Author Topic: LVNV Funding lawsuit in Wisconsin  (Read 768 times)

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poorlydia

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LVNV Funding lawsuit in Wisconsin
« on: October 31, 2017 02:37:50 PM »
Iíve posted on this board before regarding a lawsuit I had earlier this year.  I was able to get through that one using arbitration.  I have a lot of credit card debt that I had to stop paying on them over a year ago and plan to file for bankruptcy in the next three or four months.  I received a summons for another lawsuit in small claims court for an amount slightly over $2,000.  This is the first time Iíve heard anything from LVNV Funding having one of my credit cards.   It says in the summons they are the successor to HSBC Bank Nevada.   There isnít any other information included in the summons except that they will submit accurate copies of writings evidencing my obligation to the court and me upon request.    Iím wondering if anyone else had luck fighting this place?   I donít think arbitration will be an option this time.

BrokeBob

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #1 on: October 31, 2017 04:52:07 PM »
Several things to keep in mind.

1.  You are in small claims court.  Even in the most consumer-friendly counties in Wisconsin (Dane and Milwaukee), small claims court is often a kangaroo court.  I have heard the best lawyers in the state advise their clients they will almost certainly lose in small claims, so fight on appeal.  Expect to have to take this to Circuit Court on appeal.  Even then, you may or may not have a decent judge.

2.  Does HSBC have an arbitration clause, and if it does, is there a small claims exemption?  If a clause and no exemption, file in arbitration. Otherwise, you will have to fight this out in court.

3.  Wisconsin is far less consumer friendly than it was a few years ago, but it is still one of the most consumer friendly state in the US.  Read up on the Wisconsin Consumer Act.  A number of years back, a consumer attorney in Madison named Briane Pagel put a lot of information into a consumer blog.  I think you can still access that blog, but I am not sure.  Learn it well, especially --

4.  There are very strict requirements for JDBs to show they really own the debt, BUT ONLY IF YOU REQUEST THAT INFORMATION!!!!!
I forget the exact statute.  I think it is somewhere in Chapter 425, but I could be wrong. 

(Still on #4 here)

When you are attacking a JDB, the best, and often the ONLY, way to beat them is to attack the chain of custody.  It is still harder in Wisconsin for a JDB to prove they own the debt than in any other state, but ONLY if you know the statute, and request the information.  If you don't request the information, you waive your rights, and you will lose the case. 

Of course with bad judges you could lose anyway.  But that is your best chance to beat them. 

poorlydia

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #2 on: October 31, 2017 07:15:49 PM »
Thank you for all the help and Iíll see if I can find the blog you mentioned.  I have three or four cards that have lower balances on them but Iím struggling to figure out which card LVNV has.   Iíve been looking at some of the old credit card statements I last had access to but the amounts are different and no mention of HSBC listed on these accounts.    The accounts I have are through Comenity and Capital One.  Iím feeling lost on this one. 

Iíll try to find the statute you mentioned about them proving they own the debt.   This is probably a stupid question but is there a right time to ask for this proof?   I was planning to answer and contest this with a general denial but Iím wondering if I should mention this in my answer as well?

Clydesmom66

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #3 on: October 31, 2017 07:30:56 PM »
Cap1 bought out the HSBC credit card division a few years ago.  It is probably that one.  Problem is if you used the account after they bought it Cap1 removed arbitration.  It may not be an option.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

CleaningUp

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #4 on: October 31, 2017 08:43:47 PM »
Requesting the document that they are going to use in court to prove their case is part of the discovery process.  Discovery questions (interrogatories) are pretty much universally limited to a set number. 

You need to read up on how discovery is handled in courts in your jurisdiction, and you need to start thinking hard about the interrogatory questions that you ask so you don't end up asking for stuff that is nothing better than trash.  Good discovery is a product of hard thinking and and the ability to write questions that are direct and unambiguous.  And remember, most courts won't allow you to go on a fishing expedition with your discovery.


BrokeBob

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #5 on: October 31, 2017 09:05:38 PM »
Requesting the document that they are going to use in court to prove their case is part of the discovery process.  Discovery questions (interrogatories) are pretty much universally limited to a set number. 

You need to read up on how discovery is handled in courts in your jurisdiction, and you need to start thinking hard about the interrogatory questions that you ask so you don't end up asking for stuff that is nothing better than trash.  Good discovery is a product of hard thinking and and the ability to write questions that are direct and unambiguous.  And remember, most courts won't allow you to go on a fishing expedition with your discovery.

Except there are very specific Wisconsin statutes that the OP and I were referring to, that are NOT just part of the discovery process. 

I looked up the statute.  It is Wisc. Stats. 422.409

This is a use-it-or-lose-it statute.  Notice the part bold and underlined.

What this means:  Most JDBs cannot prove they own it under 422.409.  It is very difficult.  A small claims magistrate probably won't care.  A circuit court judge will often care, unless he's running a kangaroo court, which too many judges do. 

This is the very best defense against a JDB in the state of Wisconsin, and it is specific to Wisconsin.  This is NOT part of the normal discovery process. 

If I were the OP, at the same time as my answer or MTC, I would include a demand for proof of assignment under 422.409, as well as the specific documents showing the account information.  If they can't provide that, the judge is supposed to throw out their case.  If not, and if you lose the case, then you have the right to an automatic appeal to Circuit Court.  Some posters outside of Wisconsin might ask you questions about grounds for appeal.  Ignore them. 

If you lose in small claims, you have the right to an automatic appeal and to have your case heard ab initio

Quote
422.409  Notice of assignment.
(1) The customer is authorized to pay the assignor until the customer receives notification of assignment of the rights to payment pursuant to a consumer credit transaction and that payment is to be made to the assignee. A notification which does not reasonably identify the rights assigned is ineffective. If requested by the customer, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless the assignee does so the customer may pay the assignor.
(2) The notification of assignment shall be in writing and addressed to the customer at the customer's address as stated in the contract, shall be accompanied by a copy of the contract or shall identify the contract, describe the goods or services, state the names of the assignor and the customer, the name and address of the assignee, the number, amount and due dates or periods of payments scheduled to repay the indebtedness and, except in the case of a transaction secured by a first lien mortgage or equivalent security interest for the purpose of the acquisition of a dwelling, the total of payments. A provision in the assigned contract that the customer waives or will not assert claims or defenses against the assignee under s. 422.407 (2) shall not be effective unless the notification of assignment also contains a clear and conspicuous statement that the customer has 12 months within which to notify the assignee in writing of any complaints, claims or defenses the customer may have against the assignor and that if the customer does not give such notice, the assignee or subsequent assignees will have the right to enforce the contract free of such claims or defenses subject to chs. 421 to 427.
History: 1971 c. 239; 1973 c. 2, 3; 1991 a. 316.
Cross-reference: See also ss. DFI-WCA 1.36 and 1.37, Wis. adm. code


poorlydia

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #6 on: November 01, 2017 12:39:42 AM »
I really appreciate all the help on this board.  Thank you BrokeBob for all the information and for looking up the statute.    Maybe the credit card for this lawsuit is really the one through Capital One which would mean arbitration would be out.  Iím just not sure.  Maybe that is the direction Iíll need to go and demand proof of assignment.    I wish I could get access to my statements online now so I could look back further at some of the older statements to see if HSBC was listed anywhere on my accounts. 

Thank you again!

CleaningUp

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #7 on: November 01, 2017 01:55:12 AM »
The point still remains, BrokeBob, that the defendant has to know enough to ask the write questions and cite the correct authorities.

We can only point the OP in the right direction and offer comments on that which is chosen to be offered for our review.  And, as you have said elsewhere, we're not her lawyer, and we cannot act as one.  OP has to do it for himself.

If you still have access to the CapOne website, you should be able to pick up when and if it were transferred from HSBC.  CapOne took them over on May 1, 2012.  Any entry before that date would be an HSBC account, or you would see a lump-sum transfer into the account.
« Last Edit: November 01, 2017 02:00:28 AM by CleaningUp »

poorlydia

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #8 on: November 01, 2017 03:17:44 PM »
Iím having no luck accessing more information regarding any of the accounts I stopped paying on.  This may be a goofy question but I could really use your opinions--with the limited information theyíve given me and that they have HSBC listed in the summons, couldnít I try using an agreement from HSBC then?   I tried doing a search for a credit card agreement for HSBC and a couple came up.  It looks like arbitration would be possible.  The only thing that it says about small claims is this:

We agree not to invoke our right to arbitrate an individual Claim you may bring in small claims court or an equivalent court, if any, so long as the Claim is pending only in that court. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration at such time.

Wouldnít this mean that they couldnít arbitrate but I could?  I guess Iím just hoping I can go the arbitration route.

CleaningUp

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #9 on: November 01, 2017 03:35:20 PM »
Are they suing you for breach of contract or account stated?

If they are suing you for breach of contract, it is essential that they provide the contract to you a part of discovery.

At that point you can get a feel for what other contract might be applicable.  You also should have a record of the last time that you paid on the accounts through your checking account records.  It may cost you a few bucks to get the statements from the bank if you don't have on-line access, but you really do need to get the information.

If they are suing you for account stated, all they require is a a set of bills sent to you.  Arbitration...unless you certify that a specific contract was in force at the time of default, and that contract includes the right therof...is off the table.  You can always try to wing it, but be prepared to be shot down.

You can't just HOPE to go the arbitration route, you have to make it happen.  And if it is not allowed for in the contract, then you aren't going to get the opportunity.

You need information, and it is up to you to find it.

BrokeBob

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #10 on: November 01, 2017 05:49:15 PM »
Iím having no luck accessing more information regarding any of the accounts I stopped paying on.  This may be a goofy question but I could really use your opinions--with the limited information theyíve given me and that they have HSBC listed in the summons, couldnít I try using an agreement from HSBC then?   I tried doing a search for a credit card agreement for HSBC and a couple came up.  It looks like arbitration would be possible.  The only thing that it says about small claims is this:

We agree not to invoke our right to arbitrate an individual Claim you may bring in small claims court or an equivalent court, if any, so long as the Claim is pending only in that court. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration at such time.

Wouldnít this mean that they couldnít arbitrate but I could?  I guess Iím just hoping I can go the arbitration route.


Hm.

Not clear about small claims.  It appears that YOU can initiate arb in small claims, but they cannot. 

However, worst case scenario you are denied arbitration and it gets to Circuit Court, the wording would make it seem that arbitration is on the table in all cases. 

I do not completely agree with CleaningUp on this one.  I agree mostly.

Yes, as part of discovery they will have to provide you statements, etc.  However, at the current time, they are only providing that it is HSBC.   

I don't know exactly how I would handle this.  I would absolutely 100% demand the proof of assignment under 422.409.  Posters are now saying the JDBs have better records now than they did in the old days, so this is no longer a slam dunk, but it might win.

If this were my case, I would absolutely demand arbitration.  The case says as successor to HSBC, not as whomever later bought out HSBC.  Why not sign an affidavit with the HSBC contract, saying you believe that to be the correct contract?  At that point they have to prove it isn't.  AND, there is a good chance they will be able to do that. 

Now, back to where I *DO* agree with CU.  You need to do some homework on this.  Fortunately, a lot of the information needs to be provided to you by them. 

If I were in your shoes, I would do as much homework on this as possible, but I think raising Arbitration as an affirmative defense at the very least is a real possibility.  Just understand that the deck is stacked against you in small claims. 

poorlydia

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #11 on: November 01, 2017 06:57:22 PM »
Thank you everyone for your input on this.  There definitely isnít much information included with this summons.  I donít see the actual words ďbreach of contractĒ on here.   They do say I failed to make payments, though.  I believe the last time I used or made payments to any of my credit card accounts was in the summer of 2016.   

CleaningUp

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #12 on: November 01, 2017 07:03:45 PM »
"I believe" is not good enough.  You need to know the actual month that you defaulted.  It's the start point for a lot of things...

You'll also want to dig out when you opened the account so you can sort through the various iterations of the contracts in search of a survivablity clause in a previous contract that would extend arbitration beyond any changes made subsequently.

Your into a world where precision and detail count.

poorlydia

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #13 on: November 01, 2017 07:26:30 PM »
It's June of 2016 for the last payment.  When i opened the account is really giving me problems, though, but I'll keep looking.   I'm not even sure if I'm researching the right card that they are suing me for.  I'll do more digging to try and find more information.  My fault for being too unorganized.

CleaningUp

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Re: LVNV Funding lawsuit in Wisconsin
« Reply #14 on: November 01, 2017 10:51:46 PM »
The CPFB site catalogs the agreements that credit card issuers have used.

The month/year of opening the account will be the starting place for the search.  Again, what you are looking for is a "survivability" clause that states that the right to arbitrate survives any changes to the agreement.  (Note banks were beginning to take arbitration out of their agreements in early 2010 when it was shown that the then leading arbitration outfit was nothing more than a rubber stamp for the banks.  The survivablity clause may be crucial to your objective).

 

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