[siriuswill]

Cuthatcard i live in KY and I am in the same situation ,I sent you a PM. Email me, I talked to the KY Attorney General. I will give you info.

[VexatiousLitigant]

Originally Posted by cuthatcard

I get from the inference that the proper outcome should be that the defendant should be ruled against, in favor of the plaintiff.

We (hannah and I) are talking specifically about an argument she would try to make in your favor. We are not discussing the overall merits of your case.

They are stating some personal info that is wrong as well, that I have not brought up, yet.

I don't see your failure to bring this up as a winning strategy (assuming you are talking about them listing incorrect information such as addresses lived at or ss# and not that they are listing something slightly inaccurately on your CR).

I should not have to prove I am correct, they should have to prove that this is mine and I should pay it.

I agree they have the initial burden of proof to show they are the legal owners of the debt, what the debt balance is, and what the terms of your contract are.

If/When they establish that, then what?

[cuthatcard]

Originally Posted by hannah

Look back over the rules of evidence and see what constitutes parol evidence. Yes, they should have to prove it. Have they offered any statements from the OC into evidence or is it all just self-serving "affidavits" from someone in their own office?

What evidence have they submitted to the Court?

They have produced no evidence. The inital complaint/summons contained a affidavit from a supervisor with ASSet Aceptance and a Cardholder Agreement that is completely non-readable. It was was half cut off as it was copied and very few words are readable. I requested, as soon as I Answered for Roggs, Production of docts., and Admissions.
In the 1st 30 days, they produced nothing. About 2 days before their discovery was due to me, they motioned the court for additional time. I objected, the judge allowed. Since then I have recieved partial discovery. I asked in roggs, if this revolving account was opened written or oral. They answered written. I asked for name of OC as well as docts. that the plaintiff purchased the alledged account. Their answer: They list the OC and refer to exhibit A "plaintiffs electronic screen prints detailing the subject account"
I asked for "detailed accounting, principle, fees etc.
They say "they are not the original holder but their buisness records state this and that and that the PLAINTIFF WILL PROVIDE ANY ADDITIONAL DOCUMENTATION from the original creditor relating to the subject account upon receipt." ( I asked for it now in preperation of my defense). I asked for a copy of the original agreement, they answered: "Plaintiff is not the original holder of the account and presently does not posses a copy of the written agreement. Plaintiff will provide any additional documentation from the OC relating to the subject account upon receipt." I asked for docts. to support the accounting provided and they say " see Exhibit A ( This screen print)
I asked them to produce the initial communication sent from them to me regarding this alledged debt. Their answer: "Due to the volumes of correspondence the Plaintiff incurs in the ordinary course of buisness, the Plaintiff does not retain original copies of all correspondence mailed but record of said correspondence is contained in Plaintiffs buisness records."

I asked for a total of 3 admissions:
That this is a revolving "open account" as defined in TILA 1602.
Answer: "Object. grounds it seeks a legal conclussion"
Admit or deny that the proper statute is KRS 413.120 - "Object. grounds it seeks legal conclusion"
Admit or deny that the applicable statute for "open account" is 5 yrs under KRS 413.120: "Object: Plaintiff objects to this request on grounds that it seeks legal conclusion."

They included what is marked as exhibit B: Bill of Sale -
A document (one paragraph long) stating that in part.... for value reieved and in accordance with the terms of the Purchase sale Agreement by and among OC (listed) and Asset dated..... does herbey sell, assign and transfer to purchaser, it successors and assigns all rights and interest...blah, blah, blah,
...without recourse and without representation of warranty of collectibility, or otherwise, except to the extent stated in the Agreement. Executed : Dated is here
OC's name, by______(signed) name printed and title.

"Self serving affidavit"

So, this is what they have submitted. they claim to have owned this for 5 years, so why they don't have the docts,,,IMO, they don't have any.

I am also working on the SOL for KY as I listed it as an affirmative defense. This is why I am seeking SOL info for KY. for bank issued CC's.

[hannah]

If they have no written agreement and cannot produce a written agreement WITH YOUR SIGNATURE, it is 5 years.

You need to do a motion to strike the affidavit as hearsay. Will look up statute and caselaw for you as soon as I can get to it.

[Aftermath]

Hi,

Just wondering if the Plaintiff posted some kind of a bond when suit was brought.
If they don't have a copy of the alleged written contract because it is lost, missing, unobtainable, taken by aliens, etc, wouldn't they need to follow the statute which I am hoping I attached?
Couldn't "CutThat" argue that since they cannot locate this contract or provide it, that it is for all intensive purposes, "lost" within the meaning of this statute and then bring a Motion to Dismiss for failure to procure bond as dictated by this statute?

Or , could the argument be made that since half of whatever is written is cut off , it's "defaced" within the meaning of the statute.

http://www.lrc.ky.gov/KRS/411-00/170.PDF
I don't know....it's a stretch. I just wanted to toss this out there.


Accidentally Thinking Again,
Aftermath

[hannah]

They aren't alleging it was lost or destroyed just that they don't have it in their possession. They also have provided the bill of sale ie assignment, but it fails to prove what was sold or assigned.

[cuthatcard]

Originally Posted by hannah

If they have no written agreement and cannot produce a written agreement WITH YOUR SIGNATURE, it is 5 years.

You need to do a motion to strike the affidavit as hearsay. Will look up statute and caselaw for you as soon as I can get to it.

Thanks, everyone, KY is sooooo hard. The motion to strike the affidavit is what I would say the best route. This would exclude any of their own data, as they were never employed by the OC or had original knowledge of how the records are kept, by the OC, correct?
How about the motion to compel Asset to provide docts? Should I do that soon?

It is not my fault they can't produce them or have such large buisness dealings as not to provide them at this time. Basicaly they are saying "We're to big to deal with you in court, Judge, just give us a judgement, and we'll be on to the next one".

And this is a publicly traded co listed with the SECURITIES AND EXCHANGE!!! Big shots!!

So any help will go to work here in the state of KY.

Thanks hannah, I am also preparing to use the CL you provided me earlier about open accounts and I have found some other CL about open accounts =5 yr sol. The only problem I may have is it Open Account or Open End Account or does it matter. According to Black's, Open Account = "An unpaid or unsettled account"
Black's does not list "Open end account"
They list revolving credit as: "A consumer-credit arrangement that alloes the borrower to buy goods or secure loans on a continuing basis as long as the outstanding balance does not exceed a specified limit. - Also termed open credit; revolving charge account

Thanks so much to everyone, help to get KY law a definition and argument against these JDB's, that those of us from West Virgina, Virgina borders, to the Mississippi river to the west have laws, statutes, caselaw so that consumers can stand up to these
JDB's and their Attys......and Judges who favor the JDB's.

[hannah]

Just read your stuff. Yes, you need to most definitely file a motion to strike the affidavit. Did the Bill of Sale have the account schedule attached to it as an exhibit? If not, motion to strike that too as it does not identify any account as yours. Will post more later today.

Question: Is this in small claims court or what court?

[cuthatcard]

Originally Posted by hannah

Just read your stuff. Yes, you need to most definitely file a motion to strike the affidavit. Did the Bill of Sale have the account schedule attached to it as an exhibit? If not, motion to strike that too as it does not identify any account as yours. Will post more later today.

Question: Is this in small claims court or what court?

Not small claims, a step up in District Court which is a step down from Circuit here in KY.

No account schedule attatched to the Bill of Sale, nothing but a small paragraph about "the OC for value received.........does hereby sale, assign and transfer purchaser..........all right, title and interest in and to the Accounts listed in the Account Schedule attached ( as may be amended in accordance with the agreement) as Appendix A to the Agreement, without recourse and without representation or warranty of collectibility, or otherwise, except to the extent stated in the agreement".

I underlined the above, but there is no Appendix nor is there an Account Schedule attatched to the Bill Of Sale or otherwise.

[Ayanne]

We are also dealing with this exact same situation in KY/AA.

How can they argue a Credit card acount is not a 5 yr SOL? It meets all the requirements according to the TILA. Are judges ruling it as a written contract, rather than simply an application for credit.

They have no valid documentation, and the courts continue the case?

[Ayanne]

Originally Posted by hannah

If they have no written agreement and cannot produce a written agreement WITH YOUR SIGNATURE, it is 5 years.

You need to do a motion to strike the affidavit as hearsay. Will look up statute and caselaw for you as soon as I can get to it.

Hannah, have you found this statute & CL? I do not even have a bill of sales, nothing - JUST the signed affidavit.

[cuthatcard]

Originally Posted by Ayanne

We are also dealing with this exact same situation in KY/AA.

How can they argue a Credit card acount is not a 5 yr SOL? It meets all the requirements according to the TILA. Are judges ruling it as a written contract, rather than simply an application for credit.

They have no valid documentation, and the courts continue the case?

Did you make sure you answered? Ask for discovery with ASSet. They denied that a CC was an oral contract, said it was written. They could/would not produce "the written agreement". Said they was not the original holder of the account and presently does not posses a copy of the written agreement........but will provide additional documentation upon receipt from the OC. (BS)!!
I am following advice and will either go after the "affidavit" from Asset, hearsay, or Motion for Summary Judgement. They have provided no proof, and it is their case!! The facts in the "record" do not support their complaint.
I, like you, have been trying hard to find supporting caselaw for SOL here. So far, I can't find any to support (5 yr ) it , or against it, (15 written contract).

[kybigdog69]

TODAY I WAS ALSO SERVERED WITH PAPERS, I AM BEING SUED BY AN ATTORNEY FOR ASSET. SAID I HAVE 20 DAYS TO RESPOND FOR A CC THAT WAS FROM 6/17/2001. I DONT BELIEVE THIS IS MY CREDIT CARD AND ABOUT 2 YEARS AGO I DISPUTED IT ON THE 3 CREDIT AGENCIES. I WAS JUST WONDERING HOW THIS CASE TURNED OUT? AS YOU SEE THE SOL IS WELL PAST DUE THE 5 YEARS.

[cuthatcard]

Like you, mine is from 2001, and like you I disputed it. I think the reason the file these is in hope of defaults on these debts that are ready to fall off our reports.
However, it is court so make sure you answer within the 20 days. And 1 thing I would suggest is to file an affidavit, notorized, stating that this debt does not belong to you. As far as what to really put in it, ask someone else or read up on what should be in. The ASSet attys. probably attatched a affidavit from someone from ASSet saying they bought it and you owe blah, blah, blah. Did they also attach a Cardholder Agreement? If so, is it readable? Did they attche any contract or items with your signature?
I am still in to it with them and I am trying to figure out someway to insert my own affidavit,and motion the court to dismiss theirs as hearsay, but I can't figure that one out yet. I may ask leave of the court to ammend my answer and add it. I asked in discovery in Nov 2007 for a written contrat/documents, nothing to date.

Post more info. If you want to.

[kybigdog69]

The only thing attached to it was an affidated from ASSet with another paper saying when they bought it and what I owed etc. Today by registered mail I asked for a debt validation, giving them 30 days to come up with all the who, what, where etc. It asked for the original signed loan agreement or credit card application from from the OC. and reasons why they think it is not SOL. How they figured what they say I owed, this is all covered under (FDCPA) The Fair Debt Collection Practices Act . Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004..
Guess I'll just have to wait for there answer. I really dont know how to attack this situation in KY as there are no real cases to fall back on.

[Enigma]

Originally Posted by kybigdog69

The only thing attached to it was an affidated from ASSet with another paper saying when they bought it and what I owed etc. Today by registered mail I asked for a debt validation, giving them 30 days to come up with all the who, what, where etc. It asked for the original signed loan agreement or credit card application from from the OC. and reasons why they think it is not SOL. How they figured what they say I owed, this is all covered under (FDCPA) The Fair Debt Collection Practices Act . Fields v. Wilber Law Firm, Donald L. Wilber and Kenneth Wilber, USCA-02-C-0072, 7th Circuit Court, Sept 2004..
Guess I'll just have to wait for there answer. I really dont know how to attack this situation in KY as there are no real cases to fall back on.

You are bing sued. You have twenty days in which to answer. Should you not file a timely answer, then Asset will obtain a default judgment against you.

Most of the information you demand in your DV letter does not have to be responded too. That is a matter for discovery.

The case you cite covers the 7th not the 6th Circuit Court, which is where KY is located.