Ohio User Man

LVNV Funding (Capital One) Ohio

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Hello everyone.  I've been combing the boards for ideas on how to handle the summons I received but I'm not sure how to proceed.

The original creditor was Capital One.  I received a summons from LVNV Funding.  The attached documents was just the last statement and credit card agreement.  No proof of ownership with LVNV.  The lawyer is in MI and I am in southern Ohio.  Capital One does not have a arbitration agreement so I cannot go that route.  I have 20 days left to send an answer.  I thought about sending a Motion for Definite Statement but it seems that's no longer very successful.  Does anyone have any suggestions on where to go from here?

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More information:

1. Who is the named plaintiff in the suit? LVNC Funding

2. What is the name of the law firm handling the suit? Stenger & Stenger

3. How much are you being sued for? 3100.00

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

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

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

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

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Ohio Greene

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) December 2017

11. When did you open the account (looking to establish what card agreement may be applicable)? Around 2013

12. What is the SOL on the debt? To find out: Six years

Statute of Limitations on Debts

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

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

16. 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?

21 days from now

First Count- non payment of account

1. Plaintiff is the assignee of Defendants account, Account number XXXX, An Account that was used for Defendants benefit.  The Account was formerly with Capital One

2. The court is the proper court because Plaintiff is informed and beliefs Defendant is a resident of Greene County, State of Ohio

3. Defendant used the Account at various times, and thereby requested loans, advances, and services and/or payments of various sums of money for use and benefit of Defendant

4. The Account Statement is attached hereto as Exhibit A

5. Upon information and belief, Defendant made the last payment on the account on or about December 1, 2017 and the Account was charged-off by the Original Creditor on or about July 9, 2018

6. Defendant has defaulted on the repayment obligation and has failed to repay the balance of $3100.00

7.  Plaintiff thereafter acquired, for a valuable consideration, all right, title, and interest in the unpaid debt(s).  As a result of the assignment, Plaintiff became, and now is entitled to recover the amount owed by the Defendant.

8.  There is presently due the Plaintiff from the Defendant for the money loaned/paid out of Defendants account, the sum of $3100.00

9. Plaintiff notified Defendant of the assignment and demanded the Defendant pay the balance do but no part of the foregoing balance has been paid.

SECOND COUNT UNJUST ENRICHMENT

10. Plaintiff incorporated by reference herein, each allegation set forth above

11. Defendant received billing statement(s), but has failed to repay the unpaid balance.

12. Defendant knowingly retained the benefits derived from the use of the Account, without having repaid the outstanding balance on the account.

13. Retention of the benefits conferred upon the Defendant under the circumstances would be unjust without requiring Defendant to make payments for the same.

14. Defendant has been unjustly enriched in the amount of the outstanding balance set forth above, as Defendant knew or should have known that credit was not being provided gratuitously.

WHEREFORE, Plaintiff prays for judgement against Defendant in the amount of $3100.00 with statutory interest from the state of judgement, costs of this action, and such other and further relief as the Court deems just and proper under circumstances.

               

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

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Last Statement and terms and conditions

18.  How did you find out about this site? Google

18. Read these two links:

Using Arbitration To Defend A Debt Collection Lawsuit

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If you opened this card after 2010 you are not getting out of it. They took arbitration out of their credit card agreement loooong ago. Your best bet is to settle..

 

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11 hours ago, MikeB35 said:

If you opened this card after 2010 you are not getting out of it. They took arbitration out of their credit card agreement loooong ago. Your best bet is to settle..

 

I don't mind settling but I can't pay that whole amount.  What's the best way to go about settling?  Should I send an Answer to the court before contacting them or send a Motion for a More Definite Statement first?  I was thinking if it looked like the case would be more work they'd be willing to settle for less? I also worry that if I go ahead and send an answer attorney fees and court cost come into play and they'll want more.  Not sure what the best thing to do is.

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In Ohio they can't get attorney fees for consumer debt.

They already incurred the filing fee with the court.  If you don't file an answer, they will get a default judgment.  Don't be surprised, if you reach out to them to settle, they string it out after the 28 days you have to answer, perhaps implying you don't need to answer since you are working with them, and they get a default judgment.  I would file the answer.  You can always settle after you answer.  The courts encourage settlements between the parties, so both parties will be encouraged to reach a settlement by the court at your first pretrial conference.

I would fight them, hard.  The plaintiff is a JDB.  They want easy prey for defendants.  They make their money on the 95%+ default judgment rate.  If you fight them hard, they might decide it isn't worth it and dismiss the case.  I used this strategy with an OC in Ohio, and it worked.   Yes, that was almost 10 years ago, and there are some here who will say times have changed and that strategy doesn't work anymore.  Maybe it does in some areas, maybe not in others.  There are some judges out there who hate JDBs.  You never know what will happen.   I don't see any downside to fighting them.  Remember, you can always settle at a later date.

 

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18 hours ago, nobk4me said:

In Ohio they can't get attorney fees for consumer debt.

They already incurred the filing fee with the court.  If you don't file an answer, they will get a default judgment.  Don't be surprised, if you reach out to them to settle, they string it out after the 28 days you have to answer, perhaps implying you don't need to answer since you are working with them, and they get a default judgment.  I would file the answer.  You can always settle after you answer.  The courts encourage settlements between the parties, so both parties will be encouraged to reach a settlement by the court at your first pretrial conference.

I would fight them, hard.  The plaintiff is a JDB.  They want easy prey for defendants.  They make their money on the 95%+ default judgment rate.  If you fight them hard, they might decide it isn't worth it and dismiss the case.  I used this strategy with an OC in Ohio, and it worked.   Yes, that was almost 10 years ago, and there are some here who will say times have changed and that strategy doesn't work anymore.  Maybe it does in some areas, maybe not in others.  There are some judges out there who hate JDBs.  You never know what will happen.   I don't see any downside to fighting them.  Remember, you can always settle at a later date.

 

Thank you!  Would you have any advice on how to form the Answer?  JDB didn't include anything proving they purchased the debt. All they included was the last statement before it was charged off.  Do I admit I had an account with Capital One?  The amount?  I'm not sure how to form this.

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COMES NOW the Defendant, Daniel T. Carlton, and hereby files this Answer to the Plaintiff's Complaint:
1.    In response to paragraph 1 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
2.    In response to paragraph 2, Defendant admits the allegations contained therein.
3.    In response to paragraph 3 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
4.    In response to paragraph 4 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
5.    In response to paragraph 5 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
6.    In response to paragraph 6 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
7.    In response to paragraph 7 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
8.    In response to paragraph 8 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
9.    In response to paragraph 9 of Plaintiff's Complaint, Defendant denies the allegations contained therein.
10.     DENY. This request calls for admission of matter defendant has denied and thus it is improper.
11.    DENY. This request calls for admission of matter defendant has denied and thus it is improper.
12.    DENY. This request calls for admission of matter defendant has denied and thus it is improper.
13.    DENY. This request calls for admission of matter defendant has denied and thus it is improper.
14.    DENY. This request calls for admission of matter defendant has denied and thus it is improper.

                AFFIRMATIVE DEFENSE
Defendant sites LACK OF STANDING as Plaintiff has failed to prove ownership of the Capital One account shown in Exhibit A.  Furthermore, Exhibit A states that the account "is now being serviced by the Recoveries department.  Call 1-800-258-9319..."  Recoveries department and phone number on Exhibit A is owned by Capital One not LVNV Funding INC.  
Paragraph 7 of Plaintiff’s complaint states “Plaintiff thereafter acquired, for a valuable consideration, all right, title and interest in the unpaid debt(s). As a result of the assignment, Plaintiff became, and now is entitled to recover the amount owed by the Defendant". Defendant contends that Plaintiff’s failure to provide a copy of said Agreement is in violation of Rule 10(D) of the Ohio Rules of Civil Procedure.  

 

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4 hours ago, Ohio User Man said:

JDB didn't include anything proving they purchased the debt. All they included was the last statement before it was charged off.

Does OH law require that they do?  If it doesn't they don't have to include it you would have to do discovery to get that.  It also doesn't mean the won't have it on trial day.

On 1/27/2019 at 5:42 AM, Ohio User Man said:

I was thinking if it looked like the case would be more work they'd be willing to settle for less?

Cap1 is an aggressive litigator on these cases.  Unless your settlement offer is something they are willing to take they will not back down.

4 hours ago, Ohio User Man said:

Do I admit I had an account with Capital One?  The amount?

If you want to lose.

I would not use the answer the way you have formatted it.  I am not in favor of the same cut and pasted answer to every statement.  In some jurisdictions that can anger the court and escalate the speed at which you get slapped with a judgment.  If you need help try Legal Aid if you qualify or a free consult if you can get one with a Consumer Attorney.

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On 1/29/2019 at 2:27 PM, Clydesmom said:

Does OH law require that they do?  If it doesn't they don't have to include it you would have to do discovery to get that.  It also doesn't mean the won't have it on trial day.

Cap1 is an aggressive litigator on these cases.  Unless your settlement offer is something they are willing to take they will not back down.

Cap One is not the plaintiff here.  The OP is being sued by a JDB.

If you want to lose.

I would not use the answer the way you have formatted it.  I am not in favor of the same cut and pasted answer to every statement.  In some jurisdictions that can anger the court and escalate the speed at which you get slapped with a judgment.  If you need help try Legal Aid if you qualify or a free consult if you can get one with a Consumer Attorney.

 

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Look into counter claims to file against LVNV, then you have better leverage to negotiate a mutual dismissal and can both just walk away from it.

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LVNV do not like to fight in court. They will, but don't like it. the focus for court is to make them provide the assignment agreement, proof the cap 1card was in that assignment, and proof of "persons with knowledge" can show the amount is correct. In reality they would need a person from cap 1 to testify, and not their jdb person. They will use their guy, but it is up to you to show they have no knowledge of cap 1's record keeping practices unless the witness has worked for cap 1. Unless your in AZ., they have rules of civil procedure that allow the jdb testimony. Read your court rules, search this site for people that have won against LVNV, and ones from Ohio.

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1 hour ago, shellieh98 said:

In reality they would need a person from cap 1 to testify, and not their jdb person.

Not anymore.  You have been out of the loop for a while.  The new business records laws no longer require a live witness.  Even California where it was 100% required for a long time it is no longer a sure thing.

 

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I believe in Ohio there is Appeals Court case law reflecting the Plaintiff must give a full accounting of the debt from a zero balance to what they claim it to be now.

 

{¶ 14} “In order to establish a prima facie case for money owed on an account, ‘ “an account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.” ’ Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus. ‘An action upon an account may be proved by the introduction of business records showing the existence of the account.’ Wolf Automotive v. Rally Auto Parts, Inc. (1994), 95 Ohio App.3d 130, 137, 641 N.E.2d 1195. See, generally, Raymond Builders Supply, Inc. v. Slapnicker, 11th Dist. No.2003-A-0040, 2004-Ohio-1437, at ¶ 8.''

 

 

https://caselaw.findlaw.com/oh-court-of-common-pleas/1530536.html  

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7 minutes ago, Credithis said:

I believe in Ohio there is Appeals Court case law reflecting the Plaintiff must give a full accounting of the debt from a zero balance to what they claim it to be now.

 

{¶ 14} “In order to establish a prima facie case for money owed on an account, ‘ “an account must show the name of the party charged and contain: (1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum); (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items which permits the calculation of the amount claimed to be due.” ’ Gabriele v. Reagan (1988), 57 Ohio App.3d 84, 87, 566 N.E.2d 684, quoting Brown v. Columbus Stamping & Mfg. Co. (1967), 9 Ohio App.2d 123, 223 N.E.2d 373, paragraph three of the syllabus. ‘An action upon an account may be proved by the introduction of business records showing the existence of the account.’ Wolf Automotive v. Rally Auto Parts, Inc. (1994), 95 Ohio App.3d 130, 137, 641 N.E.2d 1195. See, generally, Raymond Builders Supply, Inc. v. Slapnicker, 11th Dist. No.2003-A-0040, 2004-Ohio-1437, at ¶ 8.''

 

 

https://caselaw.findlaw.com/oh-court-of-common-pleas/1530536.html  

Thanks for that.  I'm still not sure what I want to do.  I've contacted a few lawyers for a free consult but so far it's been a dead end.  They all either only deal with bankruptcy or debt consolidation. I'm not really sure I want to spend money on a lawyer either.  Legal aid in this area doesn't seem to deal with these type of cases either. 

I've condensed my answer for the court but I'm still worried about denying everything since I did have that account.  I've just had no contact with LVNV and they've provided no proof of ownership and very little proof of anything else.  I'm hoping to settle for $2000 which is all I really can do in a lump sum. 

 

COMES NOW the Defendant, xx, and hereby files this Answer to the Plaintiff's Complaint:
1.    In response to paragraph 1 of Plaintiff's Complaint, Defendant admits having an account with Capital One in the past.  Defendant denies that Plaintiff is the assignee of the aforementioned account as Defendant is without sufficient information.  
1.    In response to paragraphs 3, 4, 5, 6, 8 of Plaintiff's Complaint, Defendant is without sufficient information to either admit or deny the allegations contained therein and therefor denies them.
2.    In response to paragraph 2, Defendant admits the allegations contained therein.
3.    In response to paragraph 7 and 9 of Plaintiff's Complaint, Defendant denies the allegations contained therein.
4.    In response to paragraphs 10, 11, 12, 13, and 14 of Plaintiff's Complaint, these overly vague request call for admission of matter defendant has denied and thus it is improper.

                AFFIRMATIVE DEFENSE
Defendant cites LACK OF STANDING as Plaintiff has failed to prove ownership of the Capital One account shown in Exhibit A.  Furthermore, Exhibit A states that the account "is now being serviced by the Recoveries department.  Call 1-800-258-9319..."  Recoveries department and phone number on Exhibit A is owned by Capital One and not LVNV Funding INC.  
Paragraph 7 of Plaintiff’s complaint states “Plaintiff thereafter acquired, for a valuable consideration, all right, title and interest in the unpaid debt(s). As a result of the assignment, Plaintiff became, and now is entitled to recover the amount owed by the Defendant". Defendant contends that Plaintiff’s failure to provide a copy of said Agreement is in violation of Rule 10(D) of the Ohio Rules of Civil Procedure.  

 

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You should be able to do better than $2K on this.  Remember, the JDB probably paid 3-4 cents on the dollar for this account.  So if you settled for 10 cents on the dollar, they will still make a profit.  But they probably won't go that low.  But I think 20-30 cents on the dollar is doable.  I have had OCs offer me that.  Yes, that is settling for 20-30% of the debt (not 20-30% off).  The most I would go is 50%.

I would start the settlement negotiations at 10%, though, and work up if you need to.  Remember, if you want to settle, the court is your friend here.  Courts encourage settlements.  You should be able to settle this after the pre-trial.

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1 hour ago, nobk4me said:

Remember, the JDB probably paid 3-4 cents on the dollar for this account. 

Here we go again. Do you go into stores and only offer what it cost to produce a product? They have a debt worth $3100 - what they paid for it is a matter or irrelevance. Unless there's something really sketchy, or they have five minutes to make their quarterly nut, they may scoff at 2K. Ask what they'd take for a lump sum settlement, and the number you get will probably be their final offer.

 

5 hours ago, Credithis said:

(1) a beginning balance (zero, or a sum that can qualify as an account stated, or some other provable sum);

They will argue that the last undisputed bill prior to charge-off is the beginning balance - no need to go back and provide receipts for a 10 year old Burger King charge.

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Remember, this is Ohio case law. They Have to produce it if asked in discovery. I'd hammer them with it....

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On 2/4/2019 at 6:04 PM, Goody_Ouchless said:

Here we go again. Do you go into stores and only offer what it cost to produce a product? They have a debt worth $3100 - what they paid for it is a matter or irrelevance.

It's a negotiation.  10% is a good starting point.  That is more than DOUBLE what they paid for it, therefore, it's not "at cost".  And again, it's a negotiation.  I also don't go into a store and offer Max retail price for a damaged product. I start with my lowest offer and see what they say from there.

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