argument of interest. Here are the SOL facts: MBNA was OC DOLA 5/25/99 Suit was filed in Illinois on 5/23/2004 I lived in NC during 1999/2000 I cited the following SOL Affirmative Defense: (735 ILCS 5/13 210) (from Ch. 110, par. 13 210) Sec. 13 210. Foreign limitation. When a cause of action has arisen in a state or territory out of this State, or in a foreign country, and, by the laws thereof, an action thereon cannot be maintained by reason of the lapse of time, an action thereon shall not be maintained in this State. Arguing that in NC the SOL was 3 yrs & citing appropriate NCGS Article 5 § 1-46. AA presented a contract (not signed by me) that stated I agreed to abide by the Laws of the State of Delaware as MBNA was incorporated there & contract stipulated Delaware applied. Essentially, they argued Delaware SOL applied BUT NEVER STATED WHAT THE APPROPRIATE SOL WAS IN DELAWARE. Judge agreed with them & granted judgment of $1700 + costs. Interesting, considering I just looked up the Delaware SOL for an Open Acct. it is 4 yr. OK JUDGE, IF IT IS 4 YRS, THEN SOL EXPIRED JUNE 25, 2003. Fortunately for me, on the order, the Judge did write that Delaware SOL applied so I have solid grounds to have judgment vacated & can appeal. Of note, the Judge was not particularily well-educated on the FDCPA, FCRA & for that matter, most points of Contract Law. Incorrectly, she paid no attention to the following: 1. AA never has validated. I sent DoV CRRR. 2. The "contract" presented was not signed by myself, not MBNA & NOWHERE WITHIN DID IT CONTAIN A PROVISION WHERE I AGREED TO PAY ANY ASSIGNS. 3. There was no accounting of amount owed. 4. AA presented a contract of assignment between METRIS and themselves. (Yet presented absolutely no knowledge nor testimony to who METRIS was & how they are related to MBNA. OK MBNA IS A DIRECT COMPETITOR OF METRIS. PLS EXPLAIN HOW THEY WOULD OWN AN MBNA ACCT TO SELL?????) Yes, I raised all the above in my Answer & in court to no avail. Thoughts & what are my exact next steps? Do I first motion to vacate judgment on SOL & then second appeal for a Trial de Novo. Or do I just have to get the judgment vacated & then the ball is back in AA's court?
I'm in Georgia and when I talked to an attorney (actually I've talked to 4 here) about Asset Acceptance he said that even though the SOL in Georgia is 4 years on a credit card debt, some judges say, "Well, a credit card agreement is written, so this is a written contract with a 6 year SOL." He also said some judges just want to agree with the creditors and assume whoever they are suing is a deadbeat, so even if the JDBs don't have proof of debt, often the judge will rule in their favor. Pretty scary, isn't it? I told my attorney I wanted to start sending out letters demanding money from every millionaire in the country and when they didn't pay, I would just file suit and hope to get one of those judges!
My beloved dog hails from Georgia! Yes, I certainly was in front of one of those types of judges. This was really an unorthodox proceeding. The trial went according to plan. Prosecution presented. I moved for dismissal b/c they presented no written SIGNED contract, no valid Assignment Agreement (As mentioned, they presented an obviously fake document from METRIS, a direct competitor of MBNA) between themselves & MBNA, no Illinois CA license. Motion was denied. I presented my case & really honed in on this being a Foreign Limitation case where NC SOL applied as the presented evidence I lived in NC. We both presented closing arguments. The judge left to clarify NC Statutes regarding SOL. She came back & said I am ready to rule, looked at me & said "He's right." Then it got a little bizarre. The Plaintiff began arguing further AND SHE LISTENED. They argued that the contract stated Delaware Laws governed contract between myself & MBNA. I protested the unorthodoxy of arguing post-case, but stated if we were going to use that contract, then nowhere on it does it say I agree to pay Creditor or Assigns. She ruled in their favor, but stated that Delaware State Law governs this contract in her order. I had no idea that the Plaintiff would argue this so I understandibly was not prepared to defend against Delaware SOL. Well, I should not have been. It is the Plaintiff's responsibility to prove Delaware SOL. Anyway, I get home & discover Delaware SOL STILL prevents this judgment from being granted. Delaware: Written Contract 3 yr Open Contract 4 yr Either way, they were outside SOL.
Your honor, could I please have a 15 minute recess, and use your computer... See here, your honor, even by their own arguement this account is time-barred.
Here is what you can learn from your advisary. When you answered SOL, based on the borrowing statute, you actually gave them the heads up. They had however long to come up with a plan B to spring on you if the Judge even looked as if she was going to award to you based on the SOL via the borrowing statute. All they needed to do was come up with anything to get the Judge to decide to use any other state (which you wouldn't have been prepared to defend against) for the borrowing statute. They had the Plan B ready for you, and they were able to keep you from knowing about their Plan B, until they sprung it on you at the hearing. What do you think they would have done if you had a print-out of all 50 states SOL's including the section of their states codes for each?
jam, I knew the "fix" was in on this one. You would think a judge would want to know Delaware SOL & demand that Plaintiff know it since, ahem, the Plaintiff argued that Delaware law governed. The judge's order does state that "Delaware Law governs the contract." I do plan to consider motioning to vacate the judgment on the grounds that Delaware SOL, which was stated to apply in Judgment Order, is expired, too. Just kind of a bummer to have been so well-prepared & be dealt a lousy, CA-friendly judge. But c'est la vive, I guess.
The 50 State SOL print-out would have been rockin', but honestly I cannot beat myself up over that one. Actually, I was a little good at keeping my strategy a little close to the vest until court time. My Answer simply stated in part: ========= 4. Each cause of action, claim, and item of damages did not accrue within the time limitations for them before this action was brought and the plaintiff is therefore time-barred from bringing this action per the State Laws of Illinois. ========= I didn't bring out the specific Foreign Limitation Statute out until I presented my case. Ironically, they didn't even argue Delaware then. They argued Illinois SOL should apply b/c case was filed here. Judge left to make her decision, came back, was ready to rule in my favor & only then did they start mentioning Delaware. She so wanted to rule in their favor, it was obvious so she asked them to elaborate so she could justify her order accordingly.
I hope people take note from your experience. Just because someone is a judge is NEVER a guarantee they will be fair. NEVER assume you will win in court even if all your facts are in order. It's also hard to predict if your judge is biased against pro se cases. Often they feel it prevents their colleagues from making a buck by representing you so you are dead meat before the case even starts. What you described happens a lot. Many state and federal judges are scumbags with a gavel and too much power. They issue bad decisions on purpose that are time consuming and expensive to appeal. They do it knowing damn well most people get discouraged and/or can't afford to go further. I would say federal judges are the worst because they have a lifetime appointment from Congress. With an army of lawyers and only after spending milllions of dollars, took IBM 10 years to get rid of a federal judge who was openly prejudiced against them and repeatedly made illegal rulings. On many occasions I've seen a certain sleazy bankruptcy trustee knowingly lie to a judge to nail someone. There is the usual nod, nod, wink, wink with his friend the judge. It is all swept under the rug unless you have the time and money to pursue it before a trial jury in district court. If the trustee and judge see that coming, your recorded transcripts will disappear and then they start to intimidate witnesses to try and cover their ass. My point in all this rambling: Don't assume anything in court and be prepared for the worst, especially if you are defendng yourself.
Extremely sound advice. I have a solid background in Contract Law & unfortunately from being sued in the past for unlrelated matters, also have a solid background in litigation. I also learned a tremendous amount from creditnet & other similar boards. Going in, I was extremely well-prepared. I have a friend that is an extremely experienced attorney. I didn't want to take advantage of our friendship by pounding her for free legal advice, but discussed this case & some of my pleadings over dinner / drinks. She concurred that I really had my ducks in a row going into the matter. We met for lunch today to discuss the case in copious detail. I explained in grand detail where I thought the judge made serious, prejudicial mistakes in the case & the ruling & where I thought the Plaintiff's were making convincing & proper arguments. She agreed with me in every case where I pointed out that the judge erred in a material manner. And, she was not patronizing me. Suffice it to say, I plan to mull it over for a week & strongly consider filing a Motion to Vacate Judgment & shortly thereafter an Appeal. I have 30 days to file either or both. The bottom line - AA (& I am confident other JDB Attorneys) truly play dirty in court. Presenting blatantly fradulent documents is a tactic they deployed in my case. I fortunately had the knowledge to identify them as such & raised these as issues, but they truly fell on deaf ears to a judge that was obviously predispositioned to ruling in their favor from the get-go. I base my statement on the fact that the judge called me a "Smart-a$$" in Open Court in front of the Plaintiff Attorney while hearing a Motion to Dismiss on SOL. She also wrote in her judgment order that "the Defendant was not a credible witness." This is not normal procedure & frankly has no place in a supposedly impartial hearing. How did I know they were fradulent documents? 1. The purported Assignment Contract was between Metris (Direct Merchants Bank) & AA. My alleged credit card was an MBNA VISA. Metris is NOT MBNA. They are both publically-traded companies who are direct competitors to one another with corporate HQ's in Arizona & Delaware respectively. 2. AA had submitted a totally different alleged Assignment Contract as an exhibit in an earlier pleading that was between an alleged primary assignee of MBNA & AA & had an entirely different date. 3. The supposed Assignment Contract / Bill of Sale was for a SINGLE charged-off MBNA VISA Acct. That's not how these work. AA & other JDB's buy portfolios of charged-off accounts in bulk. The assignment contract is for the portfolio of accounts, not a single one. I raised all the above as issues. The judge took none of this into consideration.
I'm sorry you lost and hope that you do appeal. Thanks for posting this here, so that if any of us are sued by AA, we will know the kind of illegal, dirty tricks they use and we can watch out for them. If you had not posted, we might not have known what to look for. Thanks!
I would strongly recommend everyone visit Asset Acceptance's website. www.AssetAcceptance.com They are now a public corporation & thus have to reveal their financials & business operations in their Form 10-K which is a required filing with the SEC. You can learn a lot about things from their side of the business including what they really are paying for junk debt. It's about 1.8% of the Face Value. Also, if you are dealing with AA, you can use this public document against them as there are numerous admissions to them being a Debt Collector & applicable Fed & State Laws throughout. In my case, I addressed it ad nauseum in my Interrogatories to gain admissions that they are subject to FDCPA, State Collection Laws, that their competition is other CA's. They only answered my interrogatories by stating "We're not a CA". When I filed my Motion to Compel (& I swear I am NOT making this part up): 1. The judge proclaims there is no such thing as a Motion to Compel. 2. The judge then threw out my Interrogatories entirely, claiming I did not have permission from the court to file them in the first place. Wow, pretty interesting Your Honor. The Supreme Court of Illinois Rule 213 permits me to do so. I apologize, not realizing a Small Claims Circuit Judge superceded the Supreme Court's authority. On a serious note, the Judge proclaimed not to understand a lot of what I was doing & as this case progressed I became more & more convinced she was not kidding about her lack of knowledge. Sad, but true. Even though I did not prevail, I can honestly say I was far more prepared & knowledgeable than any Defendant (be they pro se or represented by an Atty) that day thanks in large part to knowledge garnered from this invaluable resource. I am going to take a few days to mull over my decision, but right now I am considering these steps of action: Option 1: ---------- Offer of Settlement for 25% of Judgment (A 125% ROI for them) & Mutual Covenant Not to Litigate Further in exchange for: - Agreed Motion to Vacate Judgment on SOL - Letter from AA stating Bona fide error in this matter. They cannot satisfactorily validate. (I can use this to remove TL myself) - Full Accord & Satisfaction I plan to let them know that there is significant inherent risk for their client in this judgment: - I could appeal & prevail - I am judgment proof; own no real property, have no appreciable other property, am unemployed currently. - I have no ties to Illinois & could easily move to another state with far more friendly debtor laws. - I could file Bankruptcy whereby litigation costs to exclude your judgment would far exceed the judgment itself. Further, any business would be happy with a 125% Return on a portfolio. I'll give them a very short time to respond - like 10 days. Otherwise, its Option 2 - Motion to Vacate Judgment & Appeal. I honestly believe that any rational adversary would just drop the case against me in an Appeal process as we're just taking $1400 Principal. They wouldn't have the luxury of a judge that would let them avoid Interrogatories & Discovery in this round, either. Frankly, I feel confident I have an excellent chance to prevail in an Appeal. It just isn't worth my time & emotional energy to pursue it if they are amenable to a mutually beneficial settlement. We'll see.
