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Need help Responding to MSJ - LVNV Funding LLC

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I am being sued by LVNV Funding for the debt purchased by CreditOne Bank.  I would love some tips to reply to the MSJ.  I have attached a redacted copy that I had to download from the court since they failed to send my service copy (no that is only hearsay in court).  Appreciate any help.

Motion for Summary Judgment_LVNV Redacted.pdf

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5 minutes ago, Ihatelawsuits said:
 

I am being sued by LVNV Funding for the debt purchased by CreditOne Bank.  I would love some tips to reply to the MSJ.  I have attached a redacted copy that I had to download from the court since they failed to send my service copy (no that is only hearsay in court).  Appreciate any help.

Motion for Summary Judgment_LVNV Redacted.pdf 2.13 MB · 1 download

Where is the bill of sale between Credit One and LVNV?

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1 hour ago, Ihatelawsuits said:

I should have included Exhibit A from the Complaint.  There are Bills of Sale but not too LVNV and they are pretty generic.

Exhibit A-Redacted.pdf 678.12 kB · 1 download

I’m doing some research to determine if I can help you with an argument.  

If you don’t mind, could reveal the county in which you’re being sued?  It might make a difference in citing case law.  

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1 hour ago, BV80 said:
 

I’m doing some research to determine if I can help you with an argument.  

If you don’t mind, could reveal the county in which you’re being sued?  It might make a difference in citing case law.  

Cuyahoga County

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@Jackie1989

Page 10: 

Declaration of Account Transfer

Sherman Originator III LLC ("SOLLC III"), without recourse, to the extent permitted by applicable law, transferred, sold, assigned, conveyed, granted and delivered to Sherman Originator LLC ("SOLLC") all of its right, title and interest in and to the receivables and other assets (the "Assets") identified on Exhibit A, in the Receivable File dated January 04, 2019 delivered by MHC Receivables, LLC and FNBM, LLC on January 18, 2019 for purchase by SOLLC III on January 18, 2019. The transfer of the Assets included electronically stored business records.

SOLLC, subsequent to the above mentioned transfer, transferred, sold, assigned, conveyed, granted and delivered to LVNV Funding LLC ("LVNV"), the above mentioned Assets. The transfer of the Assets inclnded electronically stored bnsiness records.

Signatures forSherman Originator III LLC, a Delaware Limited Liability Company,  Shennan Originator LLC, a Delaware Limited Liability Company, and LVNV Funding LLC, a Delaware Limited Liability Company, By~J1~~ Name: Daniel Picciano Title: Authorized Representative

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Not sure how things work in your area but, in Connecticut we have access to court records online and they are quite easy to view.

If you can, I 2ould search through cases filed by this attorney and lvnv and see what's going on in their cases.

On all these transfers, are they stating to be true and accurate? Ordinary course of business? Personal knowledge? Look up some caselaw on Google scholar maybe?

You need to file an objection to MSJ  and then a memorandum, I believe.

If you can find other examples in your court system, it would be truly beneficial

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It can be frustrating but, there are some great people here, brotherskeeper, Harry and bv80, to name a few, who may be able to assist you better. Don't give up but, do your homework!

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The problem with most cases, where arbitration is not an option, is that the defendant is working with "bad facts." A lawyer explained that as meaning sometimes you simply don't have a case and there's nothing you can do. There have been cases here where the plaintiff offers settlement terms and the defendant decides to "fight.," and the result is that the final outcome is way worse than it needed to be.

 

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CREDIT ONE BANK has a arbitration clause, which can be raised at any time before trial, if elected by either party. Doing so waives both parties right to go to court, a material issue to stop the MSJ, where the court lacks subject matter jurisdiction to render judgement on the merits. 

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22 hours ago, Ihatelawsuits said:

Cuyahoga County

You have until 2/26/ to respond. Objection raising material issue such a subject matter jurisdiction due arbitration clause. CREDIT ONE BANK has a arbitration clause, which can be raised at any time before trial, if elected by either party. Doing so waives both parties right to go to court, a material issue to stop the MSJ, where the court lacks subject matter jurisdiction to render judgement on the merits. 

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Case was filed 10/10/19.  The sent me discovery where I vaguely answered questions without giving any information "Defendant states that after a reasonable inquiry, the information known or readily obtainable by her is insufficient to enable her to admit or deny this request".  We were supposed to have our Pre-trial conference on February 24th but that obviously has been postponed until after my answer to the MSJ.  MSJ was filed 1/27.

 

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1 hour ago, Robby8900 said:

You have until 2/26/ to respond. Objection raising material issue such a subject matter jurisdiction due arbitration clause. CREDIT ONE BANK has a arbitration clause, which can be raised at any time before trial, if elected by either party. Doing so waives both parties right to go to court, a material issue to stop the MSJ, where the court lacks subject matter jurisdiction to render judgement on the merits. 

I don't have a copy of the credit agreement, is there someplace I can look one up?

 

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Gotcha. At this point you need to do what @Robby8900 suggested - oppose MSJ based on existence of arb clause and file a motion to compel. They will counter argue that you have already engaged in substantial litigation, making arb not an option, but we can deal with that later.

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2 minutes ago, Goody_Ouchless said:

Gotcha. At this point you need to do what @Robby8900 suggested - oppose MSJ based on existence of arb clause and file a motion to compel. They will counter argue that you have already engaged in substantial litigation, making arb not an option, but we can deal with that later.

Is there somewhere I can find a template to do this?  I really appreciate all the help I am getting!

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check this out on google scholar. read through this case and see if any thing here can help you.

2014-Ohio-1741

LVNV Funding, LLC, Plaintiff-Appellee,
v.
Dance Tanevski, Defendant-Appellant.

No. 13AP-398.
 Although plaintiff's motion for summary judgment includes an affidavit from Matthew Sowell, an authorized representative of plaintiff, stating that Citibank assigned all rights in the account in question to plaintiff, such evidence is not proof of an assignment agreement sufficient to protect defendant from multiple claims. Hudson & Keyse, L.L.C. v. Yarnevic-Rudolph, 7th Dist. No. 09 JE 4, 2010-Ohio-5938, ¶ 37 (finding summary judgment was improperly granted where assignment and bill of sale did not demonstrate account in question was assigned to claimant). See also First Union Natl. Bank v. Hufford, 146 Ohio App.3d 673, 2001-Ohio-2271, ¶ 20-21 (3d Dist.); Washington Mut. Bank, F.A. v. Green, 156 Ohio App.3d 461, 2004-Ohio-1555, ¶ 31-32 (7th Dist.).
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Credit One Bank made changes to their arbitration clause. If "you" did not reject the arb clause, then you have waived your right to go to court. Might be worth filing a MTD, as LVNV  may have waived their right to bring you to court.  "If you do not reject this agreement to arbitrate, you GIVE UP YOUR RIGHT TO GO TO COURT and controversies or disputes between us will be resolved by a NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, using rules that are simpler and more limited than in a court. Arbitrator decisions are subject to VERY LIMITED REVIEW BY A COURT. Arbitration will proceed INDIVIDUALLY— CLASS ACTIONS AND SIMILAR PROCEDURES WILL NOT BE AVAILABLE TO YOU"

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On 2/14/2020 at 8:13 PM, Robby8900 said:

Credit One Bank made changes to their arbitration clause. If "you" did not reject the arb clause, then you have waived your right to go to court. Might be worth filing a MTD, as LVNV  may have waived their right to bring you to court.  "If you do not reject this agreement to arbitrate, you GIVE UP YOUR RIGHT TO GO TO COURT and controversies or disputes between us will be resolved by a NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, using rules that are simpler and more limited than in a court. Arbitrator decisions are subject to VERY LIMITED REVIEW BY A COURT. Arbitration will proceed INDIVIDUALLY— CLASS ACTIONS AND SIMILAR PROCEDURES WILL NOT BE AVAILABLE TO YOU"

Claims Not Covered: Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in the case.  
 

@Ihatelawsuits

Is it filed in small claims?

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