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grannyto5

Being Sued In CO

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Decided to post here and hopefully get some feedback.  I have tried to get help locally filing my answer and have given up and am going to do it myself.  I need to get it done, should have had it out already.

1. Who is the named plaintiff in the suit?
Assurance Recovery, LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Law office of Wyn T. Taylor

3. How much are you being sued for? $1,295

4. Who is the original creditor? (if not the Plaintiff)
Vivint Alarm/Apex Alarm
5. How do you know you are being sued? (You were served, right?)
Was 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? Received letter and called asking for info about the debt, they stated they would get back to me and never did.

9. What state and county do you live in? Colorado, Garfield county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) April 2010

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

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit Served

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No, not on credit report

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? 21 days

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
None
 

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1st thing your going to do is answer the suit. Deny. Colorado civil suits are much like small claims in the sense they have no discovery unless ordered by the court. We have to go by rule 26a. So answer the suit, and then it's a waiting game. In a couple weeks you will send them your disclosure (basically nothing, but it requests theirs so they can't spring it on you 10 days before trial).

Once you get their disclosure, you will know what type of evidence they have against you.

Chances are since this is a junk debtor all they will have is a bill of sale they bought the debt, and a signed contract from you. They will have a hard time authinticateing those records, so we will take it one step at a time.

In the mean time answer, and start reading co. Rules of civil procedure, specifically rule 26 down.

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Thanks so much!  I just realized I didn't completely answer all the questions so I am going to post the complaints. 

 

This is a Simplified Civil Prodecure

1.  Venue is proper, and so forth.

2.  That the amount claimed herein does not exceed $15,000

3.  The amount claimed from the defendant is $1,295.

4.  Such claims arises from the following event or transaction:  The Defendant is indebted to the Plaintiff for the balance due resulting from charges to Vivint Alarm/APX Alarm, the claim has been assigned to plaintiff, the Plaintiff is entitled to interest and attorney's fees pursuant to the agreement between the parties.

5.  The Defendant is not in the military and so forth

6. The Plaintiff does not demand a jury trial.

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   So thought I would post an update, we had a telephone setting hearing on March 3rd and the Judge ordered them to have their disclosure to us by April 21st.  They did not comply.  Trial date is set for May 5th.

 

  They called me a couple of weeks ago asking to settle.  I told them no, I had made it clear on the phone hearing that I knew nothing about this bill and needed some info about it.  They have provided absolutely nothing so far.  She became agitated and said I was wasting everyone's time and money with this, that it takes time to get the info I requested and it would be better for everyone if I just settled.  I said no and that was that.  The 21st came and went and no disclosure has been produced. 

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Yay goody for you! Well since the judge ordered their disclosures to you by the 21 st, and they are now 7 days late, you might consider an msj. Make sure you include the fact that they have not sent any disclosure ( rule 26a) and make sure you put in your motion when it was due pie the judge. Also site the part in the rules that they cannot supplement. ( you will need to look up rule 26a, and read down from there)

Did they send you anything in the coarse of this suit? You will want to include in that brief opposition to anything they sent. Post what if anything they have sent you.

Or depending what was said in your hearing, you may be able to file a motion to dismiss based on the same. If you do the msj, you can get it with prejudice meaning they can't get their crap together and refill, or you can ask for it with prejudice, and the judge may do so as a sanction for them not following a court order.

Or since I just went back and re read your post you could wait for May 5 th and ask the judge for a definitive ruling based on above, or if they dismiss prior to trial, ask the judge for it to be with prejudice since they did not send you disclosure.

Now, if you get their disclosure any time before trial, you need to object to it because it is untimely. Again read rule 26 a and on down where it talks about what can happen if they fail to send timely disclosure. If they have sent you anything up to now, have some objections prepared, although you may not need them. Post here what they have sent so we can help with those.

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Lol and she really thought you would settle? That's one company that strictly relies on default judgements.

You should have told her that she needed to have her proof BEFORE they filed a suit against you, what they did was fraud, no evidence that you even owe anyone.

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Well. on Friday I received from the court a notice that they filed a motion which was granted, to enter documents as testimony at trial on Tuesday, tomorrow.  It is 4 Bills of sale that say really nothing.  There is nothing identifying us or our account or amounts owed or anything.  It looks like they are bills of sale indicating a bundle of bills transferred from one company to another.

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you need to object to them.  You will have to do it in court, as it is to late to file a MIL or objection.  Here is a little colo. law in this MIL the bill of sale was cut out. 

 

A proof of assignment is not to be taken lightly:  Plaintiff submitted a “Declaration of Account Transfer which states the information outlined in the bill of sale was transferred from Sherman Originator III LLC to Sherman Originator LLC, who again transferred to LVNV FUNDING LLC.  There is only one bill of sale for alleged pool of accounts, there is no bill of sales directing said accounts to Sherman Originator LLC, and no bill of sale directing said accounts to LVNV FUNDING LLC.  In addition Declaration is not notarized, nor does it even have a date upon which the declaration was made.  Declaration could have been made the day the Plaintiff filed it with the court. (C.R.E. 902 (8))

                Without testimony or an Authenticated Affidavit in Lieu from the purported assignors and assignees, any purported assignment documents cannot be authenticated and lack foundation. A Designated Agent that is UNNAMED from Plaintiff has no competence to testify regarding the business practices of CHASE U.S.A. N.A. or the intermediate assignors and assignees.

                C.R.C.P 43- Where a witness has no personal knowledge of a fact, he should not be allowed to give testimony concerning that fact because there would then be reliance on the out-of-court declaration of another and the normal safeguards of oath, confrontation, and cross-examination

                                                                               Page 8

would be precluded. Simonton v. Continental Cas. Co., 32 Colo. App. 138, 507 P.2d 1132 (1973).

                Finally, any purported assignment documents offered by Plaintiff are clearly hearsay. All assignment documents offered by Plaintiff are offered for the truth of the matter asserted— that rights in the alleged account, specifically, were transferred to Plaintiff. Any purported assignment documents would therefore be hearsay by definition and excluded. (C.R.E 803, 807, 901) “Hearsay statements are presumptively unreliable since the declarant is not present to explain the statement in context nor subjected to cross examination.” Blecha v. People, 962 P.2d 931 (Colo. 1998)

                For the foregoing reasons, Plaintiff will not be able to present evidence to prove a valid assignment chain. Without testimony of a competent custodian of records from each intermediate assignor/assignee, as required by C.R.E 803 and 901, to bring the documents within the business records exception of the hearsay rule, the purported "Bill of Sale" and Attached document named “Exhibit A, as well as the document “Declaration of Account Transfer” that Plaintiff has produced in disclosure are inadmissible. Thus, Plaintiff cannot meet the burden of showing clear and positive evidence of assignment of the alleged account.

                The proffered document “bill of Sale clearly states on its face that documents are stored and/or transmitted in an electronic manner. Only a witness from CHASE U.S.A. N.A. can attest as to the format that these records were produced and kept. The Plaintiff had not provided any evidence or witness to testify as to how CHASE U.S.A. N.A. maintained these electronic records. Thus the Defendant moves that all documents deemed to be of an electronic nature are inadmissible.

 

 

 

Here is a link to the entire MIL, read it, and if other things apply to your situation, then learn write down any case law supporting your position that you are opposing.

 

http://www.creditinfocenter.com/community/index.php?app=core&module=attach&section=attach&attach_id=1065

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Thank you.  I really appreciate it.  I have not been able to put the time into this as I would have as my father was ill and passed away last week and that was far more important to me than this.

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