RECOVAR CLASS ACTION SUIT

READ

IN THE DISTRICT COURT OF MONTGOMERY COUNTY, MARYLAND

___________________________________________

THE RECOVAR GROUP LLC, )

)

Plaintiff )

)

v. )

) Civil No. 0601-0020187-2006

ROBERT MCDONALD /A/K/A ROBERT D. )

MCDONALD I/A/D/B/A/ CELLTEX )

Defendant )

)

___________________________________________ )

DEFENDANT�S MOTION OF OPPOSITION TO THE PLAINTIFF�S MOTION OF OPPOSITION

Defendant Robert D. McDonald a/k/a Robert D. McDonald i/a/d/b/a/ Celletex hereby opposes Plaintiff�s The RecovAR Group LLC (�RecovAR�) Motion of Opposition to Defendant�s Motion of Opposition in support thereof as follows:

1. BACKGROUND

1. Robert McDonald is an individual residing and working in the state of But is not conducting any business since he works for a large communications company as a W2 employee.

2. Bayside test equipment is a company who resides and does business in the state of California.

3. RecovAR is a domestic limited liability company, who resides and conducts business in the State of Maryland.

4. On July 12 2005 entered into an agreement with Bayside Test Equipment (Lindy Slocum), a copy marked as �Exhibit 1 � and made hereof , to lease and Anritsu 331D with Accessories. Said agreement states customer is only responsible for full market value if not returned. Subsequently Defendant has paid approximately $3000.00 to Bayside Test Equipment and therefore this contract has been ratified since six (6) payments have been made to the Bayside test equipment Co. �Exhibit 2,3,4,5,6, � , therefore since this contract was executed and Ratified with the payments in the State of Texas The Jurisdiction is either The State of Texas or California. Therefore the question arises of how the jurisdiction becomes Maryland? Therefore RecovAr purchasing the debt from California base company �Exhibit 7�, does not give them Jurisdiction over this Debt. Also Defendant has paid $2916.70 for a total of $5961.70. This leaves a balance of $998.30 not the $8512.31 as claimed by Plaintiff. This is also in direct conflict with the law suit initiated in the District Court of Montgomery County, Maryland for monies owed for services rendered on open account .Civil Action No. 0601-0011694-2006 which was respectively dismissed pursuant to Maryland Rule 3-506.

The reason, after research, that this case was dismissed was The Plaintiff told the court the Defendant could not be reached for service. This was a flat lie since my wife was served and the Plaintiff made the Defendant believe a suit was filed. Texas rules of Civil Procedure states service can only be made upon the defendant or a Designated Party IE Attorney.

Since this suit was wrongfully served the plaintiff coaxed the Defendant into signing the agreement marked Plaintiffs EXIBIT B 1/2 making him believe there was a suit in place this agreement becomes null and void and is barred by Estoppel.

Where Bayside provided rental of test and measuring equipment and related services to the Defendant resulting in (6) billing statements dated 12/12/05-4/4/06 totaling $9750.00. Bayside then assigns this debt to RecovAr, and as such, RecovAR is successor in interest of the aforementioned account receivable. All subsequent litigation served to the Defendant does not accurately reflect the correct value of the equipment or debt assumed by RecovAr.

Upon receipt of the equipment., on July 12 2005, all accessories need for complete function of the equipment were not shipped by Bayside.See Exhibit 1A, 1B.Exhibit 1A shows what bayside should to have sent as per agreement. Notice Exhibit 1A is not sinned And Exhibit 1B is signed showing what was not received. This is ratified and Bayside has a copy and was made aware and therefore acknowledges accessories we not ship since they took payment and therefore ratified the agreement. Numerous telephone calls were made to render the equipment useable by procuring the accessories. Lindy Slocum, of Bayside, stated that a credit would be made for each month the equipment the Defendant was unable to use the machine, due to lack of accessories. To date no accessories were sent nor has credit has been received. Therefore, this machine is unusable, unable to be calibrated, and unable to be returned due to the assignment of this account to RecovAR. Consequently, since RecovAR is responsible for this account and said asset, they are responsible for its� operation or lack thereof. . A copy of the assignment of Account(s) Recievable , which is attached hereto, marked as Plaintiffs Exhibit A (1/2) and made part hereof.

This states: �Bayside Test Equipment, does hereby irrevocably assign, set over and transfer to RecovAR all rights, title and interest to the Debt.� Document was executed by Patrick Reid, CEO, Bayside Test Equipment and William L. Toten, CEO, of the RecovAR Group, LLC, on April 17, 2006. Initial lease paperwork with Bayside states �calibration services are available to ensure your entire lab is in current calibration status. All production are fully accessorized�. Therefore; RecovAR is liable for equipment non-usage and account credit as per agreement with BaySide from July 12, 2005 to present.

Title is defined as: �2a: all the elements constituting legal ownership b : a legally just cause of exclusive possession c : the instrument (as a deed) that is evidence of a right� per http://www.webster.com/dictionary/title. Since Patrick Reid assigned the title of the Anritsu 331D over to William Toten of RecovAR on April 17, 2006, RecovAR is liable for any stipulations concerning the previous contract with the Defendant. This includes calibration, short shipment of parts, account credits (per Mindy Slocum of Bayside Test Equipment) and non-usage of an uncalibrated and unoperational machine. Since Defendant�s receipt, this machine has been nothing but a cosmetic fixture within my business. The Defendant has made numerous offers to RecovAR to return the equipment, over the past two years, since they legally hold title. Each offer has been rejected either by Anthony Royster and Jermaine Boyd, Account Executives of the RecovAR Group, LLC. Equipment return has even been proposed to counsel (Dan G. Young) representing the RecovAR Group, LLC and BaySide Test Equipment from the firm of McCleskey, Harringer, Brazill & Graf, LLC, Lubbock, TX (Cause No. SC1989; Robert McDonald dba CellTex v. Bayside Test Equipment; In the Small Claims Court, Justice of the Peace, Precinct 4, Place 1 of Hunt County, Texas), without success.

To date as of June 5, 2007 Recovar has used its Mafia Strong arm tactics so the Defendant will be bullied into ,and was threatened into not filing suit in legal sense RecovAR is liable for the non usage of the equipment.

RecovAR keeps stating its jurisdiction over the first agreement signed which was DISMISSED. The second agreement signed which states no attorney fees or cost or interest. The question arises. What about the original agreement Between Bayside and Defendant? This agreement superceeds all the agreements. Recovar is trying to use 2, 3, 4, etc agreements to justify their legal hold on this case in which thy do not.

RecovAR is bitter since no one has ever challenged them, and knowing Defendant not an attorney , had this case dismissed for the right reason.

If a hearing is granted it could take me 4 to 6 months to save the money and make the trip to Maryland. This would create a financial hardship on my family. If a hearing is need I ask the court if I could do it via teleconference.

I totally respect the court decision to vacate the knowing in my heart it was the right one for the right reasons.

5. McDonald failed to make his payment on October 1, 2007 due to the fact Recovar was holding on to his payment and force him to sign an agreement (plaintiffs exhibit C 2 / 3). This is clearly shown when the agreement was signed The amount went Down from $6124.99 to $5833.40. A difference of $291.59 that was applied and clearly shows RecdovAR was holding on to his payment and threatening to file suit. This is border line extortion.

6. However, in the event of McDonald�s Breach of stipulation, McDonald agreed that RecovAR would be entitled to judgment as prayed for in the complaint . not the one filed in June 24, 2007 , less credits for payments made thereunder.(Exhibit C 3) Since the stipulation of agreement was signed it. This clearly shows in RECOVAR�S own words McDonald owes $3792.27. $5833.40 minus 7 of 291.59 with a balance of 3792.27. No where in the stipulation does it show Attorney fees , court cost or interest. This clearly shows the integrity of RecovAR�s accounting system and its confusing tactics to flip flop back and forth between agreements. Less agreements means monies paid or does it mean all monies paid would be forfeited? If the stipulation of agreement contained the words or phrases original agreement monies forfeited, attorney fees, court costs, interest, Defendant would have not signed. This is a clear view why this is barred by estoppel.

Not to mention RecovAr is the owner of the debt and equipment and the $3000.00 credit ownig to McDonald As futher discussed.

7. On May 1st, 2007, a check (2178) was mailed to RecovAR Exhibit 8. RecovAR who knew they had a suit filed against them in Texas wrongfully held on to the check to cause Defendant to go into default. Defendant did not get any notice of the default until they were notified via Breach of Settlement suit file on May 11, 2007. This is the second time they pulled a bait and switch. The first time was on October 6, 2006 Referring to Plaintiff�s Exhibit C ( 2 / 3 ) in which the Plaintiff held on to a payment forcing them to sign a Stipulation of Settlement a second agreement which NULLS the first agreement clearly stating Defendant will pay $6124.99 in 20 monthly installments. In paragraph 3 it states that if Defendant fails to make any payments when due or any payment is returned unpaid for any reason, including but not limited to a check, bank draft or money order it will constitute a default of the terms of this stipulation of settlement . In such an event Plaintiff upon application to this court shall be entitled to Judgment as prayed for in the compliant, less credits for payments made hereunder. There is no reference to attorney fees or interest which was not in the stipulation of settlement and according to the Maryland web site can only be collect on if it is in the agreement. Not to mention that Plaintiff is suing for $8512.31 figures not even the agreement. The agreement states on $5833.40 a figure I can not figure out or is in correct. Recovar Can not got off the first agreement since Stipulation of Settlement Supersedes the first one.

8. On May 21, 2007 Defendant filed A Motion of Opposition, Which states that he is responding to the �Breach Stipulation of Settlement� and not the original petition filed by RecovAr and requests that this court dismiss with prejudice.

9. On May 24, 2007, the court entered judgment against Defendant in the amount of $8512.31 pre-judgment interest of $151.20 cost of $60.00 Attorney�s fees of $2128.08 plus post-judgment interest rate for Breach of the Stipulation which was never agreed to in the stipulation of settlement.

10. On May 29, 2007, after weighing the supporting evidence the court Vacated and dismissed the suit due to the Defendant has raised issue of jurisdiction as to proper place to seek judgment.

ll . DEFENDANT DEFENSES ARE WITHIN SUPPORT IN FACT LAW

11. Defendant files his motion is an attempt to dismiss this lawsuit in its entirety and specifically purport defenses, including lack of jurisdiction and estoppel.

A. JURISDICTION

12. Defendant claims that this Court lacks jurisdiction due to the fact that he is an individual who resides in Texas. Individual who works in Texas. Bayside Test Equipment is a company who resides in California who sold a Debt to a collection Agency in Maryland. If a company buys a debt from another state does not give them jurisdiction. This collection agency has to go where the debt originated from or to the State where the Defendant resides .Plaintiff is trying to bring this case to Maryland because of the cost factor of going out state. Defendant does not do business in Maryland, work in Maryland or has ever resided in Maryland.

(a) The Fair Debt collection Practices Act Does Govern the underlying individual debt in which the Foggy Payment agreement and stipulation are based on.

13. Defendant confirms that the Fair Debt Collection Practices Act (�FDCPA�) applies to this matter, and further that RecovAr has specifically violated 15 USC§1692i, which regulates legal actions taken by debt collectors against consumers.

14. Under FDCPA, �consumer� is defined as any natural person obligated or allegedly obligated to pay any debt. 15 USA 1692(a). Of particular significance is that the FDCPA applies to �any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which money, property, insurance or services, which are the subject of the transaction pare primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment. Id.

15. Bayside provided rental of test and measuring equipment services to Defendant resulting in 5 invoices that were paid dated 7/05-11/05, which ratifies the agreement and makes the jurisdiction, Texas. This is where the defendant resides as the consumer. Defendant is a consumer as Celltex is a DBA. Henceforth, this is NOT a commercial account. See exhibit 1-6.The invoices not paid from 12/12/2005 -4/12/06 were due to the fact Bayside failed to give the Defendant his $3000.00 in credits and $6900.00 for fair market value of the equipment. Who determines fair market value? The Defendant determines fair market value of $5.00 since it has no use, Cannot be calibrated and there fore stuck with a expensive door stop.

16. On April 17 Bayside and RecovAR entered into an agreement , in which Bayside wishes to sell and RecovAR wishes to to purchase the account receivable owned by Defendant . for commercial debt collection purposes.

17. Recovar keeps referring to the payment agreement which was dismissed by RecovAr and the courts. When the Stipulation of Agreement was signed. The Defendant was told that the original agreement was void and had to go off the new agreement Stipulation of Settlement. RecovAr has 3 or 4 agreement in place with different entities ands is trying to use exerts out of each one to satisfy their needs and this cannot happen.

b. Governing aw and choice of forum is not appropriate in Maryland

18 defendant state that this court lacks jurisdiction over this law suit since McDonald for breech of contract because He resides in Texas works in Texas. Mr. McDonald has never worked in Maryland resided or traveled to Maryland. RecovAr is claiming Jurisdiction Because they reside in Maryland and bought a debt from California. Bayside Test Equipment resides in California and only sold the debt to a company in Maryland. This does not give Jurisdiction to RecovAR.

18. Paragraph 12(a)-(2) of Defendants Motion of Opposition clearly states RecovAR �s ownership of the equipment that Bay. Based on this agreement McDonald States RecovAr is the owner of the equipment Bayside side leased to McDonald.

19. Specifically Defendant states that the transfer of all rights, title, and ownership interest to his leased equipment from Bayside to RecovAR makes RecovAr the owner of the said equipment. The Wester.com dictionary defines title as follows: 2 a : all the elements constituting legal ownership b : a legally just cause of exclusive possession c : the instrument (as a deed) that is evidence of a right. The Webster Dictionary translate interest as follows

1 a (1) : right, title, or legal share in something (2) : participation in advantage and responsibility b : BUSINESS, COMPANY

By these definitions of title and interest this clearly shows RecovAR is Clearly the owner. Therefore RecovAr is clearly responsible for the credits and non usage from July to Present. If RecovAR did not want to be subjected to the title and interest then they should have left it out of the agreement between Bayside and RecovAR.

20. However Assignment does create a relationship between RecovAR and McDonald or any relationship interest in said equipment. In fact the express language of the fact of the assignment supports McDonald Allegations. The Webster Dictionary defines Assignment as follows :

Assignment : the transfer of property; especially : the transfer of property to be held in trust or to be used for the benefit of creditors.

21. The Recovar holds all rights, Title, and Ownership to the equipment and is obligated to McDonald in every way to the equipment. If Recovar hold no right or title to the equipment as specified or did RecovAR make him believe they did to get the contract signed. This would be barred by estoppel. In the agreement Dated April 17 2006 Paragraph 4 and 5 reads as follows,

WHEREAS Bayside Test Equipment INC wishes to sell and RecovAr wishes to Purchase the Debt and,

22. NOW THEREFORE, for goof and valuable consideration, the receipt and sufficiency of which are hereby acknowledge, Bayside Test Equipment Inc. hereby irrevocably assign, set over and transfer to ReecovAR all rights title and interest to the Debt. Exhibit 10. this tells me Bayside sold the debt to RecovAR and all its title and interest including the possession of the equipment. There is so many smoke and mirrors here we don�t know which end is up. This is also barred by estoppel. Please refer to the following definitions: The Wester.com dictionary defines title as follows:

23. Right : all the elements constituting legal ownership b : a legally just cause of exclusive possession c : the instrument (as a deed) that is evidence of a right. The Webster Dictionary translate interest as follows

Title 1 a (1) : right, title, or legal share in something (2) : participation in advantage and responsibility b : BUSINESS, COMPANY

Assignment : the transfer of property; especially : the transfer of property to be held in trust or to be used for the benefit of creditors.

Sell 2 a (1) : to give up (property) to another for something of value (as money) (2) : to offer for sale

Purchase 1 a archaic : GAIN, ACQUIRE b : to acquire (real estate) by means other than descent c : to obtain by paying money or its equivalent : BUY d : to obtain by labor, danger, or sacrifice

2 : to constitute the means for buying <our dollars purchase less each year>

intransitive verb : to purchase something

irrevocably: not possible to revoke : UNALTERABLE <an irrevocable decision>

revoke 1 : to annul by recalling or taking back : RESCIND <revoke a will>

2 : to bring or call back

recind 1 : to take away : REMOVE

2 a : TAKE BACK, CANCEL <refused to rescind the order> b : to abrogate (a contract) and restore the parties to the positions they would have occupied had there been no contract

3 : to make void (as an act) by action of the enacting authority or a superior authority

transfer 1 a : to convey from one person, place, or situation to another : MOVE, SHIFT b : to cause to pass from one to another : TRANSMIT c : TRANSFORM, CHANGE

2 : to make over the possession or control of : CONVEY

rights 2 : something to which one has a just claim: as a : the power or privilege to which one is justly entitled <voting rights> <his right to decide> b (1) : the interest that one has in a piece of property -- often used in plural <mineral rights> (2) plural : the property interest possessed under law or custom and agreement in an intangible thing especially of a literary and artistic nature <film rights of the novel>

3 : something that one may properly claim as due <knowing the truth is her right>

4 : the cause of truth or justice

Ex if one Mortgage company buys title rights and interest to a debt from another company do they own the property or debt or both. I would say both or otherwise if my mortgage was sold does that mean I don�t have to pay but they can�t take my property I would say not.

24. Like the Assignment, The stipulation is a haze of smoke and mirrors and is very conveluded .and is barred by estoppel. Attorney Linda Aikens should know better if you don�t want it in a contract do not put it in there.

25. McDonald states he sent his May payment Exhibit 8 and it was not to applied to his account due to the fact RecovAr wanted the stipulation to default due to the fact there was a suit pending in Texas and wanted it to default for spite. See copy of check Exhibit

25. RecovAR states that they informed McDonald May 7, 2007 not so. RecovAR informed McDonald by Facsimile his payment was past due but McDonald called RecovAr and talked to Jermaine Boyd May 6, 2006 for an account balance nothing was mentioned about the account being past due or payment not yet received. Even if a FAX was sent out McDonald travels around The State of Texas for his work and does not have access to a fax machine 24 hours per day since he dose not work in an office. Also RecovAR has his email address and cell phone number none of which they used to communicate to him.

26. Thus This Court Properly entered judgment and denied RecovAr Breach Of stipulation of settlement due to the fact Defendant raised issues of jurisdiction as to proper place to seek judgment.

27. RecovAr has used this court and has sues thousands of people not one being in the state of Maryland .They sue people strong arm them into believing that Maryland is the jurisdiction (See a portion of the suits file )exhibit 9 and continue to use this court to do their work.

28. This has cause great financial strain on my life and possibly loosing my house. Also the stress is unbearable and has caused ulcers and various health problems

29. If a hearing is granted if the court could take into consideration our financial position and could do it via teleconference. To go to Maryland would result in the loss of my job and would devastate my family greatly for it would take at least three days to do this and why should RecovAr be granted the Luxury of a walk to the court house.

30. The suit filed in Texas was dismissed on May 30, 2007 due to the jurisdiction due to the amount should have been the District Court of Texas. This had no reflection on the dismissal handed down May 11, 2007 since the case was dismissed and vacated May 29, 2007

ON May 30th the Texas lawsuit was Dismissed for lack of jurisdiction finding that the governing law should be the District Court of Texas in that the said suit amount exceed the maximum allowed by the State of Texas

31. Recovar has sent numerous threatening letters including a cease and desist letter to deflect McDonald from filing legal action against RecovAR, William Toten, Anthony Royster Jermaine Boyd and Linda Aikens. See Exhibit 10 The letter date June 5, 2007 states RecovAR is simply the successor in interest of the Debt bt Defendant to Bayside. RecovAr holds no right, title, or interest to the equipment. This is in direct conflict with statements in the original agreement Plaintiffs Exhibit A ( 1/ 2 ) which state Bayside irrevocably assigns set over and transfer to RecovAR all RIGHTS TITLE AND INTEREST TO THE DEBT. This includes ownership of the machine. Defendant Can not have this machine calibrated by the company that does the calibration (anritsu) and returned to Defendant since Bayside still has ownership of the equipment and if the equipment is sent in it will be shipped back to Bayside. Leaving McDonald with the monitary debt..McDonald has paid on the machineas stated in the agreement EX 1 and there for is entitled to the ownership so he can sell transfer the equipment legally. Bayside states They cannot do a transfer of ownership since RecovAR owns the debt and is their responsibility to transfer ownership. RecovAR is responsible for the non usage and credits.

32. Defendant�s Lawyers Has filed suit against all parties involved Bayside Test Equipment, RecovAr Anthony Royster, William Toten Linda Aikens in the proper jurisdiction jurisdiction which is the District Court of Texas .

33. If it any worth this constant harassment and trying to make McDonald play lawyer has taken a toll on McDonald physically and mentally. .McDonald has suffered great mental anguish and now asks for a summary judgment in the amount or $25000.00

34. On June 1, 2007 Mr. Boyd contacted McDonald and asked him if he wanted to enter into another agreement unaware the judgment was vacated, this is the constant harassment McDonald has endured.

WHEREFORE, Premises considered Defendant Prays that Plaintiff�s MOTION FOR RECONSIDERATION AND REINSTATEMENT OF THE JUDGMENT AND REQUEST FOR HERING be DENIED

THIS CASE HAS BEEN DISMISSED TWICE AND NOW RECOVAR IS APPEALING IT BEACAUSE THEIR LAWYER DIDNT SHOW UP FOR COURT

HOW CAN YOYU APPEAL IF YOU R LAWYER DOSNT SHOW FOR COURT. HOPE HAWAII WAS NICE LINA AIKENS . CONTACT ME TO START A CLASS ACTION SUIT