Help I just got served. Being sued by LVNV funding llc?!?!

[StephanieS]

I just got papers that I’m being sued. I have to give my answer in 14 days. I don’t know what to do. Where do I start? 
 

 

Seeking wisdom from the group:

1. Who is the named plaintiff in the suit? LVNV Funding LLC

 

2. What is the name of the law firm handling the suit? Ashley B Smith, Attorney 

 

3. How much are you being sued for?  $1168.45

 

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

 

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? Texas, Yes.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
Nothing that I know of

 

9. What state and county do you live in? Hood, Tx

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2018, not outside of SOL.

 

11. When did you open the account? 2016

 

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

 

13. What is the status of your case?  No court date set yet, I haven’t responded 

 

Suit served? 

 

Motions filed?  Nothing yet

 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Not yet.

 

15. Did you request debt validation before the suit was filed? Note: No

 

16. How long do you have to respond to the suit? 14 days

 

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

 

- Bill of Sale (from an employee from credit one to MHC)

Bill of sale ( from MHC to FNBM,LLC)

Bill of Sale (from FNBM,LLC to Sherman Originator III, LLC)

Bill of Sale (from MHC receivables to Sherman Originator LLC) 

Bill of Sale (from Sherman Originator III, LLC to LVNV Funding Llc)

Copy of spreadsheet listing the account history and transfer.

- Last couple credit one bank statements.

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

 

 

[BackFromTheDebt]

Does this account have an arbitration provision?  If they didn’t include the card agreement with the suit then get the agreement from the CFPB website.   If this account has an arbitration provision you may be able to beat them at a fraction of the price. 
 

For Texas specific advice the best source is @texasrocker

[StephanieS]

There was not one attached. 
 

I did a search on the country clerk website and couldn’t find a case for me. Does this mean the person who gave me the papers really didn’t serve me? I never signed anything nor was asked to. @texasrocker

[texasrocker]

I don't recall ever seeing an alleged account change hands four times especially one for barely over $1,000.

For your answer use the same format as the Plaintiff's Original Petition that you were served with the court and case information on top of the page.

DEFENDANT'S ORIGINAL ANSWER

Comes now, <your name>, the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following:

I.  GENERAL DENIAL

Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence.

II. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that <he or she> is justly entitled to.

<Your name, address and phone number>

File it with the court immediately and send a copy to the attorney's office that filed the lawsuit.

[alwayswinning36]

I have seen the same thing. i was "sued" by Scott & Associates P.C. for Credit One Bank. They provided the same numbers of "bills of sale", four of them, which occurred all in a matter of one day apparently. One thing I can say I did about that situation was looked at my consumer report. LVNV was reporting an account with a one month term, as being charged off. I am not exactly sure if that helped or not, but when I mentioned that and a couple other things to that specific law firm they dismissed the case, on their own, without prejudice. In my case however, the SOL has already passed so they can't refile the matter.

Credit One Bank does have an arbitration clause, but they also have the "small claims exception". I know because I did review the card agreement when I was sued, and have since opened a new account with them also.

[texasrocker]

5 hours ago, alwayswinning36 said:

I have seen the same thing. i was "sued" by Scott & Associates P.C. for Credit One Bank. They provided the same numbers of "bills of sale", four of them, which occurred all in a matter of one day apparently...

I checked out the Texas state bar site for the attorney that filed the suit against the OP and she works for Scott & Associates.  They are wimpy and easy to beat plus she is very green; just completed law school in December. There is a fairly good chance that she will never be heard from again after seeing the general denial has been filed.

[StephanieS]

On 5/2/2021 at 9:30 AM, texasrocker said:

I don't recall ever seeing an alleged account change hands four times especially one for barely over $1,000.

For your answer use the same format as the Plaintiff's Original Petition that you were served with the court and case information on top of the page.

DEFENDANT'S ORIGINAL ANSWER

Comes now, <your name>, the Defendant in the above styled and numbered cause and files this Original Answer in this action and would respectfully show the following:

I.  GENERAL DENIAL

Defendant generally denies each and every, all and singular, of the allegations set forth in the Plaintiff's Original Petition and demands that the Plaintiff proves same by the preponderance of credible evidence.

II. PRAYER

Wherefore Defendant requests judgment of the Court that Plaintiff takes nothing from the Defendant and the Defendant be granted any further relief that <he or she> is justly entitled to.

<Your name, address and phone number>

File it with the court immediately and send a copy to the attorney's office that filed the lawsuit.

thank you so much for your help. I did this and got a non-jury trial July 1. What should my next steps be? @texasrocker

[Bulldoger]

Educate yourself, study the rules of your court, the rules of evidence in Texas, Your up against a new attorney with very little experience and many cases in her docket your case only gets a little bit of her time. You on the other hand have only your case. 

I known you live in Texas but I am sure you can get a lot of the information from this Alabama Attorney also check out Consumer Warrior - John Skiba AZ attorney on YouTube 

Make them prove they own the debt

 

Know your rules

how to handle the affidavit

 

if you face a motion for summary judgement

 

how to answer questions in court

 

 

[StephanieS]

Thank you very much @Bulldoger. I appreciate it so much. 

[Bulldoger]

Your welcome,

  Your debt has been passed around 

- Bill of Sale (from an employee from credit one to MHC) 

Bill of sale ( from MHC to FNBM,LLC) 

Bill of Sale (from FNBM,LLC to Sherman Originator III, LLC)

Bill of Sale (from MHC receivables to Sherman Originator LLC) 

Bill of Sale (from Sherman Originator III, LLC to LVNV Funding Llc)

Copy of spreadsheet listing the account history and transfer.

- Last couple credit one bank statements.

Albeit, they are to send this automatically now,  I would still send a letter reminding Plaintiff of new law of there duty to disclose in that you request all the purchase agreements under the completeness doctrine and there list of witnesses, send it Certified Return Receipt.   

In that you will ask for the purchase "agreement" or however it's reference in Bill of Sales sometimes called "feed forward agreement" for each transaction. Be specific for each agreement. You don't want them coming to court and saying we sent a purchase agreement between us and Sherman Originator III like you asked.

You are asking for it information because as explained in videos the bill of sale is just one page of document you need to see the complete document to know what is being sold.  This will give the attorney heads-up of what's  going to happen in court. They will not submit documents, they will say they don't have them, they are confidential, or some other excuse.  In court you will argue they are not complying with duty to disclose as the law requires. You will make a case that without these documents how can anyone know what was is being sold and what guarantees to validity of the account as sold. Also, if they also did not provide a list of witnesses or they do not show up. Then you say o.k. you don't have the agreements with you then where are your witnesses for each transaction. Where is the employee from MHC with knowledge of transaction. The employee from FNBM, Sherman, LVNV, anyone who can testify (BTW attorneys cannot testify).  You argue the Bill of Sales, affidavit,  are hearsay and should not be allowed.  They will counter with business records exception be prepared and research what they have to show in Texas so they can get the  business records exception have an argument ready.  

     With some work and preparation you can win this case. I suggest you do a mock trial with friends , family or buy yourself just to ease the jitters. Even if you end up losing you would have learned something for next time it happens.  You are lucky to live in the lone star state as  in Texas, wage garnishment is prohibited by the Texas Constitution except for a few kinds of debt: child support, spousal support, student loans, or unpaid taxes. A debt collector cannot garnish your wages for ordinary debts. 

Good luck, 

 

 

 

[StephanieS]

@BulldogerThank you, I have been wathing the videos on my breaks at work. lol Do you have a template of the letter to send to the plaintiff? How should I write it out? Do is submit to court first or straight to plaintiff?

[Bulldoger]

here is the info you need to know.

I live in VA so maybe @texasrocker in more familiar with the change in law.  

 

[Bulldoger]

On 5/18/2021 at 6:16 PM, StephanieS said:

thank you so much for your help. I did this and got a non-jury trial July 1. What should my next steps be? @texasrocker

what court are you being sued at?

I found this Self-Help packet for Texas small claims.  The prior information I gave would apply to what we call hear in VA District Court. Attorneys are not allowed in VA small claim courts.  Rules 500 governs small claims. 

RULE 500.9. DISCOVERY (a) Pretrial Discovery. Pretrial discovery is limited to that which the judge considers reasonable and necessary. Any requests for pretrial discovery must be presented to the court for approval by written motion. The motion must be served on the responding party. Unless a hearing is requested, the judge may rule on the motion without a hearing. The discovery request must not be served on the responding party unless the judge issues a signed order approving the request. Failure to comply with a discovery order can result in sanctions, including dismissal of the case or an order to pay the other party’s discovery expenses. 

RULE 503.4. PRETRIAL CONFERENCE (a) Conference Set; Issues. If all parties have appeared in a lawsuit, the court, at any party’s request or on its own, may set a case for a pretrial conference. Reasonable notice must be sent to all parties at their addresses of record. Appropriate issues for the pretrial conference include: (1) discovery; (2) the amendment or clarification of pleadings; (3) the admission of facts and documents to streamline the trial process; (4) a limitation on the number of witnesses at trial; (5) the identification of facts, if any, which are not in dispute between the parties; (6) mediation or other alternative dispute resolution services; (7) the possibility of settlement; (8) trial setting dates that are amenable to the court and all parties; (9) the appointment of interpreters, if needed; (10) the application of a Rule of Civil Procedure not in Part V or a Rule of Evidence; and (11) any other issue that the court deems appropriate.

 

Small Claim Defendant_202103241440077754.pdf

[StephanieS]

small claims/debt claims Justice of the peace court. I have been reading for hours. I have made my form for initial disclosures. Do I put exactly what I want them to show as proof (ie. purchase agreements from each sale, etc) or just leave it "open". I filed my answer on 5/17. I plan on calling the attorney tomorrow to ask them about the agreements. 

[Bulldoger]

I would ask for what you think will help your case like the purchase agreements (may have wording like we don't guarantee the accuracy where you can then challenge the amount they ask for)  but not for things that will hurt your case like statements (which would show what you owe). I would ask for list of witnesses just to make sure there will be none. What is your plan of attack. The goal is to exclude as much of their evidence (e.g. affidavit) as hearsay.   Argue how can the judge tell if they are allowed to collect debt without seeing what is in the agreements.  What if the agreements say they can't sue to collect on debt, what if the agreements say any debt less than $1000 needs to be forgiven. How does anyone know what they say without seeing them. Say you requested the information.  

[StephanieS]

ok thank you.

[StephanieS]

@texasrocker @Bulldoger I submitted intial disclosure and requested the purchase agreements from sales. I have received nothing. Is there anything that I need to do before court? 

[Goody_Ouchless]

The problem with these defenses is that they worked 15 years ago. Once all of these records became computerized, and the industry was cleaned up, challenging things like bill-of-sale is what we call the "dog-ate-my-homework" defense. The result is usually that the judge listens for 30 seconds and then holds up the credit statements, asks if it's your name and address, and rules for plaintiff. 

As @texasrockerhas shown, plaintiffs in Texas have a long history of folding as soon as an answer is filed. Since that didn't happen, in this case, I wouldn't hold out much hope. Just show up, hope they don't and request that the case be dismissed with prejudice.

[texasrocker]

2 hours ago, StephanieS said:

@texasrockerI submitted intial disclosure and requested the purchase agreements from sales. I have received nothing. Is there anything that I need to do before court? 

What do you mean by "purchase agreements from sales"?  That is not a good thing to ask for because if they send you a stack of monthly statements that show purchases and/or payments made on the account then you are doomed.  Is this in a JP court?  If so did you ask for the court's approval to begin discovery?

[texasrocker]

9 hours ago, Goody_Ouchless said:

As @texasrockerhas shown, plaintiffs in Texas have a long history of folding as soon as an answer is filed. Since that didn't happen, in this case, I wouldn't hold out much hope. Just show up, hope they don't and request that the case be dismissed with prejudice.

Sigh... the hibernating gnat that used to constantly buzz around in front of my face has awakened. http://www.arizonensis.org/sonoran/fieldguide/arthropoda/hippelates.html

On what, pray tell, do you base your comment "Since that didn't happen, in this case I wouldn't hold out much hope."?  There is absolutely nothing to indicate this plaintiff has moved one iota since filing this lawsuit.  If they failed to jump on the chance of providing an ignorant pro se's request for something so damnable do you actually believe they will do anything else especially in a $1,100 case that has already changed hands four times?   

[Goody_Ouchless]

Some things never change - I see you still play the Pied Piper of Ignorance, leading the blind off cliffs. Where do we begin...

On 5/18/2021 at 3:16 PM, StephanieS said:

 I did this and got a non-jury trial July 1

Well, so much for them dismissing.

On 5/2/2021 at 7:30 AM, texasrocker said:

I don't recall ever seeing an alleged account change hands four times especially one for barely over $1,000.

I'll leave it as an exercise for the reader to connect the dots on the "four" sets of hands. 

[Bulldoger]

6 hours ago, texasrocker said:

What do you mean by "purchase agreements from sales"?  That is not a good thing to ask for because if they send you a stack of monthly statements that show purchases and/or payments made on the account then you are doomed.  Is this in a JP court?  If so did you ask for the court's approval to begin discovery?

She means the feed forward agreement the agreement the Bill of Sale references.  They will not provide them even if they had them.  

This appeal case has lays out the business records exception and corresponding Texas law.  

https://caselaw.findlaw.com/tx-court-of-appeals/1622134.html

6 hours ago, Goody_Ouchless said:

The problem with these defenses is that they worked 15 years ago. Once all of these records became computerized, and the industry was cleaned up, challenging things like bill-of-sale is what we call the "dog-ate-my-homework" defense. The result is usually that the judge listens for 30 seconds and then holds up the credit statements, asks if it's your name and address, and rules for plaintiff. 

As @texasrockerhas shown, plaintiffs in Texas have a long history of folding as soon as an answer is filed. Since that didn't happen, in this case, I wouldn't hold out much hope. Just show up, hope they don't and request that the case be dismissed with prejudice.

The above case is from 2013 and would think it is still good law. So she should go over the Bill of Sales and have any of them with bad dates or other errors or anything making them appear to have been made for this lawsuit or for any other reason  they do not meet the business records exception of Hearsay.  

[texasrocker]

15 hours ago, Goody_Ouchless said:

Some things never change - I see you still play the Pied Piper of Ignorance, leading the blind off cliffs. Where do we begin...

Well, so much for them dismissing.

What has not changed is you mimicking your mentor, this time by putting words in my mouth.  Not once did I say the plaintiff would dismiss the case.  My exact words were, "There is a fairly good chance that she will never be heard from again after seeing the general denial has been filed" meaning their well known typical antics of just not showing up to any hearings or answering anything received from the defendant or the court.

[Goody_Ouchless]

So how did the trial go?