I won! I won! I just beat Love, Beal & Nixon in Court. Judge dismissed.
Thanks to all of you who provided information. However, I also did a lot of research on the net. So, will provide a step by step of how I did it in order to help anyone else.
Particulars of my Case:
Plaintiff - Love, Beal & Nixon representing First Resolution Management out of Seattle, WA
Defendant? Myself, Pro Se (I represented myself? No attorney)
Providian Credit Card - First date of delinquency 12
sold to Palisades Acquisition
resold to First Resolution Management? Re-aged to charge off date of 6/10/02
So it was the second junk debt buyer who sued.
History
June 10
(1) Petition Filed by Love, Beal & Nixon with District Court of Creek County, State of Oklahoma
(a) Petition allows 30 days for an answer after receipt.
(2) Summons Filed
(a) Summons allows 35 days for an answer after receipt. (service)
(b) Summons was served on July 9
Notes: The Summons information is important because LBN tried to have my rights denied because of an? Out of time' statement in a later Brief. Also, I don't have the slightest idea why it took so long to serve the summons. Yes I work, but there are always evenings and weekends and I did not try to avoid the server at anytime in anyway.
Also note, it is very interesting that the suit was filed exactly three years to the date from what they changed the charge off date to. (Do you think they knew SOL was 3 yrs?)
July 15
Answer to Petition/Summons in the form of? Expired Statute of Limitations Notification Letter? Was mailed to the Court, LBN, and the Plaintiff by certified mail. The Court entered the Answer into the record on July 18
Notes: Because the Answer was filed 38 days after the original June 10 Petition filing date, LBN tried to have my Answer and my Motion to Dismiss disallowed as? Out of time'. But I countered that the Summons allowed 35 days from date of Service and the judge ruled in my favor at the hearing. So note that it is very important to get the things done in a timely fashion and pay attention to the allowed dates, since it can be used for or against you in a court of law. Also note that whatever I sent to LBN, I also sent to First Resolution (I wanted to be sure that both parties were aware of what I was doing? First Resolution could have called of the dogs at any time.)
Jan 11
Receipt of Plaintiff's Request for Admissions and Interrogatories and Requests for
Production of Documents.
Notes: This communication was not sent by certified mail. They don't care whether you get this or not, in fact it is to their advantage if you don't get it? All they have to do is prove they mailed it.
Jan 17
(1) I submitted my Answer attached to a copy of Plaintiff's Request for Admissions
(2) I sent my own set of Defendant's Request for Admissions and Interrogatories and Requests for Production of Documents.
Notes: This is where I made a mistake because since this is not considered a legal document, just an attachment to other legal documents, I did not send it certified mail nor did I file a copy with the Court. I would suggest you do both.in LBN's later Brief they declared that I had not answered their Request and also used the? Out of time? Excuse for not answering my Request. The Judge called me on it, but I had the copy with me. LBN messed up by acknowledging receipt of my Requests, so the Judge ruled that they had also received a copy of my Answer.
April 3
Receipt of Motion for Summary Judgment and Brief in Support Thereof received
from LBN with a Court date set for May 15.
Notes: Used all the typical jargon and quoted Rule 13 of the Rules for the District Courts of Oklahoma, stated? That there is no substantial controversy as to any material fact? And that? Pursuant to Title 12, Ok Stat. Section 3236, Defendant had not replied to Plaintiff's Request for Admissions? And that they should be awarded judgment. This is where they attached the? Request for Admission' to the Motion for Summary Judgment. They also attached an Invoice from First Resolution Investment Corporation (this is where they changed the charge-off date) and one of those controversial Affidavits from the Province of British Columbia, Canada (Even though the address for First Resolution is in Seattle, WA) stating that they? Have personal knowledge of the facts? And that? The account was established by the execution of a written contract?
April 17
I filed a Motion to Dismiss with prejudice, attached a copy of the Equifax report with the 12 delinquency date noted, attached a copy of Defendants Request for Admissions,
mailed certified copies to LBN and First Resolution and hand delivered it to the Court for filing.
Notes: I have paid no filing fees to the Court for any of the documents. I guess as the Defendant, you are entitled to file for free. So far, LBN has paid $231.00 for all of their filings. Creek County has a nifty website where you can look at the dockets and see what has been done so far.
In my Motion I cited:
Ok Stat 14a-2-108 (1) and (2) Definition of Revolving Charge Account
Ok Stat 12-3-95 (2) Limitation of Actions
FCRA 605 (c) and 623 (a) (5) Commencement of the delinquency
TILA? Definition of a consumer credit contract -vs - open end credit plan.
Also referenced the Equifax report, noted no response to my Request for Admissions, noted that the Plaintiff had provided no proof of a written document and listed several violations that I thought the Plaintiff was guilty of.
May 9
Receipt of Plaintiff's Response to Defendant's Motion to Dismiss and Brief in Support
(1) First they said that because I answered the Petition, the
Motion to Dismiss is not timely brought. (Judge ruled
against this)
(2) Plaintiff states that expiration of the Statute of
Limitations is not proper grounds for a Motion to
Dismiss. (??? Still can't figure out why the
law is not proper grounds)
(3) Stated that the SOL on a written contract is 5 years. But
at the same time they acknowledged that the SOL began in
December. (if SOL is not proper grounds? What is the
point of this statement)
(4) Argues about interest rate (Not important to me unless
I appeal if judgment is granted).
(5) Brings up the argument that Defendant has not responded
to Plaintiff's Request for Admission. (false statement)
(6) Since the Plaintiff's Motion for Summary Judgment is set
for hearing, there is no need to respond to Defendant's
discovery at all. (#5 and #6 got them in trouble with
the Judge? Since they got my Request for Admission,
they must have also received my Answer to their Request
for Admission).
May 15
COURT DAY and the SHOW DOWN
I pulled up dockets and researched this particular Judge and the LBN cases that came before him. It was about 50/50 for dismissal/judgment awards? So at least I felt good about the judge I had.
Case called:
First the attorney was local and not from LBN. We both approached the podium. I smiled at him and signaled for his to go first. He made the statement that he was not that familiar with all the goings on of the case and did not have copies of any of the legal documents. But he restated that the contract was in writing subject to a 5 year SOL, that my Answer to the Petition was not timely, that I had not sent an Answer to Request for Admissions, that my Motion to Dismiss should not be allowed. (Just goes to show that LBN did not expect me to show up, so they had really made no preparations for the actual hearing)
My turn? I read the TILA definition of a consumer credit contract -vs - open end credit plan. Stated that the Plaintiff had not provided proof of written contract and therefore the 3 year SOL applied.
So we waited while the judge browsed through the documents and made his comments. As noted above, he either disallowed or dismissed the Plaintiff attorney's exceptions and then the verdict...
Since the Plaintiff had not provided a copy of a signed, written document, he (the judge) would entertain my motion to dismiss. CASE DISMISSED!
It was rather strange though, because the Plaintiff's attorney came up, patted my arm and told me that I had done a great job and that I had missed my calling. I smiled and told him thank-you. Then as I walked down the aisle to leave the court room, I was getting thumbs up signals from people sitting in the seats waiting for their cases.
Final Questions?
If the case was dismissed with prejudice, and the debt is resold to another junk debt buyer can they sue for the same debt? Does the? With prejudice' apply to the Plaintiff or to the debt itself? If they resell it do they have to tell the new buyer that the case was already tried in Court?
If there was a cease and desist clause in my original Answer to the Petition, and the Plaintiff has lost their legal case, can they continue to call, mail and harass me about the debt or does the loss prohibit them from any further action period or just legal action?
How long do I have to wait to know if they will appeal or can they appeal?
If there is any interest, I provide links to copies of my documents that I used i.E.
Answer to Petition and Summons
Answers to Plaintiffs Request for Admissions
Defendants Request for Admissions
Standard Service Notification
Defendants Motion to Dismiss
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