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lchjjc

Help! Need to Appeal MSJ granted to LVNV

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I just recently went to court and judge granted MSJ stating there were no genuine issues to material fact.

I submitted an opposition which had several material facts, as far as, the affidavit filed  the affiant and notary are both employees of Resurgent Capital, not LVNV funding and have never worked for original creditor Capital ONE (hearsay)... The bill of sale does not have my specific account information nor dos it have an amount. The transfer of assignment just has a group of number but no specific account.

The lawyer brought up Reg Z when asked why they could not provide said contract.....

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1 hour ago, lchjjc said:
 

I just recently went to court and judge granted MSJ stating there were no genuine issues to material fact.

I submitted an opposition which had several material facts, as far as, the affidavit filed  the affiant and notary are both employees of Resurgent Capital, not LVNV funding and have never worked for original creditor Capital ONE (hearsay)... The bill of sale does not have my specific account information nor dos it have an amount. The transfer of assignment just has a group of number but no specific account.

The lawyer brought up Reg Z when asked why they could not provide said contract.....

It was a valiant effort on your part but under the business records exemption laws what they had constitutes proof.  Settle the judgment for lump sum and move on.

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Google "adoptive business records doctrine". It's why LVNV can introduce Cap1's records.

What people don't realize is that "raising" issues of marital fact involves more than just saying there are issues. If there is a record you are calling into question, you have to put up some kind of proof demonstrating the issue you're claiming exists. Texas is the general exception to this, in that it seems any sort of objection results in denial of an MSJ. This is not the case for most of the rest of the country. 

You can take comfort in knowing you did nothing 'wrong' and wouldn't have beat this no matter what you did. Even arbitration wasn't an option on this one. 

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Thanks for your response. This thread helped a lot with my answers and oppositions. I had a consultation with a lawyer who asked where did I get help from with putting together this case because was done so well.

I was just wondering should I appeal the MSJ to a higher court.....

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Hearsay rule.

How can both the affiant and notary work for resurgent capital, but claim they know how business records are kept with LVNV funding... And how would they know how Capital One keeps business records. They are pretty much saying the witness the application process of said card all the way up to the time it was defaulted and sold.....

Also a question of robo signing, because the affiant (Holly Cater) on the affidavit I received stating 2018 dates was on another affidavit I found as the notary (Holly Cater) for another case in 2018...

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17 minutes ago, lchjjc said:

How can both the affiant and notary work for resurgent capital, but claim they know how business records are kept with LVNV funding... And how would they know how Capital One keeps business records.

The problem is they have testified under oath that these things are true, so the burden shifted to you to disprove them. Your opportunity to do that was during discovery. Did you conduct any discovery? What did you ask and how did they answer? 

20 minutes ago, lchjjc said:

Also a question of robo signing, because the affiant (Holly Cater) on the affidavit I received stating 2018 dates was on another affidavit I found as the notary (Holly Cater) for another case in 2018...

Yes, of course. These notaries usually work for the plaintiffs. She could have signed 50 affidavits in a single day and not been "robosigning". Again, you bore the burden to prove these claims, and having two affidavits signed by the same person doesn't mean anything at all. 

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I was still learning the ropes during discovery so I did not request anything for discovery other than.

original contract...……………… LVNV stated Reg Z because they could not provide it

bill of sale...…………… LVNV provided document that had no account specific records

proof of license to collect debt..... did not provide stated it could be found online

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17 minutes ago, lchjjc said:

original contract...……………… LVNV stated Reg Z because they could not provide it

Was their cause of action "Account Stated"?

17 minutes ago, lchjjc said:

bill of sale...…………… LVNV provided document that had no account specific records

Just one document, or was there a "schedule" attached? 

17 minutes ago, lchjjc said:

proof of license to collect debt..... did not provide stated it could be found online

Yeah, this is correct. If you alleged they weren't licensed, it's essentially an affirmative defense and you had to prove they weren't. E.g. "i have this written statement from the Department of Collections that states they have no record of a license being issued to ABC Collection Agency."

In any event, none of these things will help an appeal based on the hearsay/business records issue.

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17 minutes ago, lchjjc said:

I was still learning the ropes during discovery so I did not request anything for discovery other than.

original contract...……………… LVNV stated Reg Z because they could not provide it

bill of sale...…………… LVNV provided document that had no account specific records

proof of license to collect debt..... did not provide stated it could be found online

Did they provide credit card statements that showed charges and payments?

If you raised the issue of a license, it was up to you to show that they are required to be licensed but are not licensed.  

Read the ruling in the link, and carefully note what the appeals court required for the debt buyer to a prima facie case.

https://scholar.google.com/scholar_case?case=3571711797710540778&q=“credit+card”+AND”debt”&hl=en&as_sdt=4,19

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They supplied an affidavit, bill of sale, transfer of assignment, and statements.....

For original contract their reply was : A copy of the credit application was provided when the account was opened. Credit applications are nor routinely retained however a copy has been requested and will be provided if available..

 

 

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10 minutes ago, lchjjc said:

They supplied an affidavit, bill of sale, transfer of assignment, and statements.....

For original contract their reply was : A copy of the credit application was provided when the account was opened. Credit applications are nor routinely retained however a copy has been requested and will be provided if available..

 

 

You needed to show that they had to provide a copy of the original contract.  In other words, you needed a court rule or case law that supported your claim.  

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1 hour ago, lchjjc said:

original contract...………………

The courts in every state know there is no signed contract in a credit card case.  You know you never signed a contract.  You applied for the card.  They approved it.  You used and made payments.  The terms of service in the card agreement clearly state that accepting the card, using it, and making payments abiding by the TOS makes the contract.

57 minutes ago, lchjjc said:

For original contract their reply was : A copy of the credit application was provided when the account was opened. Credit applications are nor routinely retained however a copy has been requested and will be provided if available..

This statement underscores what I said above. If they produce the application that shows you opened the account.  The statements with your name and address show you used the account and defaulted.  They only need the affidavit attesting they bought your account and the matter is done.  They proved their case.

1 minute ago, lchjjc said:
If I find a case law or court rule that shows what they needed to provide original contract can I appeal?

You can always appeal.  The question is whether you will prevail.  My instinct says no.  You are relying on defenses that worked 10 years ago when the recession was in full swing and the digital era had not hit.  Back then JDBs used to purchase the defaulted debts but not the records to support their suits.  As the digital era came in the cost of getting the account records in a debt purchase came down and the CFPB steam rolled the industry into having to have this evidence prior to suing.  The violations and skeevy tactics they used to use have gone by the wayside and the courts/states have streamlined the business records requirements to make presenting documents a lot easier.

Keep in mind that many states require  you post an appeal bond in the amount of the verdict of the lower court.  This is to prevent frivolous appeals that run up costs leaving the winning party with no recovery because the appealing party spent it dragging things out.  While your goal does not sound like a frivolous attempt you need to find out if the court will require that bond before you dig in too deep.  Also know that while it isn't impossible to do an appeal pro-se at that level the court will follow ALL the rules and you will not get lee way like you do in small claims court or the lower levels.  It will require a lot of time and dedication to learning the process.  The chances of finding a lawyer to take the appeal on are slim to none.  Most lawyers are averse to taking over a case from a pro-se because many have mucked it up to that point and they don't want to take the time to have to unravel it.  That or there is no basis for appeal.

 

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10 hours ago, Clydesmom said:

The courts in every state know there is no signed contract in a credit card case.

She didn't say "signed". I think she was asking for a copy of the card agreement. 

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11 hours ago, lchjjc said:

copy of the credit application was provided when the account was opened.

Did they allege "account stated" in their original complaint? 

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The other thing that always get lost, at times like this, is the fact that the plaintiff was "right." They bought your defaulted account and sued to collect. Unless you really think that LVNV found your name and address blowing down an alley on an old water bill and then decided to Photoshop a bunch of evidence together, there is nothing to appeal.

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8 hours ago, Harry Seaward said:

Did they allege "account stated" in their original complaint? 

No I don't see "account stated" on original complaint....

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40 minutes ago, lchjjc said:

No I don't see "account stated" on original complaint....

Ok, so they must have been claiming breach of contract. And they never submitted the card agreement? 

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On 12/12/2019 at 5:35 PM, Harry Seaward said:

Ok, so they must have been claiming breach of contract. And they never submitted the card agreement? 

No they never submitted the card agreement. 

Submitted Affidavit, statements, bill of sale.

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