michigan7788

Being Sued By LVNV c/o Resurgent Captial in Michigan

Recommended Posts

I am being sued by LVNV Funding LLC (c/o Resurgent Capital Services LP), and was hoping to get some clarification on next steps.  I have read some posts and threads on this site which have been really helpful.  I am confused though because the Complaint doesn't have counts (i.e. account stated or breach of contract).  Attached were two credit card statements, a bill of sale, and an account transfer.  The bill of sale and account transfer seem to be very similar to what others have posted when sued by LVNV.  I thought based on the posts there would be an affidavit, but in my case there is no affidavit at all.  Here is what the complaint says:

 

Has a heading, then:

 

COMPLAINT

 

1.  The Plaintiff is the owner of the within credit card account through Purchase, bearing account number ...

 

2.  By use of the account, the Defendant became bound by the terms in the Credit Card agreement.  The existence of this debt is established in the exhibit attached hereto as Exhibit A.

 

3.  The Plaintiff has exercised its rights pursuant to the terms of said Agreement to accelerate the time for payment of the entire balance due and owing by the Defendant to the Plaintiff.

 

4.  That there is now due and owing to Plaintiff by Defendant, the sum of $ on said credit card agreement.

 

5.  That further, Defendant's account has accrued interest in the amount of $ through May 29, 2014.

 

6.  Although demand has been made upon the Defendant to liquidate the balance due and owing, the Defendant failed to do so.

 

Wherefore, Plaintiff prays that this Honorable Court enter a Judgment in favor of Plaintiff and against Defendant in the amount of $ plus costs, interest as provided by MCL 600 6013 and attorney fees.

 

 

I am going to prepare and then post my attempt to answer.  Any thoughts on possibly filing a motion to dismiss due to the fact they do not have an affidavit?

 

 

  • Like 1

Share this post


Link to post
Share on other sites

So based on bmc100's recommendations in posts #86 and #87, I should simply file my answer and affidavit, wait until after the pre-trial hearing, then file my motion for summary disposition.  I do believe this is a good strategy. If I try and get the case dismissed before answering, they can simply amend their answer.

 

Has anyone seen a Complaint without any claims or counts?  I was expecting to see a claim of breach of contract, or account stated, or others.  This Complaint seems very odd.  Add on top of that the fact they didn't submit an affidavit at all, and it just seems unreal.

Share this post


Link to post
Share on other sites

In both my suits, the Plaintiff only has to file the complaint using minimal information, just in case you don't show up and they get a default judgment, which is what they really want, the court sets up a Pre-Trial to figure out whether or not both side want to settle or go to trial.  He then sets up a Discovery period, usually 60 days or so, he may give you another 21 days to respond to the summons and complaint, (if he does this, research your response and make corrections, it will be your only chance.)  Motions are generally heard only after the discovery period.  It is my understanding that if you request discovery between getting your summons and the pre-trial, it can be ignored by the opposing side.  Good Luck.

Share this post


Link to post
Share on other sites

I am writing my answer to the Complaint and am going to raise affirmative defenses of Lack of Standing, and Failure to State a Claim.  Because they haven't actually stated a claim (i.e. account stated, breach of contract, etc...), is there any other affirmative defenses I could use here?

Share this post


Link to post
Share on other sites

They have 2 stated claims 1) Account Stated - is used when they state by use of the account 2) Breach of Contract - is implied by Defendant is bound by the terms of the credit card agreement.

 

They do not clearly state it, but the claims are made. They are tacking on post-charge off interest, which they are not by law allowed to do unless the purchase agreement clearly states that the seller transferred those rights to the buyer.

 

You need to call a consumer law attorney to discuss additional counter-claims.

Share this post


Link to post
Share on other sites

Here is my first go at an answer.  I think I would like to add a rule of evidence in paragraph 1 if anyone can provide, to show that they didn't authenticate their "Bill of Sale" and "Declaration of Account Transfer" exhibits (no affidavit with the answer).  Plus I put in paragraph 2 that they didn't attach an affidavit for the billing statements for account stated even though they didn't actually claim account stated.  Is that fine?  

 

 

ANSWER TO COMPLAINT

            NOW COMES, Defendant Pro Se, michigan7788, pursuant to MCR 2.113, and states unto this Honorable Court as follows:

 

            1.         Answering paragraph 1, Defendant denies the allegations contained therein.  Plaintiff's conclusory statements are unsupported by attached copies of authenticated, sworn documentation, required by MCR 2.113(F)(1),(2), that the alleged assignment of title agreement of an alleged Chase Bank account was duly assigned in the normal course of business to Plaintiff. 

            2.         Answering paragraph 2, the Defendant denies the allegations contained therein.  Plaintiff has failed to attach to its Complaint authenticated, sworn documentation showing use of the alleged account or a copy of the alleged "Credit Card agreement" with its terms, as required by MCR 2.113(F)(1),(2).  Plaintiff's Exhibit A has not been attached to a properly filed affidavit as required by MCL 600.2145.

            3.         Answering paragraph 3, the Defendant denies the allegations contained therein.  Plaintiff has failed to attach to its Complaint authenticated, sworn documentation of the alleged "Credit Card agreement" with its terms, as required by MCR 2.113(F)(1),(2).

            4.         Answering paragraph 4, the Defendant denies the allegations contained therein.  Plaintiff has failed to attach to its Complaint authenticated, sworn documentation of the alleged sum due as required by MCR 2.113(F)(1),(2).  Plaintiff's Exhibit A does not show a demand for payment for $.

            5.         Answering paragraph 5, the Defendant denies the allegations contained therein.  Plaintiff has failed to attach to its Complaint authenticated, sworn documentation of the alleged "Credit Card agreement" governing interest rate terms, nor authenticated, sworn documentation of how the accrued interest was calculated, both as required by MCR 2.113(F)(1),(2).

            6.         Answering paragraph 6, the Defendant denies the allegations contained therein.  Plaintiff has failed to attach to its Complaint authenticated, sworn documentation of the alleged demand for payment as required by MCR 2.113(F)(1),(2).

 

AFFIRMATIVE DEFENSES

Affirmative Defense I

            7.   Lack of standing. Plaintiff’s conclusory assertions are unsupported by required sworn business records referenced in the Complaint to show the existence of a valid contract for the alleged account with Plaintiff’s alleged assignor Chase Bank,  its transfer of all rights, title, and interests conveyed by an unbroken chain of assignment of intermediate assignees to Plaintiff, and Plaintiff's entitlement as assignee to seek the relief requested.   Plaintiff's "Bill of Sale" and "Declaration of Account Transfer" records do not reference the alleged account number, nor the Defendant.  The "Bill of Sale" is an exhibit to a referenced "Credit Card Account Purchase Agreement", however this has not been attached, even though it contains the enforceability of warranty of title.

 

Affirmative Defense II

            8.   Failure to state a claim. Absent evidentiary support of Plaintiff's standing as assignee of Chase Bank, Plaintiff is not entitled to adjudicate its causes of action, and has failed to state a claim for which relief can be granted. 

 

            WHEREFORE, the Defendant, michigan7788, requests that his Honorable Court dismiss Plaintiff’s Complaint with prejudice, award Defendant all fees and costs, and grant such other relief as may be appropriate.

 

            Dated September 25, 2014                             Respectfully submitted,

 

                                                                                    _______________________________

                                                                                    michigan7788

                                                                                    In Pro Per

                                                                                    123 my street

                                                                                    my city, Michigan 48xxx

Share this post


Link to post
Share on other sites

@bmc  "They are tacking on post-charge off interest, which they are not by law allowed to do unless the purchase agreement clearly states that the seller transferred those rights to the buyer."

 

So would you recommend I change or add to paragraph 5?  I state they didn't provide the "Credit Card agreement' but I can also state they didn't provide the "Credit Card Account Purchase Agreement" (the one referenced in the Bill of Sale Exhibit that they also didnt provide).  Or am I splitting hairs here?

Share this post


Link to post
Share on other sites

You need to get in contact with a consumer law attorney to see if you have a counter-claim. If you do not know of one, inbox me and I will provide you with the contact information for one. 

 

Once an account is charged off by the OC, the OC can continue to add interest to the account, but once the account is sold the JDB cannot add interest to the balance unless that right is transferred to the purchaser via the purchase agree between the OC and the JDB.

 

CALL AN ATTORNEY

Share this post


Link to post
Share on other sites

In McDonald v. Asset Acceptance LLC, 2013 WL 4028947 (E.D. Mich. 2013), a group of plaintiffs filed a class action complaint arguing that a debt purchaser illegally attempted to collect post-charge off interest in violation of the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. Specifically, Plaintiffs alleged that while the original agreement between the original creditors and the debtors allowed for the imposition of interest, the creditors waived the right to collect interest once the debts were charged-off. A credit account is characterized as “charged-off” when it is treated as a loss and the creditor receives a tax deduction under the Internal Revenue Code. See, Victoria J. Haneman, The Ethical Exploitation of the Unrepresented Consumer, 73 Mo. L. Rev. 707, 713-714 (2008). Because a debt purchaser, as an assignee, “stands in the shoes” of the original creditor when it attempts collect on accounts, Plaintiffs argued that the waiver of interest by the original creditors foreclosed the purchasers’ right to subsequently add interest.

 

The McDonald Court explained that the propriety of the debt purchasers’ imposition of interest depended on whether the original creditors waived the right to impose interest prior to sale. The original creditors testified that as a normal course and practice they ceased from charging post-charge off interest due to cost of continuing to assess the charges. The Court also noted that the contracts of sale between the debt purchaser and creditors excluded post charge-off interest from the definition of “current balance” or “unpaid balance” in the agreements. The court found that the original creditors “intended to waive the right to collect interest on Plaintiff’s accounts” by taking “decisive and unequivocal acts to forgo the imposition of interest for strategic business reasons.” McDonald, 2013 WL 4028947 at *10. Further, the Court decided that the purchaser had no legal right or ability to retract the waiver made by its predecessor in interest. The Court held that the practice constituted violations of § 1692f(1) and § 1692e(2) (A) of the FDCPA and certified a class of consumers subject to the illegal imposition of interest. Importantly, the Court also denied the purchaser the use of the bona fide error defense explaining that ignorance of the law does not afford a debt collector a defense under the FDCPA. Id. at *13.

Share this post


Link to post
Share on other sites

@bmc100

 

They are tacking on post-charge off interest, which they are not by law allowed to do unless the purchase agreement clearly states that the seller transferred those rights to the buyer.

 

 

They can add interest starting from the time they purchased the account.   From McDonald v. Asset Acceptance, which you posted in your MI thread.

 

Because Chase and WFNB waived the interest, Asset could not retroactively impose interest for the period in which it did not own the accounts.

 

If they're adding interest from the date of charge-off, that's a different story.

Share this post


Link to post
Share on other sites

Ok so I have another question.  Everything I have read on this site says to make sure to have an affidavit denying the Plaintiff's account stated claim.  In my case, they didn't file an affidavit, and they didn't clearly claim account stated,  Should I be filing an affidavit?

Share this post


Link to post
Share on other sites

Ok so I have another question.  Everything I have read on this site says to make sure to have an affidavit denying the Plaintiff's account stated claim.  In my case, they didn't file an affidavit, and they didn't clearly claim account stated,  Should I be filing an affidavit?

 

CALL AN ATTORNEY….NOW!!!!!! 

Share this post


Link to post
Share on other sites

@bmc100   I called an attorney. They advised me to either settle, or to sign an affidavit of fraud. I didn't want to do either.

 

What attorney did you talk to? I know a couple that will probably be a better resource for you.

Share this post


Link to post
Share on other sites

So back in October, after consulting a Consumer Law Attorney, I filed my answer to Complaint.  The Court initially scheduled a preliminary hearing for Jan 20th, 2015.  I was going to wait a bit and then work on my discovery requests.  Today However I received the Plaintiff's Motion for Summary Disposition, trying to change the date to January 14th.  I have not received the notice yet that the MSJ hearing will be on that date, but have to assume it will.

 

I was wondering if anyone had any good information and legal backing for arguing against a MSD due to Discovery not being completed yet.  Does anyone have any links or info?  I have done tremendous amounts of research on this site and found good information for the rest of my arguments (against account stated, against breach of contract, etc...) but can use some more help for the discovery piece.  I would like to argue Discovery is vital to my case.

 

Also, in its Complaint, the Plaintiff didn't attach an affidavit, however they did for their MSD.  I have a bunch of information for refuting their affidavit, but was wondering if the dates mattered like they do for the Complaint affidavit(i.e. must be filed within 10 days of the Complaint for account stated).  I did file an afidavit with my answer, so I believe I have Prima Facie evidence denying their claims.

 

Please help!

Share this post


Link to post
Share on other sites

No comment, I told you to contact the attorney I inboxed you. It looks like you never called. 

  • Like 1

Share this post


Link to post
Share on other sites

I talked to that attorney - he just didn't give me any direction regarding counter claims.

 

Also an update on this one - I got it dismissed with prejudice.  Thanks for all your help.

  • Like 1

Share this post


Link to post
Share on other sites

I talked to that attorney - he just didn't give me any direction regarding counter claims.

 

Also an update on this one - I got it dismissed with prejudice.  Thanks for all your help.

 

Congrats! :)%

 

Could you elaborate on how you got your dismissal, as it could help others in the same situation who find this thread looking for help?

Share this post


Link to post
Share on other sites

I want to say that the forums and information on this site are a wealth of information and help.  I started out by reading @bmc100's thread about how to win in Michigan.  I also read numerous posts and threads, so definitely a shout out to @Brotherskeeper and @BV80 as well as many others for their contribution in helping so many people.

 

I believe I defeated the plaintiff's motion (for summary disposition) because I attacked the billing statements.  Somewhere on the site I read to examine every document carefully.  When I reviewed the statements, there were many errors/red flags:

 

1.  My name was misspelled. Provided driver's license as exhibit in affidavit to show accurate name.

2.  The address was an old address.  I provided proof that I hadn't lived there at the time of the statements as an exhibit in my affidavit.

3.  The interest rates fluctuated on the statements, anywhere from 2% to 98.5% (yes 98.5% - crazy).  I attacked the fact that no agreement or contract was provided explaining what interest rates could be charged.

4.  The statements were altered by the Plaintiff - they clearly had a "file number" as well as a statement at the bottom saying "this statement is a facsimile - not an original"

 

I also argued lack of standing, argued against breach of contract and account stated, but hammered that the statements were hearsay, and obviously had many questions that needed to be answered.  I also provided my credit report showing I had disputed the account, both with original creditor and the Plaintiff.  The judge denied their motion.  Plaintiff dismissed with prejudice soon after.

 

Read the threads.  Review the documents - carefully. Sometimes its all in the details.

  • Like 2

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.