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LVNV in Indiana Small Claims Summons just arrived


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Hi All,

 

I was just served a summons for small claims court with a date set for Feb. 5th from LVNV.

 

I looked up the original debt from HSBC for $688.46, the statute of limitations does not expire until 6/13/14.  

 

I opened the can of worms by disputing on my CR I think. 

 

 

Affidavit is from Resurgent Capitol Services and signers name is Gayle Johnson. The odd thing here is, on the Notice of Claim it says the Plaintiff requests the amount of $688.46, plus interest at the rate of 8% and the court costs of this action.

 

On the Affidavit it says

 

6) This account balance includes:

    a.  Late fee's in the amount of $0

    b.  Interest at a rate of 0.00%

    c.  Plaintiff is not seeking attorney's fees.

 

I need help please!!

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@parkwood1cb

 

The odd thing here is, on the Notice of Claim it says the Plaintiff requests the amount of $688.46, plus interest at the rate of 8% and the court costs of this action.

 

On the Affidavit it says

 

6) This account balance includes:

    a.  Late fee's in the amount of $0

    b.  Interest at a rate of 0.00%

    c.  Plaintiff is not seeking attorney's fees.

 

 

The affidavit is not in conflict with the Notice of Claim.

 

The explanation given in the affidavit merely states what the balance currently includes.  The $688.45  doesn't include any late fees or interest.

 

The Notice of Claim is what the JDB is asking the court to add to that balance if they win the case.

 

Start reading your court's rules of civil procedure.  Those rules will tell you what you have to do to answer the complaint and by what time you have to file your answer.

 

It would help us if you'd copy and answer the questions in the following link.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

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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.) Stenger&Stenger

3. How much are you being sued for? $688 plus 8% interest and court costs

4. Who is the original creditor? (if not the Plaintiff)  HSBC Bank Nevada NA

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

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

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

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? None, however I disputed them on Credit Report 

9. What state and county do you live in? Indiana, Madison

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) The affidavit shows 6/13/08

11. What is the SOL on the debt? To find out:  6 years / 5 months until it ran out...

Statute of Limitations on Debts

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).  Small Claims Collection hearing

 
 

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

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

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? Court date is set for Feb 5th. it says it on the Notice of Claim, I did not receive a questionnaire and they are claiming:

 

The said Plaintiff complains of the Defendant and says that the defendant is indebted to the Plaintiff in the sum of $688.46 as evidenced by the Plaintiff's Account Statement, attached as Exhibit A and Affidavit of Debt, attached as Exhibit B, FOR THE REASONS STATED HEREIN; On August 24, 2004, Defendant opened an account with HSBC Bank Nevada.  The last payment was posted to this account on June 13, 2008. An agreement was Delivered to Defendant and is in their possession.  Defendant has received billings for this amount due, has failed to object to the billings, and has failed, refused or neglected to pay the balance due and owing Plaintiff. Plaintiff states and declares the Defendant is not on active military services stated in the Affidavit of Non-Military Service attached as Exhibit C.  WHEREFORE, Plaintiff requests judgement in it's favor and against Defendant in the amount of $688.46, plus interest at the rate of 8% and the Court costs of this action.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Statement that was produced by LVNV  "This statement was prepared on behalf of LVNV Funding LLC (debt purchaser) based on the business records furnished by HSBC Bank Nevada.  This computer generated report has been produced on behalf of the debt purchaser.  It is a computer generated summary; it is NOT an original statement"

 

Also, Affidavit of Debt submitted by an employee of Resurgent Capitol Services L.P, servicing agent for the Plaintiff and is authorized to make the Affidavit.

17. Read this article: 

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

 

Thanks for your help with this.  I have not gone to court over debt collection before.

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@parkwood1cb

 

 

I'm assuming that you opened this account.  Correct?

 

Do not take LVNV's word on the date of last payment.  Get a copy of your bank statement that would show that payment on that date.  If you did not make that payment, you'd need to find out if the debt is outside the SOL. 

 

So far, they have not produced a bill of sale from HSBC showing a sale of accounts to LVNV.  Even if they did, it probably would not show that any account allegedly owed by you was included in a sale of accounts.   Therefore, one of your defenses to the complaint would be that the plaintiff lacks standing to sue.  If they can't prove that they own the account, they don't have the right to sue you for the money.

 

Again, read your court's rules of civil procedure (RCPs) regarding responding to a complaint.  Follow the rules.  

 

Then read the RCPs regarding discovery.   If you're in small claims. some small claims courts do not allow for discovery requests without permission by the court.  However, if you're allowed to send requests without the court's permission, there's plenty of information on this site about a request for production of documents, interrogatories, and requests for admissions.

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Thank you for the reply, I don't think I can get a statement from my previous bank that fast.  I no longer have that bank account.  I moved out of state and there was not a branch where I live. HSBC has dropped off my Experian CR but I will check the others to see if HSBC is there and that date is the same.  Would that work? 

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@parkwood1cb

 

Do you remember making that last payment?

 

You can check the other credit reporting agencies to see if they're reporting the same date.   If they're not, contact HSBC.  They might still be able to provide that bank statement.

 

If they can't and have no record of it, then it's possible that you could deny making that payment.  Even if the JDB motioned to compel your bank records, the bank would not be able to provide the bank statement that shows that payment.  As a result, there would be no proof of that payment, and you could claim that the account is outside the SOL.

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  • 3 weeks later...

means if the affidavidt is not signed 10 days or sooner prior to the filing of the lawsuit, it is untimely, and cannot be used for a MSJ. (most states, unless your rules say something different)

So you don't have to answer the suit, just show up in court correct?

If the OC has dropped off your reports, it usually means 7.5 years have passed since the default.  JDB could be using when the account was charged off as their date, so when you go into court, If it were me, I would say I do not recall this account, if they ask if you ever had a hsbc account, you could say, yes, but it has been over 7 years since that account was closed.  You will also object if they try to use what they sent you saying here is proof, you would say, I do not recall this account, and this is a statement produced by LVNV, I have never had an account with LVNV, and dispute it.  When they try to produce the affidavidt, you say objection, lacks foundation, it is LVNV stating their own records are correct.  They have not proven standing, they have no one to verify there even was an account from HSBC, and I am denying this debt. 

You would also object if they try to bring in a bill of sale.  They did not provide it to you before now, and it is heresay, (after you look at it) you say this does not have my name or account number anywhere on it.

Deny the account, use expired  SOL as a defense, and Plantif lacks standing as a defense. Court is tomorrow, so if you do all that, you should prevail since there was no discovery, and they have no witness.

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