pampamk

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

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Would be nice to say: as far as i am concern, defendant has already paid enough to satisfy the alleged bebt, and more, by proxy, via Federal Government Bail out. Lol

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I know, but sure would like to throw it in there, especially if I knew which judges were going to be on my action and what their stance was on the bailouts... just daydreaming...

 

Many local judges have received campaign contributions from the same banks that the "representatives" on the federal level have received. At least in my state its a losing cause. Many of these banks received TARP funds at close to zero percent and then invested in treasury notes that paid them 3%+/-. Who wouldn't take a money for free with a risk free return?

 

That being said it will not help you any with your case. The odds of you finding a sympathetic judge is slim to none.  

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My case has been docketed, my brief is due mid January. Soooo.......  any advice, editing, etc. is greatly appreciated!

 

Nature of the Case:

 

This is an appeal of the judgment after a bench trial in a collection case for alleged bad debt brought Pursuant to K.S.A. Chapter 61 for Limited Actions, which resulted in the Court entering judgment against Defendant under K.S.A. 60-518; and the Court finding Plaintiff did prove standing.

 

Statement of Issues:

 

I  The judgment against Defendant was based on misinterpretation of K.S.A. 60-518.

 

II The plaintiff failed to prove standing.

 

Statement of Facts:

 

 History From Magistrate's Court

 

PRA brought an action against (my name here) on April XX, 2012 in XXX County (R  ). The summons was returned on May XX, 2012 with no service, providing  (me) address was in a different county (R  ). A Notice of Dismissal was sent by the Court on July  XX, 2012(R  ). An Order of Dismissal was filed August XX, 2012(R  ). Over a year later, on August XX, 2013, PRA made Motion to Reinstate(R  ). An Order Reinstating was filed August XX 2013 (R  ). (ME) was served on by Alias summons through XXXX county sheriff on November XX, 2013 (R  ). (ME) filed answer on December XX, 2013(R  ). PRA made MSJ on Jan. XX, 2014(R   ). (ME) filed MTD (R ), and Opposition to MSJ(R  ). After a bench trial, a JEOJ was filed May XX, 2014 with judgment against (ME) and informing (ME) of Right to Appeal (R ).

 

History From District Court:

 

(ME) filed Notice of Appeal May XX,2014(R  ).   Here I don't know if I should list PRA's MTD appeal, my opposition, etc. I am not appealing that (seeing as I prevailed on that issue.) Should I just go straight to the trial, that way it would be inferred I prevailed... After a bench trial (de novo) the Court entered judgment against (ME) based on K.S.A. 60-518(R  ). (ME) filed Notice of Appeal(R  ).

 

What do you think? Arguments and authorities coming soon! Thank You!!!

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I just received notice from district clerk with the ToC. I think I will go take a gander and make some decisions based on that. For instance, I do not see in the TOC any mention of any document as to plaintiff filing second petition in other county. I mean yea, there are some inferences to it, plaintiffs motion to reinstate, for one, but no actual document showing they did,  therefore, without an actual document in the record it can't be held as fact they actually did, right???

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Hi, Wish I could help more but every state is so different.  The atty filed my appellant memo in my second appeal so 60 days I know.  

I wish you could find a consumer atty in your area who would at least answer some questions for you.  Is there a college near you with maybe law students or a professor who could advise you??  

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Here I am, you know what deep in writing my brief. I am calling all editors.... please all editors hear my plea!  Any and all suggestions will be appreciated, including how you would format(outline) it... Thanks in advance...

Nature of the Case      This is an appeal of the district court’s order issued after a bench trial in a collection case for alleged bad debt brought Pursuant to K.S.A. Chapter 61 Limited Actions. The order entering judgment against Defendant under K.S.A. 60-518 was a result of the third of three separate actions, filed beyond the Statute of Limitations, and over a year from the first two actions, neither of which was service obtained. The Court found standing had been proven from documents received based on a sole affidavit.      Statement of Issues plan on doing this after writing arguments.... Statement of the Facts History from Magistrate’s Court As the dates are of importance to this case they will be in detail. Plaintiff Portfolio Recovery Associates, LLC (hereinafter “PRA”), a debt collector, alleged that it purchased Defendant my name here (hereinafter “my name here”) defaulted credit card account, and erroneously sued to collect on it in A County, the wrong venue April, 2012 (hereinafter “A1”) (R   ). The summons was returned 11(eleven) days later, May, 2012 with no service, providing my name here address was in a different county(R  ). There was no further activity by PRA for 85 days resulting in a Notice of Dismissal being sent by the Court on July, 2012(R  ). After 107 days from the filing of the suit, PRA voluntarily dismissed, with an Order of Dismissal being filed August, 2012(R  ). PRA then sued me in B County (hereinafter “B”) against me on August, 2012(R   ). Again, service was never obtained and PRA eventually abandoned this action resulting in the B Court filing an Order of Dismissal for want of prosecution 477 days from its filing, on December, 2013(R  ), however,  B had not been dismissed and was still pending on August, 2013 when PRA filed a Motion to Reinstate (R  ).  484 days after A1 had been filed and 376 days after A1 had been dismissed an Order Reinstating A1 (hereinafter “A2”) was filed on August, 2013(R  ). 92 days later, on November, 2013, me was served by Alias summons through the c County Sheriff (R  ). Me filed my answer on December, 2013 stating PRA failed to state a proper cause of action, denying all allegations in PRA’s Petition, and reserving my right to file affirmative defense(s) and/or file a Counter Claim(s)(R  ). PRA filed a Motion for Summary Judgment stating, in part, it was suing on account stated, it had provided me with a copy of a Bill of Sale and its attachments to show legal standing to bring suit, and my answer did not contain a denial or affirmative defense nor had a counter claim been included, therefore it was entitled to summary judgment(R  ). Before me had received notice of PRA’s Motion for Summary Judgment, I had filed a Motion to Dismiss stating, in part, PRA’s own documents proved the Statute of Limitations had expired, and K.S.A. 60-518 did not apply(R  ). It is uncontroverted that the last payment on the underlying debt was made on July, 2010, thereby causing the Statute of Limitations to expire July, 2013(R  ).  In response to PRA’s Motion for Summary Judgment I filed an Opposition to Motion for Summary Judgment(R  ) stating, in part, PRA did not have sufficient legal standing to bring suit, my answer had denied all allegations in the Petition(R ), the Statute of Limitations had expired, and if a dismissal was not granted I was entitled to a trial(R ). After a status hearing, a bench trial was scheduled and held on April, 2014, resulting in a Journal Entry of Judgment being filed on May, 2014 entering judgment against me and informing me of my Right to Appeal(R  ).  History from District Court I filed my Notice of Appeal on May, 2014(R  ).  PRA filed a Motion to Dismiss Appeal, however, the Court overruled its motion, and the case proceeded to trial. At trial, PRA offered “the bill of sale and its attachments” as exhibits.  To lay a foundation for these documents as business records, PRA offered a sole Affidavit from affiant Jonathan Stalls the “Recoveries Senior Vice President” for Capital One Bank (USA), National Association (hereinafter “Cap1”)(R  ). The documents at issue are described as follows: Exhibit A consists of copies of billing statements(R  ). There was no testimony pertaining to their mode of preparation, whether they were created in the ordinary course of business, who created them, or when they were created. Exhibit B The Bill of Sale and its attachments consisted of                                                          1. A redacted Bill of Sale, created by Cap1, transferring some accounts from Cap1 to PRA(R  ). The Bill of Sale did not mention me or the alleged account number. The Bill of Sale made reference to a list of accounts transferred to PRA identified in a separate document “the Sale File” with the title of the sale file redacted, delivered pursuant to a specific Forward Flow Receivable Sale agreement dated June 30th, 2010.   Neither the Sale File nor the Forward Flow Receivable Sale Agreement were offered at trial. 2. The Affidavit of Sale of Account by Original Creditor by Affiant Jonathan Stalls(R  ), alleges Cap1 sold a pool of charged-off accounts by a Purchase and Sale Agreement and a Bill of Sale to PRA and as part of the sale electronic records and other records were transferred on individual accounts to the debt buyer, PRA.  Neither my name nor the alleged account number were mentioned, nor was the Purchase and Sale Agreement offered. 3. A printout of a page from an Excel spreadsheet(R  )  The printout contained my name, address, and phone number. Only a year was showing in the date of birth field and the last four digits of a social security number, along with some alleged account information. In bold print on the bottom of the page it stated the data was printed by PRA from electronic records provided by Cap1 pursuant to the Sale of accounts from Cap1 to PRA on 3/14/12011. PRA offered no witness testimony nor was an affidavit offered that this spreadsheet was generated in the ordinary course of business, by someone aware of the process by which it was created, or when it was created. I submitted a statement of the case(R  ), in which she addressed the lack of standing(R  ), the expiration of the Statute of Limitations(R  ), due diligence was not performed(R  ), the doctrine of unique circumstances did not apply(R  ), K.S.A. 60-518 did not apply(R  ).  After oral arguments, the Court requested additional supporting case law from each side with PRA filing its Letter to Judge BOIZO alleging, in part, that a scheduled answer hearing in the C county suit where no service was obtained would save A2 under K.S.A. 60-518(R  ), and me filing her Requested Case Law(R  ), proving the Statute of Limitations had expired before A2 was filed(R  ), she was not served within 90 days of filing A2(R  ), PRA did not perform due diligence(R  ), neither the doctrine of  unique circumstances,  nor the saving statute applied(R  ).  The Court filed its Order Denying Defendant’s Arguments for Dismissal and Granting Judgment Against Defendant on October, 2014(R  ). I filed her Notice of Appeal November, 2014(R  ).

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@pampamk

 

Considering that one of your reasons for the appeal is the court's misinterpretation of the saving statute, I might go into further detail as to how the statute was misinterpreted.

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@BV80

 

Considering that one of your reasons for the appeal is the court's misinterpretation of the saving statute, I might go into further detail as to how the statute was misinterpreted.

Yes, I plan on it in my arguments. According to ks rules, the statement of facts must not include any argument, only concise statements geared directly to the record. Is this what you are meaning?

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I want to include this in my arguments, but would like some suggestions on the best way to do so.... It is found here:  http://www.kscourts.org/Cases-and-Opinions/opinions/ctapp/1999/19990730/81839.htm

The underlined part is the main part I want.

 

At the time Denton was decided in 1907, G.S. 1868, 80-23 provided:

 

"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."

 

Since 1868, while the language regarding reversals has been removed, the length of time for refiling has been shortened from 1 year to 6 months, and gender-neutral verbiage added; the structure and terms of the 1868 statute are otherwise identical to the current statutory language. When the legislature revises an existing law, it is presumed the legislature intended to change the law as it existed prior to the amendment. State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998). Conversely, when the legislature fails to modify a statute to avoid a long-standing judicial construction of that statute, the legislature is presumed to agree with the court's interpretation. See State v. Rollins, 264 Kan. 466, 474, 957 P.2d 438 (1998); see also McIver v. State Highway Commission, 198 Kan. 678, 683, 426 P.2d 118 (1967) (holding that the failure of the legislature to disapprove of a specific judicial construction of a statute after a long period of time amounts to legislative ratification of the court's interpretation).

 

Moreover, Denton continues to be cited as good law in recent cases involving the application of the savings statute in other contexts. See Goldsmith v. Learjet, Inc., 260 Kan. 176, 917 P.2d 810 (1996); See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995). However, those cases did not involve a factual scenario like the present case in which a party seeks to use the extension under the savings statute more than once and more than 6 months after the prior case was dismissed.

 

We think it is important to note the reasoning of the Supreme Court in Denton in rejecting the argument that the savings statute authorizes repeated new actions within 1 year (now 6 months) after the dismissal of the preceding action. The court stated that, if it did authorize such actions, then a cause of action could be kept alive and litigation upon it prolonged indefinitely. The court reasoned that nothing in the savings statute justifies the interpretation that a new action could be brought more than 1 year after that prior disposition. 76 Kan. at 91. A new action begun more than 1 year after the dismissal, whether it was a second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. 76 Kan. at 92. Here, the language of G.S. 1868, 80-23 has remained fundamentally unchanged to the present time.

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@AzPianoLady 14

Is the affadavit enough to verify this account??  Keep picking on that.  Do they have to have an actual witness in your state??/

Yes, I plan on picking it apart in my arguments.

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@BV80

@pampamk

 

I suppose that I was looking for something that indicated that the 1st 2 actions had never commenced, but if you can't offer an argument, I don't know if it would be appropriate.  Have you checked this link?  Start on page 9-12.

 

http://www.kscourts.org/pdf/Chapter9.pdf

I think I could recite the appellate handbook from memory lol... I plan on using the fact that 1 & 2 were never commenced heavy in my arguments.  However, I see I did not include in my statement that I was never served in 2 and I certainly intended to, thank you for pointing that out to me! See, I knew I needed input from here........ keep going what else do you see?

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@BV80

 

I did an edit in the post, much better...? I am so glad you caught that! I guess, I should explain my statement of facts a little better. The statements included must be fact only and geared to the record. I can include the fact I was never served since it is a fact, however I cannot argue it is a fatal flaw in the statement of facts. The statement of facts is to tell the "story" of the whole suit, I'm assuming the Statement of Facts is for the lazy judges who do not want to read the whole brief and try to base their opinions soley on it, lol.... 

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@pampamk

 

I have a few simple suggestions.

 

erroneously sued to collect on it in A County, the wrong venue April, 2012 (hereinafter “A1”) (R   ).

 

PamPamk does not now nor has ever resided in that county.

 

PRA then sued me in B County (hereinafter “B”) against me on August, 2012(R   ).

 

"against me" doesn't really belong in the sentence.
 

Again, service was never obtained and PRA eventually abandoned this action resulting in the B Court filing an Order of Dismissal for want of prosecution 477 days from its filing, on December, 2013(R  ), however,  B had not been dismissed and was still pending on August, 2013 when PRA filed a Motion to Reinstate (R  ).

 

 

I might add a period after "2013", and start a new sentence with "however".

 

Page 12 of the link I provided includes the following about the statement of facts.

It may be helpful to write the Arguments and Authorities section first. Then include any and all facts necessary to support the arguments made in that section in the Statement of Facts.

 

I suppose the suggestion to write your arguments first is to help ensure that you include all of the facts you've argued are included in your statement of facts.   Personally, I think you need to include the fact that the first 2 actions never commenced.   I don't know if you have the following citation or not.

 

In order for the saving statute to apply, (1) the first suit must have been filed before the limitations period expired, i.e., "commenced within due time," (2) the first suit must have been dismissed for reasons other than the merits of the claim, (3) the second suit must have been filed within 6 months of dismissal of the first suit, and (4) but for the saving statute, the limitations period must have expired when the second suit was filed. Campbell v. Hubbard, 41 Kan. App. 2d 1, 2-3, 201 P.3d 702, rev. denied 286 Kan. 1176 (2008).

 

You pointed out that service was never obtained after PRA filed in County A and the summons was returned.

 

"After 107 days from the filing of the suit, PRA voluntarily dismissed, with an Order of Dismissal being filed August, 2012(R  ).  I'd add:

 

Due to the failure of service to be obtained, the April ___, 2012 action in County A never commenced.

 

Then:

 

"Again, service was never obtained and PRA eventually abandoned this action resulting in the B Court filing an Order of Dismissal for want of prosecution 477 days from its filing, on December, 2013(R  )."   I might add:

 

Since service was never obtained, the action in County B was never commenced.

 

From what I understand, the statement of facts will be the first section read by the court.  Correct?  If that's the case, you want it to catch and hold their attention.  When a word ("commenced") is referenced both by statute and the courts, it's important.   Your going to use it in your arguments, so I'd want it in my statement of facts, as well.  After all, it's a fact that the actions never commenced.

 

 

 

We think it is important to note the reasoning of the Supreme Court in Denton in rejecting the argument that the savings statute authorizes repeated new actions within 1 year (now 6 months) after the dismissal of the preceding action. The court stated that, if it did authorize such actions, then a cause of action could be kept alive and litigation upon it prolonged indefinitely. The court reasoned that nothing in the savings statute justifies the interpretation that a new action could be brought more than 1 year after that prior disposition. 76 Kan. at 91. A new action begun more than 1 year after the dismissal, whether it was a second or third action, would be an enlargement of the time fixed by statute and would result in permitting the plaintiff to dismiss and reinstate at will and indefinitely. 76 Kan. at 92. Here, the language of G.S. 1868, 80-23 has remained fundamentally unchanged to the present time.

 

 

I like the above alot.  :-)

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@BV80

 

Thank you for all of your input... It helps so much! I guess I should have said, anywhere it says me or my, my last name will actually be there... I don't refer to myself in first person at all....

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How are you holding up?/  When does this have to be submitted?/

Well, I must admit, it was a rough road.... yesterday was the deadline, it is there and entered... after I called the courts and confirmed they had received and it was entered, I felt like throwing up and crying...

 

Thanks for checking!

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Court of Appeals of Kansas....................................... The parties are hereby notified that the above action has been assigned to the summary calendar......   14 days for either party to make a motion for oral argument, then it is on!!!

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Good Evening Folks:

 

Due to a major accident and being incapacitated for quite a while,  I had let a debt get behind me.  I was served w/Summons & Complaint by a collection agency with the original creditor as Plaintiff.  I found out they (collection agency) bought the original debt,  BUT .... they are suing me under the original creditor's name. I've pulled up my original account online and found out that my account had been sold to a "surety guarantee".  When we went to arbitration I asked collection agency attorney,  who was the surety guarantee, the attorney from the collection agency said there was no surety guarantee.  We have 30 days to accept recommendation from arbitrator.  Thereafter, I did more digging and called original creditor to see if I could work out a payment arrangement.  They indicated that my loan account was closed and the loan was sold and they have no further interest in the loan nor collection of said loan.  I then asked who it was sold to they did not give me a name and said all they could see on their computer screen is it was sold and to call the number they gave me which it turns out to be the collection agency who is suing me under the original creditor's name.  I have no idea who owns this loan now and who, and if, I need to pay.  Any advice would be appreciated.

 

I have 30 days to respond to arbitration recommendation, but I am now questioning if I have standing to see who actually owns this loan and also do I need to repay this loan to this collection agency?  Thanking you in advance for any and all comments. :-)

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Good Evening Folks:

 

Due to a major accident and being incapacitated for quite a while,  I had let a debt get behind me.  I was served w/Summons & Complaint by a collection agency with the original creditor as Plaintiff.  I found out they (collection agency) bought the original debt,  BUT .... they are suing me under the original creditor's name. I've pulled up my original account online and found out that my account had been sold to a "surety guarantee".  When we went to arbitration I asked collection agency attorney,  who was the surety guarantee, the attorney from the collection agency said there was no surety guarantee.  We have 30 days to accept recommendation from arbitrator.  Thereafter, I did more digging and called original creditor to see if I could work out a payment arrangement.  They indicated that my loan account was closed and the loan was sold and they have no further interest in the loan nor collection of said loan.  I then asked who it was sold to they did not give me a name and said all they could see on their computer screen is it was sold and to call the number they gave me which it turns out to be the collection agency who is suing me under the original creditor's name.  I have no idea who owns this loan now and who, and if, I need to pay.  Any advice would be appreciated.

 

I have 30 days to respond to arbitration recommendation, but I am now questioning if I have standing to see who actually owns this loan and also do I need to repay this loan to this collection agency?  Thanking you in advance for any and all comments. :-)

Hello! First things first.... we need to move this into its own thread, you will likely get more views and responses that way, and it can get confusing if it is intertwined in another thread as to who is replying to whom. Problem is I'm not sure how to do that, so let's ask @BV80 @Anon Amos @shellieh98 as I am sure they will know. Now, with that being said, my first impression to your question is in my state, a suit can only be brought in the party of interest name... a debt buyer cannot bring a suit in any other name. We need to check your states laws... Let's get this moved before we go any further....

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@Just Me Asking

 

As pampamk has suggested, it would be best for you to start your own thread.   That way, all information will be only for your post.

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The waiting is torture....  Haven't heard a thing, anyone know just how long it takes for a case to move through the Appellate court? I assumed after receiving the letter stating the case would be put on the summary calendar it would be over before long.... Not. It isn't even on the docket... Anyway just thought I would check in and let everyone know I haven't heard anything...

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well at least they can't collect anything until it is over, so relax.  Good luck!

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