Sued by lvnv in minnesota

[debtstuffed]

1. Who is the named plaintiff in the suit?

LVNV Funding

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Messerli & Kramer 

3. How much are you being sued for?

$1500

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

Credit 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)

In Person

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

Yes

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?

Lyon County, Minnesota

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

2017

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

Unsure- I'll check

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

6 Years

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

Nothing filed- summons served. It's a MN pocket docket situation

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?

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

21 days- april 20

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

Nothing

18.  How did you find out about this site?

Through an internet search

18. Read these two links:

Using Arbitration To Defend A Debt Collection Lawsuit

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

 

Hi! I've been reading through the forums and I think I have a plan but wanted to see if one of the MN experts could confirm for me that I'm on the right path. 

1. I received the summons from JDBs local attorney and will answer all complaints with the state's Answer form. There are 3 complaints: 1. The first is " Defendant owes plaintiff $1500 for goods and services sold and delivered... purchases were made on charge account bearing account number... which was issued to Defendant by Credit One Bank." 2. Lvnv funding owns this account 3. Defendant is in default for failing to make the required payment. I *think* I answer Deny to all three because....

2. I'm not sure about the card agreement from when i opened my account, but the one in effect when i defaulted has an arbitration clause with the small claims exception. I intend to file a claim with AAA (thank you hard cheese person for the awesome arbitration thread).

3. In my Answer to Summons, I'll put Lack of Jurisdiction and note the AAA arbitration case file number.

4. I'll send the Answer and AAA case file info to the attorney. No need to file with court per court rules.

5. Call in two weeks to talk about settlement? 

Sooo....

1. A DV is pointless, right?

2. Do I hold off on filing a MTC for arb until they actually file a suit in court?

3. Did I miss anything? It feels too simple. I mean, I spent about 10 hours reading through these forums, but it feels like there should be more to it? Or did I actually manage to distill it down to the relevant action items?

 

Thanks in advance,  you're all awesome!

 

[WhoCares1000]

1) A DV is indeed pointless at this point. This is as if a court case has been started. The good news though is that because they decided to use pocket docket, the small claims exception to arbitration does not apply.

2) You send your answer to the plaintiff attorney and about 3 days after sending your answer, send them your MTC. Neither has to be filed with the court until they open the case (which is a good thing because Minnesota court fees are ridiculous). Once you send your MTC, DO NOT participate in discovery, simply stating that you wish for the MTC to be heard first. That puts the case on hold until they either file it with the court or dismiss the case. Send all documents Certified Mail Return Receipt Requested - Green Card so that you have proof that they received everything. You will need a friend to do this as you cannot serve papers as a party in the case. Have the friend fill out the affidavit of service by mail (form on the MN Courts website) but don't sign it until the case is in court as it needs to be signed in front of the court clerk.

3) About 2 - 3 days after you know they received the MTC, call them with a settlement offer. Since it will cost you about $600 to get this into arbitration ($295 to file your answer, $75 to file the motion, and $250 for the arbitration fee), that would be my upper limit for settlement. Let them know that the offer is good only until they file in court. I would start at about $300 however with the upper limit at $600. Note that it will cost them $370 just to file in court and answer your motion, without arbitration. On a $1500 debt, they will probably be very willing to settle rather than pay those fees with the possibility of being forced into arbitration.

[debtstuffed]

Thank you! Re: service: I found this on the MN courts site under instructions for filing an answer. It says I can be the one who serves the papers. Am I reading this incorrectly? 

[BackFromTheDebt]

One thing to keep in mind:

It is the opinion of the Minnesota AG that M&K are very unethical lawyers and debt collectors.  I faced them in court, and they blatantly lied in court documents.  
 

In other words, keep the same strategy, but realize you may have to spend some time dealing with baseless BS arguments against your MTC and sometimes outright lies.  
 

Also, don’t take their word for anything.  Agreements must be 100% completed.  

[BV80]

10 hours ago, debtstuffed said:

1. A DV is pointless, right?

Just a note for future reference:  A consumer’s right to demand validation is triggered only after receiving an initial/first communication from a debt collector.  That is usually in the form of a collection letter containing the 30-day validation notice.

A summons and complaint does not qualify as an initial communication that triggers validation rights.  See 15 U.S.C. §1692g(d).   It doesn’t matter if that summons and complaint is the first communication the consumer ever had with the debt collector.  It still does not qualify as an initial communication.  

[WhoCares1000]

4 hours ago, debtstuffed said:

Thank you! Re: service: I found this on the MN courts site under instructions for filing an answer. It says I can be the one who serves the papers. Am I reading this incorrectly? 

I am not sure about the you doing the service yourself thing and would feel more comfortable asking a friend to do it. That way, there is no argument on whether you are allowed to serve papers or not. Honestly, I would think 99.999% of the population can find someone 18 years of age or older who is of sound mind to do service while you watch.

[WhoCares1000]

3 hours ago, BackFromTheDebt said:

One thing to keep in mind:

It is the opinion of the Minnesota AG that M&K are very unethical lawyers and debt collectors.  I faced them in court, and they blatantly lied in court documents.  
 

In other words, keep the same strategy, but realize you may have to spend some time dealing with baseless BS arguments against your MTC and sometimes outright lies.  
 

Also, don’t take their word for anything.  Agreements must be 100% completed.  

And this is another reason why you want to have a friend to do service, you don't want to give these people a reason to say anything you did was improper.

As for arguing for arbitration, follow the thread below for advice:
 

Also, make sure you have the correct copy of the agreement and in fact, attach that with an affidavit of where you got it from with the MTC. That then forces them to come up with the agreement if they want to argue that arbitration is not in the agreement.

[WhoCares1000]

And as for settlement, the advice of get everything agreed to in writing is good advice, regardless of who you deal with.

[BackFromTheDebt]

@WhoCares1000 makes some good points.

When dealing with debt collectors, you will deal with people ranging from fairly ethical to some of the most unethical people imaginable.  Back in the old days when I allegedly defaulted on quite a few debts, there were quite a few absolute scum bag debt collectors in New York state, esp. Buffalo.  I mean, they would hire guys straight out of jail to pull all sorts of outrageous stunts.  I wound up dealing with a few of these.  When Andrew Cuomo (*) was AG, he put a lot of these places out of business.  In one case, the Mitchell N. Kay Law Firm in NYC, the company went out of business right before I could sue them.  

I have also seen situations in which a bank that was supposedly the most reputable bank pulled a stunt that had my jaw to the floor in collecting my wife's debt.  I mean, a complete and total lie, which was fortunately in the form of a letter.  I also saved the correspondence my wife sent them demanding an explanation.  

And M&K has been accused of unethical practices by the MN AG's office, and I can personally attest to situations in which they outright lied to me.  

The moral of the story is quite clear.  Always assume any debt collectors you are dealing with will bend or even break the rules or laws.  You can negotiate, but negotiate in a way that you don't have to take them at their word.  You need to always have everything documented, always have a paper trail. and get everything signed and in writing.  If they say they will cancel the debt if you send in a check right away and the offer expires in 5 minutes, they are giving you a bunch of BS.  A legitimate offer doesn't expire in 5 minutes and MUST be in WRITING.  

 

To be fair, occasionally even M&K has acted honestly.  So they won't necessarily try to cheat you.  They might or might now.  Sad to say, you have to deal with EVERYONE as if they might possibly cheat you unless you have everything nailed down.  

[WhoCares1000]

10 hours ago, debtstuffed said:

Thank you! Re: service: I found this on the MN courts site under instructions for filing an answer. It says I can be the one who serves the papers. Am I reading this incorrectly? 

I took a look at the rules of civil procedure and found this:

4.02By Whom Served

Unless otherwise ordered by the court, the sheriff or any other person not less than 18 years of age and not a party to the action, may make service of a summons or other process.

This says that they person performing service cannot be a party to the action which precludes you. I have posted the link below of my source.

Below is the link where I found this. I would suggest looking at the rules of civil procedure because you will need to follow them when filing motions and things like that.

https://www.revisor.mn.gov/court_rules/rule/cp-4/#4.02

[debtstuffed]

Thank you all for the great advice!

[debtstuffed]

Update! I sent in my Answer and answered Not Enough Information to all Complaints. The Answer form that MN supplies is incredibly easy to use! I added "Lack of subject matter jurisdiction" to affirmative defenses and used @fisthardcheeses language, something like "The underlying contract stipulates an arbitration agreement...". I did not prepare or send an MTC for arb. They sent me an offer letter for $950. I called them and talked to a very nice representative: "Hey I cant verify that this debt is mine but I'm willing to settle for $300 so that neither of us has to deal with arbitration." He talked to a lawyer and they counter offered $500. I counter offered $400 and they accepted. They will send the stipulated agreement, which I will review and redline as necessary, and then send a money order. I'm damned happy to pay less than 30% to get this off my credit report. Thank you all for the great advice!

[BackFromTheDebt]

Great victory!

[WhoCares1000]

Nice counter at $400 when they offered $500 and Congrats on the win. Now realize that you need to continue the case path until you have the agreement in writing. You should start to prepare the MTC but don't send it until a reasonable amount of time has passed to receive the settlement paperwork.

[debtstuffed]

So close to being finished with this! I received the Stipulation letter from M&K. I've attached the relevant paragraph to this post.

Is this a sufficient settlement agreement to ensure that LVNV can't sell the remainder of the debt and can never come after me again? I dont know if "The parties desire to fully and permanently settle the above-referenced account" is considered a "term" of the stipulation or just fluff. I would have felt better if it had said "Payment fully and permanently settles the above-referenced account." But I don't know if I'm just being unnecessarily picky because I don't trust lawyers as far as I can throw them (no offense intended to the lawyers in the forum lol).Thanks for any insights.

[WhoCares1000]

This looks reasonable to settle the debt for $400. I know it is verbose but legal speak is always wordy. They did not leave you much time to make the payment so I would suggest sending the payment next day delivery with confirmation. It will be $10+ but you know it will get there on time unlike first class mail which is dicey in Minnesota. Note, for payment, either use a bank check or a money order. Don's send a personal check.

And if they don't honor this, you can present it to the judge as bad faith negotiations which will piss off the judge.

[nobk4me]

Shouldn't the dismissal be WITH prejudice?

[debtstuffed]

1 hour ago, nobk4me said:

Shouldn't the dismissal be WITH prejudice?

@nobk4me I could be wrong, but I *think* because nothing has been officially filed in court, theres nothing to actually dismiss. I think this is just canned language from their "stipulation letter" form letter.

[WhoCares1000]

Many years ago, when the truth was coming out about how the pocket docket system was being abused in the Minneapolis Star Tribune, the legislature made some changes to look like they were tackling the abuses while keeping the system intact to make its largest employer happy (because they did not want their misadventures to be public record). One of those changes was that a case is required to be filed in the court within one year of service, otherwise the case is dismissed with prejudice. Therefore, if nothing is filed in the court the case is automatically dismissed with prejudice.

Now, some legal scholars have suggested that doing this is too draconian but the law has never been tested in the higher courts as of yet. I would doubt that any JDB would want to fall on the sword of tying to sue on a case that should have been settled to get the higher courts to review the law.

[debtstuffed]

@WhoCares1000 you're exactly right. After paying the settlement money, I received a letter saying that the account is "resolved", along with a non-filed court doc that is a dismissal WITH prejudice. Woohoo! So happy that's over and I cant wait to see my score after that collections is removed.

Thanks again, everyone, for all your guidance!