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3 hours ago, RandomHero said:

@BV80 This is the part of the contract that worries me. It says the following:

ADDITIONAL AGREEMENTS

1.) I understand that you are located in Rhode Island and that this credit agreement will be entered into the same state. CONSEQUENTLY, THE PROVISIONS OF THIS CREDIT AGREEMENT SHALL BE GOVERNED BY FEDERAL LAW AND THE LAWS OF THE STATE OF RHODE ISLAND, WITHOUT REGARD TO CONFLICT OF LAW RULES.

I wasn't yelling, just copying how it was written. This wouldn't automatically apply RI SOL regardless of the contract and default being in maine, and the suit being filed in maine? This was an online loan, if that helps. 

@RandomHero

It would be up to the judge if the language in the contract would take precedence over laws of Maine.  Use the case law I gave you.   Also cite the appropriate Maine statute that shows a contract has a 6-year SOL, then cite the "borrowing statute".  Focus on the part about residing in the same state.

In regard to the payment allegedly made in 2013, get your bank records.  If you records don't show that payment, they'd have to come up with records that do prove you made it.

 

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3 hours ago, BV80 said:

@RandomHero

It would be up to the judge if the language in the contract would take precedence over laws of Maine.  Use the case law I gave you.   Also cite the appropriate Maine statute that shows a contract has a 6-year SOL, then cite the "borrowing statute".  Focus on the part about residing in the same state.

In regard to the payment allegedly made in 2013, get your bank records.  If you records don't show that payment, they'd have to come up with records that do prove you made it.

 

I don't understand why we are even spending so much time and energy on any borrowing statute that really doesn't apply when the debt is already time barred under ME law anyway.  Just go the easy route.  ME says it's SOL.

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13 hours ago, BV80 said:

@fisthardcheese

He said they alleged a payment in 2013, so it would not be time-barred. 

Yes, but he also said he did not make that payment.  The burden would be on them to prove a payment was made that reset the SOL.

It would not be unique if the JDBs made a phantom payment to the account right before they buy it from an OC in order to reset an SOL.  We have seen it a few other times.

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@CommoSGT

I'd be providing my bank records that don't show a payment along with an affidavit stating I didn't make the payment and the bank account reflected by my records is the only bank account I had during the time the alleged payment was made.

If the OP has not filed an answer and doesn't have proof that he didn't make the payment, all that's needed for the plaintiff to survive a MTD is a prima facie complaint.   They simply have to make the proper allegations.

If he has filed an answer, a motion to dismiss would be converted into one for summary judgment.  How could be granted summary judgment if he has no proof of his claim that the debt is outside the SOL?   It's the movant who must prove its claims.

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49 minutes ago, BV80 said:

It's the movant who must prove its claims.

But that is the problem with the plaintiff's position.  They filed the suit...they should have to prove it, not just allege it.  Merely by showing/making an appearance and saying I didn't when answering their claim should require the judge to see PROOF.  The old innocent before guilty thing is just a myth anyway. 

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@CommoSGT

A MTD in lieu of an answer based upon a defense of the SOL would be a 12(b)(6) motion (failure to state a claim for which relief can be granted). 

A motion to dismiss tests the legal sufficiency of a party's claims. Richards v. Soucy, 610 A.2d 268, 270 (Me.1992). For the purposes of a 12(b)(6) motion, the material allegations must be taken as admitted. Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 98 (Me.1984).

A 12(b)(6) dismissal should only occur "when it appears beyond doubt that a [claimant] is entitled to no relief under any set of facts that he might prove in support of his claim." Hall v. Board of Envtl. Protection, 498 A.2d 260, 266 (Me.1985).

Without proof that the plaintiff is not entitled to relief, legally sufficient allegations would stand.   Then discovery would be necessary.   That also applies to us consumers.  What if we file suit but the proof we need is with the other party?  Shouldn't we be entitled to discovery?

In the event an answer has already been filed but discovery has not taken place, the MTD would become a MSJ, and all the plaintiff would have to do would be to point out that discovery has yet to take place.

 

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@BV80 I'm certainly confused now as to what my next move should be. I have already filed an answer and have even had  pretrial hearing where the judge granted a month for discovery. Which is ticking down. 

What interrogatories should I be asking for my discovery? What documents should I ask them to produce that would help my case?

Since you mentioned a mtd can become a msj, would it be risky to file a motion to dismiss now since discovery hasn't happened yet? They haven't sent me any discovery either. 

My answers included the debt being time barred. So what you're saying is my mtd needs to back up why I believe it's passed that statute of limitations? But since discovery hasn't happened, you said they could simply say it hasn't happened yet? 

Im in sorry to keep this dragging on. Is my next move some discovery since we're already this far? Or is it a motion to dismiss? Can my mtd have more than one defense? Also, should I still move to strike the affidavit in case the sol defense doesn't work out? 

 

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I also don't want to risk pissing the judge off. Since he seemed so awesome and understanding during the pretrial hearing. 

@BV80

The SOL defense is hard because they say it defaulted in 2011. And a payment was made in 2013. But their transfer agreement histories show the debt was sold off before 2011. And the contract with the OC says the loan would default when I didn't make a payment or when I stopped going to school. Which was 2007. So why are they saying it defaulted in 2011? Can I ask the JDB's lawyer to show me all documents they have regarding my account? Because all they sent me was a spreadsheet with THEIR account number and letterhead on it. In that sense I could make my own spreadsheet and give them an account number saying they owe me a debt, right? 

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@RandomHero

What I meant was if you file a MTD, you want to have proof that the debt is time-barred.   Since you've already filed an answer, a MTD would probably be turned into a motion for summary judgment.  If you don't have any evidence to support that claim, the other party will then just point out that you didn't have any evidence.  They could also point out that the motion is premature because discovery hasn't taken place.

If your bank records show that you didn't make a payment when they claim you did, provide it.  Include an affidavit that you never that payment and never made payments by any other method such as by cash or from another account.   If they cannot show you DID make a payment, they're up a creek.  They could argue that discovery hasn't taken place, but if you have evidence, the judge would then decide if discovery is necessary.

 

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@BV80 Would it turning into a msj be risky since then I'm basically risking everything and if I lose that then I don't get another chance at trial? Or would it just be a msj against them and not for the case in general? If that makes sense. 

Also no, I didn't make any payments between that time. Or after like they claim I did in 2013. I can provide my own bank statements to attest to this, but since I'm running out of time for my own discovery, what should I be asking to see from them? 

Thank you again by the way.  I know I'm dragging this on. 

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@RandomHero

Okay, I was just making sure about payments because we're not dealing with a credit card debt.  I don't know why they claim the account defaulted in 2011. 

If you were to lose a MTD/MSJ, that's not the end of the lawsuit because the judge would simply deny the motion.   Of course, they could then turn around and then file their own MSJ.  Note that they could also voluntarily dismiss when they saw your evidence.  But there's just no way of knowing what they'd do.

If you  want discovery, I'd send a Request for Production of Documents requesting  documentation from the original creditor.  I'd want to see documentation from the school that shows proof of default in 2011 and proof of an alleged payment made in 2013.  Of course, you also want proof that Cavalry owns the account.

BTW, interrogatories are statements that require answers.  An example would be:

State the date of last payment allegedly made on the loan which is the subject of Plaintiff's complaint.

They'd have to provide an answer.

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@BV80 So could it hurt anything to submit a mtd? Should it only be for the sol or attempt to prove they don't have evidence to show they own the debt to begin with? 

Also their affidavit. I've read in a lot of places that if this gets accepted as evidence, they'll likely win. Is it still as important to get this removed even while waiting on the mtd?

thank you for your answer. It was exactly what I needed to know. If I'm allowed to ask them to show me documents from the OC showing a payment history and official date of default from the OC. 

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@RandomHero

I don't see what it could hurt.   Unless they could refute your evidence, I'm thinking it could only help.  Just get your proof and affidavits.  You'd also want an affidavit from someone at your bank attesting that the bank statement(s) you offer as proof were made in the regular course of business, etc.  Then you want your own affidavit stating that you never made the payment or any other payment since whenever.

Also, get case law from your courts.

@fisthardcheese want to chime in here?

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@BV80  @RandomHero

The SOL issue should have been addressed immediately.  Hopefully it is not too late.  This suit is time barred in Maine - even IF they show a payment was made in 2013.  That wouldn't matter since Maine law says only an express, written promise to pay is made.  That is the ONLY thing that resets the SOL in Maine.  So unless they are going to submit a letter signed by the defendant that specifically they agree to pay $X starting on Y Date, 2013, then they have nothing to over come SOL.

http://legislature.maine.gov/legis/statutes/14/title14sec860.html

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@fisthardcheese

That statute only applies if the debt is already outside the SOL when a partial payment is made.   An express, written promise to pay renews an SOL that is already expired.   If the debt is still within the SOL, then a partial payment resets the SOL.

§863. Partial payment and indorsement

Nothing herein contained alters, takes away or lessens the effect of payment of any principal or interest made by any person, but no indorsement or memorandum of such payment made on a promissory note, bill of exchange or other writing, by or on behalf of the party to whom such payment is made or purports to be made, is sufficient proof of payment to take the case out of the statute of limitations. No such payment made by one joint contractor or his executor or administrator affects the liability of another.

The OP says he last paid in 2007.   But it really doesn't matter, because if they can't prove that he made a payment after 2007, they should be sunk.

 

 

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@BV80 @fisthardcheese

The proof and affidavits are things I would attach to my motion to dismiss based on the sol? How do I get a record of the default date from the OC?

I was confused by the SOL because as I stated, they had that choice of law rule in the contract. So I didn't go for it right away, although it is listed in my answer as an affirmative defense so I should still be able to rely on it, correct?

Also, when you say to get case law from my courts.. Is that when you cite specific cases in your letters? John Doe v Midland Funding etc? Something to that extent? Could I ask what you guys use to find these cases?? I don't have access to a law library here locally. 

Concerning striking their affidavit as well, do I need evidence as to why I want that evidence to be stricken? Do I need to do that now or can I object to it in court?

Thanjs again you guys. You're seriously being awesome. Lol. I'm getting my bank records tomorrow. But I'm confused how to contact the OC for records since the OC has since gone out of business a couple years ago. 

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Read this MSJ.  This is a perfect template I would use to file a summary judgement based on time-barred complaint.  Note that in this case I linked to that the defendant lost his MSJ argument based on the fact that no evidence to support his claim was submitted.  If this were me, I would file a very similar motion for summary judgement, asserting the time-barred debt and attach as many bank statements that I can showing I made no payments for the last 6 years.

 

http://www.courts.maine.gov/opinions_orders/bcd/CV%20Orders/CV-11-34/2012-3-7%20Order%20on%20MSJ%20CV-11-34.pdf

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@fisthardcheese Thank you for that link! So had he attached evidence in his favor, it may have turned out differently for him? Without evidence it's basically useless?

Is there a copy in that link somewhere of the actual msj that the defendent submitted or is it just the summary? What confuses me is how to get it started. I've read things about praying to the honorable court.. Is that required or will they get the point otherwise? I'd love to find a template that's kind of 'insert your story here' kind of thing. 

Also @BV80 for discovery do I need to file with the court as well or just send a copy certified to the JDB's attorney?

thank you again everyone. Apologies for all the typos, I'm usually on mobile when replying. 

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