Help with Summary Judgement in Minnesota

[rvs494]

Searching the internet for a way to oppose the Summary Judgement that LVNV has filed against me and hoping that anyone out there can point me in the right direction.

 

Included is the:

 

Motion

 

Notarized copy of Plaintiff's Affidavit in Support of Summary Judgement

 

An account summary generated by LVNV showing that I apparently made regular payments to them between 12/30/2009 and 08/30/2010

 

A generic Citibank Assignment and Assumption Agreement, Bill of Sale, that does not mention me or the account.

 

An apparenly notorized Affidavit of Transfer from Sherman Originator LLC to LVNV Funding LLC (On this copy, the notary seal cannot be seen, also the signature of this Representative Timothy Orange cannot be seen)

 

5 pages of some list that starts with a File Name: Sherman BK13 August Citi Final Sale File including my name, address, SSN, account, balance, last pay date, etc.

 

4 Credit Card statements ranging from July 2004 to May 2007

 

A notorized copy of Affidavit of Plaintiff's Counsel

 

Exhibit A is my Answers to their Summons and Complaint

 

Exhibit B is the Plaintiff's Requests for Admissions and Interrogatories and Affidavit of Service by Mail

 

Exhibit R1 are the credit card statements again

 

Exhibit C is my Response to Plaintiffs Requests for Admissions and Interrogatories

 

Exhibit D is the Plaintiff's Second Requests for Admissions and Interrogatories and Affidavit of Service by Mail

 

Exhibit E is my Response to Plaintiff's Second requests for Admission and Interrogatories

 

Memorandum of Fact and Law

 

Findings of Fact, Conclusions of Law and Order for Judgement and Affidavit of Service by Mail

 

I wish I was able to consult with an attorney on this, but I can't. I'm it. Any suggestions or points in the right direction would be greatly appreciated.

 

 

 

 

[BV80]

@rvs494

 

An account summary generated by LVNV showing that I apparently made regular payments to them between 12/30/2009 and 08/30/2010

 

Did you make payments to LVNV? 

[rvs494]

No, I never pay to credit collectors, however, at the time I was married and we had a joint account. I still don't know whether or not this was an actual account that my ex had opened, used and made payments on. I never made payments to LVNV.

[BV80]

@rvs494

 

 

You're going to have to write an opposition to their motion that shows the judge that there are still material facts to be determined.   It has to address their allegations and include case law.

 

There's a bunch of questions to be answered.

 

You said that there are 4 credit card statements from 2004 to 2007.  Do they show any charges or payments? 

 

What is the SOL in your state?    What are they claiming to be the date of last payment on the account?

[WhoCares1000]

MN SOL is 6 years

[shellieh98]

sol in Minnesota is 6 years.  When did they file the suit?  looking to match that with date of default on the account will tell us if it is time barred.

[rvs494]

This is what is listed on the court website:

 

10/08/2013     Summons and Complaint 10/08/2013     Affidavit of Service 10/08/2013     Certificate of Representation 10/08/2013     Civil Cover Sheet 10/08/2013     Confidential Information Form 11.1 personal information 10/09/2013     Notice of Case Assignment 11/07/2013     Notice of Motion and Motion 11/07/2013     Affidavit of Plaintiff 11/07/2013     Affidavit-Other 11/07/2013     Memorandum 11/07/2013     Proposed Order or Document 11/07/2013     Affidavit of Service 12/11/2013     Motion Summary Judgment  (1:30 PM) (Judicial Officer Robiner, Susan)  

The motion for Summary Judgement I received is dated October 31, 2013 and post marked November 1.

 

The credit card statements are as follows:

 

July 21-August 20, 2004  There are 11 charges to the card and an $80.00 payment

 

July 21-August 19, 2005  There are 8 charges and a $2000.00 payment

 

July 21-August 22, 2006  There is 1 finance charge and no payments

 

April 20-May 22, 2007  There are no charges and a $100.00 "Agency Payment"

 

Then on LVNV's account summary:

 

12/30/2009  Principal Payment  $73.46

01/28/2010  Principal Payment  $82.35

02/26/2010  Principal Payment  $82.35

04/29/2010  Principal Payment  $82.33

05/26/2010  Principal Payment  $82.34

06/29/2010  Principal Payment  $164.69

07/29/2010  Principal Payment  $82.34

08/30/2010  Principal Payment  $88.04

 

Like I said, I have no recollection of ever having this account to begin with, and I know for darn sure that I never made payments to them personally, but they are claiming that my last payment was the one on 08/30/2010.

[shellieh98]

Pull your credit report, you can get one free online. Look at the original creditor if it is there and see what it says. It should show when the account became 30-60-90 days past due. Also see if they show a last payment.

If it's not on your credit report, you need more discovery, and that will help you in your opposition.

I am lost as to why they have listed affidavit of service up there with a future date in dec. 2013.

Look in your rules of civil procedure and see how many days you have to file an opposition, they don't give you much time, like 20-30 days.

[BV80]

@rvs494

 

I would also check your bank records to see if those payments were made out of your account.  If they weren't, you can easily deny them. 

 

Did you claim the statute of limitations as an affirmative defense?

[shellieh98]

I thought they filed really fast from when they filed the suit to MSJ. Did you change your responses to your discovery requests from "Defendant has insufficient information to affirm or deny and leaves it to the plaintiff to provide proof."

To something else like advised?

[rvs494]

I didn't copy and paste correctly, the dates are as follows:

 

10/08/2013                                      Summons and Complaint

10/08/2013                                      Affidavit of Service

10/08/2013                                      Certificate of Representation

10/08/2013                                      Civil Cover Sheet

10/08/2013                                      Confidential Information Form 11.1 personal information

10/09/2013                                      Notice of Case Assignment

11/07/2013                                      Notice of Motion and Motion

11/07/2013                                      Affidavit of Plaintiff

11/07/2013                                      Affidavit-Other

11/07/2013                                      Memorandum

11/07/2013                                      Proposed Order or Document

11/07/2013                                      Affidavit of Service

12/11/2013                                      Motion Summary Judgment  (1:30 PM) (Judicial Officer Robiner, Susan)

 

Pulled up my credit report from Experian and Trans Union in June of this year. The only entries referring to Citibank is for a Credit Card opened 12/1998 with a limit of $1600.00, the account number does not match the one LVNV is going after me for, and it says High Balance $1597.00 $0 /paid as of 12/2004 Last payment made as of 05/10/2004.

 

Other than that, there is no other entry by Citibank with a matching account number or anywhere near the sum of $20,998.77 that LVNV claims that I owe. Also, LVNV does not appear anywhere on my credit report.

 

@BV80 at the time those payments were made, I had a joint bank account with my ex-wife. Am I able to go to the bank to obtain records for that time?

 

and yes, I claimed Statute of Limitations and Standing

 

@shellieh98 I changed it to either Deny or Defendant is without sufficiant knowledge and therefore denies.

[BV80]

@rvs494

 

Ask your branch manager or someone in customer service if billing statements for those dates are available.  If they're not, the LVNV won't be able to compel production of those records.

 

If they are available, you need to see if those payments were made out of your account.  Then we'll go from there.

[shellieh98]

You can go to the bank and request transactions for those dates. You will have to pay for them, but you know what months you need them for.

In plaintiffs motion for summary judgement, can you redact and scan it?

It will help to know what to help you with.

[rvs494]

@shellieh98

 

Yes, I can have them scanned in in a couple hours. Have to go pick up my daughters from school and hook up my scanner.

[WhoCares1000]

Did you file an answer? If you did, it is not showing up on the schedule.

[rvs494]

@shellieh98 not sure how to attach the scans I made. They are in Jpeg format. Can anyone help me out?

[rvs494]

Here are most of the documents that are included with the Motion.

[rvs494]

Did you file an answer? If you did, it is not showing up on the schedule.

I did not file it because nothing was in court yet. They did include my answer in their Exhibits.

[BV80]

@rvs494

 

On the account summary, where is your name?   What evidence have they provided that shows your name?

[rvs494]

@BV80

 

My name, last 4 of my SSN and my address at the time, are on there and I removed them before posting. Sorry, I should have put something there that mentioned it.

 

But I am looking at old bank statements online and they do go back to 2006, just didn't think they'd be there since it was a joint account at the time.

 

So far, there is no payment to anybody on 08/30/2010 for $88.04, and there is no payment to anybody on 07/29/2010 for $82.34. Going through the rest of them right now.

[rvs494]

My mistake, they only go back till April 30, 2010. That must be when I switched from having a joint account with my ex, but I have 4 statements right now that don't show me making any of the payments that they're claiming I made on their account summary. Also, my paycheck is direct deposited, so if I paid them by money order or some other way, I still would have had to have taken the money out of my bank account. Right? And I did not have any credit cards at the time.

[WhoCares1000]

Oh, you did file an answer properly with the attorney representing the plaintiff then, correct. If so, I hope your answer had something in it that would show there is material facts that need to be decided in court. If that is true, then bring that up.

[rvs494]

Correct.

 

My answers were all denials, except for my name, address and receiving mail there, although I've second guessed that since it was up to my wife at the time as to what mail I received, since she was home when the mail was delivered and I was at work, but I just didn't think that excuse would hold up anywhere.

[BV80]

@rvs494

 

I take it that the credit card statements show your name and address?  If so, it appears that your ex-wife opened the account in your name. 

 

If I were the one being sued, I'd get copies of my bank statements from the bank (not just printed out from my computer) for few dates you just referenced.  If you can get an affidavit from a bank officer stating that the accurate copies of your bank statements, that would be great.  

 

I would also see if I could get copies of bank statements from your joint account that you had with your ex-wife.  Hopefully, those can't be provided.  That way you can say in an affidavit that records before 2010 no longer exist.

 

You'll need to include an affidavit denying everything and stating truthful facts.  Deny opening the account, making charges, and making payments.  State that the attached bank statements show that no payment in the amount of ___ was made on ___.  Do that for each payment that's not referenced in your bank statements.

 

You might consider including a copy of your credit report showing the Citibank account you did have.   You'd have to include a statement in your affidavit that the copy is a true and correct copy from the CRA.   You'd also say that the account shown on the credit report is the only Citibank account in your name.  Point out the difference in the account numbers and opening dates of the accounts.

 

You also have to write your opposition to the summary judgment motion.  What was the cause(s) of action?  Account stated?  Breach of contract?

[debtzapper]

This is a recent, though unpublished case, from a MN App Crt regarding SJ in a debt coll case.

 

 

 

http://scholar.google.com/scholar_case?case=5929424839964421994&q=summary+judgment+debt&hl=en&as_sdt=4,24&as_ylo=2012