Jump to content

Sued by Midland in OK by Love, Beal & Nixon


Recommended Posts

This is what's good about most poster's here....they give you another set or two of eyes and viewpoints....your not alone.

 

@saytar
 

They're not getting him to waive any right because a summons and complaint is not an initial communication that triggers the right to request validation.   The FDCPA plainly says that.  I've already included case law that shows that the Supreme Court recognizes that the FDCPA was amended to exclude legal pleadings from the definition of "initial communication". There's no right for him to waive.  Here's something from the 11th Circuit:

 

 

Caceres v. McCalla Raymer, LLC - Court of Appeals, 11th Circuit 2014

In turn, the exception to the definition of "initial communication" clearly exempts "[a] communication in the form of a formal pleading.

One can request validation at any time, but the FDCPA is specific on when a debt collector is required to respond to such a request.  A CA only has to respond if the request is sent within 30 days of the initial communication and if the CA wants to continue to collect.

 

BV80, reason I recommended that is that CACH in their "offerings" has pushed really hard at the fact that "defendant never disputed claims withing time, therefore....blah blah, their attempt to add to their "account stated" .....they were looking for more leverage to make the remainder of their assertions appear legitimate. In otherwords make a persuasive argument on the court.......But unlike OP I HAD DV'd with them over a year ago..........and I got the letters proving it.....One of my arguments against their MSJ is that they basically lied and tried to make it appear that I had failed to dispute the amount and accounting...one of the elements they need to win.

I know it has really no real legal leg, but it is one way I kicked at that argument in their assertions.Their may be thinking of using that as more leverage in their MSJ. That's all, no not a critical element of his defense, but a cheap and easy way to head off further claims.

 

I don't know how hard LB&N will push, they usually fold pretty quick here with any real resistance, or have in the past, but when CACH is pushing so hard over less than $800 bucks....you have to wonder if they are all getting desperate....and desperate JDB's will try about anything. Now if he's done it already back further in the Past then IF he kept a copy of the CMRRR, he's already covered that base....IF

I may just be cautious........for some reason CACH is pushing overly hard, over such a small amount.

 

And LB&N filing on a time barred debt......speaks desperation. If OP pushes on the SOL and they fold shop and go home Kool, true to form....if they don't OP needs to be working a strategy that if needed will slid into litigation if needed.

 

Your input is always appreciated........a Yang to our YIng. LOL

Link to comment
Share on other sites

@saytar

 

You've raised good points about disputing and requesting validation.  Unfortunately, it's just too late once you've been sued.   At that point, your dispute is when you deny the allegations.

 

Hopefully, you know something about arbitration because the poster appears to be interested in the process. 

Link to comment
Share on other sites

@saytar

 

You've raised good points about disputing and requesting validation.  Unfortunately, it's just too late once you've been sued.   At that point, your dispute is when you deny the allegations.

 

Hopefully, you know something about arbitration because the poster appears to be interested in the process. 

 

That and/or information if I have to respond to the Requests, etc if I'm going to file a MTD (with or without arb), information on how to (and if it is valid, in regards to restarting the SOL) I mention §12-95 2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgmentand the  and if/when I should (then) send them my own Requests

Link to comment
Share on other sites

@saytar

 

You've raised good points about disputing and requesting validation.  Unfortunately, it's just too late once you've been sued.   At that point, your dispute is when you deny the allegations.

 

Hopefully, you know something about arbitration because the poster appears to be interested in the process. 

 

Only what I read on JAMS website.......I do know that they may or may not go for extended discovery, they will hold to tighter timelines and any decisions is final so to say.....if OPs SOL is intact their shouldn't be an issue with winning either at court or at arb..........any award would any case have to be filed with the court here anyway.........

 

It appears to be much the same as court........you still have to have case law an make the same arguments.....its seems to be the major difference is that it is not appealable as is regular court.

I told him it is can be a risky method...........

 

But it might at the very least put enough leverage on LB&N to either go away or settle if the SOL defense folds somehow.........

Link to comment
Share on other sites

That and/or information if I have to respond to the Requests, etc if I'm going to file a MTD (with or without arb), information on how to (and if it is valid, in regards to restarting the SOL) I mention §12-95 2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgmentand the  and if/when I should (then) send them my own Requests

 

Ok..............if it has been over 3 yrs since you have made ANY payments on this account prior to their filing......then the SOL is solid.........IF not be prepared to go the distance......

 

Also the amount of money involved will have a bearing on ARB.........if we're talking say under $1500 ARB's cost will eat their lunch and they most likely will NOT go to arb................IF the amount is extremely large, then litigation in court would be probably be more appropriate as they would follow you into ARB.no matter what for extremely large amounts. A MSJ decision in court is appealable,  an award in ARB is generally not appealable.

 

Remember they are trying to make money...........JAMS is the most expensive Arbitration.....OK has a new arbitration setup, but I have heard nothing about how much it cost or how biased it might or might not be against defendants.

 

That's your real decision..........the reason we bat it around so hard,  is that IF you go to arb it usually must be asked for BEFORE significant litigation happens in District Court,.............. if you answer discovery, send discovery, they file MSJ you respond to MSJ, and on and on....then decide suddenly ask for arb, the court may or my not compel it.............and you litigate in court.But we can't make that final decision......for you. It is an option.....

 

First thing is answer petition, answer general denial on their discovery like Coffee indicated, if your comfortable with SOL being over well over 3 yrs and there is no contract (on Citi I doubt it they have one) then amend your answer to include the Time Barred Debt, file your motion to dismiss with the SOL argument (and in my opinion any other arguments on any of their documents if they have given you any).....that gets the urgent covered At this point you may still be able to compel arb....much more (such as getting discovery wound up with yours) and it will get iffy.

 

Then read up on ARB some and SJ in Okla.. The amount of legal savy you will need to employ, will not be significantly different.in either case.......

Just in which area do YOU feel you will get the most leverage against them. The idea is to make them go away...............and go away empty handed.

 

Then ......gulp......decide.

 

Only reason I filed it was the amount was so small that with their fees +250 my fee+ around 500 for theirs +205 to file court complaint +65 to file MSJ...........it really isn't worth it to them....and My SOL has 6 more months to run..........So my arguments got to be significant..

I am preparing for full blown litigation in court............if arb makes them give up and go away, great.................But I am preparing for the hard fight.

 

Some Light Reading JAMS

Edited by saytar
Link to comment
Share on other sites

Ok..............if it has been over 3 yrs since you have made ANY payments on this account prior to their filing......then the SOL is solid.........IF not be prepared to go the distance......

 

Also the amount of money involved will have a bearing on ARB.........if we're talking say under $1500 ARB's cost will eat their lunch and they most likely will NOT go to arb................IF the amount is extremely large, then litigation in court would be probably be more appropriate as they would follow you into ARB.no matter what for extremely large amounts. A MSJ decision in court is appealable,  an award in ARB is generally not appealable.

 

Remember they are trying to make money...........JAMS is the most expensive Arbitration.....OK has a new arbitration setup, but I have heard nothing about how much it cost or how biased it might or might not be against defendants.

 

That's your real decision..........the reason we bat it around so hard,  is that IF you go to arb it usually must be asked for BEFORE significant litigation happens in District Court,.............. if you answer discovery, send discovery, they file MSJ you respond to MSJ, and on and on....then decide suddenly ask for arb, the court may or my not compel it.............and you litigate in court.But we can't make that final decision......for you. It is an option.....

 

First thing is answer petition, answer general denial on their discovery like Coffee indicated, if your comfortable with SOL being over well over 3 yrs and there is no contract (on Citi I doubt it they have one) then amend your answer to include the Time Barred Debt, file your motion to dismiss with the SOL argument (and in my opinion any other arguments on any of their documents if they have given you any).....that gets the urgent covered At this point you may still be able to compel arb....much more (such as getting discovery wound up with yours) and it will get iffy.

 

Then read up on ARB some and SJ in Okla.. The amount of legal savy you will need to employ, will not be significantly different.in either case.......

Just in which area do YOU feel you will get the most leverage against them. The idea is to make them go away...............and go away empty handed.

 

Then ......gulp......decide.

 

Only reason I filed it was the amount was so small that with their fees +250 my fee+ around 500 for theirs +205 to file court complaint +65 to file MSJ...........it really isn't worth it to them....and My SOL has 6 more months to run..........So my arguments got to be significant..

I am preparing for full blown litigation in court............if arb makes them give up and go away, great.................But I am preparing for the hard fight.

 

Some Light Reading JAMS

 

The amount is $2018

 

I'm sure I signed a contract on the original debt, Citibank, and that it has a 5 year SOL. They placed me in collections more than 5 years ago (9-27-2009).

 

I know I made a payment more than 3 years ago (03-01-2010) on it, with another debt collections agency (LTD Financial), and I know I did not sign any contract with LTD Financial (or anyone since). During their process (with LTD Financial) of accepting payment, etc, there may have been some, "We need to transfer you to a verbal xxxxxxx to verify xxxxxxx..." or something to that extent, however that would have been more than 3 years ago.

 

In my answer to the Petition I responded with 

 

 

 

3. Some or all of the claims asserted by the Plaintiff are barred by the statute of limitations, laches, estoppel, unjust enrichment, unconscionable and/or unclean hands.

 

so I guess I don't need to amend my answer(s) and I need to file MTD, next, and hold off on my Request for Admissions, etc.

 

 

 

Do I respond to their Requests for Admissions, etc, before, during, or after I file the MTD? (The Requests for Admissions state if I do not respond to it, within 30 days, I accept whatever they asserted and do not wish to do so. I am unaware if filing the MTD stops the clock on their Requests for Admissions; I can't find anything on the two related to each other.)

 

Is there a template I can look at that will help me file the MTD, with the specifics (and mentioning) of the 3 year SOL?

 

If I need to file for arb, should it be done with the MTD? I saw @Coffee_before_tea mention, "Motion to Dismiss with prejudice (based on SOL), or in the alternative, a Motion to dismiss proceedings and compel contractual arbitration." If so, is there a template or format to doing so? (I'm afraid of just smashing a bunch of things together, that should have been separated, and that it may not be accepted and/or will look like I have no idea what I should be doing.)

Link to comment
Share on other sites

@pureguava

 

Search your records (and the web) for any Citi agreements from 2007-2009.  I believe all of these years have Arbitration available.  Read those sections carefully. 

 

Depending on the Arb agreement, there should be 3 layers available.  Initial arbitration, Appeal of arbitration (via the arbitrator 3-judge panel), and a final judicial (court) review if you lose the Initial arbitration & the appeal.  This would be very costly for them. 

 

If you decide to file a motion to dismiss, you can combine all your requests into a single motion.  Request a stay on current proceedings for a ruling on your motion to dismiss based on SOL, and in the alternative a motion to dismiss and to compel contractual arbitration pursuant to the Citi agreement that applies to your account.  Your reasoning here is if the account is time barred per the SOL, then the case should be dismissed.  However, if they find that somehow the 5 year SOL applies, then you elect arbitration and you are requesting the court to dismiss the current lawsuit (by language of the agreement, both parties waive their right to litigation), and compel plaintiff into Arb.

 

You'll want to consult an attorney in OK to verify that filing a MTD/ARB will toll the time limits on the discovery process.  I would be nervous participating in discovery/rogs, as you may waive your rights to arb.  As always do what is best for you and your situation!

Link to comment
Share on other sites

The amount is $2018

 

I'm sure I signed a contract on the original debt, Citibank, and that it has a 5 year SOL. They placed me in collections more than 5 years ago (9-27-2009).

 

OK, most banks destroy the original contracts after 3 or 4 yrs and they very rarely if ever provide them to the JDB if they even have them.....so I doubt they can produce that contract....without that contract their only options are "account stated" which they try to establish with a pile of monthly statement and an affidavit from some keeper of records, usually one of their employees and without the contract to Prove 5 yr SOL, they will most likely have to go with the 3 yr OK statute as they can't prove the 5yr. If this "affidavit" is argued adequately it usually can be shown to be invalid. Now a thing in your favor is the fact that if LTD is a JDB or sold the account to Midland. That means that in effect their have been 2 prior "owners". Midland must show the chain of title or ownership from Citibank, to assignment for collections or sale to LTD, from LTD to Midland.......If they cannot bluff the court or prove any one of those links....Look up Successor in Interest, then they cannot prove that "Ownership"....no ownership, no standing.....no claim....Standing is the all important thing here, the SOL yes, but standing is All.....no standing no right to sue, no standing it doesn't matter what the SOL is they have no legal right to sue or collect......This just got interesting, it may be better to litigate this one.....

 

It will depend on what documents they are going to use to "hang their hats on".......What they will try to prove is that they own it, and will try about any argument and fluffed up documents and arguments to make the court believe that.....If they haven't given these documents to you already, then unless they produce them (most likely when they file the MSJ, they will have to produce them, then flush them with Discovery,  as to any remaining documents, or do it fairly soon and those they don't produce and then show up at court with them you object and get them stuck for thrown out) they cannot just claim ownership or standing, In Ok Read Chapter 13 of Rules for the District courts of Okla there in Title 12 , towards the bottom. The burden of proof is on them, all you have to show is that they can't meet that burden.....That's why you must read and learn to find out what they HAVE to Have, then you know what to attack, OK rules of Evidence 32?? something on Heresay, learn what authenticated Business Records are (they don't have any, you have to show that they don't qualify), learn how to argue this (with citations, statutes, etc) that the affidavits, Bills of Sale, the affiant is not qualified, does not know the Original Creditors file, can't testify to their authenticity, don't specify the documents submitted in their affidavits, don't specify the records they examined and are certifying, etc....

 

Your main issue is to show the court that they cannot prove ownership first and foremost.......That's done by destroying the validity of their documentation and chain of ownership.

 

I know I made a payment more than 3 years ago (03-01-2010) on it, with another debt collections agency (LTD Financial), and I know I did not sign any contract with LTD Financial (or anyone since). During their process (with LTD Financial) of accepting payment, etc, there may have been some, "We need to transfer you to a verbal xxxxxxx to verify xxxxxxx..." or something to that extent, however that would have been more than 3 years ago.

 

Then they don't have a signed contracted....now that goes to the how they frame their MSJ......and we don't know that yet. Really need to post their summons and any documents they might have sent...just make sure to block out name, address, account #, SSAN etc. Nobody here needs that......as to the xxxxx to verify xxxxx??????????????????????? somebody to verify SSAN or Date of Birth???

 

 

In my answer to the Petition I responded with 

 

 

so I guess I don't need to amend my answer(s) and I need to file MTD, next, and hold off on my Request for Admissions, etc.

 

Not sure you should move so quick to dismiss, just yet. The discovery to them might be a better option......it is unclear yet as to what documents they have and how they plan to file the MSJ....and they will file one....trust me. They have to get the court to make you collect.

 

 

 

Do I respond to their Requests for Admissions, etc, before, during, or after I file the MTD? (The Requests for Admissions state if I do not respond to it, within 30 days, I accept whatever they asserted and do not wish to do so. I am unaware if filing the MTD stops the clock on their Requests for Admissions; I can't find anything on the two related to each other.)

 

No you must respond, but you don't have to really give them any useable information.....LOL In otherwords DON'T make their case for them, thats why the interrogs and admissions...they don't know and want you to tell them..don't. Be straightforward but unsure, can't recall, after diligent search can't find......DENY Your name and current address yes nothing else. not even prior ones...can't recall.

 

Is there a template I can look at that will help me file the MTD, with the specifics (and mentioning) of the 3 year SOL? Motions to Dismiss, Lots of examples, then just insert that the debt is out of SOL cite the statute, find a case citation that applys to this ...ie Use Google.

 

They will have a hissy fit over a Motion to Dismiss, I'd file it alright, but realize you will probably have to defend it.....CACH they filed 12 pages arguing mine LOL. I'd send out your discovery while I was working on answering theirs, dig them a little. DO THIS ONLY IF YOU HAVE DECIDED TO LITIGATE IN COURT.They will only send back what they have to......probably most of what they have. If you miss something you can send for More discovery your only limited to 35 interrogatories, the admissions and document request, could technically go on indefinitely, and interrogs..with leave of the court only. It's in the State statutes Title 12 under discovery.

Nothing stops the clock, except a stay signed by the Judge, get a calender and use that link I gave you to calculate times.....

 

If I need to file for arb, should it be done with the MTD? I saw @Coffee_before_tea mention, "Motion to Dismiss with prejudice (based on SOL), or in the alternative, a Motion to dismiss proceedings and compel contractual arbitration." If so, is there a template or format to doing so? (I'm afraid of just smashing a bunch of things together, that should have been separated, and that it may not be accepted and/or will look like I have no idea what I should be doing.)

 

There is no need to file for Arbitration if you think you can handle the court, One thing in arbitration you will be limited in discovery times and in discovery, will still have to conform to Civil procedures Federal if not State, so In your case I would look at ......For 2K will the cost of arbitration make them turn tail an run......or will they spend the exhorbant sums and follow me in.......Check on JAMS site they have an Excel spreadsheet showing the companies that have been in arb over the last year or  so and how many times....if you don't see, but 2 or 3 times for LB&N over a year or two worth of stats....it might be a really good bet. If you see them in there frequently look at the amounts in dispute.....it also shows if they completed arb or dropped it midway, most don't finish unless the sums are 5 or 6 digit......Balance your odds thats the only way to check the odds.

 

In the meantime answer their discovery, without giving them something to really hang their hat on...that's first, you will have to do that arb or ard/dismiss...one step at a time.......After you send it, expect the MSJ a week or two later. Thats when you really have to decide which road to go.......just replying to their already demanded discovery won't stop arb motion......

Link to comment
Share on other sites

@pureguava

 

Search your records (and the web) for any Citi agreements from 2007-2009.  I believe all of these years have Arbitration available.  Read those sections carefully. 

 

Depending on the Arb agreement, there should be 3 layers available.  Initial arbitration, Appeal of arbitration (via the arbitrator 3-judge panel), and a final judicial (court) review if you lose the Initial arbitration & the appeal.  This would be very costly for them. 

 

If you decide to file a motion to dismiss, you can combine all your requests into a single motion.  Request a stay on current proceedings for a ruling on your motion to dismiss based on SOL, and in the alternative a motion to dismiss and to compel contractual arbitration pursuant to the Citi agreement that applies to your account.  Your reasoning here is if the account is time barred per the SOL, then the case should be dismissed.  However, if they find that somehow the 5 year SOL applies, then you elect arbitration and you are requesting the court to dismiss the current lawsuit (by language of the agreement, both parties waive their right to litigation), and compel plaintiff into Arb.

 

You'll want to consult an attorney in OK to verify that filing a MTD/ARB will toll the time limits on the discovery process.  I would be nervous participating in discovery/rogs, as you may waive your rights to arb.  As always do what is best for you and your situation!

 

LOL, sorry Coffee, you posted while I wrote mine.....

 

Like I told him at last lines .....answer first their discovery......then what you and I did in a different manner check out the arb in contract, check out JAMS info. Don't initiate any further litigation and that litigation will depend on whether he decides arb or court........Don't let the Cart slide around in front of the Horse's........answering gives him 30 days if he waits to send it back....less if he sends it right out, to decide and time for their MSJ to show up or not........as soon as he turns in the Discovery I give it 2 weeks tops and the MSJ will be on the doorstep, hopefully not before, just for times sake.

 

Only tolling that will happen is if a Motion to Compel Arbitration is GRANTED by the judge.

Edited by saytar
Link to comment
Share on other sites

But from the fact that Midland may be the 3rd owner, the chain of ownership is tenuous. And I doubt Midland has the original contract.....Got to be lots of missing pieces and shady pieces of documentation.....so for 2K either ARB or Court..........but the OP needs to be prepared mentally and learning wise in either case.......

 

Not a softball game in either choice....

 

One observation...............this is a crap shoot.........If OP rolls dice for arb and Midland folds.....easy peasy..........But.....if they don't for some reason, it will be just as involved and as much time and effort as the Court.....

 

Clint Eastwood's Dirty Harry had it right........You gotta ask yourself..did he fire 6 times or only 5...........

Edited by saytar
Link to comment
Share on other sites

Oklahoma Statutes Citationized
  Title 12. Civil Procedure
    Chapter 3 - Limitations of Actions
         Section 95 - Limitation of Other Actions
Cite as: O.S. §, __ __

 

A. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

1. Within five (5) years: An action upon any contract, agreement, or promise in writing;

2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgment;

[\QUOTE]

 

I had the hardest time wrapping my head around this a year or so ago, so I did some study on contract law.  Contracts that are expressed or implied, and not in writing do no include credit card accounts.  I thought, why, they have no "signed contract" so it has to be one expressed or implied.  But as I studied, I finally realized how the courts view contracts risen out of credit card debt. 

 

Credit card debt are written contracts.  When you apply for a card, even if you didn't actually sign for anything they send you this paper that has all this fine print no one ever reads  They send it to you again when you get your card.  we don't read that either.  USE OF THE CARD IS YOUR SIGNATURE.  When you use the card, you agree to the terms of the written contract.  They don't need a paper that has an x__________________ place for you to sign.  Every time you use the card, and every time you make a payment, you are signing the contract.  When you quit paying, the sol starts ticking.

 

So what does any jdb or OC need to prove your contract?  They need to show you made a charge, or made a payment.  That is your signature.  Statements  you get has a shorter version of the contract that they send you every month.  the perodic update of terms they send out and say if you don't agree, send in your card--that is a new contract that you sign when you make a charge, or make a payment without first canceling the card.  So the SOL is 5 years.  unless of coarse they cannot show you used the card, or made a payment.

Link to comment
Share on other sites

EDIT: Please see the next post.

 

I'm going to file my Responses tomorrow. I guess I'm going to hold off on MTD/Arb. Should I send my Requests, at the same time?

 

Here is what I have, to date. Looks ok?

 

RESPONSE TO REQUEST FOR ADMISSIONS AND INTERROGATORIES

 

REQUEST FOR ADMISSION NO. 1:  Admit that the Defendant is properly identified in the style of this case.  If you deny this, then an appropriate response to Interrogatory No. 4 below will be required.

ADMIT.  Defendant is _______ as identified in the complaint.

 

REQUEST FOR ADMISSION NO. 2:  Admit that you owe the obligation which is alleged in Plaintiff's Petition.  If you deny this, then an appropriate response to Interrogatory No. 4 below will be required.
DENIED.  Plaintiff has provided no evidence by which the defense can reasonably be expected to answer truthfully.

 

REQUEST FOR ADMISSION NO. 3:  Admit that Plaintiff performed its responsibilities as to the obligation referenced in Plaintiff's petition.
DENIED. Demand calls for a legal opinion. Defendant is not qualified to render legal opinions.

 

REQUEST FOR ADMISSION NO. 4:   Admit that you are in default on the obligation, that same is due, past due, owing and remains unpaid and that you owe Plaintiff the amounts alleged in its Petition.  If you deny this, then an appropriate response to Interrogatory No. 4 below will be required.

DENIED. Defendant has never entered into any contract with the Plaintiff and no evidence of any contract or breach has been provided by which any other answer can be submitted. Furthermore defendant objects to this demand because it is multipart, vague and ambiguous and therefore confusing. Defendant lacks sufficient information to either admit or deny.

INTERROGATORY NO. 1:  State your full and complete name, your full and complete residence, address, occupation and job title, and each and every residence address maintained by the Defendant since the date of the contract sued upon in this case, indicating the specific date the Defendant resided at each address:
OBJECTION.  Plaintiff has caused the defendant to be served with a summons and therefore already has some of the requested information in their files.  Employment, occupation, current and prior residence information are not material to the complaint as filed or destined to reveal such information. Without waiving objection Defendant admits they are _______.

 

INTERROGATORY NO. 2:  Did you obtain credit on the account referenced in Plaintiff's petition?
Defendant lacks sufficient information to either admit or deny this question. Plaintiff has provided no documentation by which Defendant could reasonably be expected to answer.  Defendant will make a diligent search of all available books and records and in the event that such information as will enable defendant to respond properly the defendant will do so.

 

INTERROGATORY NO. 3:  Is the present balance due on the account, which is the subject of this action, the sum of $2,017.67? 

Defendant is not in possession of sufficient information to enable defendant to respond to this question. Therefore Defendant neither admits nor denies.

If not, please state the following:
A.  The date of each payment you contend was made.  
B.  The amount of each payment you contend was made. 
C.  The address you contend you mailed each payment to. 
D.  Defendant's calculations as to how any other amount was arrived at if it is other than the amount stated above as to the balance.  

INTERROGATORY NO. 4:  If you deny any of the above Requests for Admissions, state specifically and in detail, and be reasonable in doing so, the actual truth of the matter.

OBJECTION. Interrogatory 4 is not a specific question and is highly accusatory in nature suggesting that in the event the defendant denied anything, false and misleading information must have been presented. Therefore the interrogatory is nonsensical in the present context. Without waiving any portion of defendant's objection, defendant furthermore denies that any false or misleading information was provided in response to any admission demand.

INTERROGATORY NO. 5:  In regard to all communications you have had regarding the account referenced in Plaintiff's petition, state the following:

A.  The date of all letters, phone calls, memos, notes, notices, etc. that the Defendant received.
B.  The nature and subject matter of any and all such communications.
C.  Defendant's response or reply to the communication, if any.

 

Defendant objects because question is multipart, vague, confusing and overly burdensome. Any communications regarding this account are in the possession of the Plaintiff.

 

 

INTERROGATORY NO. 6:  State each and every defense not specifically pled thus far which the Defendant intends to raise at the trial of this case and list all proof, evidence, and what Defendant contentions are in regard to each such defense.
Defendant has not completed his discovery process at this time and therefore is unable to properly respond at this time. Defendant reserves the right to raise additional defenses and produce additional evidence to support such defenses, at any time.

 

 

INTERROGATORY NO. 7:  Please state the name, address and telephone number of each person who has any knowledge of the facts pertaining to the subject matter of this litigation and, with respect to each person, please state:

A.  The subject matter of which such person has knowledge.
B.  The substance of the facts and opinions which of such opinion is expected to testify
C.  A summary of the grounds for such opinion.

 

Defendant has not completed his discovery process at this time and therefore is unable to properly respond at this time.

 

 

 

RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS

 

1.   All canceled checks, money orders, cashier's checks, receipts, or other records of
payment to support your answers to Interrogatories.

 

Defendant does not keep cancelled checks, money orders, cashier's checks, receipts, or other records of payment, such as described, and is therefore unable to produce any such records. Any communications regarding this account should be in possession of the Plaintiff.

 

2.   All written or tangible evidence of any communication between the Plaintiff or its
transferor to support your answers to Interrogatories.

 

Defendant does not keep written or tangible evidence of any communication between the Plaintiff or its transferor, such as described, and is therefore unable to produce any such records, with the exception of:

 

- Plaintiffs Summons/Petition for Indebtedness

- Defendants Answer to Petition for Indebtedness

- Plaintiffs Request for Admissions and Interrogatories and Requests for Production of Documents

- Plaintiffs letter to "RESOLVE YOUR ACCOUNT" (dated 02-09-2015)

 

The Plaintiff should be in possession of the above communications. Any other communications regarding this account should be in possession of the Plaintiff.

 

3.   Produce the contract which the Defendant contends was executed, if the Defendant
contends a different contract was executed than is the subject of the action upon which Plaintiff has brought this suit.

 

Defendant is unable to respond to this request because it is vague and open to interpretation, and alleged contract should be in possession of Plaintiff.

 

4.   Produce any and all documentary or tangible evidence which Defendant either
expects to use or may use as evidence in the trial of this case.

 

Defendant has not completed his discovery process at this time and therefore is unable to properly respond at this time. Defendant reserves the right to raise additional defenses and produce additional evidence to support such defenses, at any time.

 

5.   Produce all documents Defendant has to support any additional defenses
mentioned in your answers to Interrogatories.

 

Defendant has not completed his discovery process at this time and therefore is unable to properly respond at this time. Defendant reserves the right to raise additional defenses and produce additional evidence to support such defenses, at any time.

 

Link to comment
Share on other sites

Er, wait..

 

An attorney just called be back. He said if I respond to the Requests, I would probably be waiving arb. He said I can do one or the other, arb or district court; my next response will either be taking me down arb or district court. He would charge a flat $800 to go to district court, but would not do arb (as he does not like it).

 

He said I could bring up all what would be my Requests to them, in arb.

 

The direction I'm trying to go is the one in which they (most likely) will stop pursuing it.

 

Does anybody have any experience with the likelihood of what LBN does when a motion for arb is filed?

Link to comment
Share on other sites

Er, wait..

 

An attorney just called be back. He said if I respond to the Requests, I would probably be waiving arb. He said I can do one or the other, arb or district court; my next response will either be taking me down arb or district court. He would charge a flat $800 to go to district court, but would not do arb (as he does not like it).

 

He said I could bring up all what would be my Requests to them, in arb.

 

The direction I'm trying to go is the one in which they (most likely) will stop pursuing it.

 

Does anybody have any experience with the likelihood of what LBN does when a motion for arb is filed?

 

@pureguava

Did you happen to ask the attorney if you file a MTD/ARB if it tolls the discovery time period?  If not, a quick call back would be suggested.  Even better if you can get the specific RCP number.

 

Ultimately it will be up to the JDB if they want to pursue Arb, as LBN is just their attorney.  Typically it will cost a JDB around $1500-2500 just for the filing costs, that does not include hearings & travel costs for the arbitrator etc.. This is out-of-pocket money, and it is money they cannot get back, as most Arb contracts have "each party bears its own costs" (verify that in your agreement).  So, if your debt is $2100, then the JDB will spend upwards of $2500-10,000+ to follow you into Arb.  If you are seriously considering Arb, then go here, as many of these people do arb all the time, and have a good grasp on what needs to be done.

 

One other thing I would suggest researching is if OK has a tolling statute regarding the SOL.  If your statute says something like:  Time begins on the cause of action (default), or Time begins when cause of action accrues (default).  See if you can find where the time resets by payment (search statutes & case law).  The point is to find the specific language/precedent stating in fact that the last payment starts the clock, or tolls the clock.

 

It is arguable that your default with citi is the cause of action, and that is when the time started ticking for the SOL.  A random payment to a 3rd party in which the JDB hasn't/can't provide authenticated evidence for, would have to be proven.

Link to comment
Share on other sites

@Coffee_before_tea

 

One other thing I would suggest researching is if OK has a tolling statute regarding the SOL.  If your statute says something like:  Time begins on the cause of action (default), or Time begins when cause of action accrues (default).  See if you can find where the time resets by payment (search statutes & case law).  The point is to find the specific language/precedent stating in fact that the last payment starts the clock, or tolls the clock.

 

 

§12-101.  Extension of limitation - Part payment, acknowledgment or new promise.
In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.

 

 

It is arguable that your default with citi is the cause of action, and that is when the time started ticking for the SOL.  A random payment to a 3rd party in which the JDB hasn't/can't provide authenticated evidence for, would have to be proven.

 

 

I doubt the JDB would compel bank records to prove a random payment to a 3rd party, but if he made payments to Citi after default, depending on the aggressiveness of the attorney, it's a possibility.  Again, I don't know that the JDB would motion to compel his bank records, but it should be mentioned.

  • Like 1
Link to comment
Share on other sites

Talked to an arb attorney for a bit.
 
He said if they agree to arb, it stops the clock (for Responses), but if they don't it still ticks. They won't get it until Friday and I doubt they'd immediately respond... so it looks like I will have to send the Responses, either way.
 
I talked to JAMS and they charge $250. I fill out this and send to both parties. They also suggested I get an attorney.
 
 
I asked the arb attorney if he thought demanding arb would pursue LBN to dismiss the case. He said he strongly doubts it and mentioned retainers and young attorneys. He said an attorney would charge per hour or per day. I should look at $100/hr, starting. Also, an attorney would never back down or be scared form a non-attorney (when I mentioned if my Requests would deter them or help with a lower settlement.)
 
If I lose, they can requests those costs they expended and I will owe them those, on top of the debt.
 
I told him the amount and he suggested it might be more cost effective to try and pay 40% on the debt. Seemed like an honest guy.
 
If I knew that they had all these contracts, agreements and records, it would make a decision a lot easier. I wonder if I can send my answers, send my own Request, see what documents they have/provide and then pick a direction?
 
 
My ideas, so far. Send:
 

Re: Acct # XXXX-XXXX-XXXX-XXXX
To Whom It May Concern,
 
I am sending this letter to you in response to a notice I received from you on (date of letter). Be advised, this is not a refusal to pay, but a notice sent pursuant to the Fair Debt Collection Practices Act, 15 USC 1692g Sec. 809 ( B) that your claim is disputed and validation is requested.
 
This is NOT a request for "verification" or proof of my mailing address, but a request for VALIDATION made pursuant to the above named Title and Section. I respectfully request that your office provide me with competent evidence that I have any legal obligation to pay you.
 
Please provide me with the following:
 

·         What the money you say I owe is for;

·         Explain and show me how you calculated what you say I owe;

·         Provide me with copies of any papers that show I agreed to pay what you say I owe;

·         Provide a verification or copy of any judgment if applicable;

·         Identify the original creditor;

·         Prove the Statute of Limitations has not expired on this account;

               ·         Provide the original or copies of the assignment agreement or assignments agreement, with signatures and/or affidavits, transferring the alleged contract, and specifically the account alleged, in the complaint.

·         Show me that you are licensed to collect in my state; and

·         Provide me with your license numbers and Registered Agent.

 

If your offices are able to provide the proper documentation as requested, I will require at least 30 days to investigate this information and during such time all collection activity must cease and desist.
 
If your offices fail to respond to this validation request within 30 days from the date of your receipt, all references to this account must be deleted and completely removed from my credit file and a copy of such deletion request shall be sent to me immediately.
 
I would also like to request, in writing, that no telephone contact be made by your offices to my home or to my place of employment. If your offices attempt telephone communication with me, including, but not limited to, computer generated calls or correspondence sent to any third parties, it will be considered harassment and I will have no choice but to file suit.
 
All future communications with me MUST be done in writing and sent to the address noted in this letter.
 
This is an attempt to correct your records; any information obtained shall be used for that purpose.
 
If there is an underlying arbitration clause associated with this claim, I hereby exercise it, and waive you litigation rights to this claim, per the underlying arbitration clause.
 
Best Regards,
 
________________________________
Me

 

 
The last line is to show my intentions.
 
#1) I am not required to file an arbitration by doing this.
 
#2 ) I have provided notice of your dispute resolution intentions, if they sue me in court, they have violated the FDCPA...by exercising a legal right that does not exist...ergo arbitration election waives other parties right to litigate.

 

 

Then send Responses and wait.

Link to comment
Share on other sites

@Coffee_before_tea

 

 

§12-101.  Extension of limitation - Part payment, acknowledgment or new promise.

In any case founded on contract, when any part of the principal or interest shall have been paid, or an acknowledgment of an existing liability, debt or claim, or any promise to pay the same shall have been made, an action may be brought in such case within the period prescribed for the same, after such payment, acknowledgment or promise; but such acknowledgment or promise must be in writing, signed by the party to be charged thereby.

 

 

 

I doubt the JDB would compel bank records to prove a random payment to a 3rd party, but if he made payments to Citi after default, depending on the aggressiveness of the attorney, it's a possibility.  Again, I don't know that the JDB would motion to compel his bank records, but it should be mentioned.

 

Is that saying I needed to sign something, in order for the SOL to reset, or that I did by only making a payment (never acknowledged the debt).

 

 

It went:

Citbank -> LTD Financial -> Citibank -> Midland

 

The payment was to LTD Financial.

Link to comment
Share on other sites

@pureguava

Did you happen to ask the attorney if you file a MTD/ARB if it tolls the discovery time period?  If not, a quick call back would be suggested.  Even better if you can get the specific RCP number.

 

Ultimately it will be up to the JDB if they want to pursue Arb, as LBN is just their attorney.  Typically it will cost a JDB around $1500-2500 just for the filing costs, that does not include hearings & travel costs for the arbitrator etc.. This is out-of-pocket money, and it is money they cannot get back, as most Arb contracts have "each party bears its own costs" (verify that in your agreement).  So, if your debt is $2100, then the JDB will spend upwards of $2500-10,000+ to follow you into Arb.  If you are seriously considering Arb, then go here, as many of these people do arb all the time, and have a good grasp on what needs to be done.

 

One other thing I would suggest researching is if OK has a tolling statute regarding the SOL.  If your statute says something like:  Time begins on the cause of action (default), or Time begins when cause of action accrues (default).  See if you can find where the time resets by payment (search statutes & case law).  The point is to find the specific language/precedent stating in fact that the last payment starts the clock, or tolls the clock.

 

It is arguable that your default with citi is the cause of action, and that is when the time started ticking for the SOL.  A random payment to a 3rd party in which the JDB hasn't/can't provide authenticated evidence for, would have to be proven.

 

This sounds like each party bears its own cost... until one tries to get it back.

 

Who pays? Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay, unless you get a fee waiver under the applicable rules of the arbitration firm. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. However, we will advance or reimburse your fees if the arbitration firm or arbitrator determines there is good reason for requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.

 

Filing for arb does not toll the clock (for their discovery.

Link to comment
Share on other sites

Talked to an arb attorney for a bit.

 

He said if they agree to arb, it stops the clock (for Responses), but if they don't it still ticks. They won't get it until Friday and I doubt they'd immediately respond... so it looks like I will have to send the Responses, either way.

 

 

Contact the court clerk and see if you can request an enlargement of time without a motion.  Or, look into a separate motion to enlarge time and/or stay current proceedings.  Ask for 60-90 days, that should give you enough time to file your MTD/ARB.  Rule 12-39 Your cause is that you that you believe the issue is passed the SOL, and you have a contractual right to Arbitration, and you want to retain those rights.

B. ENLARGEMENT. When by this title or by a notice given thereunder by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may at any time in its discretion:1. With or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order; or2. Upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time set forth in this title for taking an appeal from a judgment, decree or appealable order, or for seeking a new trial, a judgment notwithstanding the verdict, or to correct, open, modify, vacate or reconsider a judgment, decree, or appealable order, except as provided in the sections governing such proceedings.
I talked to JAMS and they charge $250. I fill out this and send to both parties. They also suggested I get an attorney.

 

 

I asked the arb attorney if he thought demanding arb would pursue LBN to dismiss the case. He said he strongly doubts it and mentioned retainers and young attorneys. He said an attorney would charge per hour or per day. I should look at $100/hr, starting. Also, an attorney would never back down or be scared form a non-attorney (when I mentioned if my Requests would deter them or help with a lower settlement.)

 

 

I believe $250 is the maximum you pay (double check).  

 

Like I said in my other post, the decision to follow you into Arb would come from the JDB, not LBN.  Moreover, Arb is a out-of-pocket cost/benefit play.  If the JDB wants to spend $10,000+ on a $2,000 debt, and still have no guarantee they will win, or be reimbursed for Arb costs, then it is not cost effective for them to do so (unless they want to make an example of you).  In the end, you still have Bankruptcy as a choice.  So it's not really a matter of being scared of a non-attorney, it has everything to do with money and the probability they will collect in the end.

 

If I lose, they can requests those costs they expended and I will owe them those, on top of the debt.

 

I told him the amount and he suggested it might be more cost effective to try and pay 40% on the debt. Seemed like an honest guy.

 

 

Those costs "May" be awarded, and that is up to the Arbitrator.  Remember, the JDB payed probably paid around $60.00 for your account.

 

If I knew that they had all these contracts, agreements and records, it would make a decision a lot easier. I wonder if I can send my answers, send my own Request, see what documents they have/provide and then pick a direction?

 

 

This can be a risky play, because you've then commenced in significant litigation and most likely waived your right to Arb.

Link to comment
Share on other sites

@ Coffee_before_tea

 

The CC said I'd have to file a motion. (They seemed to believe everything has to be filed.) This is the only thing I can find on it, and it took a while. Says nothing about how-to, nor could I find how-to.

 

Technically, the issue is not passed the SOL (the 3yr seems to be in dispute and every attorney I've talked to says it's 5 yr).

 

On what grounds should I try and request an enlargement of time and what good would that do, if I'm within the 5 yr?

 

What are your thoughts on the DV?

Link to comment
Share on other sites

@ Coffee_before_tea

 

The CC said I'd have to file a motion. (They seemed to believe everything has to be filed.)

 

Technically, the issue is not passed the SOL (the 3yr seems to be in dispute and every attorney I've talked to says it's 5 yr).

 

On what grounds should I try and request an enlargement of time and what good would that do, if I'm within the 5 yr?

Your grounds may be: you and the JDB are bound to contractual arbitration, and there is a question if the court has venue jurisdiction.  Also you wish to retain your rights to contractual arbitration by NOT continuing litigation, as you wish to compel arbitration pursuant to the agreement.  (and any other justifiable grounds).

 

I would believe this motion could be combined as well.  Motion to dismiss and compel contractual arbitration, and in the alternative motion for enlargement of time to answer plaintiffs discovery.

 

Or perhaps two motions:  1)  Motion to enlarge time 2) MTD/ARB.  Either way, you'll want to make sure that the time limit is paused/tolled.  Request that the court make a quick decision on the enlargement

 

If the SOL is not on the table, then the motion for dismissal would be pursuant to 12-5-104.3 (below), as the court does not have jurisdiction, as there is a binding contractual, alternate forum that provides an adequate remedy.

A. If the court, upon motion by a party or on the court's own motion, finds that, in the interest of justice and for the convenience of the parties, an action would be more properly heard in another forum either in this state or outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay, transfer or dismiss the action.B. In determining whether to grant a motion to stay, transfer or dismiss an action pursuant to this section, the court shall consider:1. Whether an alternate forum exists in which the action may be tried;2. Whether the alternate forum provides an adequate remedy;3. Whether maintenance of the action in the court in which the case is filed would work a substantial injustice to the moving party;4. Whether the alternate forum can exercise jurisdiction over all the defendants properly joined in the action of the plaintiff;5. Whether the balance of the private interests of the parties and the public interest of the state predominate in favor of the action being brought in an alternate forum; and6. Whether the stay, transfer or dismissal would prevent unreasonable duplication or proliferation of litigation.
Link to comment
Share on other sites

What are your thoughts on the DV?

 

 

If you received dunning letters before they initiated the lawsuit, then most likely your window has closed to DV.  Find those letters, and see if they have the required 30 day validation language in them.  If you can't find them, then most likely the attorney included the validation notice.  They only have to include the 30 day language in the first dunning letter.  The filing of a lawsuit isn't considered an 'initial communication'.  

Link to comment
Share on other sites

Sorry gone all day and away, but did glance at email with post........................I know one thing about LB&N, they tried following into arb several years ago, and found out they were getting taken to the cleaner's on cost..........................I may have missed it, but I don' t remember anyone filing arb on Midland and having them follow into arb.............Cost LB&N a pile of money 8 or 9 yrs ago..........Unless they bought the arbitration franchise (joke) for 2K they'd be idiots to go there.............., 250 for you (that they will wind up Paying) at least 500 -1500...and that has to be paid in full before JAMS will lift a finger.....they been burned on action and no fees (on their site)................

As to the 250 fee for defendant....on my arb request I specifically ask the court that since the action was brought by the Plaintiff that they be ordered to initiate the arbitration.......Make them put up THEIR 500-1500 dollars first.........

 

But from the basic facts.....Midland==3rd owner, 2x chances are they have little sufficient "legally authenticated" documentation to win, but will need to be argued aggressively.............carry a big bluff yes, win doubtful...wild card is judge. If they get one of "their judges" real facts won't matter.............but the chances if objections are properly raised on all suspect items...a good chance of it getting over turned on appeal.....the Unifund Case I gave way back shows how the appeals court viewed the "proof" that LB&N submitted.

 

I talked with an attorney in Tulsa that does FDCPA litigation...........he said he's never seen a per se win in an Oklahoma Court........People, People THEY DON'T WANT US IN COURT, WE ARE STEALING MONEY FROM THEIR GOLF FUNDS OR MISTRESS'S RENT....There MAYBE a bias........but that does not mean that it can't be won. If argued right, objections proper if more that just a few start getting over turned at appeal the bias will fall away......as judges don't like to have case's thrown back on them, their arrogant.

 

I don't know the OP personal situation, but someone once pointed out to me that if your going to go bankrupt over10,000 going bankrupt for 1,000,000 is no different..............your bankrupt and you don't owe...either 10k or 1 ML. Point is can they collect? Homes with homestead exemption are mostly exempt from judgment liens, cars with little equity, household goods, guns up to 1500 (unless collector items), tools of your trade up to 10,000....garnishment of wages up to 154,50 of net a week are exempt, the most they can get is 25 % of the excess, this can be reduced to 15% with hardship showing expense's. With the average working man in today's economy wages and the expense's of just living......................they not getting much. Say you lose and wind up paying 30 bucks a weeks...with their interest and professional fee's it would take them 15yrs to collect......And every time you change jobs they have to go back (if they can find you) and start the garnishment again........I know in my younger days my step-brothers dad was a lawyer......it sometimes took us  a month or two to even locate people, then he had to hurry down and file the new garnishment papers....one or two  paychecks,,,,,,,,,,,,gues what changed jobs and location again........Work for yourself, (tools exempt remember) and guess what, as you don't draw a wage and income varies and a GOOD bookkeeper and their SOL

 

Say I lose in this case....they get a little dribble of money, but getting that money they can't sue me again......in 5 or 10 yrs I might get a really great job, inhertance, tax refund, whatever be able to pay it off in one lump sum.....................in the meantime they may only get the price of a carton of cigarettes...maybe.

 

OR I dig in, learn some Oklahoma Law, learn about contracts, court proceedings (still learning here..don' t claim expert) and just maybe I beat them all paying nothing or I beat 2 out 3 everytime and get sued six times for a total debt of say 18,000 and wind up only having to pay 6k.....I just put 12k in my pocket, literally............then if I just get tired of "playing with them", I set down and (for most people without two large incomes) fill out BK 7 (or 13 and reduce the 6k ) paperwork, pay 341.00 bucks to file or can get a waiver of the 341.00................And NONE of them get ANYTHING...... or virtually nothing..

 

Just saying...............look for the end game before letting the emotion of the minute lead you to hasty decisions. Honestly evaluate your long term situation.

 

Been thru 3 divorce attorney's, gave away 2 houses, 3 or 4 cars, and only one was close to right and he was the cheapest......the other two were paid over 2k a piece (in the 70's no less) and neither did a darn thing that a 2 yr para legal couldn't do.......They sure weren't worth it.................lawyers are like the government.............they hate competition, So take their advice with more than a grain of salt either way for or against.....

 

Now I'll go back and review the older post.....Just don't want OP jumping without thoroughly evaluating his own situation, the sharks could care less (long term financial prospect's and long term cost) and the sharks advice.....................

 

You do battle your chances are at least 50-50..................give up lose 100%.........settle for 40% = $800.00 on a note they paid (at 3rd owner lower %) maybe 100.00 bucks for and I'm being generous......have seen two older F/F agreements.....Portfolio 2008 one was for 1.7%....CACH 2011 the other for 2.5%...........  .025 x 2000=$ 50.00

Link to comment
Share on other sites

Oklahoma Statutes Citationized

  Title 12. Civil Procedure

    Chapter 3 - Limitations of Actions

         Section 95 - Limitation of Other Actions

Cite as: O.S. §, __ __

 

A. Civil actions other than for the recovery of real property can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:

1. Within five (5) years: An action upon any contract, agreement, or promise in writing;

2. Within three (3) years: An action upon a contract express or implied not in writing; an action upon a liability created by statute other than a forfeiture or penalty; and an action on a foreign judgment;

[\QUOTE]

 

I had the hardest time wrapping my head around this a year or so ago, so I did some study on contract law.  Contracts that are expressed or implied, and not in writing do no include credit card accounts.  I thought, why, they have no "signed contract" so it has to be one expressed or implied.  But as I studied, I finally realized how the courts view contracts risen out of credit card debt. 

 

Credit card debt are written contracts.  When you apply for a card, even if you didn't actually sign for anything they send you this paper that has all this fine print no one ever reads  They send it to you again when you get your card.  we don't read that either.  USE OF THE CARD IS YOUR SIGNATURE.  When you use the card, you agree to the terms of the written contract.  They don't need a paper that has an x__________________ place for you to sign.  Every time you use the card, and every time you make a payment, you are signing the contract.  When you quit paying, the sol starts ticking.

 

So what does any jdb or OC need to prove your contract?  They need to show you made a charge, or made a payment.  That is your signature.  Statements  you get has a shorter version of the contract that they send you every month.  the perodic update of terms they send out and say if you don't agree, send in your card--that is a new contract that you sign when you make a charge, or make a payment without first canceling the card.  So the SOL is 5 years.  unless of coarse they cannot show you used the card, or made a payment.

 

Check this link.............she should know as well as any other OK attorney.

 

What is the Statute of L Imitations?  It is the time frame in which a particular obligation remains "actionable" under the law, thereby permitting a lawsuit to be filed for the breach of an agreement.  The following are 2 terms which  which are generally applicable to credit cards and govern their Statute of Limitations:

 

"Account Stated"-the contract is "implied" because of your use of the card and your agreement to the contractual terms, even if there is not a written contract signed by both parties.  THE STATUE OF LIMITATIONS IS 36 MONTHS FROM THE DATE OF YOUR LAST PAYMENT ON OR USE OF THE CARD.

 

"Written Contract"-the contract is signed by both parties and the terms of the contract are apparent on its face.  THE STATUE OF LIMITATIONS IS 5 YEARS FROM THE DATE OF YOUR LAST PAYMENT ON OR THE USE OF THE CARD. Even IF this WAS the case originally............If they can't produce one, ..... see above

 

Its 3 yrs without a contract.....like I said most Credit Card companies don't retain these more than 3 yrs...they don't have to every billing statement is "technically a new contract" ....an UNSIGNED one. I'd argue that one thru the pits of h**** in court with any attorney..................Even the one that said 5...show me the law that applies...............OK consider's open account's ie 90% of credit cards Implied or account stated...that's why you should always be prepared for a claim of "account stated" as that is where 95% of them have to go to "Prove" the account......still requires authenticated affidavits and or Bills of Sale...Key WORD AUTHENTICATED....that is what you have to push and prove that what they have does not pass muster.

 

Destroy the chain of ownership.........discredit the affidavits, discredit the affiant in any way possible, make a compelling argument against a Bill of Sale without defendants Name, Account Number, Balance, that shows no condition of the "item" claimed to be sold, fails to show the "Agreement" that all the documents are supposed to support.......Duh Support what....they never give the "Agreement" ie the Forward Flow Agreement.etc IN the OPs case their Need to be TWO of these, TWO Bill of Sales, TWO Affidaivts, TWO sets of Billing statement or whatever..............................Seeing what''s going on here???? their problems are double versus a fresh debt.......The affidavit doesn't mention the monthly statements as a document viewed to establish balance...Can we all say at once....Unauthenticated.

 

The more piece's of unreliable and obviously (with argument and citation, statutes backing) unathuenticated bogus documentation, the more it appear's they are flim flamming the courts....................if you attack it. Don't attack it and bet your buttons they'll get it in.............

 

This is where the statutes, with as close as possible in relevance of case law, and compelling arguments "with legal foundation" go to work, this can be hard at times.......Just saying for arguments sake...

 

Destroying the chain of ownership alone should sink a Plaintiff's case.......OK law is pretty specific on that......not a Successor in Interest, party in interest, makes their case a "no standing case" is without merit and void. No standing.......no claim...........no suit.............no judgment..................In a perfect world with a well rounded judge, who recognizes these elements and will apply them as required <----the wild card.

 

So if they don't retain the contracts long......................virtually 98% chance there is no copy of the original anywhere in anybody's files.  You first have to get one from an OC that doesn't retain them long, in order to have one ........I'm willing to bet that at least, 1 out 50> Credit Card suits present any type "signed" original contract.

Link to comment
Share on other sites

@pureguava

 

The first collection letter (initial communication) should have contained the 30-day notice.  Within 30 days, you could have sent a letter disputing the debt and requesting validation (proof of the amount claimed).   After receiving your request, they could not attempt to collect again until they validated.

 

But a summons and complaint does not qualify as an "initial communication".  Even though it contained the 30-day notice, the debt collector had no obligation to cease the lawsuit just because you disputed the debt.

 

Agreed, upheld in part and denied in part....remanded to the District Court for further proceedings......... :yahoo:

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...