GoonerIndy

Lost to LVNV in Indiana

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I've been reading this forum for the last couple months, and very much appreciate all the great advice on here.  Even though I didn't win my case, this forum has been a tremendous resource.

 

So I was sued by Resurgent Finance/LVNV for an old Citibank NA card.  By way of background, the last time I used the card was in May 2004, and the last time I paid on it was around the same time.  I had a balance of around $4500, and Citibank themselves sued me in June 2006 and received a default judgment against me.  I filed Chapter 13 the day after my garnishment hearing.

 

Lost my job in July 2009, and stopped paying the Ch 13 trustee, so of course my case was thrown out.  If I had been smart, I would have just turned my 13 into a 7 and been done with it all right then and there.  But I didn't, for reasons that don't really matter.

 

Anyway, first I heard from any of the creditors from my Ch 13 was in September 2013 when I was served by LVNV (Weltman, Weinberg & Reis).  I was served in Marion County (Indianapolis) Small Claims Court of Lawrence Township.  In Marion County the small claims limit is $6k, so debt collectors file there to take advantage of the liberal rules of evidence and burden of proof.  The standard in Marion Co small claims court is "preponderance of evidence," which I've learned basically means creditors don't have to actually prove anything.  They just need to make a more convincing argument than the debtor, and the judge will rule in their favor.

 

Furthermore, the township small claims courts compete with each other for the high volume collections claims, which means certain judges are more sympathetic to JDBs, and also results in forum shopping.  More about that can be found here: http://online.wsj.com/news/articles/SB10001424052702303365804576433763597389214

 

The courts have conference rooms within the courtroom that the JDB attorneys use for pretrial conferences (without a judge present).  If you didn't know better, you'd think the JDB attorneys actually worked for the court.

 

Anyway, I had my pretrial conference back in December.  When I was served they included the robo-signed affidavit from someone at Resurgent, a copy of an old Citibank statement, and a generic LVNV account statement that showed payments received from the Ch 13 trustee.  I figured I'd challenge their ability to prove I ever owned the debt with Citibank (which would have been fairly easy, given the previous judgment).  I'd further challenge LVNV's standing, ask them to prove they owned the debt, demonstrate chain of custody, provide a bill of sale, prove how they calculated the amount I owed, etc.  So at the pretrial conference I rattled off a few of these defenses (in Marion Co small claims court, you don't have to file a response or affirmative defense).  Rent-a-lawyer said ok, let's set it for trial.

 

Trial was set back in December for today 2/19.  Mid-January I sent a request for production of documents to the court and the plaintiff's attorneys (clerk said it was fine to mail filings, just to make sure to send a copy to the attorneys).  Got a response from the court acknowledging it had been received and filed, but no yay or nay on my request.  Never heard from the attorneys.

 

Went to court today and found that the attorneys had filed a motion for summary judgment back in December.  News to me.  Figured I'd have received a copy of that from the court (or the attorney).  Shame on me I guess for not checking it out.  The judge asked the opposing attorney if he was prepared to try the case, because he wanted to hear all the facts.  Attorney said yes, so they just brushed off their MSJ.  Judge mentions he sees I've requested production of documents, but I didn't do it more than 30 days prior to trial, so he couldn't grant it.  Couldn't for the life of me find this 30-day rule, but again, shame on me.  I should have sent it the day of the pretrial conference.

 

So things get started, and the opposing attorney presents exhibit 1, a stack of Citibank statement copies.  I told them I didn't recall this card, and the statements didn't prove anything or jog my memory.  But they had my name and address on them.  I was willing to concede at that point, because I thought I had other defenses that would be more effective.  However the attorney and the judge kept asking open-ended questions that never really put me in a position where I had to admit anything.  They had me basically cornered, but never went in for the kill.  

 

So then they moved on from that point (judge and atty were seemingly working together by now).  Plaintiff atty admitted the affidavit of debt as exhibit 2.  I objected and explained how Resurgent/LVNV's affiant couldn't testify to Citibank's business records.  I learned in Marion Co small claims court, you don't object, and then wait for the judge to rule on an objection, like you might see on tv, or in, you know, real court.  You pretty much just say what you have to say, and the judge hears you, and everyone moves on.  I'm not sure how else I could have attacked this affidavit during the trial.  Not sure it would have mattered anyway.

 

Anyway, I was shocked that the plaintiff atty rested after that.  To me they'd presented a bunch of paperwork that showed I may have had a credit card with Citibank at one time.  And that's it.  The judge gave me a chance to speak my peace, and I explained how even if the Citibank card was mine, I didn't think LVNV had standing to sue based on not proving they owned the debt.  I also challenged the amount they said I owed, and pointed out they hadn't shown how they calculated it.

 

Finally I said I thought this debt (which I do not acknowledge) had to have been beyond the Indiana SOL (6 yrs).  Now, that's a point of contention, to be sure.  But as I had not used or paid on any credit card since May 2004 (which is true), I figured it was worth a shot.  The plaintiff attorney didn't seem to know anything about the previous judgment, nor my Chapter 13.  Chapter 13 payments don't seem to restart the SOL anyway, although Indiana case law seems to be ambiguous about that.  Other states are pretty clear and cite federal law in their rulings.  Basically, they state that the SOL is tolled in Ch 13, but the SOL doesn't reset.

 

What blew my mind is that the plaintiff's attorney didn't object to my SOL bit, and the judge just kind of blew it off.  He didn't say I was wrong, or question or dispute anything I said.  Just asked if I had anything else.  I said no.  Seemed to me the plaintiff hadn't proven anything, and I had raised multiple defenses.  Ah, but back to the old preponderance of evidence.  Evidently I didn't make a compelling enough case that I didn't owe the debt.

 

The judge didn't rule right there, and just dismissed us.  I left not knowing what had happened.  But a few hours later I checked the court's website and found the judge had ruled in favor of the plaintiff for the full amount.  Seemed like kind of a chickensh*t move by the judge to not just tell me right there he was ruling against me.

 

Anyway, if anyone's still reading, sorry for the novel.  It's been cathartic to write all this out and share it.  If anyone has any comments, suggestions, advice, etc., I'm happy to hear it.  If anyone who knows Indiana law cares to comment, I'd especially appreciate that.  I haven't found a lot of info on here about fighting a JDB in small claims court.  It's a much different procedure than what I'd been preparing for based on reading these forums.  I knew the rules were a little different, but there's a reason JDBs use small claims court in Marion Co.

 

Thanks for reading.  Best of luck to anyone with action pending or forthcoming.

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Even though you didn't win at least you made them do a little work. Way too many just let them get a default judgment. I no nothing about IN law, so you need to find someone who does. Some states offer a De Novo trial which is a brand new trial. You might want to read up on the link below to see if you qualify. 

 

http://www.in.gov/judiciary/rules/denovo/

 

Hopefully you can do this, but if you can't I would at least appeal on the SOL issue. If you do qualify you probably only have 15 days. Just remember whatever you decide you need to get going now. Procrastination will kill you dealing with lawsuits. We have a few members here from IN and I'm sure others will be happy to help.

 

You should at least speak with an attorney. Even if you can't hire one get a low cost or free consultation. Only talk with an attorney that has FDCPA experience. You might have an FDCPA violation with the SOL alone. A good FDCPA attorney might find others. 

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@GoonerIndy

Unfortunately, I have no advice to offer other than encouraging you to follow what the wise man in the Russian sable hat advised. I can offer my sympathy for finding yourself in such an terrible spot. I hope your luck changes. 

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judge and atty were seemingly working together by now

 

Which is why my strategy is arbitration - to get out of the railroad court.

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