jefrey98

LVNV suing VIA Eaton group but hasn't proved they own the account. What do I do?

Recommended Posts

list what documents you requested, and their response to each request.

 

Did you send them any interrogoratories?  if so how did they answer.

 

You say they gave you 1 statement?  Did they give you a bill of sale from citi to portfolio, and then one from portfolio to LVNV?

 

when was the last payment on the alleged account?  Is it on the one statement?

 

so all they have given you is that affidavidt, a credit card agreement, and 1 statement? that is it?

 

It might be wiser to do a cross MSJ if they do file one if that is all they gave you. They have not proved standing. You have some time to sort this out based on your answers to these questions.

Share this post


Link to post
Share on other sites

I sent them answers to request for admission of facts, answers to their account interrogatories, answers to their domestic interrogatories and a request  for production of documents.

 

They sent me a credit card statement that had my name on it.  They did not provide ANY bills of sale.

 

The date of last purchase was July 20, 2009.  I am not sure the date of last payment.

 

 

I attached the questions with answers in parenthesis because it wouldn't let me cut and paste.  I have removed personal info.

 

 

Share this post


Link to post
Share on other sites

This case was won by Midland, but they provided enough documentation to convince they appeals court they owned the debt.  Did LVNV provide the same kind of documentation?  If not, then you could begin to attack their case.

 

http://scholar.google.com/scholar_case?case=14570829028422836114&q=credit+card+affidavit+of+debt&hl=en&scisbd=2&as_sdt=4,19&as_ylo=2010

Share this post


Link to post
Share on other sites

Now study this case, where the appeals court held that Unifund HAD NOT proven its case against the defendant because the affidavits they submitted failed to show the person preparing them was qualfied to comment knowledgebly about the defendant's account. See how that case compares to yours.

 

http://scholar.google.com/scholar_case?case=377787327502927789&q=credit+card+affidavit+of+debt&hl=en&as_sdt=4,19&as_ylo=2010

Share this post


Link to post
Share on other sites

 

 

The date of last purchase was July 20, 2009.  I am not sure the date of last payment.

 

 

 

The Statue of Limitations for credit cards in LA is 3 years.  Look at Section b.

 

http://www.nationallist.com/image/cache/White_Paper_Louisianna_Debt_Collection.pdf

 

Check your credit reports to see if they show when last payment was made.

 

If they are just now suing you and the debt is past SOL, you may have a FDCPA violation, in which case a consumer lawyer would very likely take your case on contingency, meaning they would get their fee for defending you by suing LVNV, and you may also get statutory damages.

Share this post


Link to post
Share on other sites

I checked when they initially filed and they were working the statute of limitations. Thanks for providing so much research for me. I appreciate it!

The Statue of Limitations for credit cards in LA is 3 years. Look at Section b.

http://www.nationallist.com/image/cache/White_Paper_Louisianna_Debt_Collection.pdf

Check your credit reports to see if they show when last payment was made.

If they are just now suing you and the debt is past SOL, you may have a FDCPA violation, in which case a consumer lawyer would very likely take your case on contingency, meaning they would get their fee for defending you by suing LVNV, and you may also get statutory damages.

Share this post


Link to post
Share on other sites

Eaton has not provided me any Bill If Sale nor have they provided me with an affidavit from the original creditor as was done in this case. Thank you. This helps.

This case was won by Midland, but they provided enough documentation to convince they appeals court they owned the debt. Did LVNV provide the same kind of documentation? If not, then you could begin to attack their case.

http://scholar.google.com/scholar_case?case=14570829028422836114&q=credit+card+affidavit+of+debt&hl=en&scisbd=2&as_sdt=4,19&as_ylo=2010

Share this post


Link to post
Share on other sites

I think after work today I am going to attempt to schedule a 10.1 with them to see if they have obtained any of the requested documents or the documents that they say they attached and did not. I will research on how to proceed more if they have not received the bill of sale or an affidavit from the original creditor. Not sure if the best move after that is motion to compel, motion to dismiss based on lack of evidence, or waitin for them to file for summary judgement and then challenging their evidence based on not having those items.

Share this post


Link to post
Share on other sites

I would be inclined to wait, see if they file a MSJ.  If they do, we can help you with your opposition.  They have not provided anything to prove standing.  If you do a 10.1, they will know YOU know what it takes, and what they have to have. They might be more inclined to find it.   You asked for it, they failed to give it.  In fact, since they responded with "if one becomes available" and they do file an MSJ where they include a BOS, In your opposition you can ask for it to be precluded since they did not respond to your request.  They are hoping you just settle. If nothing happens in the next couple of weeks, file a motion to dismiss, and we can help you write it up based on all this info.  In the mean time go to google scholar, pick LA courts, and type in key words such as preclude bill of sale in debt or standing in debt collection, etc. and see if you can find any case law to support it.  Look in the cases debt zapper provided also.  It will help.

  • Like 1

Share this post


Link to post
Share on other sites

I still have not received anything saying that they filed anything. Would I get something from them or served before a judge could make a decision?

Share this post


Link to post
Share on other sites

@shellieh98

They filed suit. The court date is not until September 22. I will post the contents of their motion when I get to my desktop. They still have not provided any bill of sale. I am working in getting the exact case law that states they have to provide it to me. Any help would be greatly appreciated!

Share this post


Link to post
Share on other sites

I am attaching it because again, it wouldn't let me paste on here.  The only things attached to this was a letter from them encouraging me to sign a consent judgment and offering to have a discovery conference, and the paper letting me know when the hearing is scheduled.  I am confused by there reference to "supporting memorandum filed herewith" because there was not another memorandum.

Share this post


Link to post
Share on other sites

This from the Unifund case in my post #6.  Although the court is discussing a Summary Judgment motion, this is what they say about billing statements:

 

The remaining exhibits attached to the motion for summary judgment are the unsworn and unverified monthly account billing statement and the demand letter. Louisiana Code of Civil Procedure articles 966 and 967 do not permit a party to use unsworn and unverified documents as summary judgment evidence. A document that is not anaffidavit or sworn to in any way, or is not certified or attached to an affidavit, has no evidentiary value on a motion for summary judgment. Bunge North America, Inc. v. Board of Commerce & Industry, 07-1746 (La. App. 1 Cir. 5/2/08), 991 So.2d 511, 527,writ denied, 08-1594 (La. 11/21/08), 996 So. 2d 1106

Share this post


Link to post
Share on other sites

Was their an affidavit from a person from LVNV stating they reviewed the records and they are correct?  If so type out what that affidavit says.

type out what the bill of sale says.

how many statements did they include?  do they show charges, or more importantly payments?

what other paperwork have you recieved from them?

What defences did you use in your answer?

Share this post


Link to post
Share on other sites

sorry for all the questions, it appears the beginning of this thread is missing, or if it was a PM, I don't have it with any of that info.

Share this post


Link to post
Share on other sites

I will add these documents when I get back to my desktop. I think I may have taken the documents down. I have never received a bill of sale and the affidavit is from someone employed by the jdb, not the original creditor. I believe they sent two statements. I will have to double check but I think they include purchases and payments.

sorry for all the questions, it appears the beginning of this thread is missing, or if it was a PM, I don't have it with any of that info.

Share this post


Link to post
Share on other sites

@shellieh98

 

They sent the credit application, two statement (only one has purchases and payment), and the affidavit.  They sent previously a lengthy supplemental memorandum in support of motion for summary judgment that sites lots of case law.

 

My issue is that they have not proved that they own this account.  The affidavit is from someone with the JDB, NOT the original creditor and they have not provided a bill of sale.  Does this matter?

 

They also have the wrong parish listed on the supplemental memorandum.  I will call my city court tomorrow and see if they filed the supplemental memorandum because it was not sent to me with what they said they filed.

Share this post


Link to post
Share on other sites

They sited case Grevemberg v. G.P.A. Strategic Forecasting Group 2006-0766 959 so.2d 914. It says that an affidavit of the correctness thereof shall be primal facie proof. However in their supplement it does not say who the affidavit has to be from...

sorry for all the questions, it appears the beginning of this thread is missing, or if it was a PM, I don't have it with any of that info.

Share this post


Link to post
Share on other sites

I read the Grevemberg case, but it's just not true that they can write up an affidavit that you owe $$$ and that's all they need.

 

Look at the cases I cited, both the one won by the JDB and the other lost by the JDB.  

Share this post


Link to post
Share on other sites

The Grevemberg case (2007) was about the suffiicency of evidence required under Lousiana 1701(B) to get a default judgment on a promissory note or a conventional obligation.  Here is a 2011 case (not a credit card case) that cites Grevemberg and Lousiana 1701(B), but the court held that an affidavit alone wasn't sufficient evidence is this case and reversed the trial court.

 

%22&hl=en&scisbd=2&as_sdt=4,19&as_ylo=2000'>http://scholar.google.com/scholar_case?case=14954988346580849146&q=%221702(B)%22&hl=en&scisbd=2&as_sdt=4,19&as_ylo=2000

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.