scarab

Sued by Velocity Investments in Nevada

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I've been posting about this Velocity (junk debt buyer) problem I have had for the past year or so.    Prior thread: 

They finally sued me, probably in response to the letter I sent to them back in May of 2016.    This suite is pretty sneaky.  I was NOT served in any way, shape or form.   More details below.

I have LIMITED TIME left to respond, because I did not even know until today that I was sued late last month.  More details on this below.  I will update this post and this thread as I get more information from the county courthouse.  It is night right now, so I can't call them or go down there.

I'm not sure where the original blank "Help, I've been sued" questionnaire is located on this forum, so I copied the questions from someone else's thread, and put my own answers in:

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1. Who is the named plaintiff in the suit?

VELOCITY INVESTMENTS

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Faber and Brand, LLC attorney is Shoener, Esq, Jonathan L.

3. How much are you being sued for?

Unknown at the time I posted this.  I will have to go to court house to get documents.  Possibly around $10k

4. Who is the original creditor? (if not the Plaintiff) 

Lending Club  or Web Bank.  Not sure.  Appears to have been transferred once before Velocity got it.  See documents I posted below.

5. How do you know you are being sued? (You were served, right?)

Was NOT served.

 

 I received an automated response to my complaint to the CFPB saying that Velocity has not replied in a timely manner.  So, I decided to  check the County Court House website, and saw that I was sued 3 weeks ago.

6. How were you served? (Mail, In person, Notice on door)

NOT served

 

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

Does not appear so. as I was not served at all.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Sent DV letters, and filed various complaints with the state, CFPB, and Better Business Bureau.  This has been going on for over a year.  See my prior thread here: http://www.creditinfocenter.com/community/topic/326145-lendingclub-debt-is-it-a-promissory-written-or-open-ended-debt/

9. What state and county do you live in?

Washoe County, Nevada

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

06/2011

 

11. What is the SOL on the debt? To find out:

Statute of Limitations on Debts

4 years IF they cannot come up with the actual loan agreement document

6 years if they have with the loan agreement (promissory note).

Nevada Revised Statutes on SOL: http://www.leg.state.nv.us/nrs/nrs-011.html#NRS011Sec190

 

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Answer Due  [160723 Edit:  based on new information from the county court clerk's office, reviewing the rules of the court, and this forum, at this time I have not been served so no answer is due.  Nevada law says that they must serve me within 120 days of filing.  They cannot serve me "electronically" or through the court eFile system.  They must serve me with a process server or sheriff.  If they get near the 120 day deadline and have not been able to serve me, they can file something with the court to request permission to serve me through local publication.  Once served with a summons, I have 20 days to respond. ]

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

Yes  [160723 Edit: More on this in a later post, but I may have them on one or more FDCPA violations regarding debt validation]

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

Unknown.  County Court Website is not much help here.  [160723 Edit: 20 days]

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No summons received.  Nothing at all received.  All I know at this moment is the county court website shows the suite was filed in late June and I believe I have only a few days left to respond, assuming the 20 day rule applies.  I will update this post and this thread when I found out more information.

[160723 Edit:  I now have a copy of the complaint.  With it are the following: 1) Affidavit of Account signed by a Velocity employee and notarized (Velocity is NOT the original creditor)  2) printouts from the original creditor website that they are attempting to pass off as the original agreement 3) Bill of sale from the original creditor to Velocity (seems to be the "edited for the public record" version, and certifcate of sale from a Bank to LendingClub.  I am posting the redacted versions of these documents below]

 

 

 

 

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Until you're served, you don't have to answer but I'd check the court website to see if it shows you were served. Is the only way you know is solicitations from attorneys to take your case? Lawsuit filed is not a big deal if you haven't been served. You can research the complaint by visiting the courthouse to see the case file but that doesn't mean you've been served either.

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I posted this thread in the wrong sub-forum, so I am going to ask the Admin to move it to the correct subforum.

Thank you for replying CCRP626.  I think I found the rules for Nevada Civil cases that agree with what you say - I have 20 days from the day I was served to respond.  As I have not yet been served, I have time to create my response. 

Nevada rules: http://www.leg.state.nv.us/courtrules/ 

Home page for Washoe county court shows the above link for court rules: https://www.washoecourts.com/index.cfm?page=home

 

I checked the county website. There is very little info.  No "event" info.  Docket entries show the original filing and the fee paid, and that is it so far.

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They typically have 120 days to serve you after they filed with the court.  You can check your docket to see if anything has been filed (certificate of service, alternative service etc...), otherwise you can wait to be served, or go to the courthouse and get a copy of the complaint, which will effectively serve you.

Read the NRCP.  Rule 4 (double check that these are the correct rules for you)

 (i) Summons: Time Limit for Service.  If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the action shall be dismissed as to that defendant without prejudice upon the court’s own initiative with notice to such party or upon motion, unless the party on whose behalf such service was required files a motion to enlarge the time for service and shows good cause why such service was not made within that period. If the party on whose behalf such service was required fails to file a motion to enlarge the time for service before the 120-day service period expires, the court shall take that failure into consideration in determining good cause for an extension of time. Upon a showing of good cause, the court shall extend the time for service and set a reasonable date by which service should be made.

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Quote

 

@Coffee_before_tea

I checked the case docket on the court website.  THe only things that have been filed so far is the complaint and the filing fee.

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@scarab search for the same Plaintiff (most likely will have the same lawfirm as well) and you can get an idea of what the service attempts look like from other cases as far as how soon they attempt and give up if they can't serve the defendant.

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8 hours ago, scarab said:

@Coffee_before_tea

I checked the case docket on the court website.  THe only things that have been filed so far is the complaint and the filing fee.

If you're curious about the complaint, call some attorneys and ask if making a copy of the complaint at the courthouse or just reviewing it without making a copy waives  personal service of process by the plaintiff.  Unless you're asked to sign something, I don't see how they'd know you got a copy.  If it doesn't waive service, you might go ahead a get a copy.  Just don't file an answer until you're served.

Here in my state, anyone can walk in, look at court files, and make copies.

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Thanks for the advice guys!  I contacted the county courthouse clerks office.  They told me where to obtain the electronic filing forms to get signed up with an account.  The user agreement says right in it that "a complaint, petition or other document that must be served with a summons, and summons or a subpoena cannot be served electronically".  I verified with the clerk of the court that  they must still serve me in person.  He said Nevada law requires this.  The only way around it is that they attempt to serve me, cannot do so for whatever reason, then they must file something with the court seeking permission from the judge to serve me via public notice.

So, I went ahead and sent in the forms needed to get on the eFile system.  As I am a party to the litigation, I can access my own case for free (not other cases), and get copies of the filed papers.  I should have access by this evening or tomorrow.  Once I get the complaint, I will post it here.

Also, I went and saw an attorney and got some really good information that only local attorney's know about our local court system.  She also gave me advice on how to fight Velocity, and she reviewed all the documents I currently have.  She says seriously doubts they have anything on me.

I will post more info here later, when I have more time.

 

 

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Hi again everyone.    I have updated my first post (answers to the questions about being sued) to reflect new information.

It took a little push, but I now have access to the eFile system.  I have retrieved a copy of the complaint, as well as their supporting documents.  I am posting those documents here.   If you find any identifying information, please let me know so I can redact it.  I would like to discuss my legal strategy and get opinions of those people here that are experienced with fighting the JDBs.

Also, I promised to relay what I learned from the attorney I visited.   Before I was sued (see my old thread, linked in the original post), I went saw an attorney.  Unfortunately, she is no longer available.  Here is what she said a couple of months ago:

1) avoid a certain judge (she gave me the name).  He's in the wrong venue anyway - he's not in the Washoe County Court, where i am being sued.

2) Go ahead a file my complaint with the CFPB (done some time ago).

3) Send DV letter to Faber and Brand (done before I was sued). They have since responded

4) If they sue, file a motion to dismiss due to lack of standing (this was after she reviewed the "loan agreement" Velocity sent me a copy of).  They are beyond the SOL, they don't have the original loan agreement, and they won't give the court the full purchase agreement for the loan in question or they won't give the court a copy of the purchase agreement that names the loan in question in particular.   Her conclusion is that they have nothing.   I've reviewed other court cases where Velocity was sued by a consumer and velocity seems unwilling to share certain documents with the court.  They dismiss when hit with discovery demands.

5) I told her I think that Velocity may have violated my FDCPA rights on several counts.  She said counter-sue them if they sue me.

I would like to get help with the following:

1) responding to the complaint

2) how to attack their supporting documents (motions to strike)

3) When to file the motion to dismiss due to lack of standing

4) how to counter-sue Velocity

--------------------------------------------------------------

Alleged_Loan_Agreement.pdf

Bill of Sale - LC to Velocity.pdf

Bill of Sale - WB to LC.pdf

 

Affidavit of Account - REDACTED.pdf

Original Complaint - Redacted.pdf

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1 hour ago, scarab said:

They are beyond the SOL

How are they beyond the SOL?

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@scarab loan agreement looks suspicious for the reasons circled within. Affidavit is generic, no docs referenced, fill in the blank and reuse. Bills of sale are missing referenced sections and you're never identified. Study your Rules of Civil Procedure for pre-answer motions after being served and counterclaims, including both district court links.

That agreement posted does contain arbitration, so something to consider.

http://www.leg.state.nv.us/courtrules/NRCP.html

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

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Note that the Affidavit is NOT from the original creditor (the bank) nor the transferree (LendingClub).  It is from an employee of Velocity, the JDB, and apparently, the third party to purchase this debt.  My understanding is that I should be able to strike it.  Correct me if I am wrong.

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1 hour ago, scarab said:

They dismiss when hit with discovery demands.

If they don't, the discovery section in the rules has detail on compelling them to provide the requested info (rule 37 with the discovery rules starting with rule 26). You also have mandatory disclosure under the rules (16.1) to hold them to.

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17 minutes ago, CCRP626 said:

loan agreement looks suspicious for the reasons circled within.

 

I'm reviewing the uploaded documents.

If the "loan agreement" was uploaded from the creditor's website is the same agreement provided as evidence, nothing is suspicious in terms of the circled dates because 2006 to 2015 would encompass all agreements during that time period.

@scarab

1.  Why did you circle and question "featured borrower"?

2.  Did you sign anything?   Have they provided any signature at all, even an electronic signature?

 

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37 minutes ago, scarab said:

Note that the Affidavit is NOT from the original creditor (the bank) nor the transferree (LendingClub).  It is from an employee of Velocity, the JDB, and apparently, the third party to purchase this debt.  My understanding is that I should be able to strike it.  Correct me if I am wrong.

Use Google Scholar to study caselaw, including any adoptive records practices they could use in their favor. Nevada Evidence rules are in Chapters 47-56. http://www.leg.state.nv.us/NRS/Index.cfm

Business Records Exception to Hearsay Rules is http://www.leg.state.nv.us/NRS/NRS-051.html#NRS051Sec135

NRS 51.135  Record of regularly conducted activity.  A memorandum, report, record or compilation of data, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony or affidavit of the custodian or other qualified person, is not inadmissible under the hearsay rule unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Nothing in that affidavit about regularly conduced activity, etc. to meet 51.135. Where did they get the information from? Did an original creditor employee verify the accuracy before transferring the detail? When and how did that OC employee do this? What is the JDB employee looking at to provide these figures, a computer screen?

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7 minutes ago, BV80 said:

nothing is suspicious in terms of the circled dates because 2006 to 2015 would encompass all agreements during that time period.

looks generic and ambiguous to me. Last activity for account was 2010 with no idea what's been changed in that stack for five years after or the referenced docs.

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12 minutes ago, BV80 said:

 

I'm reviewing the uploaded documents.

If the "loan agreement" was uploaded from the creditor's website is the same agreement provided as evidence, nothing is suspicious in terms of the circled dates because 2006 to 2015 would encompass all agreements during that time period.

@scarab

1.  Why did you circle and question "featured borrower"?

2.  Did you sign anything?   Have they provided any signature at all, even an electronic signature?

1) I circled these mentions of "featured borrowers" (there were at least 3)  because my reasoning is this:  If this were a true loan agreement (NRS 11.190 says "contract, obligation or liability founded upon an instrument in writing "), why would there be a bunch of gobbledygook about other borrowers on what is allegedly MY loan agreement?

2) I don't know if I signed anything.  I have no records.  They have not provided any written signature.  I'm not sure if they provided an electronic signature.  What form would this take?

 

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9 minutes ago, CCRP626 said:

looks generic and ambiguous to me. Last activity for account was 2010 with no idea what's been changed in that stack for five years after or the referenced docs.

Exactly.  My point here is that this document was actually printed out from LendingClub's site in 2015 - coincident withe the time Velocity did their deal with LendingClub.  It is NOT the actual loan agreement from 2010.  I need to attack the validity of this document and get it stricken.  I would like your guys' help in doing this.  If successful in being striken, then the SOL will not be any question: 4 years and we are beyond 4 years at the time they filed the suit. 

NRS11.190:

 

Quote

2.  Within 4 years:

      (c) An action upon a contract, obligation or liability not founded upon an instrument in writing.

 

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28 minutes ago, CCRP626 said:

If they don't, the discovery section in the rules has detail on compelling them to provide the requested info (rule 37 with the discovery rules starting with rule 26). You also have mandatory disclosure under the rules (16.1) to hold them to.

Yes, I agree.  From the research I have done so far, the prior cases involving consumers counter-suing Velocity, they filed a motion to compel Velocity to disclose the full terms/conditions of the purchase agreement between Velocity and the creditor they purchased the account from.  The next thing filed in all the cases I found was Velocity filing a voluntary motion to dismiss.

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28 minutes ago, CCRP626 said:

Use Google Scholar to study caselaw, including any adoptive records practices they could use in their favor. Nevada Evidence rules are in Chapters 47-56. http://www.leg.state.nv.us/NRS/Index.cfm

Business Records Exception to Hearsay Rules is http://www.leg.state.nv.us/NRS/NRS-051.html#NRS051Sec135

NRS 51.135  Record of regularly conducted activity.  A memorandum, report, record or compilation of data, in any form, of acts, events, conditions, opinions or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony or affidavit of the custodian or other qualified person, is not inadmissible under the hearsay rule unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.

Where did they get the information from? Did an original creditor employee verify the accuracy before transferring the detail? When and how did that OC employee do this? What is the JDB employee looking at to provide these figures, a computer screen?

Good questions:  I may have gotten over-zealous in my document redactions.  The affidavit is dated only a couple of months ago by the Notary who witnessed the employee of Velocity signing the document.  I think I can argue that Velocity's employee did not have first hand knowledge of the alleged account.  Its my understanding that this is required by law.

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3 minutes ago, scarab said:

1) I circled these mentions of "featured borrowers" (there were at least 3)  because my reasoning is this:  If this were a true loan agreement (NRS 11.190 says "contract, obligation or liability founded upon an instrument in writing "), why would there be a bunch of gobbledygook about other borrowers on what is allegedly MY loan agreement?

If it was downloaded from the OC's website, it would not reference a specific borrower.

 

4 minutes ago, scarab said:

2) I don't know if I signed anything.  I have no records.  They have not provided any written signature.  I'm not sure if they provided an electronic signature.  What form would this take?

The agreement references an electronic signature.   Page 3:  "BY ELECTRONICALLY SIGNING THE AGREEMENT, YOU HAVE SIGNIFIED YOUR AGREEMENT TO THESE TERMS."

  I would find out what constitutes an electronic signature (or digital signature) in your state.   If they can't supply that signature, they don't haven't an agreement.  A NV attorney could explain what "electronic signature" means in your state.

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21 hours ago, BV80 said:

If it was downloaded from the OC's website, it would not reference a specific borrower.

 

The agreement references an electronic signature.   Page 3:  "BY ELECTRONICALLY SIGNING THE AGREEMENT, YOU HAVE SIGNIFIED YOUR AGREEMENT TO THESE TERMS."

  I would find out what constitutes an electronic signature (or digital signature) in your state.   If they can't supply that signature, they don't haven't an agreement.  A NV attorney could explain what "electronic signature" means in your state.

I will put that on my list of questions to ask.  In the meanwhile, I found NRS regarding electronic signatures and electronic records.

CHAPTER 719 - ELECTRONIC TRANSACTIONS (UNIFORM ACT)

https://www.leg.state.nv.us/nrs/NRS-719.html

CHAPTER 720 - DIGITAL SIGNATURES

https://www.leg.state.nv.us/NRs/NRS-720.html

 

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15 minutes ago, scarab said:

I will put that on my list of questions to ask.  In the meanwhile, I found NRS regarding electronic signatures and electronic records.

CHAPTER 719 - ELECTRONIC TRANSACTIONS (UNIFORM ACT)

https://www.leg.state.nv.us/nrs/NRS-719.html

CHAPTER 720 - DIGITAL SIGNATURES

https://www.leg.state.nv.us/NRs/NRS-720.html

 

Regarding that copy of the loan agreement that you uploaded, is that the copy provided to you by the JDB (whether attached to the complaint or sent at a later time)?

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12 minutes ago, BV80 said:

Regarding that copy of the loan agreement that you uploaded, is that the copy provided to you by the JDB (whether attached to the complaint or sent at a later time)?

Its a copy of the one the JDB's attorney filed with the court with the complaint.  They redacted some items, but before I posted it here, I redacted more - anything that could be used to identify me on this public forum.   Back when they sent me the first dunning letter last year, they sent me a non-redacted version of these same documents. 

Other than the redactions, the document filed with the court is the same as the one they sent me last year.

The only thing new is the bills of sales, and the affidavit.

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