A Blank Canvas

[adjhart]

State: Texas

So, I'm being sued by a local attorney representing LVNV FUNDING LLC, with an 'Assigned Claim' from HSBC Bank Nevada, N.A. My state's rules for filing a debt claim petition indicated that the plaintiff properly met all criteria when filing the complaint. However, the petition is only 1 page; a template form provided by the court with the all of the necessary info to properly file. The petition's claims are not in any format I've seen on the internet, and were clearly done with very little to no effort. In a box titled 'claim detail' it reads:

"Plaintiff's claim is for Breach of Contract, Money Had and Received, and for Accounted Stated and/or Open Account. The claim arises from a Credit Account entered into by Defendant(s) with HSBC Bank Nevada, N.A., Account No. XXXXXXXXXXXXXXX4150 (the Account). Plaintiff is the owner and holder of the Account. The Account is in default and Plaintiff sues for all amounts owing."

That's it. There's no numbered paragraphs, there's no attached forms or affidavits, there are no RFA's, (unless those statements somehow are RFAs, -- are RFA's always distinguished clearly? Would I know it if there are RFA's?) I should point out that the XXXX's are actually in the text, and that, no entire account number has been shown anywhere.

I've got this weekend plus 14 days until I have to answer - so I want my answer to be as robust as possible. Should be fun, right? I'm unsure of exactly how I'd like to deny these questions, or if there are any that I should partly admit and partly deny, or object. I'm considering raising a few affirmative defenses as well, such as Texas' SOL, but have concerns with shifting the burden of proof to myself, as I don't currently have any statements or documents to offer as evidence. ** Should I focus on getting some? Texas is a DLA state, and I've heard that if I check my credit report to see the latest hits from the account, and subtract 180 days, that I may have an accurate DLA, and that that may be used as evidence to prove SOL...I'm not sure how credible or accurate this is, but is something to consider nonetheless.

Of course, as I will be Pro Se, I'd like to win as soon as conceivably possible, so I'm curious if strategies built towards a motion of summary disposition would better fit me. I don't want to get ahead of myself - so I'll refrain from any peripheral thoughts not pertaining to my answer.

Plan(s) of attack?


Thanks in advance -

Adam

 

[TigerD]

Please keep us posted as to how this goes for you. I think it will definitely be fun - but not for you.

Best advice for you is:
1. If you owe the money, grab your checkbook and pay it.
2. If you don't owe the money hire an attorney before you become liable for it.

DC

 

[mmmagique]

My best advice for you is to google credit forums and ask your questions in the "I'm being sued" section. (they all have them.) Texas has some pretty robust laws and they do favor the borrower rather than the lender in many cases. You should be able to find out if there's anything you can legally do.

 

[single317dad]

Also Google "is there a lawyer in the house". That forum is much more suited to your stated goal.

The minimal content of the initial complaint is status quo for JDBs. They'll provide more information as needed/as it suits them. Fighting them on procedure isn't going to get you far; they do whatever the local court lets them get away with. Even if you get the case kicked they'll just refile. These guys are in court several times per week. You have a whole lot to learn in 14 days. Your best hope is to become more trouble than you're worth, and make it clear you'll be difficult to collect from (read: don't have assets worth taking). You'll probably lose the case. Paying the debt or filing bankruptcy will be the end solution for satisfying the judgment.

 

[adjhart]

Please keep us posted as to how this goes for you. I think it will definitely be fun - but not for you.

Best advice for you is:
1. If you owe the money, grab your checkbook and pay it.
2. If you don't owe the money hire an attorney before you become liable for it.

DC

Wow - I knew from reading some of the other posts that at least more than one of you was going to go out of their way to be less than helpful. I'm sharing a debt lawsuit on a forum at Free Advice.com and your free advice is that I should pay for my advice. That has got to be the most useless answer I could have possibly expected.

Whether I owe the money or not is not even relevant at this level. Legal technicalities are business as usual with these companies. Justice, if it occurs, is a byproduct of the adversary system. Having said this, I do intend to fight, I do intend to make myself more costly to them than the other hundred ignorant people who will get default judgments, and I intend to win.

I would love to keep everyone posted assuming a.) I get any kind of help whatsoever other than the beloved status quo 'get a lawyer', and b.) I don't get banned for my retaliation against pompous senior members.

Nobody even addressed anything I was actually asking for. The only thing that has potential to help me here, is direction to other forums, which I will do. I'd love to actually hear your thoughts on potential legal recourse rather than your thoughts on my decision for legal discourse.

-A

 

[tranquility]

Whether I owe the money or not is not even relevant at this level. Legal technicalities are business as usual with these companies. Justice, if it occurs, is a byproduct of the adversary system. Having said this, I do intend to fight, I do intend to make myself more costly to them than the other hundred ignorant people who will get default judgments, and I intend to win.

Of course it is "relevant". On the simplest level, there is a moral duty to pay one's debts. Sure, sometimes people get so underwater we give a legal out of bankruptcy, that does not really change the underlying moral issue.

On a deeper level directly related to your issue, the whole purpose of court in this instance is to enforce contracts and asses what people owe. Without that enforcement, our whole economic system collapses or we get tough looking guys with bent noses visit us in the night. Because of that, the whole purpose of the "legal technicalities" are to fairly find out who owes what to whom. If you owe the debt, you will have to be a wizard to beat an attorney who files and goes to court on these things every day. Civil procedure is generally thought of as shield and not a sword. It protects from unfairness. If you owe the debt, it would be unfair for the court not to assess it to you. This basic premise is reflected in the concept of equity. If your goal is to make yourself more costly than other ignorant people, know that you may very well have an attorney fees portion on whatever debt is being sued upon. That means, loser pays for the winner's attorney in any suit to collect the debt.

If you have an actual argument, defense or facts on your side, fight on valiant soldier. If you are playing at things you know you owe, I think you'll find there will be a time you will discover you have spent way more time, effort and emotion on this thing than you should have. Ishmael's white whale was a metaphor; Melville was not talking of a sea creature.

But, as to the seemingly only question asked:

Of course, as I will be Pro Se, I'd like to win as soon as conceivably possible, so I'm curious if strategies built towards a motion of summary disposition would better fit me.

I would not be planning to win this thing in summary judgment unless it is clearly beyond the SOL or you just aren't the guy. I would focus on trying desperately to find some material fact in dispute so you don't lose at summary.

 

[adjhart]

Tranquility, I appreciate the response, however I must completely object to your argument of morality. Debt Collection is a multi-billion dollar industry that arose off of the backs of federal fractional reserve banking laws. I know we aren't supposed to get philosophical in here, but there is nothing immoral about making a company prove what it is alleging. While I may have entered a contract with an original creditor, I cannot make any legal determination as to the exact amount I'm supposed to owe, whether it is beyond the SOL, or whether the plaintiff even has
a legal standing to file a petition for the claim of debt. Should I not be sure of these things before I roll over and let a multi-million dollar corporation have its druthers? I'm learning that I'm probably 'judgement proof' anyway. There seems to be little for me to lose, except money that I don't have.

I asked questions about Request for Admissions, and, as I've seen information saying that these can sometimes be 'hidden' in petitions, I wanted to make sure there was nothing I was missing.

As my OP states the entirety of the claim, one should effectively be able to offer ideas on how a strong Answer would look. I'm happy to give any asked information - as I said previously I just didn't want to inundate with irrelevant info.

Thanks again.

 

[tranquility]

Tranquility, I appreciate the response, however I must completely object to your argument of morality. Debt Collection is a multi-billion dollar industry that arose off of the backs of federal fractional reserve banking laws. I know we aren't supposed to get philosophical in here, but there is nothing immoral about making a company prove what it is alleging. While I may have entered a contract with an original creditor, I cannot make any legal determination as to the exact amount I'm supposed to owe, whether it is beyond the SOL, or whether the plaintiff even has
a legal standing to file a petition for the claim of debt.

That attitude will have a multi-billion dollar bulldozer bury you. Once buried, I think you will find morality does not depend quite so much on who you hurt, just that you hurt. Certainly asking them to prove up their claim is fine. Pity you did not choose that path long ago. I suspect your confusion over the amount owed has to do with avoiding payment and then avoiding the creditor when he called or wrote. While I believe you have rights under the law, please do not hoist yourself up on the petard of morality.

Should I not be sure of these things before I roll over and let a multi-million dollar corporation have its druthers? I'm learning that I'm probably 'judgement proof' anyway. There seems to be little for me to lose, except money that I don't have.

And, money you won't ever have. Judgments last a long time.

As my OP states the entirety of the claim, one should effectively be able to offer ideas on how a strong Answer would look. I'm happy to give any asked information - as I said previously I just didn't want to inundate with irrelevant info.

A legal maxim is "Without the facts, there is no issue." We have no facts, you do. What is the issue? What is it you dispute? It seems you don't dispute the debt and that you owe something. What is your claim?

But, for ideas:
http://debt-suit-litigation-in-texas.blogspot.com/

 

[adjhart]

Ok, then which attitude should I have? Please remember that attitudes involving hiring an attorney or simply laying down are not options. I'm under the impression that if I can prove to the court that the plaintiff cannot prove his allegations, then I win. Is this not true?

Facts:
I did open the account but payed off a significant portion - over 70% of it.
The total amount claimed is at least 1200-1300 dollars more than that, not including interest and atty fees.
I do not know where this 1200-1300 dollars came from.
The account was opened 7/20/08 - charged off 4/30/2011 - this is the premise for me asking about potential evidence from my credit report regarding a time-bar.

So I dispute the amount owed.

Regardless, they need to:

Show what the money they say I owe is for and how they calculated that figure
Provide me with copies of any papers with my signature
Documentation to prove the SOL has not expired on this account
Show me that they are licensed to collect in my state.
Provide me with their license numbers and Registered Agent
Show me that they are the legal owners of the debt

Right?

And because of this, aren't I disputing more claims than just the amount owed?



Shouldn't I object to the claim that the "Plaintiff is the owner and holder of the Account." on grounds that I haven't any documentation to verify that? Or should I outright deny it?



I was not at all hoisting myself up onto any pedestal of morality. I was simply defending myself from your attacks on my morality. LVNV FUNDING LLC is a very large junk-debt purchaser with hundreds if not thousands of legal suits filed against them, in nearly every state of the US. I'm sure you're aware of that ubiquitous statistic which said one company told that 80% of their profit was from people who didn't even owe the debt. I don't need to make my moral case to you or even to the court. So, I'm fine with leaving this part of our conversation behind.

 

[TigerD]

Ok, then which attitude should I have? Please remember that attitudes involving hiring an attorney or simply laying down are not options. I'm under the impression that if I can prove to the court that the plaintiff cannot prove his allegations, then I win. Is this not true?

It depends.

Facts:
I did open the account but payed off a significant portion - over 70% of it.
The total amount claimed is at least 1200-1300 dollars more than that, not including interest and atty fees.
I do not know where this 1200-1300 dollars came from.
The account was opened 7/20/08 - charged off 4/30/2011 - this is the premise for me asking about potential evidence from my credit report regarding a time-bar.

Your credit report is not relevant. The debt is not likely to be outside the SOL.

So I dispute the amount owed.

So what. You are in court.

Regardless, they need to:
Show what the money they say I owe is for and how they calculated that figure
Provide me with copies of any papers with my signature
Documentation to prove the SOL has not expired on this account
Show me that they are licensed to collect in my state.
Provide me with their license numbers and Registered Agent
Show me that they are the legal owners of the debt

Right?

No.

And because of this, aren't I disputing more claims than just the amount owed?

Are you?

Shouldn't I object to the claim that the "Plaintiff is the owner and holder of the Account." on grounds that I haven't any documentation to verify that? Or should I outright deny it?

You mean to say that you are without sufficient information to form an opinion as to the truth or falsity of the assertion and therefore must deny?

I don't need to make my moral case to you or even to the court.

Good, you don't have one. And you need to focus on losing the rest of your case. I say that because given what you have posted you have neither the grounds nor the capability to win.

DC

 

[adjhart]

There is another tactic I have been considering. I'm curious about filing a motion to continue, so that the court may grant me time to resolve the dispute privately with the creditor. Do you think that is in the interest of the court to allow a continuance like this? Or will she see it as too little, too late, deny, and then already be annoyed with me? In the event the motion is granted, is it a good idea to take that opportunity to send a validation request to the original creditor? I understand that the creditor has no legal obligation to send me anything, but if they do, it could give me evidence I could use, or give me an insight to the evidence that they may have, allowing me to adjust my strategy. If this is a sound move, would it be better to mention that I'm sending a request for validation to the creditor in the request for continuance? While I may or may not intend to actually resolve the dispute, it would give me more time for research, and potentially allow, as I mentioned, a better understanding of the actual facts of the account.

Any thoughts on this, appreciated.

 

[TigerD]

There is another tactic I have been considering. I'm curious about filing a motion to continue, so that the court may grant me time to resolve the dispute privately with the creditor. Do you think that is in the interest of the court to allow a continuance like this? Or will she see it as too little, too late, deny, and then already be annoyed with me?

Continuances for negotiation are granted everyday.

In the event the motion is granted, is it a good idea to take that opportunity to send a validation request to the original creditor? I understand that the creditor has no legal obligation to send me anything, but if they do, it could give me evidence I could use, or give me an insight to the evidence that they may have, allowing me to adjust my strategy.

They will not respond to you.

If this is a sound move, would it be better to mention that I'm sending a request for validation to the creditor in the request for continuance?

Probably not. That is a pointless waste of time and the court may not allow it.

While I may or may not intend to actually resolve the dispute, it would give me more time for research, and potentially allow, as I mentioned, a better understanding of the actual facts of the account.

If you start shading the truth with the judge, you are playing with fire.

DC

 

[adjhart]

It depends.


Your credit report is not relevant. The debt is not likely to be outside the SOL.


So what. You are in court.


No.


Are you?


You mean to say that you are without sufficient information to form an opinion as to the truth or falsity of the assertion and therefore must deny?


Good, you don't have one. And you need to focus on losing the rest of your case. I say that because given what you have posted you have neither the grounds nor the capability to win.

DC

Ok, ok, DC, you can have the gold star for the most useless posts. You win gold stars for posts that are dripping with irrational judgment, condescension, and a complete disregard for me, and for the purpose of the forum. Congratulations. Fortunately for me, DC, there's not a single thing you can say to deter or discourage me.



Edit - So due to your most recent post, which populated while I was writing this, you lost the gold star for useless posts. That was actually pretty helpful. I never intend to shade the truth with the judge.

 

[tranquility]

There is another tactic I have been considering. I'm curious about filing a motion to continue, so that the court may grant me time to resolve the dispute privately with the creditor. Do you think that is in the interest of the court to allow a continuance like this? Or will she see it as too little, too late, deny, and then already be annoyed with me? In the event the motion is granted, is it a good idea to take that opportunity to send a validation request to the original creditor? I understand that the creditor has no legal obligation to send me anything, but if they do, it could give me evidence I could use, or give me an insight to the evidence that they may have, allowing me to adjust my strategy. If this is a sound move, would it be better to mention that I'm sending a request for validation to the creditor in the request for continuance? While I may or may not intend to actually resolve the dispute, it would give me more time for research, and potentially allow, as I mentioned, a better understanding of the actual facts of the account.

Any thoughts on this, appreciated.

You've got to answer before you start making motions like that unless you actually need more time to answer. Validation time is long past and of no value to you. You will soon be in discovery and can ask them the questions about how they calculated, how they came to own the debt and the like. Requests for admission, interrogatories and demands for production is how you will get what they intend to use to prove their position. Because it seems like a credit card, they might use an account stated theory. That is where your previous avoiding to deal with the situation is going to hurt you.

Show what the money they say I owe is for and how they calculated that figure
Provide me with copies of any papers with my signature

Show me that they are licensed to collect in my state.
Provide me with their license numbers and Registered Agent
Show me that they are the legal owners of the debt

They do not have to do any of that. If you want to see it, you have to demand it through discovery techniques.

Documentation to prove the SOL has not expired on this account

That is an affirmative defense you must plead in your answer and prove.

Ok, ok, DC, you can have the gold star for the most useless posts.

You forgot to actually look at his post, at least one thing that was golden for you:
"You mean to say that you are without sufficient information to form an opinion as to the truth or falsity of the assertion and therefore must deny?"

I would also note your credit report is not going to be relevant was useful and the rest focused on having actual reasons for things. It was not a pleasant post to read, but it should have helped you focus on what was important without getting your emotions all intertwined.

 

[adjhart]

You've got to answer before you start making motions like that unless you actually need more time to answer. Validation time is long past and of no value to you. You will soon be in discovery and can ask them the questions about how they calculated, how they came to own the debt and the like. Requests for admission, interrogatories and demands for production is how you will get what they intend to use to prove their position. Because it seems like a credit card, they might use an account stated theory. That is where your previous avoiding to deal with the situation is going to hurt you.


They do not have to do any of that. If you want to see it, you have to demand it through discovery techniques.

That is an affirmative defense you must plead in your answer and prove.

You forgot to actually look at his post, at least one thing that was golden for you:
You mean to say that "you are without sufficient information to form an opinion as to the truth or falsity of the assertion and therefore must deny?"

Tranq, I understand the motion for continuance would be after my answer. I understand that to get those things that I have to demand it through discovery techniques. It's these techniques I'm looking for clarification on. I understand that SOL is an affirmative defense to plead and prove. I was asking earlier how I can prove this? And you're right - that clause of his, is useful. Account Stated/Open Account is in the claim on the petition. Can you please explain to me why that can hurt me? and if there are any preparations I can make to argue against it?

Thank you