Indy17

Indiana - Motion to dismiss denied - advice super appreciated.

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Hey everyone.

I was served papers from discover card. They are being represented by Blitt and Gaines PC - A fairly active debt law firm. I would love some advice on my case. Most of my hangups are on procedural stuff. I really am having a hard time finding answers for that.

I will preference this by saying, my goal is to cause enough legal trouble for the plaintiff that I can settle for 50%. total debt is 3700

I filed a motion to dismiss for insufficiency of process. Citing Indiana Law 12(B)4 - which says insufficiency of process is a valid motion to dismiss. I cited Indiana law 4(C)5 which requires the complaint served, to have all time limits and consequences of failing to meet time limits. The complain I was served gives no information regarding my Plea/answer. It threw me off for a couple weeks. It really seems that the time limit of 20 should of been included in the complaint. The part that really has me confused is, the plaintiff responding to my motion- in a sloppy and in factual way. they stated that my motion was for insufficiency of service, and that I stated no information regarding improper service. I was clear in my motion to cite the law for Insufficiency of process. insufficiency of service in Indiana 12(B)5. The judge "duly noting" the plaintiffs response, denied my motion. If someone could give me some insight that it would be great.

Moving forward I have time to file my answer. Should I use every affirmative defense I can think of? A lawyer told me that, But i read that when a defendant uses a affirmative defense the burden of proof comes on the defendant.

My two defenses are the insufficiency of process, and attacking the affidavit. The affidavit does not seem to adhere to Indiana trial code. 9.2 - which states it must be "substantially similar" to appendix A-2(form) - Which has separation for interest and Fees. The affidavit does not have any information on interest, fees, or total of them. I believe I am past my time for motion to strike.

I also tried to negotiate with the debt agency after I was served papers. So I don't think denying every allegation against me would be wise. Advice on that would be great. How can i deny that i failed to make minimum payments etc?

Where can I find info on procedural stuff.

I would gladly pay for legal advice, but I can't find a law firm that will simply answer my questions without doing the whole thing 100%

I was served papers Feb 7 and my hearing is already going to be March 23. I am having difficultly finding my time lengths. and how I file motions to strike, discovery, etc.

any way, Hopefully someone can google and find this to help themselves. Any help I can get is greatly appreciated.

Thanks everyone. Love the site and forum.

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1 hour ago, Indy17 said:

If someone could give me some insight that it would be great.

You would have to research whether an appeal of the denial is allowed under Indiana law and if it is file one.  There are strict time limits on doing that so you would need to move quickly.

1 hour ago, Indy17 said:

Should I use every affirmative defense I can think of?

No.  You should use the ones that apply to your case.  You cannot throw everything at the case and hope something sticks.

1 hour ago, Indy17 said:

But i read that when a defendant uses a affirmative defense the burden of proof comes on the defendant.

This is correct.  

1 hour ago, Indy17 said:

I also tried to negotiate with the debt agency after I was served papers. So I don't think denying every allegation against me would be wise. Advice on that would be great. How can i deny that i failed to make minimum payments etc?

Settlement negotiations are not admissible at trial.  You cannot lie when under oath.  DO NOT do it you will create more problems than you solve.

1 hour ago, Indy17 said:

I would gladly pay for legal advice, but I can't find a law firm that will simply answer my questions without doing the whole thing 100%

No firm is going to answer your legal questions about trying the case pro-se (on your own).  Once they start advising you then attorney client relationship is created and they carry a liability for the potential consequences of getting it wrong.  You either hire a law firm to represent you or do it on your own.  You MIGHT find some help at a local law school legal aid clinic if there is one.  They will sometimes advise in the capacity you are looking for.

1 hour ago, Indy17 said:

I am having difficultly finding my time lengths. and how I file motions to strike, discovery, etc.

any way, Hopefully someone can google and find this to help themselves.

Google Indiana rules of civil procedure are start reading.  

1 hour ago, Indy17 said:

I will preference this by saying, my goal is to cause enough legal trouble for the plaintiff that I can settle for 50%. total debt is 3700

The major problem is the defenses you read about on sites like this are based on being sued by a third party junk debt buyer after the original creditor has sold the account.  Discover is the original creditor and they have ALL the documents needed to prove their case.  The chances of you settling for half when they can get a judgment easily are not good at all.  It isn't that an OC lawsuit can't be won but it is VERY VERY difficult.  I am presuming they rejected your settlement offer?  I have heard that once a consumer makes a low ball offer the Discover often digs in and goes after the entire amount plus costs.  Be prepared for that.

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@Indy17

Insufficiency of service and insufficiency of process are 2 different things.

Were you served at your home in the manner required by your rules?  If so, there was no insufficiency of service. 

As to the judge's denial of your motion to dismiss, if you fight the lawsuit and lose, you could probably appeal on the issue of insufficiency of process, but I don't know if it would make a difference.  The judge could have dismissed the lawsuit, but Discover could have refiled with the correct process.  Also, note that Appendix-2 says "substantially similar".  That term is not defined.

Is this in small claims?

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hey BV80, thanks for the reply. 

Yes I know insufficiency of service and process are different things. That's why I am confused. I motioned to dismiss for insufficiency of process. The plaintiff's response was saying insufficiency of service incorrectly.

Yes, So I assume the Judge gets to be the one to decide what is substantially similar. My defense would maybe need a brief or information on cases where these phrase has been litigated. 

This is small claims court. 

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Hey Clydesmom thanks for the response. You answer didn't seem to appear at first. Thank you for the advice. 

 

Good to know negotiations are not admissible. Thank  you for the advice on my exceptions of paying 50%. they offered lump sum of $2700 - which I can't afford. The only other option they gave me was 2 years to pay basically 100%. So I decided to try and fight in court as, me losing would not be that much different. They are not suing for attorney fees. 

I see arbitration is a big topic on the forums. I do not have my contract. I can't find the 2015 discover contract. I think the 2016 version had arbitration costs being decided after arbitration. Not a good avenue. However, in formal discovery, would requesting the contract be something they would need to give me?- and if they dont?

Back to my answer plea. I hear mixed things. Some say to deny everything. NOLO said if their is an affidavit, be very careful about denying, and elect to choose not enough information to know. How do I decide what is best to do? I don't see how I could deny that I missed minimum payments. 

thanks everyone. 

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12 minutes ago, Indy17 said:

hey BV80, thanks for the reply. 

Yes I know insufficiency of service and process are different things. That's why I am confused. I motioned to dismiss for insufficiency of process. The plaintiff's response was saying insufficiency of service incorrectly.

Yes, So I assume the Judge gets to be the one to decide what is substantially similar. My defense would maybe need a brief or information on cases where these phrase has been litigated. 

This is small claims court. 

Are you quoting the small claims rules?  If not, you need to see if there are separate rules for small claims court.  In some small claims courts, they only have to give a date to appear in court.

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17 minutes ago, BV80 said:

Are you quoting the small claims rules?  If not, you need to see if there are separate rules for small claims court.  In some small claims courts, they only have to give a date to appear in court.

AH MAN. Thank you for pointing this out to me. I feel like such an idiot. Indiana Has small claim rules that are very different from the normal trial rules. It doesn't appear that an answer is even something I can file according to small claims rules. How should I proceed? 

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3 minutes ago, Indy17 said:

AH MAN. Thank you for pointing this out to me. I feel like such an idiot. Indiana Has small claim rules that are very different from the normal trial rules. It doesn't appear that an answer is even something I can file according to small claims rules. How should I proceed? 

I'm not familiar with IN rules.  Did the summons include a date to appear in court?  You just have to follow your rules.

You're being sued by an original creditor which make things more difficult because an OC is more likely to be able to prove its claim.  As for arbitration, you could try it, but Discover is one that has been known to agree to arbitration.  So a motion to compel arbitration wouldn't necessarily make them go away.

If you choose to defend yourself, you will have to follow your rules to a "t", including your discovery rules.  You would need to see if there's any discrepancy or lack of proof that would cause the judge to rule in your favor.

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Bv80, the only thing I have for a defense is that the affidavit doesn't have the interest or fees separated, which is on the form it is supposed to be substantially similar too. knowing this, should I try to make a settlement? of try to find a case where not having interest and fees in a separate area allowed the case to be dismissed?

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7 minutes ago, Indy17 said:

Bv80, the only thing I have for a defense is that the affidavit doesn't have the interest or fees separated, which is on the form it is supposed to be substantially similar too. knowing this, should I try to make a settlement? of try to find a case where not having interest and fees in a separate area allowed the case to be dismissed?

Well, your MTD has already been denied.  You'd have to find out if you could appeal that decision right now.  I'm not sure you could. 

If you could appeal right now (usually called an "interlocutory appeal"), you'd have to find the case law to support a dismissal.  But, unless the dismissal is with prejudice, Discover could refile with a corrected affidavit.

If you cannot appeal right now, you'd have to wait to see if you lost the lawsuit before you could appeal,

As far as defenses are concerned, what was included with the summons and complaint?  Do you know for sure this is your account?  Does the amount seem correct?

You also need to see what happens in your state if a judgment is rendered against you.  Can your wages be garnished, etc.?

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BV80 thanks for all the info. 

Indiana small claims rules has ZERO regarding motions, or discovery or any of that. It seems like I show up to court to loose and Indiana garnishment laws are serious. Judgments last 20 years in Indiana. Indiana is a horrible state to lose against a creditor it seems. 

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2 minutes ago, Indy17 said:

BV80 thanks for all the info. 

Indiana small claims rules has ZERO regarding motions, or discovery or any of that. It seems like I show up to court to loose and Indiana garnishment laws are serious. Judgments last 20 years in Indiana. Indiana is a horrible state to lose against a creditor it seems. 

According to the small claims rules, it appears that you have to get permission from the court to conduct discovery and that you must show good cause for discovery to be conducted.  A good cause might be that they haven't proven the amount of the debt.  That would depend upon what evidence they've provided so far.

Here's a ruling for you to read.  It might give you an idea as to what the court requires to prove a credit card lawsuit.

https://scholar.google.com/scholar_case?case=11870204139612821935&q="credit+card"+AND+"debt"&hl=en&scisbd=2&as_sdt=4,15

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BV thanks for the Link. That case may of been prior to a law Change in Indiana. I believe prior to 2011 creditor cases required the original contract. Now you can include an affidavit. Although, it must be "substantially similar' to the Appendix form.- the one that has spaces for interest and fees. 

Reading small claim court rules it doesn't seem like I even can file an answer? I am correct in this? 

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@Indy17  You have a choice to make:  keep this in court or take it to arbitration.

I really don't know if arbitration is an option.  Does Discover have a small claims exemption?

If you are going the arbitration route, remember that Discover rarely walks away.  I say rarely, because there are exceptions to everything.  I was able to get a very satisfactory settlement in arbitration with Discover, but then I had real violations against them and there were a few issues with the records.  Even so, they waited until almost the time of the hearing before agreeing to settle.  

The reason why some people go into arbitration against Discover is to force them to settle.  @Clydesmom  will be very happy to tell you that a losing case in court is also a losing case in arbitration.  The thing is, you don't expect to win.  You want to put pressure on them to accept a settlement offer you can live with.

There are several points at which they are more lilkely to settle:

 

1. Between the time you initiate in JAMS and when they pay the initial fees.

2. Between the time they are billed right before the hearing, and when they pay.  This is when I settled, and some others settled here as well.  Note that they will be more likely to settle if they see you are not a complete idiot.

3.  If you lose the hearing, you file for appeal.  The third point is between the time they are billed for the initial fees for the appeal, and when they pay.

4.  Between the time they are billed for the appeal hearing, and when they pay.

 

 

If you go through the arbitration route, you may be able to buy some time and wear them down a bit for a better settlement. If they agree to a settlement before you file in JAMS and file an MTC, great.  

If you go this route, it will be time consuming.  Be forewarned.  

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Thanks BackForddebt. 

 

I am reading up on Arbitration Right right at this very moment. It seems like the best option I have. I do not have a copy of the card agreement. I will try to get my hands on that. I really just want to avoid a summary judgment against me. I would gladly pay a lump sum in arbitration. It seems that not only will I have more time to save money, but that I may also be able to whittle down the balance. 

 

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@Indy17 The Consumer Financial Protection Bureau didn't collect 2015 agreements in its repository, but has other years. https://www.consumerfinance.gov/credit-cards/agreements/

https://www.discover.com/credit-cards/cardmember-agreement/assets/16DCMO_01TCA_CMASECDI123116_02001.pdf

"This is an example of terms that were available to recent applicants as of 12/31/16. They may not be available now. If you apply, your terms will be based on the terms of the offer when you apply. This Pricing Schedule is part of the Cardmember Agreement."

From page 6 of the agreement:

"Your Right to Go To Small Claims Court.

We will not choose to arbitrate any claim you bring in small claims court. However, if such a claim is transferred, removed or appealed to a different court, we may then choose to arbitrate."

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Brotherskeeper

 

thanks, So am I correct in assuming this contract from 2016 - means I would be SOL if I motioned to compel arbitration in small claims court?

My contract with Discover is from 2015. I have requested that they send me a copy of the Agreement. I can't find anything online.

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1 minute ago, Indy17 said:

Brotherskeeper

 

thanks, So am I correct in assuming this contract from 2016 - means I would be SOL if I motioned to compel arbitration in small claims court?

My contract with Discover is from 2015. I have requested that they send me a copy of the Agreement. I can't find anything online.

 In what year did you default? 

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16 minutes ago, Indy17 said:

BV80

Last Payment was Oct 14, 2016

account was Charged off on May 31, 2917

As long as the account was still current int 2016, you can use the 2016 agreement.

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@Indy17 When you want to tag a member so that we see it, type @ then the member's name. Usually, a column will pop up with the member's name once you begin to type the name, then you can click on that. If you don't see the "@name" turn blue, you haven't done it correctly, so try again. 

13 minutes ago, Indy17 said:

thanks, So am I correct in assuming this contract from 2016 - means I would be SOL if I motioned to compel arbitration in small claims court?

(IANAL I am not a lawyer) No, it doesn't mean you can't motion to compel arbitration as I read it. It means Discover won't choose arbitration to resolve a dispute YOU bring in small claims court. You haven't brought a claim against them in small claims; they are the ones who brought their claim to court against you. You need to familiarize yourself with the small claims court rules in your specific court.

BTW--"SOL" also means statute of limitations around here--meaning the claim is barred due to the time to bring suit having passed, according the limitations laws for credit card debt in your state. 

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Brotherskeeper

 

thanks. I will try to keep my abbreviations to a minimum.

I am reading the small claims rules for Indiana. The PDF is only 23 pages. There is no information of motions or pleadings. So, I am thinking the time to do the motions is at the hearing. I did my original motion in error. I was looking at Trial court rules, Not small claim court rules.

 

8 minutes ago, BV80 said:

As long as the account was still current int 2016, you can use the 2016 agreement.

Can I get some more info on this? How does that work? Would I not be bound to the 2015 agreement when I signed up for the card?

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