crapola

Arkansas LVNV Request for Production

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I posted this question in the wrong thread and was advised to create a new thread. I did get an answer to my question in the last thread but I wanted to post my situation for all to learn from. I am a newbie to lawsuits and I am riddled with many as of late. My question for this suit is on the production no.4 it ask for 10 original signatures of my name on a blank sheet of paper. RED FLAG went up in my head. No amount of googling was giving me any kind of help to this so I brought it here. The answer i got from previous thread was " Objection:  this request is irrelevant and not destined to reveal any information material to the case as filed".
This suit is my 2nd within a 30day time frame, my first suit with PRA has not requested a discovery and a court date is set for Oct.12, 2016 with PRA.
Thank you for helping all of us Pro Se.

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request no 2. (listed 2x)  if i described any evidence to attach a copy, i did not so i assume i do not add an answer nor documents
request no 1. if i listed any items of documentary evidence attach copies, again i assume no answer needed nor documents since i did not list any
request no 3. produce all documents or other tangible items which will be introduced into evidence or reffered to during the testimoney of any witness during tial of this matter which have not yet been provided in responce to the previouse request for production of documents.
interrogatory no 5 (listed 2x) ask for my name and address which i gave for one listing and on the other objected on the grounds that it is duplicative.

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@crapola if you want to start a second thread for the second case and answer the questions below that can help and keep the cases separate.  PRA is under a CFPB consent order to provide certain detail within 30 days of initiating a lawsuit. @Jimmy E is an experienced Arkansas poster who will hopefully spot your threads and help out. Your discovery #3 you can just object and say it is too early and discovery is ongoing to know of any documents you could be introducing into evidence. I'm not sure if Arkansas has a pre-trial requirement to introduce everything you intend to provide by a certain date before trial but if so, you can mention that hasn't been reached yet.

Page 32 bottom to page 35 but try to read the whole thing. http://files.consumerfinance.gov/f/201509_cfpb_consent-order-portfolio-recovery-associates-llc.pdf

Sine LVNV and PRA are both JDBs I'd see if your cardmember agreements provide arbitration through JAMS or AAA, I'd consider doing that before you get deep into discovery in court and possibly waive your right to arbitrate. If you decide on that, you don't need to worry about answering this discovery, the motion to compel private contractual arbitration will put a stay on the court case including discovery but you'll want to ask for a hearing date before discovery is due.

 

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@CCRP626 Thank you for your reply. I looked at the cardholder terms sent with the complaint and it does have American Arbitration Association and JAMS contact information. As I read it if the OC or myself had an issue either one of us whould go through AAA or JAMS is that correct?
I read no where about claims made after account defaulted,closed or sold to third buyer.

This suit came with a complaint , filed in another county, last 4 of account number I can not verify it is mine i no longer have information from any of my previous card accounts. Listed amount owed, signed by lawyer. Affidavit  states to the best of their knowledge, ordinary course of business, "Plaintiff acquired the credit account of the Defendant herein, account number )blacked out with marker) states (hereinafter the "credit account") from the original creditor or its successor-in-interest." signed and notary.

Attached a credit one account statement with the account number blacked out with marker, contains my name, charge off amounts in total balance due $0. Next card terms.

Again thank you for advise and support. I do not have much time to learn everything online I care for my disabled husband and home school our 2 children, and help maintain the farm. I know when I got my first summons I was in for a battle. At the time I had credit cards I was going to college, I graduated in 2013. My  final semester my husband became ill and spent months going to hospitals and specialist trying to find out why he was walking on friday and Saturday morning he cant. No one knew why and chopped it up to its all in your head. The family got together and sent him to the mayo clinic in MN where he finally got a name, but as to why no one knew, the same day he was in clinic the disability ppl called him for an interview and there is no better way to get approved then to have that happen at the mayo. He came home and obamacare was getting into full bloom and we lost our insurance. we Applied for medicaid and they covered him for 3 months and took him off due to paper work misplacement. During the 2 yrs waiting for medicare I did default on my cards and never read any mail that wasnt the light and phone bill.

I did talk to 3 lawyers and the price of the mean one $500 the price of the nice one $750 and the last one doesnt do small claims but gave me free advice and told me he was proud to see me trying to fight the scum bags. I can not pay $750 per suit I may be hit with at this time 2 of them but I have started to get calls stating there is a case filed and want to talk to me before they act on it by a different company. I figure they already took action since they said its filed im waiting for that summons.

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Afternoon, I was thinking I might go ahead and file a motion to dismiss for lack of contract / bill of sale.
can I add that it was filed outside my county?
also while creating my dismiss i noticed something, on my complaint the case number ends with a 2 however on the discovery papers the case number ends with a 4. Im curious about this.

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36 minutes ago, crapola said:

Afternoon, I was thinking I might go ahead and file a motion to dismiss for lack of contract / bill of sale.
can I add that it was filed outside my county?
also while creating my dismiss i noticed something, on my complaint the case number ends with a 2 however on the discovery papers the case number ends with a 4. Im curious about this.

If the date the account was opened is given, did you live in that county at that time?   Have you ever lived in that county?

 

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I have never lived in the county that the suit was filed in. However I share a zip code with 2 counties, upon my zip look up you do not get my county but rather the one the suit is in.

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@crapola read the first few pages of this linked thread. Use the cardmember agreement provided to get you into JAMS by filing a Motion to Compel Private Contractual Arbitration (template in that thread). There's also a current thread on an Arkansas case by a JDB that keeps popping up which has been dragging on and on in court with the Plaintiff getting indulged with delay after delay. I'd just look into arbitration instead of that.

 

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This goes a lot easier if you just fill in answers to those questions. Now you're asking the same questions in the old arb thread without any of the basics for anyone to go on. We know who the JDBs are. Original creditor I think you mentioned was Sears elsewhere which is Citibank I believe. Without basic info you're spinning your wheels. The JDB is now under the original creditor cardmember agreement based on the period when the account was in use. You can find them here- http://www.consumerfinance.gov/credit-cards/agreements/

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I found this site
http://www.howtowinacreditcardlawsuit.net/successful-motion-to-dismiss-for-lvnv-funding-credit-credit-card-lawsuit/

down the page it state

"If I had read my court rules, I would have known that I could have filed a motion in lieu of my answer. If it had been granted, it would have been finished. If not, my rules clearly state that if the court does not grant the motion, the responsive pleading shall be served 10 days after the notice. So what that means is that if the judge denied the motion, I would only have 10 days to then answer the complaint.

The reason why I would have filed a motion to dismiss was for not complying with Indiana Trial Rule 9.2 which states:

(A) When instrument or copy must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.

Now, the plaintiff did not attach an original or copy of the contract so they did not comply with Trial Rule 9.2. My motion to dismiss would have stated this"

Question: Can I file a motion to dismiss, its been 2 weeks since I filed my answer.

If yes, do I do it before I send in my discovery or after?

Thank you for your time.

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17 minutes ago, crapola said:

I found this site
http://www.howtowinacreditcardlawsuit.net/successful-motion-to-dismiss-for-lvnv-funding-credit-credit-card-lawsuit/

down the page it state

"If I had read my court rules, I would have known that I could have filed a motion in lieu of my answer. If it had been granted, it would have been finished. If not, my rules clearly state that if the court does not grant the motion, the responsive pleading shall be served 10 days after the notice. So what that means is that if the judge denied the motion, I would only have 10 days to then answer the complaint.

The reason why I would have filed a motion to dismiss was for not complying with Indiana Trial Rule 9.2 which states:

(A) When instrument or copy must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.

Now, the plaintiff did not attach an original or copy of the contract so they did not comply with Trial Rule 9.2. My motion to dismiss would have stated this"

Question: Can I file a motion to dismiss, its been 2 weeks since I filed my answer.

If yes, do I do it before I send in my discovery or after?

Thank you for your time.

The defendant in the link was from Indiana.  Which  AR rule says a copy of the contract must be attached to the complaint?

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13 hours ago, BV80 said:

The defendant in the link was from Indiana.  Which  AR rule says a copy of the contract must be attached to the complaint?

I am reading the link below and having trouble understanding it. I read what an affidavit must contain but it is not required to file it with the case. I have no affidavit with my complaint. Then it says those attempting to collect a debt must adhere to

Arkansas Rule of Civil Procedure 10(d) requires that “a
copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred, unless good cause is shown for its absence in such pleading.
 
it says Neither the Arkansas Supreme Court nor the Arkansas Court of Appeals have addressed whether debt buyers
are required to obtain a license from the Arkansas Board of Collection Agencies. Although it appears many passive debt buyers obtain a license from the Arkansas Board of Collection
Agencies, it is at least arguable that passive debt buyers should not be required to do so.This is because passive debt buyers purchase delinquent accounts and then engage others (who must either be licensed under Ark.Code Ann.§17-24-101 or
are exempt from licensing under such provisions, such as attorneys) to attempt to collect these delinquent accounts.
Ark. Code Ann.§17-24-301 provides that it is unlawful for a person or entity that is not licensed by the State Board of Collection Agencies to...“purchase and attempt to collect delinquent accounts or bills.” It can be argued that because a passive debt buyer does not “attempt to collect” the delinquent accounts it purchases, but instead engages others to do so,
A.C.A. §17-24-301 does not require a passive debt buyer to obtain a license.

They are not licensed in Arkansas as far as I can tell.
 

http://www.nationallist.com/image/cache/White_Paper_Arkansas_Debt_Collection1.pdf
 

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upon reading more court rules i found this -- Addition to Reporter’s Notes, 2014 Amendment: The amendment addresses several problems that have arisen in practice under District Court Rule 9. The rule prescribed that an appeal was taken from the district court by filing with the circuit clerk “a certified copy of the district court’s docket sheet,” rather than the district court record as had been required prior to a 2008 amendment of the rule. In Johnson v. Dawson, 2010 Ark. 308, 365 S.W.3d 913, the appellant did not file the docket sheet but filed all of the actual documents in the case, in effect, the district court record. Since the appellant had not complied with the Rule 9(b) requirement that the docket sheet be filed, the Arkansas Supreme Court held that the circuit court did not have jurisdiction and upheld dismissal of the case. --

how can i find out if they filed a docket or just their papers? Would that be like since I did not go to district court I can dismiss?

 

JUST REALIZED IT IS FOR APPEALS.

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3 hours ago, crapola said:
Arkansas Rule of Civil Procedure 10(d) requires that “a
copy of any written instrument or document upon which a claim or defense is based shall be attached as an exhibit to the pleading in which such claim or defense is averred, unless good cause is shown for its absence in such pleading.

A copy of the written instrument could be a copy of the terms of the agreement.

 

3 hours ago, crapola said:

They are not licensed in Arkansas as far as I can tell.

Yes, they're licensed.

http://www.asbca.org/collect_search/index.php

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On ‎09‎/‎24‎/‎2016 at 7:42 PM, BV80 said:

The defendant in the link was from Indiana.  Which  AR rule says a copy of the contract must be attached to the complaint?

Rule 10(d)

Further....  (d) marks a deviation from FRCP 10 in that the attachment of exhibits is here made mandatory unless good cause is stated in the pleading to justify their absence.  This provision is similar to superseded Ark.  Stat.  Ann.  27-1144 (Repl.  1962), except there is no requirement here that the best evidence of a written instrument be filed in the absence of the original.  No attempt has been made by the Committee to define good cause which justifies the failure to attach an exhibit to a pleading; instead, the courts are given the discretion to make such determination.  It is the intent, however, that exhibits should be attached to pleadings in all but exceptional cases.

Arkansas courts really want a contract attached!

Thanks,

Jimmy

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Btw, JDBs do NOT have to be licensed with the state board of collections anymore.  Most are now set up as LLCs, or registered as 'foreign entity' companies, which satisfies their requirement of being 'legal' in bringing suit in the first place.

You can find this NEW rule under:  Arkansas code annotated 4-32-1008 -- "Transactions not constituting transacting business"

Jimmy

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On 9/26/2016 at 3:29 PM, Jimmy E said:

Rule 10(d)

Further....  (d) marks a deviation from FRCP 10 in that the attachment of exhibits is here made mandatory unless good cause is stated in the pleading to justify their absence.  This provision is similar to superseded Ark.  Stat.  Ann.  27-1144 (Repl.  1962), except there is no requirement here that the best evidence of a written instrument be filed in the absence of the original.  No attempt has been made by the Committee to define good cause which justifies the failure to attach an exhibit to a pleading; instead, the courts are given the discretion to make such determination.  It is the intent, however, that exhibits should be attached to pleadings in all but exceptional cases.

Arkansas courts really want a contract attached!

Thanks,

Jimmy

Thank you for helping me understand this rule better.

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@Chalmers Johnson, did Plaintiff use his two weeks wisely, or as for a continuance?

@crapola, no problem.  It hasn't been very long since all JDBs had to be registered with the 'Arkansas Board of Collections.'  There were MANY who weren't, and subsequently LOST when the defendant knew about this.

Anyway, the matter was taken all the way to the 'Arkansas Supreme Court.'  There were two questions to be answered by the 'high' court.  I don't have it in front of me, but essentially, the court was asked to rule on whether 'local' attorneys who represented JDBs, caused the JDBs to be considered 'debt collectors?'  The JDB argued that since they have local attorneys file suits on the JDBs behalf, it is the attorney who has 'stepped into the shoes of the debt collector.'

Needless to say, the AR Supreme Court said, if you are an out of state JDB, you ARE a debt collector, and must be registered with the state collections board.

The point of all of this, is it caused EVERY JDB to set up a 'foreign limited liability' company with the Secretary of State -- to be in compliance and legal.

JDBs are always slithering their way around to be 'legal.'  Too bad the suits they file don't have to meet a stronger test.

Jimmy

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This just in a couple weeks ago...answers to my interrogatories and production.

Interrogatory 1: state names providing answers -- they did

Interrogatory 2: state legal names and organization--they did

Interrogatory 3: state form of organization, date and place it was formed and registered/licensed to do business---Answered with Objection, irrelevant and not material to the matter at hand.

Interrogatory 4: are you licensed to collect a debt in Arkansas---they answered yes

Interrogatory 5: do you have an actual contract between the defendant and the credit one bank---answered with objection, irrelevant and not material, defendant does not specify what kind of contract. The elements of a contract do not require a writing as in the form of an application. Elements are as follows: 1: competent parties, 2: subject matter, 3:legal consideration, 4: mutual agreement, 5: mutual obligations. The Appellate court recognized there need be no written document in order to have a contract. Use of the credit card forms the contact.

Interrogatory 6: do you have the assignment between the credit one bank and LVNV funding?---answered yes

Interrogatory 7: in regards to the contract or agreement alleged in this action, please state the following, terms of contract-credit limit-date and value on said contract-date and value on payments or credits on said contract---answered see number 5

Interrogatory 8: state all actions taken to verify the accuracy and completeness of the account which is the subject of this lawsuit---answered with objection, credit card statements are a reliable reflection of all purchases and payments made on a credit card account.refereed to truth in lending act 15, a debtor has 60 days to dispute charges made on their credit card, if they fail to do so they waive their right to dispute the balance due.

Interrogatory 9: do you have an invoice / bill of sale to show ownership of this account?---answered no, but transfer documents are attached hereto.

Interrogatory 10: please state the date upon which you allege the credit cards sued upon in the complaint was issued by credit one bank---answered, yes

Interrogatory 11:please state the date upon which you allege the credit card sued upon in the complaint was first used by the defendant---answered with a date opened 2013, this could be considered first use of the credit card.

 

PRODUCTION

Attached:

bill of sale and assignment from FNBM,LLC to purchaser (copy format)--break down: FNBM LLC seller to Sherman Originator III LLC purchaser. Receivables identified on an account level basis on the data file titled creditone_sherman_092015.xlxs. Transferred and Administration agreement dated as of November 25, 2009. signed by FNBM LLC september 16, 2015 and Sherman Originator III LLC credit one bank hereby acknowledges the sale. The receivables assigned under the terms of this bill of sale were originated or acquired by credit one bank and have previously been assigned to FNBM LLC pursuant to a series of self-executing agreements, signed by credit one bank on sep 16, 2015

Transfer of Assignment--Sherman Originator III LLC (SOLLC III) transfers to Sherman Originator LLC (SOLLC) everything in exhibit A dated sep 8, 2015 delivered by FNBM LLC on sept 16, 2015 for purchase by SOLLC III on sept 16,2015. SOLLC transfers to LVNV funding. Signed by shermain or. II LLC, and by sherman org LLC, and by LVNV funding dated sept. 16, 2015--copy format

Affidavit--1: Authorized Representative of LVNV Funding. 2: Ordinary course of business, Plaintiff regularly acquires revolving credit accounts, installment accounts,and/or other credit lines from original creditors or their successors-in-interest.. 3: Plaintiff acquired the credit account of defendant herein acct number ---4: LVNV Funding LLC is not the original creditor of the credit account. Credit one bank is the original creditor of the credit account. signed dated april 2016 copy format can not read notary seal

copies of statements--unknown if original, all have same format, starts from nov 20,2013 all the way to aug 26,2015previous bal, payment,fees,interest,due by---credit card terms--then another repeat of statements , aug 25, 2015-aug 26,2015 has in large letters across it adult pdf dot com, and created by tiff to pdf trial version to remove mark register--same date but account numbers blacked out

letter dated dec 31, 2015 of debt they purchased got 30 days to dispute.

Privacy Notice--this privacy notice is being provided on behalf of each of the following related companies (collectively, the sherman companies) resurgent capital services L.P--sherman acquisition LLC--resurgent capital services PR LLC-- LVNV funding LLC--PYOD LLC-- anson street LLC--ashley funding services LLC--SFG REO LLC

Letter dated feb 15, 2016, reviewing account unpaid balance will settle for.

letter dated feb 18, 2016, reviewing account, unpaid balance will settle for same offer as last letter.

RECEIVED ANOTHER PACKECT

changed inter. 10 to a date

sent verification with notarty

exhibit A form name of file---print of file redacted info ex mine, zip code, acct number, name, ssn, address,phone,amt,dob,

filed  on nov 17,2016--supplemental response to defendants request for admissions--request 1: admit plaintiff purchases defaulted debts as a regular course of business---they objected request 2: admit not original creditor--they answered admit--request 3: admit not affiliated with credit one bank--they admitted--request 4: admit plaintiff does not now nor ever originated records for credit one bank that would be maintained by that company in their regular course of business---they admit---request 5: admit plaintiff does not calculate or maintain records for the benefit of credit one bank--objection--request 6: admit plaintiff does not have an application for an extension on credit from defendant--object--request 7: signature from defendant-objection--request 8: written signature from defendant-objection--request 9: digital signature-objection--request 10: admit does not have access to records created and maintained by credit one bank-objection--request 11:admit plaintiff has submitted all documents in plaintiffs possession related to the alleged debt--denied---------document was not signed but stamped---------------

 

 


 

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Hi it has been awhile, the discovery process is over on their part and mine. Everyone got their papers within the allotted time frame. I have not heard anything from them since. I assume it might be because of the holidays. I do not know what my next step is. I am just waiting for a letter informing me of a court date I assume.

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@crapola, holidays or not, the 'wheels' keep spinning.  If the last paperwork received was Nov 17, the JDB will very likely file a 'Motion for Summary Judgment,' perhaps, along with a 'brief.'  The 'brief' will essentially say you have been provided what you asked for, and now "here is why judge should find in favor of the Plaintiff."

I realize they did NOT provide what you asked for -- objecting instead.  BUT, it is up to YOU to address these objections by filing a 'Motion to Compel,' a 'Motion for a More Definate Statement,' or something similar that will get the judge involved to rule on.

Since I have not seen the original complaint, along with discovery in the order it happened, it's hard to give an opinion.  If you would like to PM this information to me, I'd be glad to take a look at it.

I will say that I'm seeing more and more forum members advise for filing to ARBITRATE.  I don't know if it is too late to do that now or now.  I know very little about arbitration, but other members can advise 100X better than I could.

Thanks,

Jimmy

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Hello again,

I need to do something I think with this case but reading this forum again just made my head spin.

Lets recap shall we.

1. summoned 8-25-16 / complaint - affidavit - statements
2. answered 9-12-16
3. discovery took place responded to there admissions and interogatories - received by them 9-28-16 
4. received letter them asking clerk to file copy of responses to defendats request for admissions 10-26-16.
5. I have had no other contact since then. Below is the contents of the letter.

Answers

1. admit that plaintiff purchases delaulted debts as a regular course of business.
    objection. irrelevant and not material to the matter here at hand.

2. admit that plaintiff is not the original creditor of the alleged debt which is the subject of this lawsuit.
    admit

3. admit the plaintiff is not an affiliate or subsidiary of credit one bank.
    admit

4.admit that the plaintiff does not now or has ever originated records for credit one bank that would be maintained by that
  comapny in their regular course of business.
    admits that plaintiff does not orginiate said records, but plaintiff is familiar how those records are kept and
    can testify as to how they are kept by the orginial creditor, credit one bank

5. admit the plaintiff does not calculate or maintain records for the benefit of credit one bank.
    objection plaintiff is familiar with the records and can testify.

6. admit the plaintiff does not have an application for an extention of credit from the defendant.
    objection the elements of a contract do not require a writing as in the form of an application.
    the arkansas supreme court stated that the elements are as follows:
    1. competent parties
    2. subject matter
    3. legal consideration
    4. mutual agreement
    5. mutual obligations (ref. cases)
    in this case the use of the credit card forms the contract. Signed charge slips are not necessary in order to support its claim.

7. same as 6 adding with a signture from defendant
    see number 6

8. same as 6 adding with a written signture from defendant
    see number 6

9. same as 6 adding with a digital signture from defendant
    see number 6

10. admit the plaintiff does not have access to all of the records created and maintained by credit one bank that pertain to the alleged account
    that is the subject of this lawsuit
    see number 6

11. admit that the plaintiff has submitted all documentation in plaintiffs possession related to the alleged debt which is the subject of this lawsuit
    denied

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I called the court  2 weeks ago to see if they have filed anything but the clerk said its just in a sitting state. It has been what 6 months since discovery. Im going to look up how to file a no evidence motion for summary. I have had so much going on that i am revealed these ppl have been on the down low.

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