to them to prove that it has not. Have you proof ready to offer the court as evidence.

 

Once we know the counts they use we can give you more avenues of approach to this case.

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So just to clarify something, since I am also investigating the SOL pertaining to my lawsuit. Does the JDB purchasing your debt from the original creditor restart the clock on the SOL? Meaning would that qualify as the last payment on the account? 

 

Thanks.

 

 No

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SOL starts from the date you last made a payment to the original creditor. If they claim a different date then you do you make them prove the date. Do not let them use a different date. The problem with the SOL is if you use it right out of the gate you are potentially admitting to the debt being yours. First make them prove the debt is yours then when they try to introduce evidence you object over the sol.

 

First thing you want to do is attack their standing to sue. If they have no standing to sue they have no case. If you do not attack their standing from the onset of the case you will loose that right. Standing has to be argued from the onset. You ask for, in discovery, all documents evidencing the assignment of the debt. whether purchased or assigned to them for collection. They will more than likely try to present a sales receipt for a portfolio of debts. They will try to claim that your debt was in this portfolio. But if your debt is not specifically mentioned in any of the documents they offer as evidence then they have not proven standing. If they claim they have rights of assignment you ask for the documents that prove their assignment rights. If they cannot prove they have legal title to your debt they have no standing to bring a suit against you.

 

Make them show the contract of assignment, it must contain the date of assignment, consideration paid, and all identifying information of the account in question. They will try to introduce an affidavit from someone on the company that claims to have intimate knowledge of the account and that the account was either purchased or assigned to them. This affidavit must be objected to as hearsay.

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Excellent details. I thank you.

 

I had reservations about going to the SOL card right out of the gate as I feared it would be taken as an admission to the debt. With that being said, would I still have to claim the SOL as an affirmative defense on my answer, or could I simply bring it up at a later time IF the topic of last payment date comes up at some point in the course of events?

 

First and foremost I will be filling a motion for a definite statement in my scenario, but I'm preparing myself for beyond that at this point. Just plotting it out if you will...

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file your motion for a more definative statement.

 

You can use the sol in your answer but you would word it as such that you are not admitting to the debt.

 

If the debt is determined to be mine, I would argue that, according to the Plantiffs evidence they provided, this debt could be beyond the Statute of limitations for them to file a suit.

 

The Defendant would also argue The Doctrine of latches. The Doctrine of Latches has three simple elements

1) Unreasonable lapse of time

2) Neglect to assert a right or claim

3) To the detriment of another

The doctrine of Latches is based on the maxim that equity aides the vigilant. It is defined as a neglect to assert a right or a claim, combined with the lapse in time and other circumstances that causes prejudice to the adverse party, operates as a bar in a court of equity.

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Welcome.

 

The previous posters are correct that you have a real possibility of a valid SOL defense.  But we need a bit more information.  The time period measured by the SOL ends on the date the complaint was filed.  It may have taken plaintiff several months to serve you after the complaint was filed with the Court.

 

Check the docket on line and see when the complaint was filed.  If it was filed more than 4 years after the date of default, then consider the following:

 

Did you include the SOL as an affirmative defense in your answer?  If not, you might want to prepare an amended answer and ask the plaintiff to stipulate to your filing it (I will help with a letter).  If plaintiff refuses, I would just ask the Court at the CMC.  Courts are directed to grant leave to amend pleadings "liberally" and this is a no-brainer so early in the case.

 

You can't file a demurrer after you have already answered so you will need to get some discovery to prove the date of default.  If, after checking the filing date, you still think that the case is time-barred, you can do a one-item document request for all statements.  Plaintiff may not give them to you so you may have to file a motion to compel, but it will be easy if there is only one request.  And, when the Judge knows why you are asking, I have little doubt that the motion will be granted.

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I had reservations about going to the SOL card right out of the gate as I feared it would be taken as an admission to the debt. With that being said, would I still have to claim the SOL as an affirmative defense on my answer, or could I simply bring it up at a later time IF the topic of last payment date comes up at some point in the course of events?

 

 

 

 

This is important.  It is not an admission of the debt.  You may deny any responsibility to pay the debt for a variety of reasons:  you don't know whether this is actually your account, you don't know whether you incurred all of the charges plaintiff claims, you don't know whether LVNV actually owns the debt in question, etc.  The SOL defense just says, EVEN IF plaintiff's allegations were true, it waited too long to file the case.  You are admitting to nothing, you are just saying that the case was not filed in time.

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Welcome,

As far as your next step you didn't state what common counts you are being sued for, ie..breach of contract, account statedm money lent etc...

If the complaint mentions anything other than account stated send a Request for Bills of Particulars (bop), if the complaint just says account stated then start your discovery.

Cause of Action- Common Counts

1  Plaintiff alleges the defendant became indebted to Sears within the last four years

a) within the last four years

    (1) on an open book account for money due

    (2) because an account was stated in writing by and between plaintiff and/or Plaintiff's assignor and defendant in which it was agreed that defendant was indebted to plaintiff and/or Plaintiff's assignor

 

b within the last four years

 (3) for goods, wares and merchandise.... 2600

 

(4) for money lent to plaintiff

(5) for money paid, laid out, and expended to or for defendant at defendant's special instance and request.

(6) By the terms of the said agreement(s). Plaintiff or Plaintiff's assignor, provided defendant, and each of them , with services rendered and/or goods...and extension of credit at defendant's special instance and request and in consideration thereof defendants promised to prove payment in the sum 3800 and interest. 

 

How do I start my discovery? is there a form i use like the admission of discovery form? Also, I checked my voicemail and I had one of their lawyers call me and I am afraid to call them back because I don't know what to say. 

 

Thank you for all your help!! :)

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Welcome.

 

The previous posters are correct that you have a real possibility of a valid SOL defense.  But we need a bit more information.  The time period measured by the SOL ends on the date the complaint was filed.  It may have taken plaintiff several months to serve you after the complaint was filed with the Court.

 

Check the docket on line and see when the complaint was filed.  If it was filed more than 4 years after the date of default, then consider the following:

 

Did you include the SOL as an affirmative defense in your answer?  If not, you might want to prepare an amended answer and ask the plaintiff to stipulate to your filing it (I will help with a letter).  If plaintiff refuses, I would just ask the Court at the CMC.  Courts are directed to grant leave to amend pleadings "liberally" and this is a no-brainer so early in the case.

 

You can't file a demurrer after you have already answered so you will need to get some discovery to prove the date of default.  If, after checking the filing date, you still think that the case is time-barred, you can do a one-item document request for all statements.  Plaintiff may not give them to you so you may have to file a motion to compel, but it will be easy if there is only one request.  And, when the Judge knows why you are asking, I have little doubt that the motion will be granted.

The Plaintiff filed on July 30, 2013. And I was served September 1, 2013. I did include the SOL as my defense in my answer. One of their lawyers called and left a message stating it was in my best interest to call them back, but I am worried that that's a trap. however, i know I have to have communication with them because that is within the California code. Do I do my discovery..sent it out and then call them back? I don't want to do anything the wrong way and screw myself. I know this is my debt, but I am paying off another debt and I can't afford to pay them as well. 

So instead of discovery i do a document request for all statements? Can I find that at the California courts website?

 

Sorry for all the questions. I really appreciate the time and help everyone is giving me :) 

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They are just calling to see if you would like to settle.  I will post a request for production tomorrow.  You should probably ask for the operative agreement also.  Some agreements provide for Delaware law which has a 3 year statute of limitations.  There is a case called Chambers that says the Delaware SOL applies.  Here is a copy of that case:  http://www.courts.ca.gov/partners/documents/2011SRL5eResurgence.pdf

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Another question because I am a little lost. According to California code, I have NO LATER than 30 days to meet and confer with LVNV...well I am assuming the law firm that is representing them. I take the meet and confer as I MUST talk to Brachfeld Law about how we want to handle the case, but do I tell them I need proof and that I sent out a BOP?? Help I am really lost and this legal verbiage is confusing me. 

 

Another question..when filling out my request for production of documents.. I don't have an account number that LVNV provided for me in their complaint nor in their common counts. I have account numbers listed on my credit report through TransUnion, but if I use those doesn't that mean that I am admitting the debt? Please help! Thank you!! 

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Don't put an account number, your not going to give them anything, they need to prove the account is yours.  When asking for documents you can put "the account that is subject of this lawsuit" there you are not giving them a account number, and they need to provide the answers.

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Don't put an account number, your not going to give them anything, they need to prove the account is yours.  When asking for documents you can put "the account that is subject of this lawsuit" there you are not giving them a account number, and they need to provide the answers.

Thank you! Btw, is is normal when you call the law firm representing the JDB to let your call go to voice mail? I am assuming they probably wouldn't call me back.  I received a voice mail from a non-attorney manager with the Brachfeld Law firm, but he was in Texas and I was confused as to why he would be calling me. Well actually I know it is because they want me to settle, but I want to fight this, so instead of calling him back, I called the direct number listed on my Summons. Does me leaving a voice mail constitute me meeting the Meet and Confer requirement? 

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Have you seen this thread by member ASTMedic?  It was in California against another Junk Debt Buyer, Midland, but the steps should be the same.

 

http://www.creditinfocenter.com/community/topic/317277-how-i-beat-midland-in-california/

Thank you! I have read his thread and this information is very useful :) I am just trying to figure out how to fill out a BOP with 10 days instead of 30 days because i am on a time crunch. The CMC is on November 18, so I can't give them 30 days or else I wouldn't have them responding in time for my CMC

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Sorry for all the posts. I just don't want to make any mistakes. Is this an appropriate form for the BOP?

 

To PLAINTIFF________ and [its/their] attorneys of record herein: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff�s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, all payments or credits that have been made to the account and any agreement assigning the account at issue to the plaintiff.

Dated: _________ _____________________
DEFENDANT

 

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Sorry for all the posts. I just don't want to make any mistakes. Is this an appropriate form for the BOP?

 

To PLAINTIFF________ and [its/their] attorneys of record herein: DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff�s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, all payments or credits that have been made to the account and any agreement assigning the account at issue to the plaintiff.

Dated: _________ _____________________

DEFENDANT

 

 

Yes.  That is the correct form.  I put the causes of action in brackets so you can pick which ones apply to your case. Just keep the causes of action alleged in your complaint and delete the rest.

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