Jump to content

Initial Disclosures Received


Recommended Posts

I received the inital disclosures from the attorney representing the complaint filed against me by a JDB. In my answer, I denied the allegations and used SOL as an affirmative defense. I also counter sued for SOL plus another FDCPA violation of starting legal action before contacting me, 15 U.S.C. § 1692g(d). I heard from a lot of people that the second violation probably wouldn't work as it's hard to prove that they sent the letter but I have some information in the disclosure that may help me with that, more on that in a bit.

 

 

First, the JDB provided a lot of information that could prove their case. They included copies of my drivers license and a voided check. They included a print out of complete ACH payment history. They even have a fax that I must have allegedly sent that asks how much I could receive total for the loan.

 

According to the payment history, they are within the 6 year SOL as the last payment made shows 09/05/2008 and the complaint was created/filed on 09/05/2014 according to the date on the complaint. Is there anyway to tell if the complaint was actually filed with the court on 09/05/2014?

 

If the SOL hasn't passed, I've lost that argument and can only assume now that my only defense is lack of standing.

 

They provided the chain of custody of Bill of Sales passing down the debt to through 3 JDB's. None of the Bill of Sales however show my account on them. They only say see Exhibit A. The disclosures have not included Exhibit A from any of the Bill of Sales. This tells me without Exhibit A, there isn't anything proving standing, am I correct?

 

If that's the case, do I ask for Exhibit A from all of the Bill of Sales in my discovery? What are my next steps?

0

And now for the countersuit for 1962g(d), they provided copies of the letters they sent to me about the debt. These letters are dated 9/21/2010 and 11/2/2010, however, the Bill of Sale says they bought the debt on 05/18/2011, almost 8 or 9 months later than the date of the letters. How can that be? It sounds like I could win that countersuit. ??

Link to comment
Share on other sites

1. Who is the named plaintiff in the suit? WWR LLC, A Utah Company

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

3. How much are you being sued for? $2000 plus interest accrued (1200) plus court costs.

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

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

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Salt Lake County, UT

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) According to the payment history they supplied, 09/05/2008

11. What is the SOL on the debt? 6 years

12. What is the status of your case? Suit served. Initial disclosures received.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Not on credit report.

14. Did you request debt validation before the suit was filed? Not given a chance too.

15. How long do you have to respond to the suit? Already answered the summons.

16. What evidence did they send with the summons? They only sent a copy of the contract and e-signature

Link to comment
Share on other sites

So I provided the information you requested, I hope it helps but I think I've been able to give more information in my first post as to where we are now. My entire case I believe is going to be based on them proving they actually own the debt and can sue me (lack of standing). Since they haven't provided me anything that says they actually bought my debt from the previous JDB and so on and so forth, I believe that is where I start, right?

 

Also, in their disclosures, they listed one witness who works for the plaintiff. I thought I read somewhere about having witnesses for each Bill of Sale from the previous JDB's.

Link to comment
Share on other sites

@robdiablo

 

I don't understand your reference to 1692g(d).  That simply says that a complaint is not an initial communication that would require the disclosure in 1692g(a). 

 

I just read that a JDB cannot sue you prior to contacting you about the debt and giving you a chance to respond or validate the debt. I don't think I can use that to defend the suit but I can use it as a violation of the FDCPA in my counter suit.

Link to comment
Share on other sites

What you read is incorrect.  There is no legal requirement that they contact you first.  They did not violate any law by filing a lawsuit without first contacting you.  The statute you quoted simply means that a summons is not considered "first communication" under the FDCPA, because the FDCPA requires that they add certain disclosures to their first communication. 

 

I would instead focus on defending their suit.  Standing is the big issue.  You need to attack what is missing in their disclosures, namely, anything that actually links them to this account specifically.  Also, do not rely upon their printout payment history for proof of when the last payment was made.  These companies are well known for claiming a payment was made when it actually was not.  Happens all the time.  You will have a hard time trying to get your own bank records for that time, since it's some years back but I would try anyways.  The worst the bank can tell you is "no".  If you can show that the last payment was made even one day earlier than they claim, then you can use SOL.

 

Also, UT has some case law about borrowing statute for SOL.  What kind of debt is this, exactly?  Credit card, unsecured loan, etc?  It's possible that SOL has indeed expired, it can depend on these kinds of details.

 

This is an unsecured loan with a promissory note. Not sure I can get those statements as that bank account has been closed since 2008 or 2009.

 

Here is some info from the initial disclosures:

 

A. Witnesses

1. Name retracted - An employee of the JDB

 

B.

1. Bills of Sale

  • i. OC to FFIF, LLC - Dated 04/2010. The bill of sale does not list my account but points to Exhibit A.
  • ii. FFIF, LLC to ADTP Co - Dated 05/2010. The bill of sale does not list my account but points to Exhibit A
  • iii. ADTP Co to WWR LLC - Dated 05/2011. This is the current JDB and this bill of sale does not list my account but points to Exhibit A

There is no Exhibit A included in the Initial Disclosures

 

2. Promissory Note and Disclosure Statement

3. Loan Transaction History

4. Fax to OC providing payroll info

5. Photocopy of my drivers license and cancelled checking account check.

6. Payment reminders - 4 each starting on 10/16/2008

7. Letter from WWR, LLC to me, dated 09/2010 - (They didn't buy this debt until 2011??)

8. Letter from attorney dated 11/2010 - (They didn't buy this debt until 2011??)

Link to comment
Share on other sites

@robdiablo

 

You need to triple check that the last payment you made was on 9/5/2008.  If this is correct, and they filed the lawsuit against you AFTER 9/5/2014, then this action is barred by the SOL.  This changes your entire defense strategy, as they cannot legally sue you on a debt that is barred by the SOL.

Link to comment
Share on other sites

@robdiablo

 

First, what affirmative defenses did you list?

 

Does the Disclosure Statement have a date on it?

 

Does the Promissory note contain HOLDER IN DUE COURSE (Should be in all caps) language?

 

And what date did they file the lawsuit against you?

 

 

I only used SOL as I didn't have anything else for affirmitive defenses. I left off standing since they have to prove it anyways.

 

The promissory note and disclosure statement do have a date: 07/2006

 

I do not see that in all caps, could it be some other term?

 

They date on the summons says, 09/05/2014. Not sure if that is when it was actually filed. Not sure how to find out.

 

What I did notice about the note is it is an 'electronic note.' It was allegedly signed electronically and in the language of the note, it states:

 

 

This Note is in original format an electronic document fully compliant with the Electronic Signatures in Global and National Commerce Act (E-SIGN) and other applicable laws and regulations, and that the one, true original Note is retained electronically by Holder on behalf of Holder. All other versions hereof, whether electronic or in tangible format, constitute facsimiles or reproductions only.

 

Does this mean that unless they have the true original electronic version that the note they have is inadmissible?

Link to comment
Share on other sites

@robdiablo

 

You need to triple check that the last payment you made was on 9/5/2008.  If this is correct, and they filed the lawsuit against you AFTER 9/5/2014, then this action is barred by the SOL.  This changes your entire defense strategy, as they cannot legally sue you on a debt that is barred by the SOL.

 

I have no way to triple check this. I contacted the bank and they cannot find the old account to pull the records. I think SOL is pretty much out of the question unless they filed after 09/05/2104. I think I have a strong case with chain of custody and lack of standing. I even might have the inadmissible copy of the note as mentioned above.

Link to comment
Share on other sites

@robdiablo
 
The HOLDER language should look like this:  
 
 

NOTICE
ANY HOLDER OF THIS CONSUMER CREDIT CONTRACT IS SUBJECT TO ALL CLAIMS AND DEFENSES WHICH THE DEBTOR COULD ASSERT AGAINST THE SELLER OF GOODS OR SERVICES OBTAINED PURSUANT HERETO OR WITH THE PROCEEDS HEREOF. RECOVERY HEREUNDER BY THE DEBTOR SHALL NOT EXCEED AMOUNTS PAID BY THE DEBTOR HEREUNDER.


The e-signatures that you listed are typically legal.  

 

Also, check your private messages.

Link to comment
Share on other sites

@robdiablo

 

After digging further, here are some ideas to kick around.  Firstly, I would recommend you speak to a consumer attorney.  I think these guys have got themselves in a pickle.

 

- The note lacks the FTC's holder language (16 CFR 433.2).  By the CFR's own definition this is an unfair & deceptive practice.  It doesn't have a private right of action, but once violated it falls under other State & Federal statutes.

- The note appears to be unconscionable on its face.  This violates UCA 70C-7-106

- Unconscionable, Unfair and deceptive practices violate the FDCPA, and the Utah Consumer Sales and Practices Act.

 

The first option I would take is to contact a consumer attorney (naca.net), and schedule a sit down with them (or phone interview).  If you choose not to go this route, then it's going to take some work to get through this.

 

If you are going to defend this yourself, here are some other points:

 

- They filed the lawsuit 6 years to the day of expiration.  I would still file a Motion to Dismiss for the SOL.

- I would suggest amending your answer to include more affirmative defenses

- I would suggest filing a counterclaim with the above items.

 

 

 
Link to comment
Share on other sites

@bassplayr

 

OP, you can check to see when they filed the complaint with the court by going to the court clerk's office and reviewing the docket record for this case.  It will list when they initially filed the complaint.  Chances are good that if the summons has a date of 9/5, they probably filed the case prior to that date.  But you need to make sure. 

 

 

They filed on 9/5 according to the docket.  According to the OP, the last payment was on 9/5/08.  6 years to the day.

Link to comment
Share on other sites

@robdiablo

 

This is a promissory note?  Were you required to sign an agreement?  If so, did they provide a copy of the agreement or application with your signature?

 

25-5-4.  Certain agreements void unless written and signed.

(1)    The following agreements are void unless the agreement, or some note or memorandum of the agreement, is in writing, signed by the party to be charged with the agreement:
(a)    every agreement that by its terms is not to be performed within one year from the making of the agreement;
(b)    every promise to answer for the debt, default, or miscarriage of another;
©    every agreement, promise, or undertaking made upon consideration of marriage, except mutual promises to marry;
(d)    every special promise made by an executor or administrator to answer in damages for the liabilities, or to pay the debts, of the testator or intestate out of his own estate;
(e)    every agreement authorizing or employing an agent or broker to purchase or sell real estate for compensation; and
(f)    every credit agreement.
(2)    
(a)    As used in Subsection (1)(f) and this Subsection (2):
(i)    
(A)    "Credit agreement" means an agreement by a financial institution to:
(I)    lend, delay, or otherwise modify an obligation to repay money, goods, or things in action;
(II)    otherwise extend credit; or
(III)    make any other financial accommodation.

(b)    (i)    Except as provided in Subsection (2)(e), a debtor or a creditor may not maintain an action on a credit agreement unless the agreement:
(A)    is in writing;
(B)   expresses consideration;
©    sets forth the relevant terms and conditions; and
(D)    is signed by the party against whom enforcement of the agreement would be sought.
(ii)    For purposes of this act, a signed application constitutes a signed agreement, if the creditor does not customarily obtain an additional signed agreement from the debtor when granting the application.

Link to comment
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.

 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.