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Sued by LVNV Funding LLC Jun 1st (Navy Fed CU) TX


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Hoping this helps with responding better to the likes of LVNV. Prior posts have helped calm my nerves a bit and towards taking initial steps.  So I got served 01Jun2023 with a 2-in-1 suit from LVNV. Never been down this alley, 2018 was a rough time financially, did everything to keep a trucking business afloat, ended up losing both trucks and getting evicted late 2019, finally getting back on my feet when I bought my first home late last year and then LVNV shows up in my mail.

This was an auto loan and a personal loan, I filed a general denial and noted SOL was past due. Last successful payment on both accounts was Aug2018, I have a couple of payments showing after that date but on closer examination, I had the accounts on auto pay and all those payments bounced back, they never went through. I even have payments showing on my credit report after the Repo, not sure what to make of that. Thank you, every constructive advice helps. 

 

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

 

2. What is the name of the law firm handling the suit? Randy Creager, Attorney, Scott & Associates 

 

3. How much are you being sued for?  42,000(personal loan) & 16,000(auto loan)

 

4. Who is the original creditor? (if not the Plaintiff) Navy Federal Credit Union (NFCU) 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) Notice on door

 

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?  Maybe a letter from LVNV, they're stating they sent a demand letter 22Nov2022 but I don't remember receiving one.
 

9. What state and county do you live in?  Fort Bend county, Texas

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Going through my TransUnion & Experian reports, starting Dec 2018, I went 30, 60, 90, 120, 150 days and then collections on both loans. Looking at prior Bank of America statements, Sep 2018 was my last deliberate payment. Looking at my Navy Federal checking a/c which was what LVNV sent, it's showing a $2 payment on 03May2019 on the personal loan. At this time, NFCU was like garnishing anything that went into my checking and sending it straight to the loans. I wasn't making payments anymore, simply because I could not afford to. Wondering if this $2 is the leg LVNV wants to stand on and how best to defend myself moving forward. The lowest debt attorney I found wants 25%  of debt savings + initial $4k if they win the case; almost $20k when all is said and done. 

 

11. When did you open the account? Apr2017

 

12. What is the SOL on the debt? 4 years

 

13. What is the status of your case?  I filed an answer 20Jun2023, I had 20 days to respond. Under general denial, I noted upon information and belief, I'm unable to determine the debt transfer was correctly executed and is genuine. Plaintiff cannot use only parts of a document to prove it owns the debt but must introduce the entire document. I picked statute of limitations as my affirmative defense. Waiting to hear back from LVNV at this time. Is there a time limit for them to move this forward? 

 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No I never had to, I do owe those debts and my credit has taken a beaten of a life time over these 2 accounts. I was holding my breath for this to fall off when LVNV came into the picture

 

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

 

16. How long do you have to respond to the suit? 20 days

 

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

Citation - noted original petition was filed 20Jan2023 but I was never served successfully

Original Petition

Bill of Sales from several different JDB

Exhibit A - Non-Authoritative copy of agreement I signed with NFCU, Copy of spreadsheet listing the account history 

Exhibit B - Bill of sale and assignment of accounts to them from NFCU in 18Oct2018

Order on Plaintiff's motion for substitute service

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

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I do not think that personal (not credit card) and auto loans would have an arbitration clause but they might. The issue here is are they loans related to the business or the person. If related to the business, arbitration is not as good of a deal. Finally, I am sure for $60K, LVNV would follow into arbitration. At most, their cost would be about 1/3 of the amount of the debt and so they would still come out ahead.

The SOL issue is interesting however. First off, the $2 the took out of your account in 2019 would not restart the SOL because there is no way a $2 payment would bring the account current. That means it would be the date of original default and that is dependent on if the September payment went through or not.  Also, we have to remember that the SOL in Texas was tolled for a little over 3 months in 2020 due to COVID. That said, if the DOFD happened in September 2018, that would put the SOL as December 2022. If it happened in October 2018, that would be January 2023 when LVNV first filed. This is the best line of attack the OP has, otherwise, NFCU, like most credit unions, will have the records to prove this debt and for this amount, I am sure LVNV will purchase those records if necessary.

One other possible avenue of attack on the auto loan is to ensure that the law was followed regarding repo, notification of sale, sale price, and accounting. Quite a few times, those things get messed up (although again, less for Credit Unions than for large banks) and if so, they cannot determine the count you owe.

Good luck to the OP but I have a feeling arbitration is not the way to go on this one.

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3 hours ago, Neri said:
6 hours ago, Neri said:

Going through my TransUnion & Experian reports, starting Dec 2018, I went 30, 60, 90, 120, 150 days and then collections on both loans. Looking at prior Bank of America statements, Sep 2018 was my last deliberate payment. Looking at my Navy Federal checking a/c which was what LVNV sent, it's showing a $2 payment on 03May2019 on the personal loan. At this time, NFCU was like garnishing anything that went into my checking and sending it straight to the loans. I wasn't making payments anymore, simply because I could not afford to. Wondering if this $2 is the leg LVNV wants to stand on and how best to defend myself moving forward. The lowest debt attorney I found wants 25%  of debt savings + initial $4k if they win the case; almost $20k when all is said and done. 

 

It appears LVNV is betting on thhe $2 payment restarting SOL. 

the satute states :

Sec. 16.004.  FOUR-YEAR LIMITATIONS PERIOD.  (a)  A person must bring suit on the following actions not later than four years after the day the cause of action accrues: (that date is October 2018)

(1)  specific performance of a contract for the conveyance of real property;

(2)  penalty or damages on the penal clause of a bond to convey real property;

(3)  debt;

(4)  fraud;  or

(5)  breach of fiduciary duty.

Also 

Sec. 392.307.  COLLECTION OF CERTAIN CONSUMER DEBT BY DEBT BUYERS.  (a)  In this section:

(1)  "Charged-off debt" means a consumer debt that a creditor has determined to be a loss or expense to the creditor instead of an asset.

(2)  "Debt buyer" means a person who purchases or otherwise acquires a consumer debt from a creditor or other subsequent owner of the consumer debt, regardless of whether the person collects the consumer debt, hires a third party to collect the consumer debt, or hires an attorney to pursue collection litigation in connection with the consumer debt.  The term does not include:

(A)  a person who acquires in-default or charged-off debt that is incidental to the purchase of a portfolio that predominantly consists of consumer debt that has not been charged off; or

(B)  a check services company that acquires the right to collect on a paper or electronic negotiable instrument, including an Automated Clearing House (ACH) authorization to debit an account that has not been processed.

(b)  Unless otherwise expressly provided, this section prevails to the extent of any conflict between this section and any other law of this state.

(c)  A debt buyer may not, directly or indirectly, commence an action against or initiate arbitration with a consumer to collect a consumer debt after the expiration of the applicable limitations period provided by Section 16.004, Civil Practice and Remedies Code, or Section 3.118, Business & Commerce Code.

(d)  If an action to collect a consumer debt is barred under Subsection (c), the cause of action is not revived by a payment of the consumer debt, an oral or written reaffirmation of the consumer debt, or any other activity on the consumer debt.

The question boils down to was $2 dollar levy a payment. 

Where did the $2 go.  If it went on 1 account then thw other account is passed SOL. Did they split levi between accounts. 

What was the $2 was it a refund of any bank fees interest if so you can argue bank fraud.  

If not for the $2 "payment" they would ot have a case.  Just have to convince Judge that a payment is not a levy. 

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2 hours ago, WhoCares1000 said:

First off, the $2 the took out of your account in 2019 would not restart the SOL because there is no way a $2 payment would bring the account current.

Texas satutes say nothin about a payment making the account current if the SOL has not expired it will restart the SOL.  But a levy is not a payment. Any more than a banker knocking you out a stealing you wallet. Obviously, the OP did not deposit $2 with intent of making loans payment or even deposit $2 it was probably shares balance I have credit union account with a minium shares balance of $5 OP pulled everything from drafts but had no access to the $2 in shares. Even if they closed account the bank would apply the $2 to debt.  

Sep 2018 was my last deliberate payment. Some contracts state debt is in default 30/60/etc days after last payment

As for tolling :  period of March 13 2020  till sept. 15 = 6 months so SOL would be March-May 2023 depending what promissary notes say. 

When was case filed?

See below: 

XTENDED STATUTES OF LIMITATIONS DURING THIS TIME OF COVID-19 
The Texas Supreme Court orders delineated below, specifically addressed the issue of the tolling of the statute of limitations.  After the September 15, 2020 extension date, the Texas Supreme Court omitted language contained within the previous orders specifically extending the tolling of the Statute of Limitations.  For instance, the 26th order states, “all Texas courts MAY modify or suspend any deadlines and procedures…”  This differs from the specific language in prior orders explicitly extending the deadline for filing or service of civil 
cases.  Some scholars have interpreted the recent orders to mean the statute of limitations deadlines have been tolled until February 2021. Obviously, that interpretation is subject to argument. The Court clearly extended the tolling of limitations to September 15, but they ceased using the same language; therefore, the stronger argument is that the automatic tolling ended on September 15th   and whether the statute of limitations is tolled is now in the individual court’s discretion.  This interpretation is supported by the current language of the Twenty-Ninth order—which states any court MAY modify or suspend any and all deadlines and procedures. 
On March 13, 2020, Governor Greg Abbott declared a state of disaster in response to the threat of the COVID-19 pandemic.  As a result of the Governor’s order, the Supreme Court of Texas issued its First Emergency Order Regarding the COVID-19 State of Disaster providing that “all courts in Texas may extend the statute of limitations in any civil case for a stated period ending no later than 30 days after the governor’s state of disaster has been lifted.”  
      On May 27, 2020, a coalition of bar associations and attorneys sent a letter to the Texas Supreme Court requesting that the Court issue one uniform limitations rule for the entire state. 
      On April 1, 2020, in its Eighth Emergency Order Regarding the Covid-19 State of Disaster, the Supreme Court of Texas clarified the extension of the statute of limitations by proclaiming: 

Any deadline for the filing or service of any civil case is tolled from March 13, 2020, until June 1, 2020, unless extended by the Chief Justice of the Supreme Court.  This does not include deadlines for perfecting appeal or for other appellate proceedings, requests for relief from which should be directed to the court involved and should be generously granted. 

On April 27, 2020, in its Twelfth Emergency Order Regarding the Covid-19 State of Disaster, the Supreme Court of Texas modified its prior order stating: 

Subject only to constitutional limitations, all courts in Texas may in any case, civil or criminal– and must to avoid risk to court staff, parties, attorneys, jurors, and the public– without a participant’s consent: a) Modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, specifically including those in Section 263.401 of the Family Code and all proceedings under Subtitle E, Title 5, of the Family Code, for a stated period ending no later than 30 days after the Governor’s state of disaster has been lifted. 
The Twelfth Emergency order further stated: 
Any deadline for the filing or service of any civil case that falls on a day between March 13, 2020, and June 1, 2020, is extended until July 15, 2020.  This does not include deadlines for perfecting appeal or for other appellate proceedings, requests for relief from which should be directed to the court involved and should be generously granted. 

On June 29, 2020, in its Eighteenth Emergency Order Regarding the Covid-19 State of Disaster, the Supreme Court of Texas extended the suspension of any and all deadlines and procedures in all Texas courts, whether civil or criminal, for a stated period ending no later than September 30, 2020.  The Eighteenth Emergency Order further extended any deadline for filing or service of any civil case that falls on a day between March 13, 2020 and August 1, 2020 until September 15, 2020. 


On July 31, 2020, in its Twenty-First Emergency Order Regarding the Covid-19 State of Disaster, the Supreme Court of Texas extended until September 15, 2020 the limitations on civil case filing and service of them for deadlines that fall between March 13, 2020 and September 1, 2020. 
On September 18, 2020, in its Twenty-Sixth Emergency Order Regarding the Covid-19 State of Disaster, the Supreme Court of Texas stated: 

“[s]ubject only to constitutional limitations, all courts in Texas may in any case, civil or criminal, modify or suspend any and all deadlines and procedures, whether prescribed by statute, rule, or order, for a stated period ending no later than December 1, 2020. 

Finally, on November 11, 2020, in its Twenty-Ninth Emergency Order Regarding the Covid-19 
State of Disaster, the Supreme Court of Texas extended the modification or suspension of any 
and all deadlines and procedures, whether prescribed by statute, rule or order, for a stated period ending no late than February 1, 2021. 
TEMPORARY RULES EXTENDING TIME LIMITS TO SERVE COMPLAINTS AND/OR SPECIAL RULES RELATING TO METHODS OF SERVICE 
The Texas Supreme Court orders do not reference service, but guidance has been issued by 
various state and local courts, including the Supreme Court of Texas, the Courts of Appeal and 
courts in Bexar, Collin, Dallas, Harris, Tarrant and Travis counties.  The guidance states generally that service of process is considered an essential service not subject to stay-at-home guidelines and travel restrictions per the March 28, 2020

2 Advisory Memorandum on Identification of 
Essential Critical Infrastructure Workers during COVID-19 Response issued by the U.S. Department of Homeland Security (workers supporting the operations of the judicial 
system).  For hand delivered service of process, it is suggested that counsel should consider 
whether to reach out to the service recipient and their counsel to arrange in-person service 
that complies with social distancing guidelines.  The note also advised that service by certified by mail should be used where appropriate.    

 

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14 hours ago, WhoCares1000 said:

The SOL issue is interesting however. First off, the $2 the took out of your account in 2019 would not restart the SOL because there is no way a $2 payment would bring the account current.

A payment wouldn’t have to bring the account current in order to reset the SOL.  A payment is evidence of a debtor’s acknowledgement of the debt and that is what resets the SOL.

BUT, I agree with you that a mere $2 payment would not restart the SOL because the OP probably didn’t make that payment and certainly would not have paid such a minuscule amount as a payment toward a debt.

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18 hours ago, Neri said:

Hoping this helps with responding better to the likes of LVNV. Prior posts have helped calm my nerves a bit and towards taking initial steps.  So I got served 01Jun2023 with a 2-in-1 suit from LVNV. Never been down this alley, 2018 was a rough time financially, did everything to keep a trucking business afloat, ended up losing both trucks and getting evicted late 2019, finally getting back on my feet when I bought my first home late last year and then LVNV shows up in my mail.

This was an auto loan and a personal loan, I filed a general denial and noted SOL was past due. Last successful payment on both accounts was Aug2018, I have a couple of payments showing after that date but on closer examination, I had the accounts on auto pay and all those payments bounced back, they never went through. I even have payments showing on my credit report after the Repo, not sure what to make of that. Thank you, every constructive advice helps. 

 

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

 

2. What is the name of the law firm handling the suit? Randy Creager, Attorney, Scott & Associates 

 

3. How much are you being sued for?  42,000(personal loan) & 16,000(auto loan)

 

4. Who is the original creditor? (if not the Plaintiff) Navy Federal Credit Union (NFCU) 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) Notice on door

 

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?  Maybe a letter from LVNV, they're stating they sent a demand letter 22Nov2022 but I don't remember receiving one.
 

9. What state and county do you live in?  Fort Bend county, Texas

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Going through my TransUnion & Experian reports, starting Dec 2018, I went 30, 60, 90, 120, 150 days and then collections on both loans. Looking at prior Bank of America statements, Sep 2018 was my last deliberate payment. Looking at my Navy Federal checking a/c which was what LVNV sent, it's showing a $2 payment on 03May2019 on the personal loan. At this time, NFCU was like garnishing anything that went into my checking and sending it straight to the loans. I wasn't making payments anymore, simply because I could not afford to. Wondering if this $2 is the leg LVNV wants to stand on and how best to defend myself moving forward. The lowest debt attorney I found wants 25%  of debt savings + initial $4k if they win the case; almost $20k when all is said and done. 

 

11. When did you open the account? Apr2017

 

12. What is the SOL on the debt? 4 years

 

13. What is the status of your case?  I filed an answer 20Jun2023, I had 20 days to respond. Under general denial, I noted upon information and belief, I'm unable to determine the debt transfer was correctly executed and is genuine. Plaintiff cannot use only parts of a document to prove it owns the debt but must introduce the entire document. I picked statute of limitations as my affirmative defense. Waiting to hear back from LVNV at this time. Is there a time limit for them to move this forward? 

 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No I never had to, I do owe those debts and my credit has taken a beaten of a life time over these 2 accounts. I was holding my breath for this to fall off when LVNV came into the picture

 

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

 

16. How long do you have to respond to the suit? 20 days

 

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

Citation - noted original petition was filed 20Jan2023 but I was never served successfully

Original Petition

Bill of Sales from several different JDB

Exhibit A - Non-Authoritative copy of agreement I signed with NFCU, Copy of spreadsheet listing the account history 

Exhibit B - Bill of sale and assignment of accounts to them from NFCU in 18Oct2018

Order on Plaintiff's motion for substitute service

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

If, SOL doesn't pan out i like #13 Introducing the entire documents, due to the fact it was most likely sold without representation or warranty of accuracy. Need that purchase agreement to review the terms and conditions.

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12 hours ago, Bulldoger said:

If not for the $2 "payment" they would ot have a case.  Just have to convince Judge that a payment is not a levy.

Will LVNV have anything more in their arsenal to prove this was a payment beyond this spread sheet they sent me? NFCU closed my checking account long before all this. I don't have access to those records myself. 

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10 minutes ago, Neri said:

Will LVNV have anything more in their arsenal to prove this was a payment beyond this spread sheet they sent me? NFCU closed my checking account long before all this. I don't have access to those records myself. 

I’m sorry, but I don’t have a definitive answer for your question.  Right now, there is no way to know exactly what LVNV has purchased from the OC.

Do you have copies of your bank statements from 2019?  

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5 minutes ago, BV80 said:

Do you have copies of your bank statements from 2019?

I do for my Savings a/c but the Checking a/c was long closed. I'll walk into a branch office to make enquiries if I can still obtain those.

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12 hours ago, Bulldoger said:

As for tolling :  period of March 13 2020  till sept. 15 = 6 months so SOL would be March-May 2023 depending what promissary notes say. 

So Exhibit B: Bill of sale and assignment of accounts was executed 18 Oct 2022.

Does this factor into this tolling as well?

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2 hours ago, Neri said:

I never did receive a notification of sale

They don't have to prove you received it only that they mailed one by regular mail.  Producing the notification alone will be enough for the court under the mailbox rule.

2 hours ago, Neri said:

Will LVNV have anything more in their arsenal to prove this was a payment beyond this spread sheet they sent me? NFCU closed my checking account long before all this. I don't have access to those records myself. 

Probably not.  My arguement would be that a credit of any sort back to the account is NOT a payment as defined by law.  Absent YOU making a payment on the account that small credit that they cannot state where it came from does not re-start the SOL.  There is plenty of TX case law and federal case law to support this.  Have a few cases ready to cite.  Adding that since NFCU had closed your accounts on the date X amount of time prior to that $2 entry it is impossible that you made the payment as well.  

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When was case filed?  Is case filed under breach of contract? If so when does contract state you are in defualt (breach of contract)?  

Disregard the $2 transfer assuming it day of missed payment  that day is 9-20-18 so SOL ends 10-21-22 even if tolled . 

WHen was case Filed? 

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On 6/29/2023 at 10:12 AM, Neri said:

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

Citation - noted original petition was filed 20Jan2023 but I was never served successfully

Based on when they filed and you answered you have a gold plated affirmative defense in the SOL being expired.  I would immediately file a counter claim for FDCPA violation(s) taking an action they legally cannot take and anything else I could throw at them.  Watch how quickly they settle with you.  

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@Neri  this site will get you with a TX lawyer that can answer your queations about SOL , Is there any tolling added to 4 years in 2023 becasue of COVID? What is effect of $2 payment? etc  it is only $5. Seems woth it to verify you have gold plated affirmative defense in the SOL being expired

https://www.justanswer.com/sip/texas-law?r=ppc|ga|27|Law-SQR-Search-BMM|Legal-Texas|&JPKW=%2Bstatute of %2Blimitations in %2Btexas&JPDC=S&JPST=&JPAD=378946472305&JPMT=b&JPNW=g&JPAF=txt&JPRC=1&JPCD=&JPOP=&cmpid=18713477706&agid=151351474068&fiid=&tgtid=kwd-779938329010&ntw=g&dvc=c&gad=1&gclid=CjwKCAjw-vmkBhBMEiwAlrMeFwm0PKkJae-pnZnFrsM3rHiifRoWR8o9YjccnSENLqcHpamsF9rarhoCxewQAvD_BwE

 

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