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responses to cach (Kentucky) in Ms


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I'm behind!  Doing a lot of reading but would appreciate any advice.

 

My complaint:

Cach is a LLC doing business in Colorado

2. Defendant requested Plaintiff's predecessor in interest, BOA, opened a credit account in Def. name under acct number *****. 

3.  Def used or authorized another to use the acct and thereby bc obligated to pay charges incurred. 

4.  Def defaulted to make monthly payments.

5. Said default proximately caused damages in the amount of this lawsuit

6. Balance of acct is presently due and payable $24,288.87

7. Plaintiff brings action upon sworn affidavit as to amount due which is shown and attached as Exhibit A (affidavit of claim:  states he reviewed books and records and is familiar with account provided to Plaintiff by Original Creditor referenced below or its assignee.  The records are kept in the ordinary course of a regularly conducted business activity and are made either by info conveyed by a person having personal knowledge of the info contained therein or based on info conveyed by a person having personal knowledge of the info contained therein, and I know from my experience in reviewing such records and from common knowledge of how credit cards work  that those records are made and maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event that they record.  2. Records consist of both hard copy info and electronic info that is generated, stored and maintained in accordance with generally accepted standards in the retail and financial industries  3. The business records furnished to Plaintiff show that Def opened a cc account with BOA, N.A. (OC) bearing account number XXXX-XXXX-XXXX-2343 (the account).  The last payment posted was Dec. 5, 2012 in the amount of $500.00

4. Def defaulted in payments to OC  5.  For good and valuable consideration, Plaintiff purchased account from OC or its assignee and Plaintiff is current creditor.  6. All credits and payments have been properly applied, Def is not entitled to any additional credits or offsets on the account of any kind, and the balance as set forth herein is due and owing.  7. There is now due and payable from the Def. the sum of $24,288.87 in addition to costs.

The affidavit is dated April 30, 2014

Plaintiff also attached hereto the Redacted Bill of Sale (exhibit B), and additional supporting documentation as Exhibit C. 

 

Exhibit B:  BOS and Assignment of Loan--b/t Cach and FIA Card Services pursuant to Loan Sale Agreement dated August 20, 2013.  Seller hereby sell, transfer, convey, assign and deliever to Purchaser all of Seller's right, title and interest in and to each and all of the loans included on the electronic file referenced in Schedule 1 of the Loan Agreement as BAC Fresh SqTwo Sale File..., without recourse or warranty.  >>>>>>there is more here if it matters, tell me.  It is signed and dated August 27 2013.

Exhibit C is a BOA statement with my name and current address, the stated balance from statement dated August 2013....account number is blacked out except for last 4 digits throughout. 

 

 

What I really need is more time and guidance......so, any help with my answers are appreciated.  I have talked to one lawyer who wants me to file bankruptcy and stated that he would file and answer but if I file it wouldn't matter anyway.  I may hire him to do the response but I would like to doublecheck any of your thoughts on my answers. 

Thanks in advance!

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Save your BK bomb for if you lose if this is the biggest debt out there. If you have many, you may want to just get ER done.

It would be helpful for you to answer the questions here in post one of this thread.

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

How you fight this will depend on your states rules of civil procedure. But as far as their evidence goes, they are trying to authenticate your account using heresay within heresay in that affidavit. He is saying the records are true and accurate as conveyed to him by someone else. That is a he said she said, and you would fight that affidavidt. The bill of sale does not reference your account, and it has a disclaimer on its face. It is not warranted to be correct, so how does he know it is?

You will need to do discovery to find out, and make a lot of work for them. You need to look up your discovery rules to see if you have a limit on how many requests can be made. Documents you ask for are several things, and they will object to most of them. Look around here for a laundry list, but some are that loan purchase agreement between FIA and cach. You want a complete accounting of the account. You want the name of the person who "conveyed" the info to the guy in the affidavit so you can question him yourself.

How far along are you in this suit?

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My answer to complaint is very basic (prepared by bankruptcy lawyer bc I'm so behind!)  I'm wondering if I should add some more.  Specifically affirmative defenses?

 

I found the Rules of Pleading for Ms and Affirmative Defenses but I can't figure out if they have to go in my answer today, and I HAVE NO IDEA WHAT MINE ARE! 

 

My answer at this point:

 

Def denies the allegations contained in paragraphs 2,3,4,etc bc she lacks sufficient information to form an opinion on them.

 

Requests she be dismissed as Def in this case.  Prays for general relief. 

 

 

The attorney who helped draft this is a bankruptcy attorney so he really doesn't care about this and was just trying to buy time, but I'm willing to keep learning and see if they can back it up, I just don't want to mess up my very first thing :-)

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The only one you as a defendant would not have to prove is " plaintiff lacks standing to sue upon this account". Any others would put the burden on you. If your last payment was in dec. 2012, then a sol defense wouldn't work. Did you pay 500.00 in 2012?

The above is the only one you really need to put there, your lawyer drafted a basic general denial, add that defense and get it filled. Then you can take a breath, and get started on discovery. We will help.

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Read this MS credit card case.  The appeals court affirmed the trial court's grant of summary judgment.  Note the what the court said abou the evidence.

 

 

105 So.3d 1123 (2012) Gail Nolls TURNER, Appellant
v.
TRUSTMARK NATIONAL BANK d/b/a Credit Card Center, Appellee. No. 2011-CA-01407-COA.

Court of Appeals of Mississippi.

November 13, 2012.

Bennie L. Jones Jr., West Point, attorney for appellant.

Wanda Williams Cross, attorney for appellee.

Before LEE, C.J., RUSSELL, and FAIR, JJ.

1124*1124 RUSSELL, J., for the Court:

¶ 1. Gail Nolls Turner appeals the judgment of the Clay County Circuit Court granting summary judgment in favor of Trustmark National Bank d/b/a The Credit Card Center (Trustmark). Turner raises one issue on appeal, which we restate for clarity: whether the circuit court erred in finding there was no genuine issue of material fact in this case. Finding no error, we affirm.

 

FACTS AND PROCEDURAL HISTORY

 

¶ 2. On September 27, 2010, Trustmark filed an action against Turner alleging that Turner opened a credit-card account with Trustmark and that Turner owed $3,796.91 to Trustmark. Turner denied this allegation, and Trustmark subsequently filed a motion for summary judgment alleging that there were no genuine issues of material fact and that it was entitled to a judgment as a matter of law. On July 14, 2011, Turner filed a response to Trustmark's motion for summary judgment, arguing that the circuit court should deny the motion for summary judgment because there were genuine issues of material fact as to whether Turner owed Trustmark the debt and whether Trustmark failed to comply with the requirements of the Fair Debt Collection Practices Act (FDCPA). On July 20, 2011, the circuit court held a hearing on the motion, and on August 25, 2011, the circuit court entered an order granting Trustmark's motion for summary judgment. The circuit court further awarded Trustmark a $3,796.91 judgment, as well as $1,265.51 in attorney's fees, and $648.90 in pre-judgment interest, for a total of $5,711.32, plus interest of 21% per annum and court costs. On September 20, 2011, Turner filed notice of this appeal.

 

DISCUSSION

 

¶ 3. "The standard of review in considering... a [circuit court's] grant or denial of summary judgment is de novo." Monsanto Co. v. Hall, 912 So.2d 134, 136 (¶ 5) (Miss.2005) (citing Hataway v. Nicholls, 893 So.2d 1054, 1057 (¶ 9) (Miss.2005)). In considering whether the circuit court erred in granting summary judgment, "we must examine all the evidentiary matters before us, including admissions in pleadings, answers to interrogatories, depositions, and affidavits" in the light most favorable to the nonmovant. Price v. Purdue Pharma Co., 920 So.2d 479, 483 (¶ 10) (Miss.2006). "The movant carries the burden of demonstrating that no genuine issue of material fact exists, and the [nonmovant] is given the benefit of the doubt as to the existence of [an issue of] material fact[.]" Id. (citing Monsanto Co., 912 So.2d at 136 (¶ 5)). Mississippi Rule of Civil Procedure 56(e) states what is required of an adverse party:

When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits[,] or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.

¶ 4. Turner argues that the circuit court erred when it granted Trustmark's motion for summary judgment because there is a genuine issue of material fact as to whether Turner owed Trustmark the debt. Specifically, Turner argues that Trustmark failed to provide evidence to support its allegation that there was no genuine issue of material fact. We disagree.

¶ 5. Trustmark provided a sworn affidavit from Ginny Perrett, who was employed 1125*1125as a recovery officer for Trustmark. The affidavit stated that Perrett was familiar with Turner's account, and Perrett swore to the existence of the debt and the amount owed. The affidavit further stated that Turner was sent statements each month, and that there was no record of a dispute as to any of the statements. Through Perrett's affidavit and Turner's bank statements, we find that Trustmark met its burden of persuasion and production to shift the burden to Turner to produce evidence that there is a genuine issue of material fact.

¶ 6. Turner argues that by denying that she owed Trustmark the debt in her answer, an issue of material fact was established. Our supreme court has held that "ssues of fact sufficient to require a denial of a motion for summary judgment are obviously present where one party swears to one version of the matter in issue and another party takes the opposite position." Price, 920 So.2d at 483 (¶ 10) (citing Am. Legion Ladnier Post No. 42 v. Ocean Springs, 562 So.2d 103, 106 (Miss. 1990)). However, Turner rests upon the mere denials of her pleadings and does "not set forth specific facts showing that there is a genuine issue of for trial." Id. at 483-84 (¶ 10) (citing Stuckey v. Provident Bank, 912 So.2d 859, 864 (¶ 8) (Miss. 2005)). Furthermore, although Turner did file an affidavit, she never swore that she did not owe the debt, nor did she dispute the amount of debt. For these reasons, the circuit court did not err in finding that there is no genuine issue of material fact as to whether Turner owed Trustmark the debt.

¶.

 

CONCLUSION

 

¶ 9. Because we find there are no genuine issues of material fact, the judgment of the circuit court is affirmed.

¶ 10. THE JUDGMENT OF THE CLAY COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR.

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So it appears she needs to include a sworn affidavit denying the debt. If the account was yours, might be wise to do a graduated sworn denial. Such as "I have no recollection of this debt, therefore deny it. If the debt were found to be mine, I deny the amount being sued upon as being correct". I deny ever having a business relationship with cach Llc. Etc.

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Thanks you guys for looking--reading the judgment posted by debtzapper is still greek to me so I appreciate you all summing it up. What I get from that is that I want to go ahead and send an affidavit....Would I file that with the court as an amended answer?  Should I also ask them to prove they have all their documentation now?

 

Now, I had to get the answer in and no one had responded here with help so I sent it. I didn't include affirmative defenses because I couldn't figure out what they should be.  At this point I am so overwhelmed that if I could find an attorney to help (one with the frame of mind like those on this board have) I would probably try them but I haven't even found one specializing in fighting junk debt collectors. 

 

So, I see your point Shellie, about adding the affidavit.  So should I do that as an amended answer with possibly some affirmative defenses?  I don't want to look like I don't know what I'm doing!

 

Someone recommended in a message, that I should start bombarding them with requests...Production of Docs, then move to compel if they don't respond.

 

Then I should be preparing (affidavits, motions, etc) at the last second serve them with Request for Admissions (which they'll probably forget about per the responder in my messages but I don't know this bc I'm not sure what that is at this point) and then have everything deemed admitted if they didn't respond. 

 

The answer was mailed Friday--I want to feel much more knowledgeable about what my next steps should be!

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no, just go right into requests for documents.

Im not at my computer, so I don't have a list of things to ask for, but there are alot of examples all around this site.  use the search function and look for documet requests, or defendants document requests, see what pops up.  You will want the credit card agreement, the application sent for the card, a complete accounting of the account showing how they calculated the amount they are suing you for., the bill of sale in it's entirety, in cluding the purchase agreement from the orginal creditor if it is referenced on the bill of sale. documentation showing the date of the last payment.  Don't worry they wont have all that, they may send you a bill of sale and a couple of statements, and affidavit signed by someone who says they kno your acount, and it's all true. But we will show you how to dispute all that later, one step at a time here.

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Someone recommended in a message, that I should start bombarding them with requests...Production of Docs, then move to compel if they don't respond.

 

Then I should be preparing (affidavits, motions, etc) at the last second serve them with Request for Admissions (which they'll probably forget about per the responder in my messages but I don't know this bc I'm not sure what that is at this point) and then have everything deemed admitted if they didn't respond. 

 

The answer was mailed Friday--I want to feel much more knowledgeable about what my next steps should be!

 

Before you go carpet bombing them with requests, interrogatories, or production you better study the rules of civil procedure for YOUR STATE.  Often those private messages you get telling you to DO THIS and then adding a laundry list is based on the sender's experience in THEIR court in THEIR state.  There are states that do NOT allow any of that in small claims court.  Georgia is one of them.  Many states limit the amount of interrogatories you can send (which some JDBs ignore) and the number of RFAs you can ask.

 

Find out what limits your court has if any then you craft list of what is most important if there are limits to discovery.  Here is where you can read The Rules pay particular attention to number 26.

 

The amount you are being sued for is REALLY high which means you are in Superior Court where the rules will be more rigidly followed.  Here is a list of NACA attorneys for MS.  Start calling the first thing tomorrow.  Even if they are not nearby.  As long as they are licensed in MS they can represent you.  For that amount of money at stake I would be doing several free consults and doing my best to hire one.

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debtzapper, the Kittell firm is almost in Tennessee.  I did find a firm located in my city that is listed in the NACA mentioned by Clydesmom.  I guess I'll start there.  Or maybe I'll call both, and the Kittell firm can do a phone conference :-)

 

I think Kittell handles cases throughout the state.  

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