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"You will be in default under this Agreement if any of the following events occur: (1) you exceed your assigned credit limit; (2) you fail to make any required payment when due;

"I missed the 1/4/18 due date at this point you can argue that all conditions were met (existing contract spelling out time of default (e.g. breach of contract),  damage to plaintiff lack of payment. SOL started 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed? this will be your defense.  

So you have three  affirmative defenses for your ground for defense. 

1) statute of limitations had expired  at time of filing. 

2) improper venue you elect private arbitration per contract. 

3) No Business Relationship with the Plaintiff (lack of standing)

This is a defense that applies when the plaintiff is a debt buyer.  Because you never signed a contract directly with the debt buyer, you have the right to challenge the debt buyer’s right to sue you (also known as “standing”).  The plaintiff will not be able to prevail unless it can prove to the court that it owns your debt.  If the debt buyer bought your debt from another debt buyer, it has to provide a chain of assignments going all the way back to the original creditor.  If the debt buyer cannot or will not provide these documents, the court must dismiss the case. 

 

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On 7/16/2021 at 12:59 AM, GGLorox said:

Hello!

I am being sued by the same lawyer/JDB in Virginia and could really use some advice.  The first lawsuit was dismissed because there was no bill of sale from the original creditor and no bill of sale from the last JDB to the plaintiff. This time around, they were able to provide those documents (still questionable) along with more credit bank statements and an affidavit from someone claiming to be an authorized representative and vice president of C1Bank's collections department with knowledge of how C1Bank handles its business records.

I have another affidavit from the JDB/plaintiff also claiming to be “an agent and custodian of the above creditor [C1Bank] and, by reason of my position, have knowledge of how the business records are kept and am authorized to make this declaration.” This affidavit seems iffy to me. It has a signature, “VP” as its title but no name whereas the one from C1Bank has all of that so I can easily confirm the person’s identity.  Would it be useful for my case to attack the credibility of the Plaintiff’s affidavit and how?

Self-Authenticating Business Records Virginia Code § 8.01-390.3

As to any civil proceeding, with 15 days’ notice and no objection being made, business record authenticity and foundation requirements are deemed to be satisfied under Virginia Rules of Evidence, Rule 2:803.

Proponent needs to send (1) notice of reliance on certification by affidavit or declaration by records custodian or other qualified witness and (2) copy of such business record and certification. Objections must be lodged within 5 days of such notice. If objection made, authenticity and foundation requirements shall be met by witness testimony.

districtcourtbencbook.pdf

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15 hours ago, Bulldoger said:

"You will be in default under this Agreement if any of the following events occur: (1) you exceed your assigned credit limit; (2) you fail to make any required payment when due;

"I missed the 1/4/18 due date at this point you can argue that all conditions were met (existing contract spelling out time of default (e.g. breach of contract),  damage to plaintiff lack of payment. SOL started 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed? this will be your defense.  

So you have three  affirmative defenses for your ground for defense. 

1) statute of limitations had expired  at time of filing. 

2) improper venue you elect private arbitration per contract. 

3) No Business Relationship with the Plaintiff (lack of standing)

This is a defense that applies when the plaintiff is a debt buyer.  Because you never signed a contract directly with the debt buyer, you have the right to challenge the debt buyer’s right to sue you (also known as “standing”).  The plaintiff will not be able to prevail unless it can prove to the court that it owns your debt.  If the debt buyer bought your debt from another debt buyer, it has to provide a chain of assignments going all the way back to the original creditor.  If the debt buyer cannot or will not provide these documents, the court must dismiss the case. 

 

This is perfect. Thank you! In my grounds of defense, do I need to go explain how or why these defenses apply or wait until my trial? Should I attach a motion to dismiss and an MTC?  Also, do I need to respond point by point to the lawyer's BOP?  I've attached a copy of it,  and if you don't mind taking a moment of your time, I'd like your (and anyone else's) opinion.

 

15 hours ago, Bulldoger said:

Self-Authenticating Business Records Virginia Code § 8.01-390.3

As to any civil proceeding, with 15 days’ notice and no objection being made, business record authenticity and foundation requirements are deemed to be satisfied under Virginia Rules of Evidence, Rule 2:803.

Proponent needs to send (1) notice of reliance on certification by affidavit or declaration by records custodian or other qualified witness and (2) copy of such business record and certification. Objections must be lodged within 5 days of such notice. If objection made, authenticity and foundation requirements shall be met by witness testimony.

districtcourtbencbook.pdf 9.22 MB · 1 download

I've also attached a copy of the affidavit.  Does this mean it's to late for me to challenge it?  The lawyer sent me the affidavit 4 months in advance of trial. 

20210719_145344.jpg

20210719_145448.jpg

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14 minutes ago, Bulldoger said:

It looks like what ever records they state are attached you agreed that they are authentic copies of records and are admitted into evidence. 

How does this affect my case?

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you are agreeing they own the debt and you owe it so No. 3 of your ground of defense you just gave away.  It does nothing against your SOL defense because it's still to late for them to sue. (this is of course true if you didn't restart the SOL by making a payment after defaulting).   They are stating they lost or misplaced agreement but you say you have one from time of default so you can still file a MTC arbitration and move case to arbitration and there you can challenge affidavit.  You need to move quickly in filing you grounds of defense and motion to dismiss on grounds of SOL because I foresee a motion for summary judgement being filed soon by them. 

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9 minutes ago, Bulldoger said:

you are agreeing they own the debt and you owe it so No. 3 of your ground of defense you just gave away.  It does nothing against your SOL defense because it's still to late for them to sue. (this is of course true if you didn't restart the SOL by making a payment after defaulting).   They are stating they lost or misplaced agreement but you say you have one from time of default so you can still file a MTC arbitration and move case to arbitration and there you can challenge affidavit.  You need to move quickly in filing you grounds of defense and motion to dismiss on grounds of SOL because I foresee a motion for summary judgement being filed soon by them. 

That affidavit was also part of the first lawsuit and I think they moved for summary judgment but the judge didn't accept that and allowed me to argue my case of no standing.  It's a different judge so I don't know if they'll allow it again. 

Okay so I'll file my defense,  motion to dismiss, and MTC all at the same time? Should I file with AAA right now to show the court that I'm serious?

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Okay I found a rough template for a motion to dismiss and used some information from searching on this forum. Please let me know what you think!

 

MOTION TO DISMISS ON GROUNDS OF TIME BARRED

NOW COMES Defendant XXXX XXXX (‘DEFENDANT’), appearing Pro Se and hereby moves this court pursuant to Va. Code § 8.01-246(4) a Motion to Dismiss on Grounds of Time Barred.  In support of its motion, “DEFENDANT” shows the Court as follows:

1.     Plaintiff has failed to produce a signed agreement or contract.

2.     Defendant missed payment due 1/4/2018. A late fee of $25 was assessed due to nonpayment (Exhibit A).

3.     According to the applicable 2017 Cardholder Agreement, default under this Agreement occurs when a required payment is missed when due (Exhibit B, Page 4, Line 19).

4.     Plaintiff waited too long to pursue a cause of action and is therefore time barred from action now.  The statute of limitation for action against Defendant began from 1/5/2018 to 05/11/2021, which is before the filing date of Case No. XXXXXXXX submitted on 05/12/2021. 

5.     Virginia Code 8.01-246(4) Personal actions based on contracts provides:

In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.

6.     On March 12, 2020, Governor Northam entered Executive Order Number Fifty-One (2020) Declaration of a State of Emergency Due to Novel Coronavirus COVID-19.  On March 16, 2020, the Virginia Supreme Court issued a declaration of a judicial emergency in all district and circuit courts of the Commonwealth of Virginia, pursuant to Va. Code § 17.1-330.   The Court’s orders effectively suspended all non-essential, non-emergency court proceedings in all circuit and district court and tolled and extended all statutes of limitations and case-related deadlines pursuant to Va. Code § 17.1-330(D). 

The Supreme Court issued five additional extensions of the Judicial Emergency Order tolling and extending deadlines.  On June 22, 2020, the Virginia Supreme Court issued its Sixth Order extending the Declaration of Judicial Emergency in Response to COVID 19.  Therein it extended the Judicial Emergency; however, the tolling period was concluded as of July 19, 2020, and not extended.  The tolling of deadlines in Virginia was effectively from March 16, 2020-July 19, 2020 (126 days), with computation of time to resume as of July 20, 2020.

There are no additional or specific temporary rules extending time limits to serve complaints or special rules relating to methods of service.  All statutes of limitation and case-related deadlines are subject to the tolling period March 16, 2020-July 19, 2020 (126 days).

WHEREFORE, Defendant requests that Plaintiff’s Complaint be dismissed in its entirely  pursuant to Virginia Code 8.01-246(4) and the Cardholder Agreement.

Respectfully submitted this day July XX, 2021

NAME

ADDRESSS

Pro Se

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GROUNDS OF DEFENSE

Defendant states as follows:

1.      Statute of limitations had expired at time of filing.

a.      Pursuant to Va. Code § 8.01-246(4) and the Cardholder Agreement (Agreement, Exhibit B) statute of limitations for the debt began 1/5/2018 and ended 5/11/2021.  Plaintiff filed claim on 5/12/2021.

2.      Improper venue, Defendant elects private arbitration per contract.

a.      Defendant moves this court to compel binding Arbitration based on the terms and conditions of the Cardholder Agreement (Exhibit B, Page 6).

 

7/XX/2021                                                          ___________________________, Defendant

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MOTION TO DISMISS ON GROUNDS OF TIME BARRED

NOW COMES Defendant XXXX XXXX (‘DEFENDANT’), appearing Pro Se and hereby moves this court pursuant to Va. Code § 8.01-246(4) a Motion to Dismiss on Grounds of Time Barred.  In support of its motion, “DEFENDANT” shows the Court as follows:

1.     Plaintiff has failed to produce a signed agreement or contract.

2.     Defendant missed payment due 1/4/2018. A late fee of $25 was assessed due to nonpayment (Exhibit A) entered by Plaintiff in Bill of particulars .

3.     According to the applicable 2017 Cardholder Agreement, default under this Agreement occurs when a required payment is missed when due (Exhibit B, Page 4, Line 19).

4.     Plaintiff waited too long to pursue a cause of action and is therefore time barred from action now.  The statute of limitation for action against Defendant began from 1/5/2018 and ended on to 05/11/2021 including all the tolling of paragraph 6, which is before the filing date of Case No. XXXXXXXX submitted on 05/12/2021. 

5.     Virginia Code 8.01-246(4) Personal actions based on contracts provides:

In actions upon (i) any contract that is not otherwise specified and that is in writing and not signed by the party to be charged, or by his agent, or (ii) any unwritten contract, express or implied, within three years.

6.     On March 12, 2020, Governor Northam entered Executive Order Number Fifty-One (2020) Declaration of a State of Emergency Due to Novel Coronavirus COVID-19.  On March 16, 2020, the Virginia Supreme Court issued a declaration of a judicial emergency in all district and circuit courts of the Commonwealth of Virginia, pursuant to Va. Code § 17.1-330.   The Court’s orders effectively suspended all non-essential, non-emergency court proceedings in all circuit and district court and tolled and extended all statutes of limitations and case-related deadlines pursuant to Va. Code § 17.1-330(D). 

The Supreme Court issued five additional extensions of the Judicial Emergency Order tolling and extending deadlines.  On June 22, 2020, the Virginia Supreme Court issued its Sixth Order extending the Declaration of Judicial Emergency in Response to COVID 19.  Therein it extended the Judicial Emergency; however, the tolling period was concluded as of July 19, 2020, and not extended.  The tolling of deadlines in Virginia was effectively from March 16, 2020-July 19, 2020 (126 days), with computation of time to resume as of July 20, 2020.

There are no additional or specific temporary rules extending time limits to serve complaints or special rules relating to methods of service.  All statutes of limitation and case-related deadlines are subject to the tolling period March 16, 2020-July 19, 2020 (126 days).

WHEREFORE, Defendant requests that Plaintiff’s Complaint be dismissed in its entirely  pursuant to Virginia Code 8.01-246(4) and the Cardholder Agreement.

Respectfully submitted this day July XX, 2021

 

below is standard form or grounds for defense in pdf and a template for affidavit which you need notarized to enter you credit card agreement as evidence with the motion to dismiss. It's in old word format not sure you had latest MS word.   here is wiki page on motion to dismiss. https://www.wikihow.com/Draft-a-Motion-to-Dismiss 

 

dc442.pdf AFFIDAVIT.doc

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  • 4 weeks later...
On 7/18/2021 at 11:21 PM, Bulldoger said:

"You will be in default under this Agreement if any of the following events occur: (1) you exceed your assigned credit limit; (2) you fail to make any required payment when due;

"I missed the 1/4/18 due date at this point you can argue that all conditions were met (existing contract spelling out time of default (e.g. breach of contract),  damage to plaintiff lack of payment. SOL started 1/5/2018 end 5/11/2021, 1 day  before the lawyer filed? this will be your defense.  

So you have three  affirmative defenses for your ground for defense. 

1) statute of limitations had expired  at time of filing. 

2) improper venue you elect private arbitration per contract. 

3) No Business Relationship with the Plaintiff (lack of standing)

This is a defense that applies when the plaintiff is a debt buyer.  Because you never signed a contract directly with the debt buyer, you have the right to challenge the debt buyer’s right to sue you (also known as “standing”).  The plaintiff will not be able to prevail unless it can prove to the court that it owns your debt.  If the debt buyer bought your debt from another debt buyer, it has to provide a chain of assignments going all the way back to the original creditor.  If the debt buyer cannot or will not provide these documents, the court must dismiss the case. 

 

@Clydesmomis "No Business Relationship with the Plaintiff (lack of standing)" used in GA when sued by JDB?

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29 minutes ago, womanonfire said:

@Clydesmomis "No Business Relationship with the Plaintiff (lack of standing)" used in GA when sued by JDB?

Credit card agreements state that accounts can be sold.  You raise “lack of standing” as an affirmative defense to challenge a JDB’s claim that it purchased your account.  The JDB must then prove the purchase.  If the JDB’s evidence of purchase satisfies the court, the JDB is considered be the owner of the account and to have standing.

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4 hours ago, BV80 said:

Credit card agreements state that accounts can be sold.  You raise “lack of standing” as an affirmative defense to challenge a JDB’s claim that it purchased your account.  The JDB must then prove the purchase.  If the JDB’s evidence of purchase satisfies the court, the JDB is considered be the owner of the account and to have standing.

Hi, I have a few questions concerning the Card Agreement sent to me. The attached picture is from the last page of the agreement.

 Does anybody know what the green highlighted number means? Does such number makes the agreement unique to just one account?

Can this be the agreement of a credit card opened in 2013 and also the agreement of a different one opened in mid 2014.(One card was Elite and the other was Premier membership)

 

Thank you.

 

1473514887_cardagreement.thumb.jpg.3d43d5cd8eba77d026d44adc27eec6a3.jpg

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42 minutes ago, JDCHATER said:

Hi, I have a few questions concerning the Card Agreement sent to me. The attached picture is from the last page of the agreement.

 Does anybody know what the green highlighted number means? Does such number makes the agreement unique to just one account?

Can this be the agreement of a credit card opened in 2013 and also the agreement of a different one opened in mid 2014.(One card was Elite and the other was Premier membership)

 

Thank you.

 

1473514887_cardagreement.thumb.jpg.3d43d5cd8eba77d026d44adc27eec6a3.jpg

This is probably a document number. Like the IRS, many organizations who deal with tons of similar documents probably number them in such a way to be able to retrieve the correct document when needed.

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2 hours ago, WhoCares1000 said:

This is probably a document number. Like the IRS, many organizations who deal with tons of similar documents probably number them in such a way to be able to retrieve the correct document when needed.

So, you are saying ... it could be a "unique document" assigned to ONE case only?

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19 minutes ago, JDCHATER said:

So, you are saying ... it could be a "unique document" assigned to ONE case only?

I doubt it would be assigned to one account only because it’s a standard agreement for the type of card you had.  There’s no telling how many of that same exact agreement was issued to consumers who had the very same type of card.  It may be a document number that was issued to all of those same agreements.  Something like that.

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1 hour ago, BV80 said:

I doubt it would be assigned to one account only because it’s a standard agreement for the type of card you had.  There’s no telling how many of that same exact agreement was issued to consumers who had the very same type of card.  It may be a document number that was issued to all of those same agreements.  Something like that.

Do you think the JDB attorney or his expert witness would know that if I bring it up during cross examination? I want to create doubt for not having the correct agreement on the case.

"I have" 2 different types of cards. One was a Citi Premium and the other a Citi Premier. Both cards open a year apart yet the same contract attached to the same bill of sale too.

Thank you.

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17 minutes ago, JDCHATER said:

Do you think the JDB attorney or his expert witness would know that if I bring it up during cross examination? I want to create doubt for not having the correct agreement on the case.

"I have" 2 different types of cards. One was a Citi Premium and the other a Citi Premier. Both cards open a year apart yet the same contract attached to the same bill of sale too.

Thank you.

You might want to compare Citi cardmember agreements on the CFPB agreement database.  For instance, the agreement for the Citi Premier and Citi Prestige is the same agreement.  And neither specify “premier” or “prestige”. 

https://www.consumerfinance.gov/credit-cards/agreements/

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2 hours ago, JDCHATER said:

So, you are saying ... it could be a "unique document" assigned to ONE case only?

No, I am saying that his is a document number used by Citi to identify a certain document. This agreement could have been send to millions of card holders. I am sure that if you try to question the witness on that, you are not going to get the answer you want.

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11 hours ago, womanonfire said:

@Clydesmomis "No Business Relationship with the Plaintiff (lack of standing)" used in GA when sued by JDB?

It is used but about a decade ago GA softened its business records laws and made it that much easier for a JDB to prove standing.  The 4 large counties:  Forsyth, Fulton, Gwinnett, and Cobb are more likely to enforce good record keeping than the smaller rural good ole boy Magistrate Courts.

The other issue is the "letter" the law firm sends.  Most pro-se consumers do not understand what it means when they receive it.  It basically offers the opportunity to come to their offices to review the records they intend to use.  If the consumer does not do so they forfeit the right to object to the records.  Many ignore the letter then are surprised when they cannot object to the evidence because they didn't review it prior.  Magistrate Court does not allow formal discovery so this is necessary if you want to use this attack.

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On 8/13/2021 at 2:18 PM, BV80 said:

You might want to compare Citi cardmember agreements on the CFPB agreement database.

Citi Expedia card member's agreement mentions a FACT SHEET. Where can I found such Fact sheet?

Is the card agreement the same over the years? Where can I find the contract agreement for an account opened in 2013 or 2014?

Where any amendments made to the agreement over the years?

 

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24 minutes ago, JDCHATER said:

Citi Expedia card member's agreement mentions a FACT SHEET. Where can I found such Fact sheet?

Is the card agreement the same over the years? Where can I find the contract agreement for an account opened in 2013 or 2014?

Where any amendments made to the agreement over the years?

 

I don’t know about the fact sheet.

See if the CFPB credit card agreement database has your agreement in the archives.

https://www.consumerfinance.gov/credit-cards/agreements/

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  • 2 months later...

@Bulldoger I see you are super knowledgeable on VA debt collection...I recently received a phone call from a credit mediator saying I owed over 5k for a cc from 2004. Final payment was in 2010 and they claim the account was transferred in 2012. According to them there is a tolling agreement in place until 2027. Can this be possible? And if so, how have I not heard from anyone regarding this debt in over 5 years (maybe more, I honestly do not even remember this debt). They claim they are willing to settle this debt for 1300. I asked for proof of debt and was told I can only get that during discovery at court. I also asked specifically if this was a time-barred debt and she went on about this agreement and VA code 8.01-228. Can you help a girl out?

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