IN THE [YOUR COUNTY] CIRCUIT COURT OF THE STATE OF [YOUR STATE]

IN THE [YOUR COUNTY] CIRCUIT COURT

)    Case No.: [CASE NUMBER]

LVNV FUNDING LLC                                                   )

)

Plaintiff,                                   )

)

)     ANSWER, AFFIRMATIVE DEFENSES

)

vs.                                                                             )

)

[YOUR NAME]                                                               )

)

Defendant                               )

)

Comes now Defendant, in the above captioned case and asks this court to reconsider Defendant’s motion for judgment on the pleadings because Defendant did not make a clear set of facts before the court in his first Motion for judgment on the pleadings that he filed on January 12, 2008, and Defendant has received new evidence (see attached) supporting no actual contract is in the possession of Plaintiff. Defendant asks this court to reconsider for the following reasons:

• Plaintiff has failed to state a claim upon which relief can be granted


• Plaintiff has failed to name the real party in interest


• Defendant raised the issue in his first responsive pleading affirmative defenses No. 8 that Plaintiff failed to reference with the complaint the original contract being sued upon per Indiana Rules of Trial 9.2.


• Defendant raised the issue that the original contract was not referenced to the complaint in his first responsive pleading. Indiana Trial Rule 9.2 (F) states that non-compliance with the provisions of this rule requiring a written instrument to be included with the pleading may be raised by the first responsive pleading or prior motion of a party.


• Plaintiff’s complaint count number 1 states that the plaintiff is the assignee of Providian Financial. Defendant raised the issue in his first responsive pleading affirmative defenses No. 2, No. 3 and No. 8 that Plaintiff failed to attach a copy of assignment, and provided no evidence that the purported assignment was bona fide. According to Indiana Code 24-4.5.3-406 the debtor is authorized to pay the original lender until he receives notification of assignment of rights to payment pursuant to a consumer loan 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 debtor, the assignee must seasonably furnish reasonable proof that the assignment has been made and unless he does so the debtor may pay the original lender.


• Plaintiff’s count number 2 states that Defendant is indebted to Plaintiff to the amount of $5,278.87, plus accrued interest of $2,042.31 and did not attach a contract, proof that Defendant is indeed indebted to Plaintiff or an account stated to prove such said sum is the true sum. Defendant raised the issue that the original contract was not referenced to in the complaint in his first responsive pleading under affirmative defenses No. 8.


• Plaintiff ends his complaint with demands of a judgment stating assumed sums and further asks for all other relief to which Plaintiff may be entitled pursuant to contract, statute or common law. Plaintiff did not attach the contract proving what exactly that entitles him to, nor what that would entitle Defendant for that matter.


• On January 26, 2009 Defendant received a copy of Plaintiff’s response to defendant’s motion for judgment on the pleadings. Within this response, the Plaintiff is claiming to the court they they are the assignee of Providian Financial, having purchased defendant’s account from that company. This can only be assumed by the court because Plaintiff has not evidenced any copies of assignment that should have been attached to their complaint from the beginning.


• Plaintiff through their response also clearly admits that they do not have in their possession, custody or control copies of the written agreement signed by Defendant and are reviewing their records. And they admit that they did not comply with Indiana Trial Rule 9.2.


• Plaintiff’s claim is clearly based on a breach of credit card contract and Plaintiff has stated clearly that no copy of this contract is in their possession, custody or control.

  (1) Without the contract Plaintiff cannot possibly know but only assume that the sum of $5,278.87 is the correct sum they are suing Defendant for.
  
  (2) Without the contract Plaintiff cannot know but only assume that $2,042.31 is the correct amount of interest they are suing Defendant for.
  
  (3) Without the contract Plaintiff cannot possibly demand judgment for such said sum and interest, and ask the court for any and all other relief to which Plaintiff may be entitled pursuant to the contract.

  They state “Pursuant to the Contract” which is not in their possession, custody or control so the court cannot know what Plaintiff is entitled to.


• Plaintiff also stated within their response that they should be allowed to proceed with this action, noting the reason for non-compliance with Trial Rule 9.2, and conduct discovery in order to establish and confirm Defendant’s current indebtedness. Their reason for non compliance per Trial Rule 9.2 was because they don’t have the original contract in their possession, and are asking the Court to proceed with this action to conduct discovery in order to establish and confirm Defendant’s current indebtedness. Defendant assumes that Plaintiff’s attorneys were aware of Indiana Rules of Trial Procedure 9.2 before they started this action and should have had the contract in hand and established and confirmed Defendant’s current indebtedness before filing suit, not asked the court to be able to do so during discovery.


• Defendant asks this court to not allow them to proceed with this action, noting that their complaint is completely based on assumptions and no standard of proof has been given. After reviewing Plaintiff’s counts on the complaint and with no supporting documents, no proof of assignment, no proof that Plaintiff is the real party in interest, no account stated to prove such amount Plaintiff is suing for is the just and true amount, no signed contract between the original creditor and Defendant that is claimed, no proof that Defendant is indebted to Plaintiff that is claimed, and with no terms of agreement attached to support Plaintiff’s complaint no supporting documents have been established to proceed with this action.

WHEREFORE, Defendant asks this Court to reconsider and grant judgment on the pleadings with prejudice, and for all other proper relief.

Respectfully Submitted,

_______[SIGN HERE]________
[DEFENDANT]