Complaint Review: LVNV Funding - Sherman Aquistions

LVNV Funding continues to run rampant. I was out of town for all of December 07 and half of February 08. When I arrived home, I found an initial correspondence collection letter from an attorney in NJ who claimed to be a collector for LVNV. I also found a summons & complaint in the same stack of mail. A notice was included stating I was being sued. The notice included a phone number for legal aid.

I contacted Legal aid. I am not an attorney, so I can't give anyone legal advice. But I can tell people the legal advice I was given, and I suggest they share it with anyone facing a similar delima.

There is a due date associated with the summons and complaint. If I failed to file an answer, there would be no court date. A default judgment would be entered in favor of the Plaintiff, LVNV. The attorney said a default judgment can be overturned, but two conditions must be met. 1. A good reason must be shown as to why I didn't answer, and 2. I must have a valid defense.
But I figured it would look much better to the court if I did everything properly and on-time, so the attorney continued to describe the answer process.
She said the answer was divided into 3 sections.

In section one, I wrote a one or two sentence reply to each paragraph of the complaint. One paragraph read that I lived at such and such address. my answer: The Defendant admits the allegations contained in paragraph one. Another paragraph said I had a Sears credit card, and yet another said I had agreed to repay the card, and another said I had failed to repay and so on. I simply went down the list and wrote a reply paragraph to each saying "The Defendant denies all of the allegations contained in paragraph x of the complaint. This was fairly simple.

The next section, section two was the separate defenses section. I wrote The Defendant further asserts:

1. Defendant never had installment contract with SEARS.
2. Defendant previously disputed alleged Sears debt with credit bureaus.
3. Plaintiff filed compliant after statute of limitations contained in N.J.S.A. 12:14-1 had expired. N.J.S.A. 2A:14-1 limits recovery for this action.
4. Plaintiff has no cause of action for which relief is justified.
5. Plaintiff failed to mitigate damages claimed through its own actions and inactions.
6. Defendant has no contract with Plaintiff.
7. If Count 3 Paragraph 2, of Complaint shows someone did in fact incur a valid debt for goods through Sears, this matter should be subject to Statute of Limitations contained in Article 2-725 Of Uniform Commercial Code.
8.Volenti non fit injuria basically states that a willing participant to an act cannot recover damages for an act that they volunteered for. A good example is a boxer cannot sue his opponent because his nose was broken in the match. He was a willing participant. Just as LVNV Funding purchases a non performing asset without you inducing them to do so, you have not caused them any harm they willingly purchased the defaulted account. Which is a perfect lead in for.

Contributory Negligence or Comparative Negligence. Contributory Negligence is an absolute defense and only applies in certain jurisdictions where as Comparative Negligence limits the scope of recovery based on how much the plaintiff is responsible for the damage. These defenses basically do not allow a plaintiff to recover when they caused their own harm. So if LVNV Funding purchased an account that was defaulted and deemed non collectible by the original creditor then they have caused their own damage. If they pay $20 for a $2000 dollar charged off account the only real loss that they may have claim to is $20 which leads us to.

Unjust Enrichment says that if you receive more than what is entitled then you must make restitution. It is not commonly a defense but used to recover money when a mistake is made on part of the part of the plaintiff. As a defense I would use it as a denial such as the plaintiff is not entitled to Unjust Enrichment. Meaning that they cannot claim a loss greater than their actual real cost. So in the example above for them to claim a loss of $2000 when they only paid $20 would be Unjust Enrichment for LVNV Funding.

The 3rd section of my answer was the counterclaim. When someone files a frivolous suit, you incur damages on a number of premises. So I file a counterclaim for several thousand dollars based on FCRA & FDCPA statues.

The attorney gave me some advice of what I should seek in the interrogatories, which is the discovery part of a lawsuit. She said to demand a copy of the original application bearing my signature. She also advised me to seek the original card holder agreement, as well as the last 12 statements. She said I should seek the master agreement between LVNV & Sears, and that LVNV didn't want me or the court to see that document. She also said I should ask for the amount LVNV paid to acquire the account & any documents that would help verify that.

In the end, I found a NJ statue that prohibited collecting damages & sanctions unless notice was filed & a demand made to withdraw the suit. I did this, and attorney Cal Zapfee, of Goldman & Warshaw filed a stipulation of dismissal without prejudice.
I thought this would have ended the matter, but I received further correspondence from another attorney collection agent, this time from Princeton.
I now have an appointment with a FCRA / FDCPA attorney who will assess the matter no charge, and likely take the case on contingency.

It is easier to find attorneys who will take these matters on a contingent basis as the federal law provides for reasonable attorney fees on top of statutory (usually $1,000 or $2,500 depending on FCRA violation) damages.

Marty
hopatcong, New Jersey
U.S.A.