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@CCRP626 @ccposter - That consent decree may be just what the doctor ordered.  That was signed in Jan 2012, then in April 2012 they filed this case.  NO WHERE in any document have they complied with the consent decree that states they must include certain language (Para: VIII. NOTICE REQUIREMENTS IT IS FURTHER ORDERED that: A. For a period of five (5) years from the date of entry of this Decree...'each communication' ...)  They make sure to put the single line "This is a communication from a debt collector" notice on all the documents filed but failed to follow the consent decree.  

 

I am in need of filing my answers by the end of day on Tuesday (see the complaint in post 1).  Based on this being a retail account, from a Delaware company, with Asset Acceptance subject to the Consent Decree....can someone help me with a coherent answer with some case law?  How about if I say Please??

 

FCRA or FDCPA violations with the listing on the CRA showing monthly increases from these guys too?

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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/

I had thought about that KRS 371.050, but was told by a local lawyer that the lack of case law and a case from ?1942? means it would just apply between the debt buyer and the seller.  He wouldn't take the case because "I am a debt collector and you are best just to pay it and carry on with your life".  I won't repeat the verbiage I used in his office, but it wasn't something I would say in front of my mother.  'Nuff said.

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I think that case law posted earlier should be read in full and use it if it seems to be a good fit. For the Delaware SOL using Kentucky's borrowing statute, just make sure when that applies. Was payment supposed to be sent to Delaware? If so, it would appear you can use Delaware's SOL.

 Conway vs. Portfolio-

https://scholar.google.com/scholar_case?case=12550974332521218996&q=Conway+v.+Portfolio+Recovery+Assocs&hl=en&as_sdt=400006

Where Conway was physically located when he made the decision not to pay his debt is indeterminable upon the facts presented, and therefore the event that triggered an ability to bring a collection action against him was when the due date for payment passed, and continued to pass without any payment being received. That event occurred in Virginia because Virginia is where Conway was obligated to make his payment.

 

 

 

 

He wouldn't take the case because "I am a debt collector and you are best just to pay it and carry on with your life".

How did you find him? Contact a NACA consumer attorney for a free case consult.

http://www.consumeradvocates.org/find-attorney

 

 

This may help preparing an answer.

http://www.dinsmore.com/files/News/7de110f4-d37e-407e-b9d0-6d294f447722/Presentation/NewsAttachment/a6bd7f07-782c-4051-ba3c-7b0515fd29ac/Responding%20to%20a%20Complaint%20Kentucky%20%28w-000-1823%29.pdf

 

http://www.kyequaljustice.org/file/view/Answer%26CCl.FDCA%26interest-1.pdf

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If you can't prepare anything by Tuesday, at least show up and ask the judge for a continuance. Mention you're looking for an attorney, had previously setup an appointment with one but did not find him suitable.

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"That consent decree may be just what the doctor ordered."

 

Happy to see you found out about it in time.  As others here are saying you should at least go to court on Tuesday, say you are getting a lawyer, ask for continuance,etc.  I think it might help to say you know about the consent decree and believe they may be in violation of it.  It will put the other side on alert that you know about it - it is too late for them to fix any violations that have already occurred so I it wouldn't be tipping your hand. It would also help to have the judge aware there is a 28 page decree that applies to the plaintiffs.  Others here might argue otherwise.  

 

You need a lawyer it seems because of all the issues involved here and they could advise about a violation of the decree carrying weight in the court case but it will at least put opposing lawyers on notice that there may be violations and could help in negotiating a settlement if that becomes necessary.  I believe the decree applies to them as the agents of AA as well as AA.  

 

I suggested that the consent decree be posted on a sticky thread years ago but it wasn't.  Possibly someone who carries more weight at this site can do it.  

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@ccposter - any clue how FightingIrish's case turned out?  I can't seem to find anything on it.

 

Looking at the document you sent me about responding, I am going to file a motion to dismiss for Lack of Standing, KRS 371.050, and Statute of Limitations.  I will also include the information about the Consent Decree in my memorandum in support.

 

What do you think?  Anyone else have suggestions or opinions?

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Make sure to include affidavit and other attachments do not meet the business records exception to the hearsay rule, affidavit is by a third party employee of the alleged assignee, not original creditor. I'm just skimming your answers quickly, but for each point you make try to include a statute and case law backing your position. If claim is time barred, which statute are you relying on, the borrowing statute to use another state's SOL or just the standard Kentucky credit card SOL law? Seperate points as needed, like your #1 has two angles, fails to state a claim and secondly, time barred.

 

For affirmative defenses like time barred, you probably want their own section. See the two bottom links I posted earlier for examples in this post-

http://www.creditinfocenter.com/community/topic/326329-asset-acceptance/page-2#entry1327146

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@CommoSGT

 

You've included affirmative defenses that do not apply.  For instance, you stated that the Statute of Frauds applies and that the agreement is required to be signed.  Here's the KY Statute of Frauds:

 

371.010  Statute of frauds - Contracts to be written


(9)  Upon any promise, contract, agreement, undertaking, or commitment to loan money, to grant, extend, or renew credit, or make any financial accomodation to establish or assist a business enterprise or an existing business enterprise including, but not limited to the purchase of realty or real property, but this subsection shall not apply to agreements pursuant to which credit is extended by means of a credit card or similar device, or to consumer credit transactions; unless the promise, contract, agreement, representation, assurance, or ratification, or some memorandum or note tereof, be in writing and signed by the party to be charged therewith, or by his authorized agent.

In an unpublished opinion, the KY Court of Appeals in Williams v. American Express Bank, FSB (2013) ruled:

"We are in agreement with the court below that the statute of frauds is not applicable sub judice and, therefore, Williams was not required to sign the agreement but only to use the card to be bound by its terms. See KRS 371.010."

 

You need to reseach accord and satisfaction.  It has nothing to do with what the assignee paid for the debt.

 

You can include all the defenses you choose, but including defenses that don't apply merely implies that you copied a laundry list of defenses off of the internet and didn't do your research.

 

 

@CCRP626

 

You're referring to KY Rule of Evidence 803(6).  It's an argument, not an affirmative defense. 

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@BV80 yeah, I didn't say hearsay/business records was an affirmative defense if you got that impression, just the time barred argument. Usually if you mention 803 (6), 902 (11) goes along with it since it sounds like KY probably mirrors the standard format for rules of evidence.

 

For Statute of Frauds (written contract requirement), it may not apply to the credit card agreement that gave the consumer the credit card but is there anyway to work it into the later agreement between original creditor and debt buyer/assignee purchasing the debt?

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@CCRP626

 

Oh, ok.  I apologize.  I knew you knew better than that.  :-)

 

  I should have included that an argument is not proper in an answer to a complaint.   I guess it doesn't hurt to include it, but it's a waste of time because it has no effect on the answer.

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@CommoSGT

 

In addition to my response in post #38:

 

Another defense you claimed is that the complaint fails to allege that the Assignor has knowledge of this action.  The "action" is the lawsuit.  When an account has been sold, the Assignor does not have to have knowledge that the buyer is suing.  The reason is because the Assignor sold the account and no longer has anything to do with it.

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@CommoSGT

 

If they produce a signed contract along the way, can I still raise any "fraud" claims?

 

 

I think that's a different defense.  Claiming they have NOT produced a signed contract is one defense.   You're claiming they HAVE to produce a contract/application signed by you.

 

Fraud is a different defense.  It means that even if they produce your signature, you didn't do the signing.  That would seem to indicate ID theft (or perhaps an ex-spouse).  Does that apply to this account?

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@BV80 just between you and me, but if a Plaintiff does such a hack job with a complaint, it doesn't seem like they rate an actual answer if the state's rules allow a motion to dismiss from the start. I know a lot of posters like to use answers and maybe their state requires that, I don't know. I'm just more in the habit of looking to see if a Motion can be used.

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Should I include a counter claim for FCRA and FDCPA issues at this point? They have been reporting to the CRA monthly and increased the amount owed there by over 2100.00 as of this morning. Their initial complaint requested @ $197 in Fees ... and they haven't met the requirement of para VII (a) of the Consent Decree on any document that I have seen.

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I actually considered a motion to dismiss based on the lack of standing and time barred debt. I think if dismissal is denied I have 20 days to deliver an answer. With the effort? Do I lose the affirmative defenses?

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@BV80 - if I don't assert a defense, don't I lose rights to it later? If they produce a signed contract along the way, can I still raise any "fraud" claims?

You'd have to see what they provide. Like if what they provide is signed and dated years apart from the account in question that would be a flag. Does the signature look suspicious to you, like it's an exact match of the one you used in current court papers?

Also, it's not that unusual for someone to have had an account with a creditor but they aren't sure if that has any relation to the one in the lawsuit.

 

These numbskulls suing you aren't really qualified to answer this, you never had an account with Asset Acceptance. This goes back to the hearsay rule/business records exception.

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@CCRP626

 

 

@BV80 just between you and me, but if a Plaintiff does such a hack job with a complaint, it doesn't seem like they rate an actual answer if the state's rules allow a motion to dismiss from the start. I know a lot of posters like to use answers and maybe their state requires that, I don't know. I'm just more in the habit of looking to see if a Motion can be used.

 

I understand what you mean.  Alot of attorneys who file "assembly line" complaints have gotten lazy.

 

However, we have to know not only our rules of civil procedure but how our courts interpret those rules.   Even lazy allegations can state a claim that would satisfy courts.

 

We also have to consider that a complaint that's dismissed without prejudice can be refiled.   The defendant has determine if filing a MTD is worth the effort.  In the event that a claim is very close to being time-barred AND the state has no saving statute, it might be worth it.  Otherwise, it just drags things out.

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@CommoSGT

 

 

Should I include a counter claim for FCRA and FDCPA issues at this point? They have been reporting to the CRA monthly and increased the amount owed there by over 2100.00 as of this morning. Their initial complaint requested @ $197 in Fees ... and they haven't met the requirement of para VII (a) of the Consent Decree on any document that I have seen.

 

Is the OC reporting?  If it is, what is the very last balance shown by the OC?   What is the FIRST balance shown by the JDB?

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I actually considered a motion to dismiss based on the lack of standing and time barred debt. I think if dismissal is denied I have 20 days to deliver an answer. With the effort? Do I lose the affirmative defenses?

Rule 12 should cover this. I think 10 days under 12.01.

12.02 is the Motion to Dismiss statute, 12.07 and .08 mention waiving defenses.

Looking at 12.02. Using time barred, I'm not sure if (f) failure to state a claim upon which relief can be granted would be correct or not.

https://govt.westlaw.com/kyrules/Browse/Home/Kentucky/KentuckyCourtRules/KentuckyStatutesCourtRules?guid=N2F69AF10A79211DAAB1DC31F8EB14563&originationContext=documenttoc&transitionType=Default&contextData=%28sc.Default%29

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