Author Topic: West Virginia  (Read 4353 times)

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Flyingifr

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hannah

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Re: West Virginia
« Reply #1 on: July 26, 2006 06:38:11 PM »
West Virginia has some statutes that I have used in defending against JDB's. This may be the most important statute for those being sued on evidence that only include an affidavit from the OC, CA, or JDB...

55-8-7. Action against makers, drawers, endorsers, acceptors, assignors or absolute guarantors.
(a) The holder of any note, check, draft, bill of exchange or other instrument of any character, whether negotiable or not or any person entitled to judgment for money on contract, in any action at law or proceeding by notice for judgment on motion thereon, may join all or any intermediate number of the persons liable by virtue thereof, whether makers, drawers, endorsers, acceptors, assignors, or absolute guarantors, or may proceed against each separately, although the promise of the makers, or the obligations of the persons otherwise liable, may be joint or several, or joint and several. If notice or other process is not served upon all persons proceeded against, judgment may nevertheless be given against those liable who have been served as provided by law with notice or other process. These actions or proceedings by notice may be had from time to time in the same or any other court until judgment is obtained against every person liable or his personal representative. However, plaintiff shall have satisfaction of but one of two or more judgments rendered on the same demand.
(b) In any action at law, whether in circuit court or magistrate court, on a note or contract, express or implied, for the payment of money, if: (1) The plaintiff files with the complaint an affidavit made by the plaintiff or an agent, stating therein to the best of the affiant's belief the amount of the plaintiff's claim, that the amount is justly due, and the time from which plaintiff claims interest; and (2) a copy of the affidavit together with a copy of any account filed with the complaint is served upon the defendant, the plaintiff is entitled to a judgment on the affidavit and statement of account without further evidence unless the defendant files an answer denying the claim or otherwise makes an appearance before the court denying that the plaintiff is entitled to recover from the defendant on the claim. The affidavit must show the calculation of the amount sought. The calculation is to also include an itemization of the principal and any interest, insurance or other charges of the original obligation. The calculation is also to include an itemization of all credits to the original obligation including credits to principal, interest, insurance, any other charges, rebates of unearned interest, rebates of insurance, rebates of other charges and proceeds of sale of all collateral. If the defendant's pleading or affidavit admits that the plaintiff is entitled to recover from the defendant a sum certain less than that stated in the affidavit filed by the plaintiff, judgment may be taken by the plaintiff for the sum so admitted to be due and the case will be tried as to the residue.[/b]

In order to use the above statute, you as defendant must make it abundantly clear in your answer that you DENY the total sum sought.

In addition, many consumers are sued by JDB's claiming the original note or agreement has been lost, stolen, or destroyed. This statute makes it clear that if they were not in possession of the intrument when it was lost, they cannot sue to enforce it. The judge in my last case said all points in the enforcement must be met to sue on lost, destroyed, or stolen documents. To use this statute, you must file a motion to strike the affidavit of lost, destroyed, or stolen documents. If the JDB never had the document, then they cannot enforce the document. There is caselaw. The second bolded part of this statute clearly shows that the JDB must show a chain of custody for the documents and any documents giving the JDB the right to enforce it. As for the terms, the only absolute proof that the document ever existed is a signed contract/agreement with the terms according to caselaw. If you use these two statutes, you go a long way in negating the evidence a JDB may have or be willing to show in court.

46-3-309. Enforcement of lost, destroyed, or stolen instrument._(a) A person not in possession of an instrument is entitled to enforce the instrument if (i) the person was in possession of the instrument and entitled to enforce it when loss of possession occurred, (ii) the loss of possession was not the result of a transfer by the person or a lawful seizure and (iii) the person cannot reasonably obtain possession of the instrument because the instrument was destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person or a person that cannot be found or is not amenable to service of process._(b) A person seeking enforcement of an instrument under subsection (a) must prove the terms of the instrument and the person's right to enforce the instrument. If that proof is made, section 3-308 applies to the case as if the person seeking enforcement had produced the instrument. The court may not enter judgment in favor of the person seeking enforcement unless it finds that the person required to pay the instrument is adequately protected against loss that might occur by reason of a claim by another person to enforce the instrument. Adequate protection may be provided by any reasonable means.


wvufan788893/1

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Re: West Virginia
« Reply #2 on: January 11, 2008 08:45:41 AM »
Good information which also gives rise to certain violations if compliance is not made.
No suggestions made herein are to be considered legal advice.  If you seek legal advice, please consult a licensed attorney in your jurisdiction.

sarratori

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Re: West Virginia
« Reply #3 on: February 26, 2008 04:29:08 PM »
I need help???? I have a JDB that is reporting on CRA's They are not lic. or bonded to collect in WV which is my legal state of residence.  I cant find the legal lingo for what law this is breaking HELP!!! I want to send them a letter but I dont know what code to cite.