Jump to content

I'm being sued, how do I prepare for court? LVNV Funding LLC c/o Stenger & Stenger PC


Recommended Posts

Hello, I have been served with a court order to appear in small claims court over a debt that I owe from 2009 and I would like help on how I can prepare for it. I was delivered to me by the county sheriff. 

 

1. Who is the named plaintiff in the suit?

 

LVNV FUNDING LLC

c/o Stenger & Stenger PC

2618 East Paris Avenue SE

Grand Rapids, MI 49546

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

Stenger & Stenger, PC

3. How much are you being sued for?

 

$1800 plus interest rate of 8%

4. Who is the original creditor? (if not the Plaintiff)

 

General Electric Capital Corporation (Paypal)

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

 

I received a notice to appear from my county superior small claims court

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

 

In person

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

Yes, I was served by sheriff

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 

They sent me one previous letter a few months ago stating they were representing LVNV Funding

9. What state and county do you live in?

 

Indiana, Lake County.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

 

I thought the last payment I made was in 2010 or 2011, but according to the notice to appear it says the last payment was in 2009 as does ,y credit report. This may or may not be correct, I dont remember but the amount I paid is correct. This payment would reset the SOL correct? 

 

As far as I know in IN the SOL for credit cards is 6 year, which would mean i m still in it.

11. What is the SOL on the debt? To find out: 

6 years

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).

 

The status is "open"

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

 

No

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? 

 

I have about a month until I have to appear in court. I did not receive a questionaire. 

They are claiming:

  1. I opened an account with the original creditor in 2007
  2. made my last payment in 2009
  3. owe $1800
  4. an agreement was delivered and is in my possession
  5. I have received billings and failed to pay 
  6. I am not on active duty military service

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

exhibit A- Account statement stating the original credior, LVNV fundings location, unpaid balance, and my info. It lacks my account number and is not an original statement.

 

exhibit B- affidavit of debt, signed by a public notary in South carolina

 

exhibit C- affidavit of non-military service.

17. Read this article: 

 

ok

 

 

How can I go about preparing my defense? From what I remember the max credit line on the card was $1500 and then with interest it got up to $1800, then it was closed out. After it went to collections I paid $500 on it. If I contact paypal will they be able to provide me with some info about it? I am assuming the payment I made reset the SOL.

 

I have several letters sent to me by collection agencies on this debt would that help me any? several of them state I owe a different amount for the same account. Both my Experian and Equifax credit reports state this account was opened in 2008 and not 2007.

Link to comment
Share on other sites

It doesn't matter if the SOL was reset because even if it wasn't they are still within the SOL.

Do you need to file an appearance, or just show up at court?

 

f you just show up in court, you need to learn what to object to in court.  If asked in court if this is your debt, you lack sufficent information to know, you do not recall it.  You will want to make them prove their standing, and the amount they are suing for.  You need to study on your heresay rules, and exceptions.

They (LVNV) are a junk debt dealer.  They will try to produce an affidavit that says they have knowledge of your account, and they check, you owe.  You will want to learn how to say--nope I don't, and just because this person said so doesn't make it so.  They have no personal knowledge of this account, records are heresay, There is no foundation layed for these records, etc. 

 

type out exhibit B word for word here, and we will help you tear it down.

Chances are they are not going to bring a witness to testify in court and will rely on the affidavit of debt, so you will need to know how to get it thrown out as heresay.

Link to comment
Share on other sites

Actually the SOL on credit cards in IN is 6 years so if a payment would not reset it it would be out of it. I believe I have to appear, the court paper says "notice to appear" and it has the date and time.

 

I have multiple notices sent to me from various collection agencies on behalf of LVNV with amount ranging up to $3500 on this debt. Would I be able to use that to my advantage?

 

here is exhibit b:

 

affidavit of debt

 

Comes now affiant, and states:

 

  1.  I, john doe, am an employee of Resurgent Capital Services, LP, Servicing agent for plaintiff, and I am authorized to make this affidavit.
  2. I am of adult age and am fully authorized by plaintiff to make the following representations which are true according to documents kept in the normal course of plaintiffs business and/or my personal knowledge. I am familiar with the record keeping practices of plaintiff.
  3. Plaintiff has obtained this debt from GE Money Bank and the original owner of this debt was General Electric Capital corporation.
  4. american citizen, the defendant, has an unpaid balance of $1800 on account *************1234, plus interest rate of 0.00% from 2009. The account was opened in 2007. The last payment from defendant was received in 2009 in the amount of $500.
  5. The account which is the subject of the complaint is a credit account.
  6. This account balance includes: a) late fees in the ammount of $0 accruing from 2009. B) Interest rate of 0% beginning from 2009. c) Plaintiff is not seeking attorney fees.
  7. Plaintiff believes that defendant is not minor or an incompetent individual.

I swear and affirm under the penalties of perjury that the foregoing representations are true

 

signed: john doe, affiant

 

The foregoing affidavit was signed to and subscribed before me this day of the week, month date, 2014

signed: Jane Doe, Notary public, out of state.

Link to comment
Share on other sites

@mistakesweremade

 

You need to read your court's rules for civil procedure to see if discovery is allowed.   If it is, I'd send a request for production of documents to see what other documentation they have.   So far, they've provided nothing from the original creditor that shows the amount claimed, date of last payment, or that you even made charges and/or payments.

  • Like 1
Link to comment
Share on other sites

This is a report about Indiana residents being hounded by debt collectors and manipulating the court system to get around the SOL.  

 

 

http://www.wthr.com/story/22926717/2013/07/24/hoosiers-targeted-for-zombie-debt-collection

 

 

Ryan Frasher is the Indiana consumer lawyer mentioned in the report.  

 

http://www.frasherlaw.com/

  • Like 1
Link to comment
Share on other sites

 

affidavit of debt

 

Comes now affiant, and states:

 

  •  I, john doe, am an employee of Resurgent Capital Services, LP, Servicing agent for plaintiff, and I am authorized to make this affidavit.
  • I am of adult age and am fully authorized by plaintiff to make the following representations which are true according to documents kept in the normal course of plaintiffs business and/or my personal knowledge. I am familiar with the record keeping practices of plaintiff.
  • Plaintiff has obtained this debt from GE Money Bank and the original owner of this debt was General Electric Capital corporation.
  • american citizen, the defendant, has an unpaid balance of $1800 on account *************1234, plus interest rate of 0.00% from 2009. The account was opened in 2007. The last payment from defendant was received in 2009 in the amount of $500.
  • The account which is the subject of the complaint is a credit account.
  • This account balance includes: a) late fees in the ammount of $0 accruing from 2009. B) Interest rate of 0% beginning from 2009. c) Plaintiff is not seeking attorney fees.
  • Plaintiff believes that defendant is not minor or an incompetent individual.
I swear and affirm under the penalties of perjury that the foregoing representations are true

 

signed: john doe, affiant

 

The foregoing affidavit was signed to and subscribed before me this day of the week, month date, 2014

signed: Jane Doe, Notary public, out of state.

Ok he says he is authorized, but he doesn't tell you how he is authorized, he doesn't say he is a qualified witness, only that he is authorized.

He says according to the records plaintiff keeps in the normal coarse of business, but he did not reference what records he is talking about, I guess you are supposed to assume it is the data sheet they sent that tells you nothing.

He says he is familiar with the record keeping practices, but he doesn't tell you what they are. How do they keep the records to ensure they are correct? Where did they come from? How does he know they were kept correctly from where ever they got them from?

He never said they were received from GE, or that entries to the record were made at or near the time they oc courted by a person with knowledge.

So your home work is to come up with arguments that show he has no clue about the records. Search out motions to strike affidavits in this forum to get an idea. Look in indiana rules exception to the heresay rule and see what it says. You are going to object to that affidavit so it shows it is untrustworthy, and cannot authinticate any records. Does that make sense?

Also, did they send you a bill of sale from GE to LVNV? If not, how do you know they own it....because they said so? And if they did, is your name or account number on it? Could be anyone's.

Those letters could be helpful, you could say I don't recall this account but they did send collection notices, all for different amounts, how did they arrive at those amounts?

Link to comment
Share on other sites

Indiana small claims sucks. Here is your rules for small claims. http://www.in.gov/judiciary/files/small-claims-manual.pdf

They don't have to send you any proof before hand, or even a list of witnesses, they can bring any proof they have to trial with them. That means you must be prepared to fight the evidence right then. I would prepare to fight what they did send you, and have arguments ready for what they didn't send you also. Most come up with a few things as proof, so be prepared.

1. Bill of sale

2. At least one or two statements from the original creditor.

3. Their bill of sale will most likely be one from the original creditor to Sherman originators, then they will have one or 2 affidavits assigning it to Sherman originators II and then one to LVNV. Be prepared to fight those.

4. An affidavit claiming the records are correct, and you owe.

5. A data sheet with your name, address and ssn with the amount you owe they will say is part of the electronic records from the OC.

Be prepared for each of those so they can't be admitted in court. All of it is heresay. Read others motions in limines to get ideas on how to do that, and look up ind. Case law on Google scholar to support your arguments, you don't want to use others state case law.

Link to comment
Share on other sites

  • 4 weeks later...

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.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.