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So, here is my issue.  I received an Alias Summons via CMRR from our county clerk.  Seems that Asset claims to have purchased a Beneficial retail account that has an outstanding balance of 9377.00.  The affidavit from Asset's Heather Andrus goes along the lines of:

 

1.  I, HA, am an employee of AA,LLC and am competent to testify to to the matters stated herein.

 

2.  I am familiar with the manner and method by which AA, LLC creates and maintains its business records, including computer records of its accounts.

 

3.  AA,LLC business records demonstrate that AA,LLC purchased the receivable at issue in the case from Beneficial or its successor in interest.

 

4.  The original creditor in this matter is Beneficial and the original account number is XXXXXXX.

 

5.  The business records associated with the receivable demonstrate that our claim against Defendant is in the amount of $9377.23 together with the interest at the statutory rate of 8.00%.

 

/s/ HA

 

The affidavit's only date is that of the Notary and it is stamped in as being MAR 07 2013 (HA's name is rubber stamped in on the blank in #1).

 

The initial complaint is dated as filed 4/23/2013 with our County Clerk.  Green and Cooper are the lawyers for the plaintiff.

 

Alias summons has a new "First Amended Complaint".  Still G&C with different attorneys listed.  FA is dated 7/8/2015.  Both complaints are the same except the amended deletes some language in # 3 claiming accrued interest and statutory interest at 8% in the original.

 

First Amended:

 

Comes the plaintiff, by counsel, for its first amended complaint as follows:

 

1. The Defendant(s) is indebted to the Plaintiff under and agreement or account.

 

2.  AA, LLC purchased this account.  The original credit grantor is Beneficial.

 

3.  Defendant(s) has failed to pay the Plaintiff the remaining balance of its account in the sum of $9377.23.

 

Plaintiff demands ... 12% per annum from the date of entry til satisfied.

 

 

Can someone help me:

   1 - understand the effect of the alias summons

   2 - figure out the SOL, I believe it would be DE's 3 years.

   3 - How many FCRA and FDCPA violations do you see and 

   4 - Case law to help me here in Kentucky.  I believe Fulk v. LVNV funding and Conway v. Portfolio will help me, but need your help please.

 

- CommoSGT

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One other thing, the only thing other than the complaints and the one affidavit is the SCRA document (would have helped me some in the past but not now) and a sheet that appears to be some sort of statement from Asset Acceptance that in the bottom corner in small print says " *not previously mailed"

 

So, is there anyone that can offer up some assistance?

 

Thanks in advance!!

 

CommoSGT

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@CommoSGT

 

The FCRA is the statute for credit reporting.  What have they reported on your CR?

 

What is the date you made the last payment on the account?

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@BV80, They list a last pay date of September 2011, I think I was delinquent prior to that but they have removed the Beneficial TL from my CR and listed it under them as owner with it just saying C (Closed) up until they bought it.

 

The other thing about the CR, and I disputed it today; is that someone has been adding about 7% to 8% to the balance on the credit report.  The charged off amount is 9377.23 but the balance on the CR is now over 11300.00.

 

That is why I thought I might have an FCRA complaint especially after a brief read of the case against LVNV.

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The legal rate of interest in Kentucky is eight percent, in the absence of a specific agreement for a higher rate. Without a provision in writing, pre-judgment interest is discretionary with the courts of Kentucky and may be allowed from the date the account is liquidated by demand, or by rendering an account to the debtor, thereby converting an open account transaction to an account stated transaction. The default rate of interest on judgments is 12 percent, in the absence of a contract for a higher or lesser amount.

http://www.nationallist.com/image/cache/White_Paper_Kentucky_Debt_Collection.pdf

written early 2013, so appears out of date with subsequent case law.

 

Collecting Interest on Charged Off Debts and How Debt Collectors Must Disclose the Accrual of Interest to the Debtor http://www.americanbar.org/publications/blt/2014/04/04a_marin.html

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There was a ruling in the ED of KY (FULK v. LVNV) that said they can't legally add pre-judgment interest prior to a court ruling.  Or at least that is what I am understanding.  That would open them to a couple of violations under the FDCPA if I understand the Fulk case.

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That Fulk case looks good.

 

Also ran across kyconsumerlaw.com-

Conway v. Portfolio Recovery Assocs., LLC, 2014 U.S. Dist. LEXIS 43281 (E.D. Ky. Mar. 31, 2014):

Conway is first case accessible online—state or federal—to reach the issue of the statute of limitations for credit card debts. Conway strongly implies that credit card agreements are not contracts in writing within the meaning of Kentucky’s statute-of-limitations laws. But Conway holds that the debt collector’s cause of action was subject to Virginia’s three-year statute of limitations under a straight forward application of Kentucky’s borrowing statute.

 

Stratton v. Portfolio Recovery Associates, LLC, 2014 U.S. App. LEXIS 20517, 2014 FED App. 0266P (6th Cir.):

Stratton holds that a debt collector cannot recover interest on a debt for a time period before it acquired the debt. The original creditor’s waiver of interest is binding on the debt collector. Stratton construes Kentucky’s usury statute as a consumer-protection statute rather than creating rights for creditors.

 

also- Harrell v. UNIFUND CCR PARTNERS, Ky: Court of Appeals 2015

The court reasoned that a party's right to collect statutory interest is forever extinguished once it agrees to collect an interest rate specified by the terms of its contract. Thus, if a creditor has waived its right to collect interest at the contractually agreed upon rate, its assignee can never resurrect the right to collect interest at the statutory rate.

https://scholar.google.com/scholar_case?case=8361042332555312076&hl=en&as_sdt=400006

 

 

Info in this thread including borrowing statute and SOL.

http://www.creditinfocenter.com/community/topic/325485-opposition-to-plaintiffs-motion-for-summary-judgement/

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Can someone help me:

   1 - understand the effect of the alias summons

   2 - figure out the SOL, I believe it would be DE's 3 years.

   3 - How many FCRA and FDCPA violations do you see and 

   4 - Case law to help me here in Kentucky.  I believe Fulk v. LVNV funding and Conway v. Portfolio will help me, but need your help please.

 

1.  It is merely an alternate method of serving the Defendant when the first try doesn't work.  What you need to research is if they waited too long to do the alias summons and that made service improper using that method in KY.

 

2.  KY SOL on credit cards can be anywhere from 5-15 years because their laws are not clear.  However, KY does have a borrowing statute which could allow you to use the DE SOL for the card headquarters.

 

3.  So far none.  Without knowing all the facts of your case it is impossible to state what violations if any have happened.  You should discuss it with a consumer attorney.  Use www.naca.net to find one.  Most do a first consult for free.

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http://www.nationallist.com/image/cache/White_Paper_Kentucky_Debt_Collection.pdf

written early 2013, so appears out of date with subsequent case law.

 

 

 

@CCRP626 - Lloyd & McDaniel are one of the largest debt collector attorneys I have found so far in Ky....  not sure if they will provide any information that would be helpful to us that are being drug into court.

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In your answer make sure you demand arbitration, that will cover you until you find out what kind of account it is.  it could say AFFIRMATIVE DEFENSE # 1.  Defendant demands priviate contractual ARBITRATION with the forum JAMS to administer if that is an option in the credit agreement.  

 

It would be better to check your credit reports, call and ask, anything to find out so you can get a copy of the agreement.

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@CommoSGT http://www.consumerfinance.gov/credit-cards/agreements/or http://www.cardmemberagreements.org/ and if no luck google for the agreement should help. Just look for an agreement mentioning arbitration that was used anytime the account was active. One may mention arbitration and have a survivability clause so it's still in effect even though later agreements don't mention arb at all.

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No luck with Google, Google Scholar or either of the webpages above.  What I could find is that this appears to be a retail installment agreement with Beneficial Finance.  That would make it a Delaware Corporation.... so with the SOL being 3 years and the fact that the Alias summons was served on 8 July 2015 with the last payment being in September 2011, how do I attack that in my answer along with the standing issue?  

 

I was also considering filing a dismissal for lack of standing?

 

Opinions?  Suggestions?

 

Thanks!!

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@CommoSGT might be some useful info on Kentucky's borrowing statute here-

http://www.kyconsumerlaw.com/uncategorized/statute-limitations-credit-card-debt-kentucky

 

If you can't find the cardmember agreement, does Kentucky require the contract to be attached to the complaint?

If you had to get into discovery to get it produced before you knew if you could go for arbitration that seems like it would weigh in your favor for electing it late in the game. If multiple agreements over the life of the account, all should be produced.

 

According to the CFPB page-

Credit card issuers are required to submit agreements under Section 204 of the Credit Card Accountability Responsibility and Disclosure Act of 2009 (the CARD Act).

Look on the back of the credit card or on your latest monthly statement to find the name of the issuer. The bank, retailer, or other entity whose name appears on the front of the card may not be the actual issuer of the card. You can also check the issuer's website; typically, the bank name is listed at the bottom of the issuer's homepage.

If you cannot find an agreement, call your issuer to request a copy of the agreement. Federal law requires your issuer to give you a copy of your agreement on request

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@CCRP - Thanks for the responses.  Know of anyone on the hero board here that is a winner in KY ?  I really need to get a coherent thought and answer in by Tuesday so I don't get defaulted on.  I unfortunately just found out too that there was a default judgement against me in Dec 2013 here in KY while I was out of state.   :BadDay:

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I was served, I was in on a Saturday/Sunday in early November to see my wife and kids and then went back to Kansas.  Evidently from what I can piece together, mail came for me from the plaintiff  and the court the same day and she didn't open it.  She put it up for me to see when I got home.  It evidently got knocked off the desk and between it and the wall.  So, I find it and the note from the plaintiff said they were requesting it be heard at the courts first opportunity and the service on it said they mailed it first class mail on 18 December 2013.  The post mark on the envelope said 23 December (their own machine).  The hearing was on 26 December 2013.  

 

So, I guess I am SOL for all that...right?

 

By the way, I have heard nothing out of the plaintiff's firm since this happened.

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The post mark on the envelope said 23 December (their own machine).  The hearing was on 26 December 2013.

Check your state rules for that. It doesn't sound like sufficient mailing time especially since holidays fall in there when mail wouldn't be delivered. Their own paperwork doesn't match their postmark. Also, how was the summons delivered? I've heard of small claims allowing the mail to be used but even then it's certified, for higher value they'd have to have judge's permission to use the mail if personal service couldn't occur.

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I can't tell if it's Kansas or Kentucky, but Kentucky would have the detail here-

CR 6.05 Additional time after service by mail

Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail or electronic service, 3 days shall be added to the prescribed period. This provision shall not apply to the service of summons by mail under Rule 4.01(1)(a).

https://govt.westlaw.com/kyrules/Index?transitionType=Default&contextData=%28sc.Default%29under Rules of Civil Procedure.

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Asset Acceptance is operating under an FTC consent decree in effect I believe 7 years from when it went into effect in 2012 after thousands of complaints.  They have to toe the line to the letter.  In my case I asked for validation and when they couldn't produce it in 30 days they had to write my balance down to $0 and no line ever appeared for them on my credit reports.  That was $9500 wiped out for the cost of mailing a letter.  

 

The consent decree is at the url below and it names specific people at the FTC who are auditing their activity.  In addition to whatever other defenses you may have you or your  lawyers may find something in it that will help your situation.  I don't know if you can still ask for validation since you were apparently not contacted by them previously before the summons was served.  Validation may only have applied for the people they bought the account from, I don't know.  

 

https://www.ftc.gov/sites/default/files/documents/cases/2012/01/120131assetconsent.pdf

 

 

I thought Kentucky was the only state that allowed suits for debt to only be for the amount paid for the debt; apparently old or inaccurate information.  

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@ccposter "I thought Kentucky was the only state that allowed suits for debt to only be for the amount paid for the debt; apparently old or inaccurate information. "

I think this has come up before- K.R.S. 371.050 Assignee to aver consideration -- Amount recoverable.

 

http://www.creditinfocenter.com/community/topic/322090-krs-371050-assignee-to-aver-consideration-amount-recoverable/

there's very little showing on Google Scholar under this statute for case law. I'd think if it was something that could be used against a JDB credit card case there'd be more on it?

 

It can be found here-

http://www.lrc.ky.gov/statutes/

TITLE XXX - CONTRACTS

CHAPTER 371 FORMALITY AND ASSIGNABILITY OF CONTRACTS -- INSTALLMENT SALES CONTRACTS

371.010 paragraph 9 excludes credit cards. 371.050 applies to written contracts which would exclude credit cards.

 

 

Here's another thread on it where it's argued out. I'm kind of thinking the 371.050 statute doesn't apply to credit cards but add it in and let the judge say no.

http://www.creditinfocenter.com/community/topic/307149-judgment-issued-despite-filing-a-motion-to-dismiss-with-supporting-legal-arguments/

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