How I Answered LVNV Funding Credit Card Summons
After being served my summons, I search the Internet and found a website with a forum which helped me out, to a point. The people on the forums were telling everyone: “You need to answer the summons!” I freaked out and researched how to answer a summons and then I proceeded to answer it. That was my biggest mistake! I had no clue what I was doing and I missed the opportunity of filing a motion to dismiss, because LVNV Funding did not attach the contract or assignment with the complaint.
The first thing I learned to do is Google: [YOUR STATE HERE] local court rules, or [YOUR STATE] then Civil Trial Rules. Believe it or not, everything is there in black and white. Your local court rules are the key to winning your lawsuit.
When looking up your court rules you want to look out for the following:
- Written instruments
- Under your rules of evidence, look up statute of frauds
- Your state’s statute of limitations
- Chain of assignment
Find out if any of this needs to be attached to the complaint in order to file a motion to dismiss. You also need to find out under your court rules if your court allows you to file a motion to dismiss in lieu of an answer.
My Complaint below:
I didn’t know that I could file a motion to dismiss. All I received was a complaint stating I owed money and that LVNV Funding was the assignee of Providian. LVNV Funding is claiming to be the assignee of Providian and claiming I owe them money. My question is: “where is the proof?” You cannot just simply state that I owe money with no evidence to back it up. Even I knew that. That’s like someone coming to your door and telling you that you owe them money. Wouldn’t you want this person to prove it to you? You have no clue who this person is and why they are demanding money. They need to prove it.
I thought that I had to answer the complaint first because the message boards kept telling everyone to answer the summons. If I had known better I would have read over my court rules and found out that in the state of Indiana, where I live, I’m allowed to file a motion To dismiss first. If the judge were to deny that motion, then I would have 10 days to respond to the summons after the denial but if the judge granted the motion, the case would be dismissed without prejudice, giving the plaintiff 10 or 20 days to amend their complaint.
When looking at your court rules see if this applies to the state where you live as well. Under my court rules it states the following:
Rule 9.2. Pleading and proof of written instruments
(A) When instrument or copy must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.
The above was telling me that if I was to be sued under a “contract” that the original or copy thereof, must be attached with the complaint. But again, I had no clue what I was doing so I looked all over the place to try and figure out how to answer this summons. I didn’t understand all of the legal terminology and when it came down to putting my affirmative defenses down, I was uneducated and fearful of the words so I neglected to put quite a few down. To be honest I didn’t even know what affirmative defenses were!
Here was my response to the summons.
Take note that each numbered paragraph pertains to the complaint. When answering this summons I had to lay down my affirmative defenses. I have learned that I should have used every single affirmative defense even if it makes no sense to me whatsoever. Every single one I find I would use in the future. I left out quite a bit the first time round because I didn’t understand what they meant and it scared me. For example, I was scared by the term ‘statute of frauds’ but you need to use it.
I will show you which affirmative defenses I should have also added but left out:
Affirmative defenses that I left out were:
- Failure to state a claim Upon which relief can be granted.
- Plaintiff’s complaint is time-barred by the applicable statute of limitations on credit card debt in the state of Indiana.
- Plaintiff’s complaint violates the statute of frauds as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.
- Plaintiff is not the real party in interest and has failed to name all necessary parties.
Why did I leave them out?
Because I didn’t know any better and I felt quite intimidated by the meanings.
- Failure to state a claim upon which relief can be granted?
- Why didn’t I put the statute of limitations defense?
- Statute of frauds defense?
- The plaintiff is not the real party in interest?
Well, it’s simple. Plaintiff can prove no set of facts in support of his claim which would entitle him to relief. So I should have put that down!
Because I guessed it might be within the statute of limitations. But that doesn’t matter. You see, the plaintiff is suing me so they’d have to prove this debt is within the statute of limitations, not me. I don’t have any proof. So next time, regardless, I will use that defense. That was my mistake.
I saw ‘fraud’ and freaked out! However, this is the best defense in a credit card lawsuit. It is what it is. Read up on statute of frauds. It is clearly stated that a contract or agreement falls within a class of contracts or agreements that are required to be in writing.
I thought that it didn’t make any sense so why would I say that? Well, simply because the junk debt buyer did not prove an assignment. Meaning, they did not prove to the court nor myself that they have the right to sue me. So should I have used that? Absolutely.
So that would save you many hours of figuring out those affirmative defenses, and if you leave one out, you lose the opportunity to use them. Each and every affirmative defense you put down is based on your case. You have to use every single one of them when you answer your summons or you cannot use them in the future. So live and learn. I have learned that if I’m sued in the future, I should use every single affirmative defense so I do not lose them later in the case.
After I filed my answer about five days later, I received their requests for documents, requests for admissions and interrogatories. This is known as ‘discovery’. Now I had to look up how to answer all of this.
Notice that in my answer to the summons, where it says “WHEREFORE”, that I put “Defendant prays that the court take nothing of Plaintiff’s complaint by virtue and dismisses the complaint”. Obviously, here in Indiana you cannot just say: “Hey, dismiss this case please”. You would have to file a motion to the court, not put into the answer.
My point here is that I thought just because I put ‘dismiss the complaint’ in my answer, that it would get dismissed. I was wrong. Then LVNV came crashing down on me with discovery.
Check your local court rules for interrogatories, admissions, and requests for documents to see what format you need to use and how your court allows you to answer. Do not copy mine. Remember that all courts are different.
- How I Answered LVNV Funding Credit Card Summons
- LVNV Funding Discovery Cover Letter Sample
- LVNV Funding Response to Interrogatories
- LVNV Defendant Response to Request to Admissions
- LVNV Credit Card Sample Motion for Judgment
- Successful Motion to Dismiss for LVNV Funding Credit Credit Card Lawsuit