LVNV in Texas

Honestly I didn't really understand any of the rules for civil procedure....its worded to give one a migraine. :)

Shouldn't the SOl defence be enough? The fact it is past SOL should make the rest of the case moot as it won't go that far if you bring up SOL.


Am I correct in this thinking???

Also, was the account under a DV request when they filed suit? Not that it should get past SOL, but you could always demand validation in discovery if you have not already done so.

No it wasn't in DV. I had not received any letters in a long time regarding this account then all of a sudden the suit was filed Neither one of us conducted any discovery. They haven't asked for anything. Court date is within days.

Thanks

OK, here are some questions that might help you

LVNV--is that the actual name or is it initials? Please post the actual name on the correspondence, if it is different frmo LVNV. I checked the Texas SoS website, and collection agencies MUST have a surety bond on file with the state in order to collect debts within TX. Using LVNV, I searched and there was nothing found. Now, this means one of two things---

1--they use some other name besides LVNV
2--they arent legally allowed to collect debts in Texas

Also, the SOL is 4 years in your state. What you need to find out is when the last payment was made on that account, and then go four years from when it first became delinquent(or, if it was charged off, 4 years from when it was charged off). That will tell you if the SOL is expired.

OK, back to the name. I did some checking--LVNV is their current name. And they are not registered with the state of Texas, so this entire lawsuit is illegal because it is a collection activity and they cannot take any collection activity legally without being registered there!

You should go to budhibbs.com and look at the main page--right in the middle. there is a huge ad that states "If you have been called, received a letter or are being sued by any of these collectors and you live in Texas, contact us for assistance." LVNV is on that list. I would recommend sending an email to Bud Hibbs about this--contact him through that website and see what he says.

That would be your best bet right there. Looking at the JC statutes can prove helpful, but if Bud Hibbs can help you get rid of these guys altogether for much simpler reasons, then all the better.

Im rather suprised LVNV is the one doing the suit..I hadn't realized..but Skydivr has an excellent point..if they are the ones doing it, legally they can't. You should definately bring this up.

Usually they like to use different collectors and have used those that are bonded here in Texas....so as I said, kinda surprised. :)

They are bonded. I ran across the same things as you. The name it has is lvnv funding llc. Bond # CMS226412

Their attorney is also bonded in Texas.

hmm....dont know why it didnt pull up when I did the search, thats wierd

ok, then, on to the next issue. They did not follow proper procedure with the court. That may not be enough for a dismissal....so, do you know the actual age of this debt? That could be the one piece of info that wraps this all up.

Also, you can still file a motion, right? I would file a motion for discovery and request proper legal validation of the debt. make them produce the validation right there in court. If they cannot, then request dismissal with prejudice due to the fact that proceeding any further without validation would be a violation of federal law on the part of the plaintiff. They cannot continue to take collection activity if they cannot respond to a validation request. Now, this is important--if they do respond with some kind of affidavit, it is hearsay, and not admissable in court, but ONLY IF YOU SAY THAT WHEN IT IS PRODUCED. If you dont object to it, the court will let them use it. If they use that trick, it is again another violation of the fdcpa.

Seriously, go check out budhibbs.com and contact him. See what he has to say, it certainly couldnt hurt and he will know more than we will, I would bet.

Ah I see it. I have found that the search works much better if you use a % after typing the first few letters of the name then hitting search....try LVNV and nothing..try LVNV% and it pops up. :)

I e-mailed Bud Hibbs a few days ago. No reply. It seems funny that their attorney did not do any discovery, at least not anything directed at me. If the Rules Of Evidence apply which my county website says they do, according to 902.10 (a) their affadavits would have to have been filed 14 days before trial. Nothing filed other than original complaint. The Civil Procedures Rules seem to state that if I want to bring up things like ownership, chain of custody etc. they have to be supported by affadavit. Wouldn't my testimony be enough.

Another thing here. Sears still shows this on my credit report as OPEN- PAYING AS AGREED. LVNV shows it as an OPEN account with Collection Account in the comments section. Listed as Factoring Company ( debt purchaser ).

Thanks Everyone For Your Feedback, Anxiously Waiting For More.

I dont think its funny at all--think about it. what would they have to discover from you? You, on the other hand, need to file discovery from THEM and request validation of the debt. A lot of CA's like to file lawsuits when they know they have no proof, and then hope that the debtor they sued doesnt show up. Then, they win a default judgment without needing proof. You would be surprised how many times people blow off court dates like that.

Especially LVNV, they are known as one of the worst ever.

About your credit report---does it say when the last time Sears updated the report? It should have a date for last update or report on there. It is possible that they havent updated it for a while. In either case, do you know the age of this debt? It is important that you know without having to rely on LVNV telling you because it isnt anything today for a CA like LVNV to illegally reage the debt when it is outside the SOL.

Affidavits are one thing--but like I said earlier, if they try to produce an affidavit for validation, challenge the hell out of it. You can give an affidavit, and then at the court proceedings you are present so they can question you about it. But LVNV is famous for illegal affidavits being passed off as "debt validation". It isnt. It is hearsay because they cannot ever produce the person that supposedly signed the affidavit. This is because it is made up. Dont let that win the case for them!

Did you request validation?

No I didn't DV. I just answered the summons on time and used the SOL and failure to follow court procedure as affirmative defenses. If I wasn't so confused by the Texas RCP I would be ready to go at them with lots of goodies. There are at least 5 links in the chain of custody. Sears then Citi / Sears ( due to merger 11/03/03 that should be a good one LOL ) Resurgent then Sherman then LVNV. Sears shows last activity only as 11/03. I don't know exactly what date last payment was made. If someone could help clear up the questions in the Texas RCP regarding JP suits I would be most appreciative. Thanks

Just so you know, Resurgent and Sherman are the same as LVNV, they have more names than you can count. If 11/03 is in fact the DOLA, then this is outside the SOL.

I need to run out for a little bit, when I get back I will take some time and look over the RCP for you. Legalese is a mess sometimes, I can make some sense of it for you.

Yes, they do have a rather long list of names. But unless they want to appear as operating as a subterfuge ( Texas Finance Code 392.304 ( 18 ) organization they should be able to show the handoffs in a chain of custody. Thanks Everyone

Appear Of Record. Texas Rules of Civil Procedure 93. Could someone please help decipher this whole section. Does this whole section mean that you can't even bring these things up without affadavits being filed ahead of time? That seems CRAZY.


I'm thinking my relief might be in the Texas Rules of Evidence 902.10 (a). All business records to be submitted must be submitted by affadavit within 14 days of trial. They have at least 5 links in chain of custody. They have not submitted any affadavits. Thoughts Please.

Gotta go to work. Be back around 5 am.
Thanks Everyone

Does anyone have any input pertaining to Texas Rules Of Civil Procedure # 93 & 185 esp.

Thanks

Does anyone have any input regarding Texas Rules Of Civil Procedure? # 93 & 185 esp Thanks

reborn--I am checking those right now, I will post up here once I read through them....

Jon

OK, Rule 185 simply means this:

If one party brings forth an affidavit or statement and presents it as sworn testimony, it shall be considered proper information unless the other party files a written denial under oath. If they produce affidavits concerning the amount of the debt, for example, the court will consider what they bring as correct unless you deny it, and this statute tells you that a denial must br written, given under oath, and be done within the time frame allowed by the court, or the denial will be invalid and the statement in question will remain. hope that makes sense.

Rule 93 simply means that any of the contentions listed in that statute must be brought before the court in an affidavit. Here's an example--

You request validation in writing, by certified mail, from a CA. The CA doesnt ever provide it, but three months later they file a lawsuit against you over the debt. You raise in your defense that they cannot sue you because the lawsuit is collection activity. Collection activity cannot continue, under the fdcpa, once they have received a DV request. You would then detail how you sent the DV letter, provide a copy of that letter and the green USPS receipt card as proof, and then inform the court that they never honored this request.

All of that would be stated in a written affidavit, signed and sworn by you. It means you cant just show up at court and tell the judge, "hey, they cant sue over this". You need to supply that in an affidavit to the court. The rest of that statute details all of the situations which an affidavit is required for.

The rules of evidence will be a big help, I think

But yes, you are correct about the affidavits. For example, when you mentioned the SOL being expired with your answer, that would be the same thing. It is a defense you have to raise at the start.

Thanks a bunch for your help. I guess my next question is what is a timely manner pertaining to 185. Do you read in 93 at the end that the 7 days applies to (a )thru ( h ) or the whole section?

Thanks Again

In my original answer I brought up the issue of not receiving the 10 day demand letter CMRRR. I also brought up the SOL. I believe that would put them at issue per Rule 92. aka Affirmitive. Thanks

Rule 94 for the affirmative.

Their attorney didn't show up. Suit DISMISSED...non suit. JP Judge gave them about 7 extra minutes and then signed off on it. WOWOWOW

Congratulations!!

Good to see it go in your favor....did they dismiss with or without prejudice?

My wife and I were so happy at the moment I really don't know what the judge put on the paper. We showed up on time. The judge had us wait outside his office for a few minutes and gave them about 5 extra minutes and when he called us in (JP Court ) it only took about 2 minutes. He looked at the original answer that we filed and said SOL ok. DISMISSED

It was a very simple setting. Small room with a table and about 8 chairs. We weren't even sworn nor did we have to testify about anything. The other party simply wasn't there. I guess we will see when they send us the final papers with or without prejudice. Either way, it is for sure out of SOL now and I know a lot more about Texas Rules.

I would advise everyone in Texas to look real close at the Rules Of Evidence and Rules Of Procedure. If affidavits of business records are submitted 14 days before trial by CA and copies are provided to defendant they are not considered hearsay. We kept checking with the clerk about the file and when she said that they had not submitted anything I was confident we were in the clear. Also be sure to look at rule 93 in TRCP. It basically says that if you want to challenge their ownership of debt you have to file your own sworn affidavits 7 days before trial. Just keep in contact with the clerk. Phone calls are good but when it gets close to trial date it is a good idea to walk in personally and have them check the file for anything new. That also gets you familiar with the setting. Anyway, it's over now.

I hope we were able to help you out on this one, and good for you that this is over!

OK, if it's really expired SOL then no, they cannot bring suit against you again. Well, if they try to, all you would need to do is show the court the papers you get from this suit being dismissed and it will be over. I would bet they didnt show up because they saw you challenge the SOL--many times CAs like this will sue even when the SOL is long gone, hoping that you wont show up to court and they will win a default judgment when they shouldnt have even taken you to court.

Again, I'm really happy for you two! Good going!

Yes, Yes, Yes, This forum is AWESOME and I appreciate all of the advice I received on this thread.

Great--I hope you will decide to stick around, even become a member--we have newcomers all the time that can benefit from your experience!

I definitely will stick around. This whole thing had my wife in shambles. Hopefully somewhere along the line I will be able to help a few people and ease their minds.

Off To Work Now :) Be back around 5 am

Can lvnv and the orginal creditor both be on your credit report ? I was just sued by them this weekend and trying to find out what i can do. It has not been quite 4 years since del status. Any suggestions?