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@BV80, I think Commo was hoping to use the borrowing statute to get Delaware or some other state's SOL in there. It's somewhere earlier in the thread.

 

@CommoSGT

Affirmative Defenses- I'd include them from the start.

Kentucky Rules of Civil Procedure (CR) Rule 8.03

https://govt.westlaw.com/kyrules/Document/N6294EFF0A91B11DA8F5EE32367A250AE?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

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@CCRP626 @BV80 - I haven't made a payment since Sept 2011 per THEIR records.  The only Beneficial (who they are claiming is the OC) showing on my CR is a paid off account for @ 5600.00.  Asset is doing the reporting for the account with a comment " The original amount of this account was $9.377" underneath monthly reports since Mar 2014 showing the balance history increasing monthly.  They show the Date opened to be 11/2012 and the reported since 12/2012.

 

Of interesting note, there is a note on the account "Account information disputed by consumer (Meets requirement of the Fair Credit Reporting Act".  I had never talked to Asset about the account and surely couldn't have disputed it since I didn't know about it.  WTF???

 

I was intending to use the Ky borrowing statute and the Delaware SOL since it is in KY ?caselaw? that if the action would have been barred in the location with the shorter SOL, then that would apply.

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@CCRP626

 

 

 

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.

The Affidavit they attached has the affiant's name rubber stamped in and the date rubber stamped in too...then signed by the affiant.  Wish there was some way to prove that it was robo-signed.

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The Affidavit they attached has the affiant's name rubber stamped in and the date rubber stamped in too...then signed by the affiant.  Wish there was some way to prove that it was robo-signed.

@CommoSGT also under Rule 12 would be Motion to Strike (combined Motion to Strike and Dismiss.)

The business records exception mentioned earlier is under Ky Rules of Evidence.

803 (6) and 902 (11)

https://govt.westlaw.com/kyrules/Document/NFE79BB20A91C11DA8F5EE32367A250AE?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

 

https://govt.westlaw.com/kyrules/Document/N1B353AF0A91D11DA8F5EE32367A250AE?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=%28sc.Default%29

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@CCRP626 @BV80 - So reading back, I guess I need to do a Motion to Dismiss and Strike with reasons being:

 

     1. Plaintiff's failure to state a cause for relief:

           a) Standing because Affidavit is hearsay under 803(6) and should be struck because it doesn't meet exceptions for business records under 902 (11).

           B) Time barred under Ky Borrowing statute per Conway v. Portfolio Recovery Assocs., LLC, 2014 U.S. Dist. LEXIS 43281 (E.D. Ky. Mar. 31, 2014) and is subject to Delaware's SOL under Tit. 10 §8106.

           c)  Plaintiff's admittedly unmailed billing statement is hearsay under 803(6) and should be struck because it doesn't meet exceptions for business records under 902 (11).

 

     2. Violations of FCRA and FDCPA 

           a) Section 1692e(2)(A) - reporting an amount owing that include an unlawful amount of disguised interest.

           B) Section 1692e(8) - communicating credit information known to be false.

           c) Section 1692e(10) - the use of any false representation or deceptive means to collect any debt.

           d) Section 1692f(1) - efforts to collect an amount that is no authorized by law, reporting an amount owing that includes interest

           e) Section 1692e - "debt collector knew or should have known the lawsuit was timebarred."

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Standing because they haven't shown ownership. There is no bill of sale, no documentation/bill of sale from the original creditor showing the sale, specifically your old account. It's only the 3rd party Plaintiff claiming they own the debt.

 

Standing is not the same as hearsay, failure to meet the business records exception. Standing means they've shown they've met all the requirements to step into the footsteps of the original creditor to pursue a lawsuit. Hearsay is what throws out the records they try to introduce. Two different things. Make sense?

 

Besides not including any records to show standing, the affidavit doesn't reference any specific business records. Did someone tell the affiant this information, was she looking at a computer screen, what exactly?

 

An affidavit on its own is not enough to show ownership. A bad one like this can't be used as the foundation to enter additional records to show standing. If they try to provide records later, see if the same affidavit is recycled.

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@CCRP626 - I attacked the affidavit on its ability to meet evidence levels and the fact that it wasn't made on personal knowledge or under penalty of perjury.

 

The complaint was 3 sentences and a wherefore statement.... I attacked each line of it.  I attacked the  FDCPA violations according to the Fulk case because they reported all kinds of stuff they were permitted to under the law.  The complaint didn't reference or incorporate either of the attachments in any way other than the staple in the paper.  Looks shoddy from the front to the back, including a few spelling errors.

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Besides not including any records to show standing, the affidavit doesn't reference any specific business records. Did someone tell the affiant this information, was she looking at a computer screen, what exactly?

The 'statement' they attached was dated the same day as her affidavit with what appears to be an attempt at initialing the lower corner and check marks by each block.  The initials are the same as the affiant, but no where near the same handwriting.  In fact, the Notary and the Affiant's handwriting exhibit the same loopy pattern and the initials are totally lacking any loops...just straight lines with sharp corners.

 

An affidavit on its own is not enough to show ownership. A bad one like this can't be used as the foundation to enter additional records to show standing. If they try to provide records later, see if the same affidavit is recycled.

I appreciate the advice, but I hope their lawyer sees that the Consent Decree ties them down to the issues in the case along with the Plaintiff.

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You have had your hands full with making filings which I don't have that much experience with so was not posting, but wanted to make a few hopefully helpful comments. 

 

I see you are citing FDCPA - all your citations are for that law and not FCRA.  Multiple FDCPA violations only add up to $1000 in damages, you can't "stack" them, but you can under FCRA, and I believe one infraction on a listing would allow for $1000 for each CRA.  So it seems right now you have at least $1000 you could ask for in counterclaim which others can advise you on filing.  

 

Apparently  you used the consent decree.  I believe he decree says they have to comply with all applicable state and federal laws.   It seems if they wait for a judge to rule and dismiss on sol it is an automatic violation for both AA and lawyers because there is a specific statute violation - as well as violations of the FDCPA if judge rules for you on that also.  If you win damages on a countercaim it would be undeniable proof of decree violations.  

 

I didn't see if you used the Kentucky averment statute.  You probably have enough to get a dismissal already based on their lack of evidence, but it seems on that point the whole situation would go back to the same proof they would need on a verification request stating what type of loan it was - otherwise there would be no way to know if the averment statue applies if you assert that "based on information and belief" you don't know what type of loan it was and they need to show the type of loan to prove the averment statue does not limit their claim for damages.  

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@CommoSGT good job on all this, you did a lot of work. Enjoy a cool beverage of choice. Hopefully they'll drop this quickly (with prejudice) and you can send this to the win column.

 

I forget what the decree says but maybe you could consider sending a complaint to the KY Atty General's office if they're violating it along with one to the FTC or CFPB.

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I think you owe yourself a day off from this. Let them respond. In the meantime study your civil procedure rules. If you have to enter discovery you'll want to know all the KY tricks.

 

One of the things I noticed was you don't have any paperwork on this, including the cardmember agreement or statements from the original creditor. When you get them from the other side you'd know where payments were supposed to be sent when this went into default. Kentucky case law for their borrowing statute to use other SOL bases that off of where payment is to be sent. Also, if it gets to where you decide arbitration is the route to take- you need the agreement showing that wording. That would be an excuse for waiting so long to opt for arb, no contract provided, as soon as you had it you opted for arb.

 

If they don't produce documents requested in discovery, then look into your rules for motion to compel production and ultimately dismissal for refusal to do that.

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A local attorney told me that the incorporation location of the company fits the need for the borrowing statutes.

I searched like crazy to find info about ARB, but couldn't find anything so I am hoping for either DWP or DWOP once they get it.

I won't be intimidated.... Too hard headed!

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I was kind of curious which Beneficial it was? FDIC has many-

https://research.fdic.gov/bankfind/

 

Did you ever challenge the credit report entries, going through the credit bureau first? Some of those Beneficial listings are no longer active, have merged and such, wonder about their recordkeeping.

http://www.creditinfocenter.com/repair/DisputingWithOriginalCreditor.shtml

http://www.creditinfocenter.com/repair/MethodOfVerification.shtml

 

If an original creditor entry gets removed off a credit report, what exactly would Asset be reporting if what they purchased is allegedly related to that OC deleted entry? Does the bill of sale they have mention the sale is "as-is", no guarantees?

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I did recently challenge it with the CRA, but I am still about a week from their 30 days.

First I heard anything about this Beneficial was when I received service CMRRR on 10 July. The CRA said that bet they could see if was Beneficial and it was "retail". Sitting in the courtroom watching another victim get fleeced for no show, I heard the JDB slug answer the judge that his Beneficial Finance was based in DE.

Asset has only included 4 pages with their submission for the suit. 1) First amended complaint 2) Complaint 3) Affidavit by Asset Employee 4) Asset's billing? statement that has a footnote " *not previously mailed" on it.

I do have a Beneficial on my CR showing a different acct # that was a paid off account for just over half of the demanded amount. Like I said though, I have yet to be able to get a complete account number for the one on the lawsuit.

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@CommoSGT

 

Hopefully, Asset will just dismiss and go after default judgments.  But if they want the money, they may try to have your counterclaim dismissed for failure to state a claim. 

 

I don't see how you could file a motion to dismiss because, right now, there's no proof that Beneficial is incorporated in DE.  Also, unless your rules require it, Asset didn't have to authenticate the records filed with the complaint.  In regard to a bill of sale or whatever else they haven't provided, they can point out that discovery hasn't taken place yet.

 

In a previous post, you wrote:

 

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.

 

 

1.  What notice did they not include that was required by the consent decree?

 

2.  On what did documents did they not include that notice?

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They are required under VII (A) to include a paragraph about the debt collection on 'each communication' in attempting collect a debt. It lists distinct verbiage in the Decree. The court affidavit and billing statement, are both footnoted with a line "This communication is an attempt to collect a debt". That does not meet the standard in VII(A).

There was another case here in Kentucky where the court ruled that the complaint and attached documents in a debt collector suit were considered "communications" in attempting to collect a debt. I don't remember which one it was, but it was recent in the last couple of years.

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