Cap One LVNV Funding

[anthrilliel]

I have been trying to clear up DH report. I received a letter from LVNV attempting to collect.

These are our facts:

 

Date opened: 3/6/2008

DOFD: 5/2008

C/O: 11/2008
Account was opened, used, closed and past SOL in FL (SOL is 4 years)

We moved to IN after it went past the SOL in FL but it is also past the SOL in IN (6 years)

 

The OC account is scheduled to fall off 03/2015

LVNV funding started reporting on 11/17/2008 (TU) and 11/01/2008 (EX, EQ)

 

Should I just ignore their letter and let them fall off in a year, or could I send them a letter back for trying to collect on an account that is past the SOL.

 

Should I dispute with CRA first with this http://whychat.5u.com/initdispltrsol.html

and the with CA with this?

 

Thank you in advance

[ManofB]

You are right about at the point where you can be disputing the OC tradeline as Obsolete/Passed Reporting Guidliness

 

For LVNV, send them a FOAD letter and file a complaint with CFPB

[Grnbeano]

I agree, removed many LVNV Past SOL accts.

 

Depending on what CRA, the "other" column, usually is where you would most likely have a positive result regarding your dispute.

 

Otherwise, you may have a computer generated reply as such:

 

"We have investigated the above referenced account ( xxxxxxx ) has been verified, and belongs to you". If you disagree with our decision, you may suck it !

 

blah blah !

Edited September 25, 2014 by Grnbeano

[anthrilliel]

Well first round of letter going to CRAs are going out tomorrow

[anthrilliel]

TransUnion, had completely removed everything, Experian and Equifax have removed the OC but still have LVNV. I have not yet received a letter from them but maybe they are still investigating. On the other hand LVNV has raised the amound of $ reported to the two bureaus not by much but still went from 1085 to 1093.

[anthrilliel]

I have heard nothing from Midland and have been trying to write/modify a summary judgement. this is what I have come up with. Any thought and/or corrections?

[anthrilliel]

DEFENDANT’S BRIEF IN SUPPORT OF HIS MOTION FOR SUMMARY JUDGEMENT.

I. Introduction

The basis of Plaintiff’s Complaint alleges that Defendant had an agreement for a credit card, originally with Bank of America. The Plaintiff further alleges that they purchased the account “and were assigned all rights to the account in the normal course of business”, but fails to provide evidence to support their claim that they purchased this account besides for an affidavit and an uncertified, unsworn, generic copy of “assignment of loans”. The actions taken by Plaintiff to collect on this alleged debt are in violation of the Fair Debt Collection Practices Act as this debt even if owed is past the applicable statute of limitations pursuant to IC 34-11-2-7 and IC 34-11-4-2 (1)(3).

II. Legal Standard

Defendant NAME, hereby moves this Honorable Court pursuant to ITR 12((6) to dismiss Plaintiff’s Complaint against NAME for the reason that Plaintiff has failed to state a claim on which relief can be granted. Further, Defendant NAME, hereby moves this Honorable Court to dismiss Plaintiff’s Complaint against NAME for the reason that Plaintiff has initiated legal action on an alleged debt that is time barred pursuant to IC 34-11-2-7 and IC 34-11-4-2(1)(3).

Pursuant to ITR 12((6), summary judgment may be granted on the ground that the opposing party has failed to state a claim on which relief can be granted.

III. Legal Argument

1. Plaintiff has failed to set forth facts and circumstance that the alleged debt is an account stated.

 

In their Complaint Plaintiff is claiming the alleged debt is an account stated. Defendant objects to that as there was never a meeting of the minds. Defendant never at any time has admitted that he owes this debt nor has the Plaintiff provided evidence to support its claims of an account stated.

Plaintiff relies on its affidavit in support of their allegations that this is an account stated. But Defendant has answered that affidavit with a Motion to Strike Plaintiff’s Affidavit therefore there is no prima facie case that Defendant owes this alleged debt. Further, Defendant has at no time agreed to the amount Plaintiff claims he owes, has not entered into any agreement with Plaintiff on this alleged account nor has he agreed expressed or implied that this account is his. As to the Exhibit A attached to plaintiff's response, the plaintiff or its attorneys have obviously produced a copy from another, different lawsuit because the Exhibit attached is labeled “Bill of Sale and Assignment of Loans". The Assignment from FIA/ Bank of America lists “Loans" and "Loan Schedule" not a "Credit card accounts". Furthermore, Exhibit A is not an assignment for the specific account; it lists no accounts at all. All that it mentions is “Loans listed in the Loan Schedule" and there is no Loan Schedule attached. The “Field Data" document states that it is printed from “Bill of Sale / Assignment of Accounts". Other than being a well-known credit card lender, FIA Card Services, National Association and bank of America also offers consumer loans, retail deposits, and financial insurance products. Defendant had never had a “Loan" with Bank of America, nor does the complaint reference a “Loan". Additionally, the “Field Data" document has a date of last payment of 3/21/2008, and yet the affiant attests that she has examined Business records in which the Date of last payment was on 1/18/2011.

The documents submitted by the Plaintiff in its response do not appear to be the same records that the Affiant has attested to.

For the reasons set forth above Defendant as a matter of law is to be granted summary disposition in her favor on this claim.

 

1. Plaintiff’s claim is barred by the applicable statute of limitations set forth in IC 34-11-2-7 as it is an account and not based on an agreement [contract].

 

Plaintiff claims in their Complaint that Defendant entered into an agreement with Bank of America. But Plaintiff fails to attach or provide proof of this contract. They base this mere and meritless assumption on an affidavit. This crutch that Plaintiff uses to support its baseless claim cannot stand on its own. Absent proof of the alleged contract no contract can exist because Plaintiff’s employee was not privy or party to the original inception of the alleged contract between Defendant and Bank of America. Case law expressly provides that an action in tort may not be maintained where a contractual agreement exists, unless a duty, separate and distinct from the contractual obligation, is established." Sherman v Sea Ray Boats, Inc, 251 Mich. App. 41, 52; 649 N.W.2d 783 (2002).

Plaintiff has failed to provide an agreement between Bank of America and the Defendant nor have they provided any evidence what so ever that would constitute that the alleged account is based off of an agreement or contract.

As shown above this alleged account falls under the applicable statutes IC 34-11-2-7 and IC 34-11-4-2(1)(3) and is thus past the statute of limitations on the legal actions that can be taken

C. Plaintiff’s claim is barred by the applicable statute of limitations set forth in Delaware Code Title 10, Chapter 81, § 8106.

Indiana applies the "most intimate contacts" test when determining choice of law in contract actions. Schaffert by Schaffert v. Jackson Nat'l Life Ins. Co., 687 N.E.2d 230, 232 (Ind. Ct. App. 1997). That rule requires the Court to "consider all acts of the parties touching the transaction in relation to the several states involved and will apply as the law governing the transaction the law of that state with which the facts are in more intimate contact." Id. (quoting W.H. Barber Co. v. Hughes, 63 N.E.2d 417, 423 (Ind. 1945)). Factors to be considered include "(1) the place of contracting, (2) the place of negotiation, (3) the place of performance, (4) the location of the subject matter of the contract, and (5) the domicile, residence, nationality, place of incorporation and place of business of the parties." Id

In the instant case, The State with the most intimate contact to the Defendant is Florida, not Indiana. The Defendant was a resident of Florida at the time of the contract, at the time of default and the applicable Statute of limitations had passed before becoming a resident of the State of Indiana.

The Plaintiff had adequate time to file suit in Florida and did not ; this is a clear case of forum shopping by the Plaintiff.

The Bank of America Agreement (“Cardmember Agreement”) explicitly states “THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT”. The agreement does not explicitly alter, modify or waive the Delaware statute of limitations. The agreement explicitly includes “THE LAW OF DELAWARE” without expressly excluding anything from “THE LAW OF DELAWARE”. The Delaware statute of limitations is a part of the law of Delaware.

The U.S. Supreme Court has stated "It may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability. They are free to do so." (Nevada v. Hall, 440 U.S. 410, 420-27 (1979))

The Delaware statute of limitations is applicable.

1. The agreement establishes that the governing law of Delaware is to be used.

2. The agreement does not alter, modify or waive the Delaware statute of limitations.

3. A credit card account was created based on the agreement and it was maintained under the jurisdiction of Delaware. Bank of America, N.A. exported and used the interest rate statutes of Delaware (Delaware Code Title 5, Chapter 9), in accordance with 12 U.S.C. § 85 (Rate of interest on loans, discounts and purchases), on the account since the creation of the account.

4. Bank of America USA, N.A. is incorporated in Delaware. Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”.

5. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action.

6. Even though it is well-settled in Indiana that contractual choice of law provisions govern only the substantive law of any claims arising out of the contract and the law of the forum state where the suit is filed still governs procedure. See Homer v. Guzulaitis, 567 N.E.2d 153, 156 (Ind.Ct.App. 1991), trans. denied. Florida is where the cause of action accrued, and the SOL had passed prior to defendant residence in Indiana. In Shams v. Provident Life & Accident Insurance Company, 826 So.2d 250 (Fla. 2000), the Florida Supreme Court addressed the question of which state's burden of proof applied and held this was a procedural question governed by the law ofthe forum state. The Shaps Court recognized that "nder Florida's conflicts of law rules, the doctrine of lex loci contractus directs that, in the absence of a contractual provision specifying governing law, a contract, other than one for perfonnance ofservices, is governed by law of the state in which the contract is made." (Emphasis provided).14, at 254. Thus, in the instant action, the decision supports Defendant's position that the Delaware statute of limitations applies.

Thus, if the Plaintiff had filed suit in Florida past the date of 3/28/2011, Florida courts would have found tha the applicable Statute of limitaitons was Delaware Code Title 10, Chapter 81, § 8106.

7. The plaintiff’s cause of action would be barred in Delaware.

The statute of limitations is 3 years from the accruing of the cause of action. (Delaware Code Title 10, Chapter 81, § 8106). The last purchase was made on LAST_PURCHASE_DATE and the last payment was made to the account on LAST_PAYMENT_DATE. The Delaware statute of limitations starts to run from the date of the last purchase.

The last purchase was a transaction creating a debt owed to the credit card account. Regardless of any due date, that amount was owed when the transaction was made. The agreement (“Cardmember Agreement”) states “You must pay any amount over your credit line, and you must pay us immediately if we ask you to. This agreement applies to any balance on your account, including any balance over your credit line.”.

Accordingly, the cause of action does not start to accrue from the time of default as any amount owed is owed at the time of each transaction. The last transaction was the last purchase made on LAST_PURCHASE_DATE and the Plaintiff’s cause of action is barred as of LAST_PURCHASE_DATE.

A payment in and of itself is not a transaction and no cause of action would accrue from a payment to this account. “Delaware has not adopted the proposition that a payment postpones commencement of or tolls the running of the statute of limitations.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981.

If a payment were considered a transaction that a cause of action could accrue from, then the last payment was made on LAST_PAYMENT_DATE and the Plaintiff’s cause of action would be barred as of LAST_PAYMENT_DATE.

An exception to this is in Delaware Code Title 10, Chapter 81, § 8108. In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current.

If this account were a mutual account and a running account, the cause of action would still accrue from the last transaction, but the statute of limitation would not begin to run until the account was no longer open and current.

However, the Plaintiff is still barred from this cause of action because after the last transaction in a mutual running account, the account is no longer a running account and the statute of limitations begins from the date of that last transaction.

“It is equally clear both from the terms of the Delaware Statute and from a uniform current of authority that, where there is a mutual open account, there is an implied agreement of the parties that each item shall not constitute an independent debt, due at its date, but that the Statute shall not begin to run until the date of the last transaction.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955

The exception provided by Delaware Code Title 10, Chapter 81, § 8108 is not applicable. This account is not a mutual account. “Delaware Courts have held on a number of occasions that the quoted provision of 10 Del.C. § 8108 does not apply where all the charges were on one side.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 — Del: Superior Court 1981. “It seems entirely clear that where the account is all on one side, the cause of action arises from each item as far as the Statute of Limitations is concerned and they are severally barred when, as to them, the Statute has run.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955

The statute of limitations was not tolled by Delaware Code Title 10, Chapter 81, § 8117.

A careful reading of the statute shows that the statute of limitation is only tolled until a person can be served with process. The statute also requires that a person first depart from Delaware.

The Delaware Supreme Court addressing "Section 8117" held that the statute of limitation was not tolled since the defendants were non-residents and in dicta stated that to hold otherwise would "result in the abolition of the defense of statutes of limitation in actions involving non-residents." Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

“In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout

the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service” Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

 

For purposes of this litigation, Defendant was a resident of Florida at the time the cause of action accrued and did not move to Indiana until 4 years later in 09/03/2012. The Plaintiff did not file suit and attempt service in Florida, and only filed suit in Indiana, when this action was long past the applicable statute of limitations. Since the Defendant, for purposes of this action, has never been a resident of Delaware, Section 8117 does not apply and it does not operate to toll the three years statute of limitations.

 

Shaps v. Provident Life & Accident Insurance Company, 826 So.2d 250 (Fla. 2000)

Gresty v. Briggs, 127 Kan. 151 (Kan. 1928)

Nevada v. Hall, 440 U.S. 410, 420-27 (1979)

Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981.

Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955

Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

1. Plaintiff’s affidavit is based on hearsay and is not admissible.

Plaintiff’s affidavit is not prepared by and signed by an employee of Plaintiff. Said employee attests in this affidavit that she has direct knowledge of the facts involved in the case and that Defendant is liable to Plaintiff for the sum certain stated in the affidavit. Employee bases this off of business records which Plaintiff states are conducted and maintained through the ordinary course of business but fails once again to provide any proof of these records. The only item Plaintiff provides is a name and partially redacted account number on a blank piece of paper. For this Honorable Court to even remotely consider that baseless affidavit would constitute an injustice towards Defendant. It is impossible for Plaintiff to have any direct knowledge of what transpired between Defendant and Bank of America and absent any direct knowledge or proof thereof their claim of such is baseless and without merit.

If Plaintiff wanted to enter this affidavit into evidence it would need to be supported by actual evidence or other competent witness who were privy to the information at the time the alleged account was opened. However, an erroneous admission of hearsay evidence "can be rendered harmless error where corroborated by other competent testimony." People v Hill, 257 Mich. App. 126, 140; 667 N.W.2d 78 (2003). The evidence was harmless because it was corroborated by the testimony of the victim who was the actual the declarant of the statement.

Plaintiff rests its argument that its records fall under the business records exception to the hearsay rule under IRC 803(6), which states in pertinent part:

Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

(A) the record was made at or near the time by — or from information transmitted by — someone with knowledge;

( the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

© making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and

(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

In the case sub judice it can be established that Plaintiff is not covered under this rule. The business records exception is based on the inherent trustworthiness of business records. But that trustworthiness is undermined and can no longer be presumed when the records are prepared in anticipation of litigation. Solomon v Shuell, 435 Mich 104, 120-121; 457 NW2d 669 (1990) (police reports deemed inadmissible under MRE 803(6) because officers who prepared reports knew they were subjects of a homicide vestigation). People v McDaniel, 469 Mich 409; 670 NW2d 659 (2003), concerned the admissibility of a laboratory report identifying as heroin the contents of a packet sold by the defendant to an undercover officer. The chemist testified, however, that a misidentification of a substance never occurred during his term of employment. The trial court admitted the evidence, and a jury convicted the defendant. This court affirmed the defendant’s conviction. Id. At 410-412. The McDaniel Court found that the report was inadmissible under MRE 803(6) because it was prepared in anticipation of litigation, and therefore was not sufficiently trustworthy. Id. At 414. The report was inadmissible because the circumstances under which it was prepared lacked sufficient indicia of trustworthiness. McDaniel, supra at 414. See also People v Huyser, 221 Mich App 293, 298; 561 NW2d 481 (1997) (physician’s report inadmissible under MRE 803(6) because prepared specifically for the purposes of litigation against defendant).

Here the affidavit was clearly prepared prior to the commencement of this litigation and specifically for the purposes of this litigation. Therefore this Honorable Court should deem it as lacking sufficient indicia of trustworthiness and therefore deem it as inadmissible in this present action. Therefore, for the reasons set forth above Defendant as a matter of law is to be granted summary disposition in his favor on this claim.

 

III. Conclusion

WHEREFORE, Defendant NAME hereby requests an Order of this Honorable Court dismissing Plaintiff’s Complaint with prejudice, granting Defendant reasonable litigation fees and any such additional relief this Honorable Court deems just and equitable.

 

 

Novemeber , 2014

Edited November 4, 2014 by anthrilliel

[dhathaway]

I have had many many LVNV accounts removed, and the plethora of other names they use - sherman acquisition comes to mind. Unfortunately, in 2007 they took me to court, and me being uneducated and careless didn't fight it, and let it default..... fortunately that was almost 10 years ago, which in Pennsylvania case law (I believe, could be wrong) says after 10 years money judgments are dead.