pampamk

In need of some direction, served, answered, received interrogatories

Recommended Posts

Hello!

 

I have been reading and reading on here, just when I think I found an answer, I read something else that makes me think I haven't a clue... which is the case most of the time... anyway...

 

I am being sued by Portfolio Recovery Associates, represented by Burns, Burns, Walsh & Walsh. The OC is Capital One. I am in Kansas, 3 year SOL. Last payment was made 7/2010.

 

I was served on Wed Nov 27 2013 with notice to appear on Fri Dec. 6. Here is the tricky part ~ I was given notice to appear in one county, but the petition showed suit filing in a different county. Neither county I reside in. I went to the clerk's office for the county I was to appear and asked why I was to appear in that county if I were being sued in different county. She of course said I was being sued in the county she works, until I showed her the paper I had in hand. She then brought me a copy of a petition filed in that county. So here is what I have seen On Apr 2012 filed suit against me in county A, I was never served, notice of dismissal filed Jul 2012 with order of dismissal Aug  15, 2012. They then filed suit in County B on  that same day. Then filed motion to reinstate in County A on Aug 26, 2013, with order reinstating Aug 27, 2013. Are you confused yet??? Here is the kicker, I reside in neither of those counties.

 

I went ahead and filed my answer anyway even though I knew it was wrong venue. I just received the interrogatories.

 

Should I now file for motion to dismiss due to wrong venue? From what I think I read in the courts rules on civil procedures, it would just be transferred to correct venue, which I really don't want. I know the judge and she has no regard for the Pro se defendant, this being the reason I filed my answer in wrong venue in  the first place.

 

I'm sure you need more info. I will be happy to answer any and all quesitons. I am so happy to find this site and see all the help given to people like me.  Thank You in advance!!! Looking forward to hearing from you!

Share this post


Link to post
Share on other sites

Well, you might have an issue, I do not know how KS courts work, but usually, you need to invoke affirmative defenses at the time you file your answer.  Check with your state's rules of civil procedure about filing an amended answer with affirmative defenses.  I see two things that I would attack right off the bat.  First, as you guessed, is improper venue.  The second is expired SOL.  If they filed suit against you in the wrong county, that is no fault of yours, and so they did not act properly within the 3 year SOL that the law requires. 

 

Let me ask you, did you ever live in either of the counties where they tried to file against you?

 

I would see about that amended answer...and if the RCP permit it, I would file both affirmative defenses right then and there along with an amended answer.  The reason you would want to include the SOL defense is because the case could simply be refiled in your county, but if the SOL proves correct, then that court in the wrong county might just dismiss.  Also, the plaintiff might just drop it themselves--they would know that if youre going to invoke SOL in that county, that you would simply do the same in your own county, and they would then know that filing this case in the correct county would be a waste of their time and money. 

Share this post


Link to post
Share on other sites

I have to admit I haven't read one like yours before! The good news is that you will dealing with PRA instead of Cap One. Cap One is known for holding most of their accounts unless the amount is small. 

 

Sorry I don't have any answers for you right now other than to concentrate on the wrong venue and hopefully the SOL. Answer these questions and it will help others help you. You might also want to scan the paperwork they have sent so far. Just leave out any person info and round off all numbers. Last but not least you might want to contact a consumer attorney that specializes in FDCPA cases. 

 

1. Who is the named plaintiff in the suit? 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 

3. How much are you being sued for? 

4. Who is the original creditor? (if not the Plaintiff) 

5. How do you know you are being sued? (You were served, right?) 

6. How were you served? (Mail, In person, Notice on door) 

7. Was the service legal as required by your state? 

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? 

9. What state and county do you live in? 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 

11. What is the SOL on the debt? 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) 

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. 

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? 


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

 

 

 

Share this post


Link to post
Share on other sites

Well, you might have an issue, I do not know how KS courts work, but usually, you need to invoke affirmative defenses at the time you file your answer.  Check with your state's rules of civil procedure about filing an amended answer with affirmative defenses.  I see two things that I would attack right off the bat.  First, as you guessed, is improper venue.  The second is expired SOL.  If they filed suit against you in the wrong county, that is no fault of yours, and so they did not act properly within the 3 year SOL that the law requires. 

 

Let me ask you, did you ever live in either of the counties where they tried to file against you?

 

I would see about that amended answer...and if the RCP permit it, I would file both affirmative defenses right then and there along with an amended answer.  The reason you would want to include the SOL defense is because the case could simply be refiled in your county, but if the SOL proves correct, then that court in the wrong county might just dismiss.  Also, the plaintiff might just drop it themselves--they would know that if youre going to invoke SOL in that county, that you would simply do the same in your own county, and they would then know that filing this case in the correct county would be a waste of their time and money.

.

Actually if they filed before the sol was up as they did in this case, the sol is tolled. Going to have to fight this the good old fashion way

Share this post


Link to post
Share on other sites

The reason they filed for reinstatement is they figured it out they were past the sol when they filed the 2nd suit. I would have tried at the very least filing a motion to dismiss for wrong venue, judge may have gone for it. You could have brought up the fact they did it twice and are only trying to toll sol.

Share this post


Link to post
Share on other sites

Let me see if I can answer some of the questions... I have to admit, I am scared to give the actual names of the counties I referred to above. I figure they (jdb) have a troll on here, would recognize me, and know my evey move. Yea, I'm paranoid.

The petition reads: The plaintiff sate the following claim:

1. The defendant is indebted to the plaintiff in the amount of $1790.

2. The oc is Cap One, account #xxxxxx.

Then states  plaintiff demands the pincipal amount, interest before judgement 10% per year from 10/2011, interest after judgement as allowed by law and costs.

 

My answer was as follows: I, (my name) state my answer as follows:

1. Plaintiff fails to state a proper cause of action.

2. I, specifically deny all allegations contained in Plaintiff's petition paragaraphs one and two.

3. I, reserve my right to file affirmative defense after completing discovery.

4. I reserve my right to file a counter claim under the FDCA and the KS consumer protection act after, I receive discovery requests and all douments pertaining to this matter.

5. I reserve my right to transfer this case to chapter 60 depending upon the amount of request in a counter claim in this matter.

 

@shellieh98 ~ I'm afraid to ask ~ what is the good old fashion way?

Share this post


Link to post
Share on other sites

The reason they filed for reinstatement is they figured it out they were past the sol when they filed the 2nd suit. I would have tried at the very least filing a motion to dismiss for wrong venue, judge may have gone for it. You could have brought up the fact they did it twice and are only trying to toll sol.

Is it to late to file the motion to dismiss for wrong venue now?

Share this post


Link to post
Share on other sites

Discovery learning your rules of civil procedure filing motions et all. Don't worry we will show you how. Let others weigh in on your venue problem I have not researched that before

  • Like 1

Share this post


Link to post
Share on other sites

Okay, I'll give it some time, and hope others will jump in with suggestions. The reason I answered the way I did is because I went to the courthouse in the county I was summoned to appear in and researched this plaintiff and attorney representing them. I found numerous suits. Sadly, most were default judgement. However there was a handful dismissed, these were people actually fighitng back. Of course they also had hired an attorney. Most were dismissed for failure to proceed, prosecute?. But, there was two where the petition was worded exactly as mine, both defendants had used the same lawyer, so their answers were exactly the same. So I borrowed the wording. In both cases the plaintiff requested dismissal. Obviously I was hoping for the same outcome, and perhaps had I hired that lawyer, it would have been. I feel they are trying to intimidate me seeing as I am trying to do this myself...

 

Shall I go ahead and try to upload my interrogatories?

Share this post


Link to post
Share on other sites

I think when you filed your answer in that court you admitted that venue was proper.

 

I would motion to transfer the case to chapter 60.

 

You have unlimited discovery in chapter 60.

 

Under chapter 61 you can only send 10 requests for production, 10 requests for admissions, and 10 interrogatories then the plaintiff files for summary judgment.

 

Is something like this what they sent you

 

1. ( a) Full legal name and date of birth;

    ( b ) Social security number;
    ( c ) Current address, e-mail address, and telephone number
    (d) Current place of employment, including address, and telephone number of employer;                                                    
    (e)    Driver's License number and State issued from.
 
2.Please state whether or not you have ever had a Capital One credit card issued
by Capital One Bank, with an account #xxxx xxxx xxxx 1234, which is the subject of
this litigation, as evidenced by the statements attached and marked as Exhibit "A".
 
3. Please reply with either a "yes" or "no" answer as to whether or not you have
made any charges on your Capital One credit card issued by Capital One Retail Bank acct
#xxxx xxxx xxxx 1234, which is the subject of this litigation.
 
4. Please reply with either a "yes" or "no" answer as to whether or not you have
made any payments on your Capital One Retail Bank credit card issued by Capital One   Retail Bank account
#xxxx xxxx xxxx 1234, which is the subject of this litigation, as evidenced by the statements
attached and marked as Exhibit "A".
 
5. Please reply with either a "yes" or "no" answer as to whether or not you made
at least your minimum monthly payment every month as required on your Capital One   credit card issued by Capital One Retail Bank account #xxxx xxxx xxxx 1234, which is the subjectof this litigation.
 
6. If you deny Request for Admissions No. 2 below, please state the amount you
contend the balance should be on your Capital One credit card issued by Capital One Retail Bank acct #xxxx xxxx xxxx 1234, which is the subject of this litigation.
 
7. Please state the basis of your dispute of this claim?
8. Please respond with either a "yes" or "no" that you acknowledge that a letter of
explanation addressed to you accompanied this discovery which set forth the entire credit card account number, which is the subject of this litigation.
 
9. Please reply with either a "yes" or "no" answer as to whether or not the last
payment you made on your Capital One credit card issued by Capital One Retail Bank acct
#xxxx xxxx xxxx 1234, which is the subject of this litigation, was in the amount of $260.00
on 02/11/2012, as evidenced by the statement with closing date of 02/27/2012 attached and
marked as Exhibit "A".
 
10. When you made your last payment of $260.00 on 02/11/2012, please reply with
either a "yes" or "no" answer as to whether or not you ever contacted Capital One Retail Bank in writing to dispute the balance due and owing as shown on the statement with closing date of 02/27/2012, a copy of which is attached and marked as Exhibit "A". If so, please state how and when you did so.

Share this post


Link to post
Share on other sites
Chapter 61.--PROCEDURE, CIVIL, FOR LIMITED ACTIONS 

Article 29.--PLEADINGS 

61-2910. Application of chapter 60, when. Upon motion of any party and for good cause shown, the court may order that an action filed under the code of civil procedure for limited actions, except an action filed pursuant to the small claims procedure act, article 27 of chapter 61 of the Kansas Statutes Annotated, and amendments thereto, shall thereafter be governed by the provisions of chapter 60 of the Kansas Statutes Annotated, and amendments thereto. The party obtaining an order under this section shall pay any additional docket fee required had the action been filed under chapter 60 of the Kansas Statutes Annotated, and amendments thereto. Upon such order of the court and payment of any additional docket fee, the clerk of the district court shall renumber the case as a case filed under chapter 60 of the Kansas Statutes Annotated, and amendments thereto, in the same manner as required by K.S.A. 60-2418, and amendments thereto. 

History: L. 2000, ch. 161, § 16;L. 2002, ch. 66, § 1; Apr. 25

Share this post


Link to post
Share on other sites

 

I think when you filed your answer in that court you admitted that venue was proper.

 

I would motion to transfer the case to chapter 60.

 

You have unlimited discovery in chapter 60.

 

Under chapter 61 you can only send 10 requests for production, 10 requests for admissions, and 10 interrogatories then the plaintiff files for summary judgment.

 

Is something like this what they sent you

 

1. ( a) Full legal name and date of birth;

    ( b ) Social security number;
    ( c ) Current address, e-mail address, and telephone number
    (d) Current place of employment, including address, and telephone number of employer;                                                    
    (e)    Driver's License number and State issued from.
 
2.Please state whether or not you have ever had a Capital One credit card issued
by Capital One Bank, with an account #xxxx xxxx xxxx 1234, which is the subject of
this litigation, as evidenced by the statements attached and marked as Exhibit "A".
 
3. Please reply with either a "yes" or "no" answer as to whether or not you have
made any charges on your Capital One credit card issued by Capital One Retail Bank acct
#xxxx xxxx xxxx 1234, which is the subject of this litigation.
 
4. Please reply with either a "yes" or "no" answer as to whether or not you have
made any payments on your Capital One Retail Bank credit card issued by Capital One   Retail Bank account
#xxxx xxxx xxxx 1234, which is the subject of this litigation, as evidenced by the statements
attached and marked as Exhibit "A".
 
5. Please reply with either a "yes" or "no" answer as to whether or not you made
at least your minimum monthly payment every month as required on your Capital One   credit card issued by Capital One Retail Bank account #xxxx xxxx xxxx 1234, which is the subjectof this litigation.
 
6. If you deny Request for Admissions No. 2 below, please state the amount you
contend the balance should be on your Capital One credit card issued by Capital One Retail Bank acct #xxxx xxxx xxxx 1234, which is the subject of this litigation.
 
7. Please state the basis of your dispute of this claim?
 
8. Please respond with either a "yes" or "no" that you acknowledge that a letter of
explanation addressed to you accompanied this discovery which set forth the entire credit card account number, which is the subject of this litigation.
 
9. Please reply with either a "yes" or "no" answer as to whether or not the last
payment you made on your Capital One credit card issued by Capital One Retail Bank acct
#xxxx xxxx xxxx 1234, which is the subject of this litigation, was in the amount of $25.00
on 07/15/2010, as evidenced by the statement dated Jun. 19 - Jul. 18, 2010, attached and
marked as Exhibit "A".
 
10. When you made your last payment of $260.00 on 02/11/2012, please reply with
either a "yes" or "no" answer as to whether or not you ever contacted Capital One Retail Bank in writing to dispute the balance due and owing as shown on the statement with closing date of 02/27/2012, a copy of which is attached and marked as Exhibit "A". If so, please state how and when you did so.

 

Yes, they are pretty much exactly the same! Mine does not have "Retail" only Capital One Bank, N.A. I changed the dates to reflect mine.  And No. 10 is different (it is almost exactly the same as No. 3) mine states ~ 

 

10.  Please reply with either a "yes" or "no" answer as to whether or not you made any charges on your capital One Bank, N.A. credit card, acct #xxxx, which is the subject of this litigation, as evidenced by the statements, attached and marked as Exhibit "A".

Share this post


Link to post
Share on other sites

REQUEST FOR ADMISSIONS
Please take further notice, pursuant to K.S.A. 61-3101, that plaintiff serves upon the defendant these written Request for Admissions. The subject matter of each request is admitted unless, within fourteen (14) days after service of these requests, defendant serves upon plaintiff a written answer or objection thereto.
An answer to the Request for Admissions shall specifically admit or deny the matter 01 set forth in detail the reasons why defendant cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that defendant qualify an answer, or deny only a part of the matter of which the admission is requested, defendant shall specifically admit so much as true and qualify or deny the remainder. Defendant may not give lack of information or knowledge as a reason foi failure to deny unless defendant states that defendant has made reasonable inquiry and that the information known to or readily obtainable by defendant is sufficient to enable defendant to admit or deny.
Pursuant to Supreme Court Rule 123( B) only the last four digits of the credit card account number, which is the subject of this litigation, will be identified in this pleading and any and all exhibits. Please see the accompanying letter addressed to defendant and/oi counsel, identifying the full credit card account number which is the subject of this litigation.

 

REQUEST NO. 1
Admit that you currently have or have had in the past a CapOne Bank, N.A. credit card, account #xxxx xxxx xxxx 1234, which is the subject of this litigation, as evidenced by the statements attached and marked as Exhibit "A". If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 2
Admit that you owe the sum of $1800 for your Cap One Bank, N.A. credit card debt incurred by you for account #xxxx xxxx xxxx 1234, as evidenced by the load data information sheet attached to the Bill of Sale, a copy of which is attached and marked as Exhibit "B". If you deny, please state your reasons
ANSWER:

 

REQUEST NO. 3
Admit that you have not paid the balance due and owing in the amount of $1800 on your CaOne Bank, N.A. credit card, account #xxxx xxxx xxxx 1234, which is the subject of this litigation, to either Ca One Bank, N.A. or plaintiff. If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 4
Admit that pursuant to the Bill of Sale and Assignment of Assets and Affidavit of Sale of Account By Original Creditor, a copy of which is attached and marked as Exhibit "B", CaOne Bank, N.A. sold, assigned and conveyed your account to plaintiff, which is the subject of this litigation. If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 5
Admit that you understood from the time your Capital One Bank, N.A. credit card account was opened that you were required and obligated to repay all loans represented as charges, balance transfers and/or cash advances you incurred on said credit card account pursuant to the cardmember agreement, which accompanied the credit card. If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 6
Admit that because you used your Cap One Bank, N.A. credit card you could be subject to and responsible to pay finance charges (interest), over the limit and/or late charges under certain circumstances as stated in your cardmember agreement and monthly statements (Exhibit "A"). If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 7
Admit that you currently reside at or had an address in the past of xxxxxxxxxxxxx as listed on the statements attached and marked as Exhibit "A" If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 8
Admit that the last payment you made on your Cap One Bank, N.A. credit card, account # xxxx xxxx xxxx 1234, which is the subject of this litigation, was on or aboul 07/15/2010, in the amount of $25.00, as evidenced by the statement dated Jun. 19 - Jul. 18; 2010, a copy of which is attached and marked as Exhibit "A". If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 9
Admit that you used or authorized the use of your Cap One Bank, N.A. credit card, acct #xxxx xxxx xxxx 1234, which is the subject of this litigation. If you deny, please state your reasons.
ANSWER:

 

REQUEST NO. 10
Admit that you made charges on your CapOne Bank, N.A. credit card, account #xxxx xxxx xxxx1234, as evidenced by the statements, a copy of which is attached and marked as Exhibit "A". If you deny, please state your reasons.
ANSWER:

 

 

 

 

 

 

B, B, W& W, P.A.
BY: ^-*-
 M. B- 50

 ATTORNEYS FOR PLAINTIFF

 

CERTIFICATE OF SERVICE
I, M. B, hereby certify that an original and two copies of the above and foregoing Plaintiffs First Combined Interrogatories and Request for Admissions to be answered by defendant was deposited in the U.S. Mail, postage prepared at KS on this xxth day of December, 2013, addressed to the following person:
My Name
My Address
Defendant Pro Se.
 M. B

Share this post


Link to post
Share on other sites

If you are in the wrong venue, but as you said; it has a much better judge, then I would stay where you are and fight the case.

  • Like 1

Share this post


Link to post
Share on other sites

Well, you might have an issue, I do not know how KS courts work, but usually, you need to invoke affirmative defenses at the time you file your answer.  Check with your state's rules of civil procedure about filing an amended answer with affirmative defenses.  I see two things that I would attack right off the bat.  First, as you guessed, is improper venue.  The second is expired SOL.  If they filed suit against you in the wrong county, that is no fault of yours, and so they did not act properly within the 3 year SOL that the law requires. 

 

Let me ask you, did you ever live in either of the counties where they tried to file against you?

 

I would see about that amended answer...and if the RCP permit it, I would file both affirmative defenses right then and there along with an amended answer.  The reason you would want to include the SOL defense is because the case could simply be refiled in your county, but if the SOL proves correct, then that court in the wrong county might just dismiss.  Also, the plaintiff might just drop it themselves--they would know that if youre going to invoke SOL in that county, that you would simply do the same in your own county, and they would then know that filing this case in the correct county would be a waste of their time and money. 

That is what I was thinking, at first. If I filed motion to dismiss due to wrong venue and it was dismissed and they then filed in correct venue, it would be past the SoL, and I then could use that. However after reading the RCP 61-3409: Effect of improper venue. If an action is commenced in good faith and a subsequent timely objection to the venue is sustained, or if before trial on the merit commences, it is found that no cause of action exists in favor of or against a party upon whom venue was dependent, the action shall be transferred to a court of proper jurisdiction of any county of proper venue. If there is more than one such county, the transfer shall be to the court of a county selected by the plaintiff. In accordance with K.S.A. 61-4001, and amendments thereto, the receiving district court shall require the payment of an appropriate docket fee from the movant.

      History:   L. 2000, ch. 161, § 45; Jan. 1, 2001.

I am thinking it would just be transferred to the correct venue. Am I interpreting the rule correctly?

Share this post


Link to post
Share on other sites

61-3408: Time for objection to venue. Objection to the venue of an action shall not be allowed except on timely motion made and for grounds established before trial of the action is commenced on the merits.

      History:   L. 2000, ch. 161, § 44; Jan. 1, 2001.

 

Am I interpreting this correctly. I can file a motion to dismiss due to wrong venue now since trial has not been commenced? What exactly is a timely motion? 

Share this post


Link to post
Share on other sites

Oh, one more question, what if I filed motion to dismiss due to wong venue, and sent the plaintiff a letter stating ITS? Do you think this would make any difference, or just really make them mad.... which most likely wouldn't benefit me at this stage in the game?

Share this post


Link to post
Share on other sites

Did they send you this?

 

 

AFFIDAVIT

 

State of Virginia
City of Norfolk ss.

 

I, the undersigned, Tracey L. Wiggins, custodian of records, for Portfolio Recovery Associates, LLC
hereby depose, affirm and state as follows:

 

1. I am competent to testify to the matters contained herein.

 

2. I am an authorized employee of Portfolio Recovery Associates, LLC, ("Account Assignee") which is doing
business at Riverside Commerce Center, 120 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the
statements, representations and averments herein, and do so based upon a review of the business records of the Account
Assignee and those records transferred to Account Assignee from Capital One

 

("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the
ordinary course of business.

 

3. According to the business records, which are maintained in the ordinary course of business, the account, and all
proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account
having been sold, assigned and transferred by the Account Seller on Date. Further, the Account Assignee has been
assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement,
satisfaction, compromise, collection or adjustment of said account, and the Account Seller has retained no further interest
in said account or the proceeds thereof, for any purpose whatsoever.

 

4. According to the records transferred to the Account Assignee from Account Seller, and maintained in the ordinary
course of business by the Account Assignee, there was due and payable from DEFENDANTS NAME ("Debtor) to the Account Seller the sum of $$$$.$$ with the respect to account number ending in 1111 as of the date of
11/26/2013 with there being no known un-credited payments, counterclaims or offsets against the said debt as of the date
of the sale.

 

5. According to the account records of said Account Assignee, after all known payments, counterclaims, and/or
setoffs occurring subsequent to the date of sale, Account Assignee claims the sum of $$$$.$$ as due and owing as of the
date of this affidavit.

 

6. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the Defendant is
not on active military service of the United States.

 

Portfolio Recovery Associates, LLC

 

By: Tracey L. Wiggins , custodian of records

 

Subscribed and sworn to before me on AUG 22 2013

 

Sandra Ahlt

Notary Public

Share this post


Link to post
Share on other sites

Chapter 60 article 23 (d)  Assignment of account. If any person, firm or corporation sells or assigns an account to any person or collecting agency, that person, firm or corporation or their assignees shall not have or be entitled to the benefits of wage garnishment.

 

("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the

ordinary course of business.

  • Like 1

Share this post


Link to post
Share on other sites

'Trial' commences on your assigned court date. So you can transfer the case pretty much anytime before your court date. The case can't continue until your request is granted by the court. You'll transfer by filing a Motion to Transfer; Improper Venue....do this relatively soon because here's the bigger prize:

The alleged debt owed is $1760.00. $1760.00 is small claims in just about any U.S. jurisdiction. The JDB has intentionally filed in a higher, inappropriate District Court, with much more document responsibilities than if they'd brought the case where it should be, in small claims. They do this all the time, to overwhelm the defendant and to place an unfair advantage on the novice consumer. They're intentionally playing upon your unsophistication of navigating the court system, hoping you'll choose not to engage in the legal battle. Small claims has none of the interrogs and Admissions non-sense.

You file a Motion to Transfer; Improper Venue in District Court in the same county, stating in a short statement why its improper and name the correct court where the 'action should lie'(whatever your state calls small claims court), CMRR copies, certification of service doc to their atty, notarized. Once that's granted, you then file a Motion to Dismiss in small claims and you'll use the Plaintiff's intentional filing in an inappropriate venue as another example of their 'unclean hands', stating your awareness of their attempt to take advantage of what they may have underestimated is another clueless pro se defendant--in addition to trying to file a lawsuit without legal standing, i.e., not having a viable contract that names you as owing a debt; that their Bills of Sale are inadmissible hearsay as a document without a live, records custodian from the OC to testify on your newly assigned court date, testifying personal knowledge of when your account was opened and exactly when it was charged off; that they can't prove chain of assignment, since they don't have the purchasing agreements between the previous sellers and buyers, proving your account was indeed transferred on such and such date; that they can't prove that they've been 'harmed' and thus able to claim 'damages' by way of the amount they're asking the court to grant, since they can't prove they bought your, particular account because they've intentionally failed to file into the record their own 30+ paged purchasing agreement/contract from their debt purchase--and can't because of strict contractual confidentiality clauses, etc.....I could go on. Throw in some pertinent case precedent previously decided from your state that demonstrates their misconduct or the point you're trying to make. This is called points and authorities...

But file a Motion to Transfer as your first, next step. No need to compile Interrogs. No need for Interrogs in small claims. Its you Motion to Dismiss that'll present 'genuine issues of material fact' for the court to digest, and the Plaintiff's attorney to recognize that their case is lost. Plaintiff will dismiss once you show up for your court date.

Share this post


Link to post
Share on other sites

If you are in venue where you prefer the judge, again, I would stay where you are.

 

Also, don't worry about upsetting the plaintiff this early in the game, or ever for that matter. You want to be a constant thorn in their side. But if you think you have a good judge where you are at now, I would stay there. Many people have won cases in the wrong venue, you may be better off just staying where you are and joining their ranks.

 

If it were mine I would fight the plaintiff and it's evidence, rather than the judge and his / her jurisdiction.

 

Just my opinion.

  • Like 3

Share this post


Link to post
Share on other sites

Maybe I should clarify---

Pampamk, file the Motion in the same court that your filed your Answer, staying in the same incorrect COUNTY as you'd like to stay in...If you like the county you have now, you can keep your county, Obamacare will do nothing to change that...

And if you'd like to file four, five, six or more documents before facing a judge next August, then you should stay in District Court. But if you'd prefer to only file two more, a short Motion to Transfer and then a Motion to Dismiss, I'd strongly think about transferring to a lower court within the same, incorrect county, and have this dismissed in early February.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.