Received Summons/Complaint documents?
Date: Mon, 08/10/2009 - 09:21
I just received a package in the mail (one was also dropped off at my house to my wife who was frankly scared to death by some dude in gym shorts banging on the front door) that states "Summons" and that I must "answer the Complaint".
Having read some of the other posts in other threads this looks like a case where someone skipped over all the typical collector calls and such and went straight to the courts? Just a guess.
Anyway, I don't yet have enough information to know if the debt is valid or not. A bit of history is that I was separated/divorced over the same time period they are saying that they were assigned or purchased the debt; in this case from Citibank.
My questions are:
- What are my first steps?
- Do I need to bother with a DV request?
- At this point do I provide a formal response through the courts?
- I'm in NY and the SoL is 6 years. I can't find any reference to a Citibank account on my credit report (just ran one for 08/2009) which would either suggest that it's a bogus claim or that if the debt was valid, it's no longer on my report, hence 7+ years old???
Any help is greatly appreciated.
Regards!
Morpheus
Hi, and welcome to the forum. I am just acknowledging your post,
Hi, and welcome to the forum. I am just acknowledging your post, please be patient as someone will be more than willing to answer your questions, in the meantime I will send a PM to skydiver and ask that he answer your question when he is available.
thanks shazzers for passing this on.... Welcome! First, allo
thanks shazzers for passing this on....
Welcome! First, allow me to ask you some questions, it will help me to give you the best answers I can. Many times, a summons comes with a complaint that provides the basic details of the debt collector's claims against you. It sounds like you have one of these, based on the detail about this debt collector buying the debt from Citibank. It would help greatly if we had more information about these claims they have made against you. For example, any dates they have provided would help us to look over any statute of limitations ideas.
Second, a credit report is not always the best way to determine the age of an account. Sometimes, a creditor doesnt report. other times, they may stop reporting the debt once they sell it to someone else. Also, they might report on one of your reports, but not on all of them, so if you pull a Trans Union report, they may not show up there, but they might have reported to Experian instead. You should pull all 3 of your reports, Trans Union, Experian, and Equifax, just to make sure.
Also, what is the name of the CA that is suing you? Often times, we can pass along very good info on a particular debt collector based on the experiences that many of our members have had with them.
GEt back to me about these things, and we can help you put together a proper response to the summons. One more thing you should do is check with the court clerk's office in the county that this court is in--it is not unheard of for a debt collector to falsify a summons to try to scare people into paying....make sure that it is a real summons. Finally for now, they are required to sue you in the county where you live, so if this came from a county you dont live in, then we will address that in the answer to the summons. if you want to email any info to me, my email is the same as my screen name here, at yahoo, so feel free.
Additional info on the package I received
Thanks for the response. Here are additional details:
I received the following:
- Consumer Credit Transaction Summons dated June 22, 2009 but I guess filed on 7/16/2009. The plaintiff is Resolution Management LLC in Williamsville, NY (no license # provided) and the attorney is Lacy Katzen LLP in Rochester, NY. The summons lists 20 numbered statements. It lists an account number, debt amount, "with interest from November 2, 2004".
- A "Verification and Affidavit of Merit" from the VP of Operations for the plaintiff (not Citibank).
- A generic "Citibank Card Agreement".
Additionally, when I pulled all three of my credit reports, one
Additionally, when I pulled all three of my credit reports, one of them, TransUnion, shows a CitibankNA account that has a status as 'Current Closed' and a payment history of 'OK' ending in August of 2002.
Answering Summons
In reviewing the summons I have a question on how to respond to a certain type of allegation and how 'the court' perceives the allegation and answer.
Allegation: The credit card agreement states first use of the credit card constitutes acceptance of its terms and conditions.
Well, technically that may be a true statement based on the CCA but should the answer to the allegation be 'Agrees to...' or does that have some implication in court?
IOW, I agree that the CCA states that, but that has nothing whatsoever to do with my case specifically. Now, if they said that "Defendants first use of the credit card constituted acceptance of its terms and conditions" then my answer would be a "Denies the allegation...".
Yes, No, splitting hairs???
Quote:I received the following: - Consumer Credit Transaction
Quote:
I received the following: - Consumer Credit Transaction Summons dated June 22, 2009 but I guess filed on 7/16/2009. The plaintiff is Resolution Management LLC in Williamsville, NY (no license # provided) and the attorney is Lacy Katzen LLP in Rochester, NY. The summons lists 20 numbered statements. It lists an account number, debt amount, "with interest from November 2, 2004". |
You should check with the court clerk's office where this case was filed. The court is identified on the summons you received. If it is not in the county you live in, then you can answer with a motion to dismiss due to improper venue.
Second, when you check with the court clerk's office, be sure to review the docket and be sure to get the exact date that they first filed for the summons. Rules of civil procedure exist in every state and they may have exceeded the acceptable amount of time to have you served.
OK, now, let's address what they sent you.....the account number, compare it to the account number listed on your credit report for the citibank entry. Chances are, it will be different, because many CA's use their own account number once they buy the debt, but a lot of them do not change it. You may find that it is the same, and if it is the same as the one showing that the account was closed with no balance owed, then you can bring that credit report to court and challenge their claims with it. More on that later, once you let me know about the account numbers being the same or not.
On that same note, did you only have this one account with citibank? If you never had any other account with citibank, then the credit report entry will still be powerful evidence for you. Print it out and keep it handy, you will need it.
Quote:
A "Verification and Affidavit of Merit" from the VP of Operations for the plaintiff (not Citibank). |
This is an age-old trick, and it is not legal. They are trying to present an affidavit, which has someone from their company claiming to have "personal knowledge" of this being your debt, is that what it says? It's hearsay, and as long as you object to it's use by the plaintiff, then it should be disallowed as evidence on that basis. If you object to it and the judge allows it, then I would request that the court compel the plaintiff to produce this "VP of operations" so that you may be afforded your right to due process by questioning him/her. It's an old trick, like I said.....chances are pretty good that the person will not be available and THEN you can have the affidavit thrown out....the law requires that you are allowed to question anyone who brings forth testimony against you. They use this trick on people who dont know the law or their rights, and they normally get away with it. By the way, please, tell me the name of this "vp of operations"....I will do some checking and see if I can compare it to some real data just to show the court that they are full of crap.
Quote:
A generic "Citibank Card Agreement". |
I dont understand why they even bother sending one of these.....sure, it has value in the fact that it demonstrates the agreement details....but it has no value when the debt is disputed, because it does nothing to show that YOU actually signed one of those.
This is important--did you ever have any other citibank account besides the one that shows as paid and closed? If you did not, then I would answer the summons like this:
---affirm everything that states that you had an account with citibank, as long as the statements match up with what you can prove with evidence. For example, do NOT agree that you opened an account with Citibank in 2004 when the credit report clearly shows that your account was opened earlier than 2004. I'm sure you see what I am saying. You DID have a citibank account, so if their statements line up with your info, then there's no reason to deny it.
--then, deny EVERYTHING that has anything to do with you owing anyone any money whatsoever. Deny the claims that you didnt pay the original creditor, or that you didnt pay anyone else regarding this debt. Deny everything that has anything to do with you not paying an amount that was owed. Deny everything that makes any statement about your account being opened after that August 2002 time when your account was closed and paid in full.
BE sure to answer within the time allowed, if you do not, they will get a default judgment against you.
One more thing--if I knew what the statements were that they made, I could help you with a much more specific and effective response. IF you would feel more comfortable, you can email them to me or feel free to post them up here as well. I am specifically curious as to the time frame they are claiming with this debt. For example, there's a statute of limitations in every state. In New York, it is 6 years. That means, if they dont sue you within 6 years of the debt originally becoming past due, then you have an absolute defense against a lawsuit. If they claim, for example, that the debt went delinquent in 2002, then your affirmative defense, which you would send with your answer, would be that this case should be dismissed due to expiration of the applicable statute of limitations in New York State. It is an unstoppable defense as long as it is true, but ONLY if you bring it up yourself. The judge wont tell the plaintiff that his case is dismissed--you must state that the SOL has expired on this debt.
Please get back to me with more details, and I would be happy to help you put an end to this.
And don't forget to File a Motion for Discovery. This sit "h
And don't forget to File a Motion for Discovery.
This sit "http://www.nedap.org/hotline/court.html" will give you lots of comprehensive info about the civil court process, including your defenses and when, how, and why you should present them. It is for New York.
Skydivr, can you confirm receipt of correspondence from me via y
Skydivr, can you confirm receipt of correspondence from me via yahoo?
I'm going to include the details of the PM here as well. Than
I'm going to include the details of the PM here as well.
Thanks for your help so far.
**A few points of note:
- The court listed is for my county.
- The Index No. was first filed on 7/16/09.
- The Summons has no court date on it.
- The Summons and Complaint are dated 6/22/09.
- The Plaintiff is Resolution Management LLC (no license no.) and I can't find the company when I do an online search.
- The Plaintiff Attorney is Lacy Katzen LLP, Michael S. Schnittman, Mark H. Stein in Rochester, NY
- The Summons is signed by the attorney while the Complaint has no signature.
- The name on the Verification and Affidavit of Merit is John Bannister, Vice President of Operations, signed and notarized on June 23, 2009 in the State of New York, County of Erie.
Here are the details of the Complaint
1. Plaintiff is a limited liability company with offices in Williamsville, Erie County, New York.
2. Defendant(s) is/are an individual(s) and based upon information and belief, reside(s) in
AS AND FOR A FIRST CAUSE OF ACTION
3. Plaintiff repeats and realleges each and every allegation contained in paragraphs numbered "1" and "2" of this Complaint as though fully set forth at length herein.
4. Defendant(s) entered into a credit card agreement with Plaintiff's assignor, CITIBANK.
5. Based upon information and belief, Plaintiff's assignor duly performed all conditions on its part under a credit card agreement.
6. That there are monies due from Defendant(s) to Plaintiff on account number
7. No part of the said sum has been paid despite due demand.
8. Subsequent thereto, Plaintiff took by assignment all the rights, title and interest to receive the moneys due pursuant to and in accordance with the credit card agreement and is the legal assignee of CITIBANK.
9 Plaintiff and Plaintiff's assignor mailed statements to Defendant(s) advising of said balance due and demanding payment.
10. No part of the said sum has been paid despite due demand.
11. By reason thereof, Defendant(s) owes Plaintiff the sum of
AS AND FOR A SECOND CAUSE OF ACTION
12. Plaintiff repeats and realleges each and every allegation contained in paragraphs numbered "1" through "11" of this Complaint as though fully set forth at length herein.
13. Plaintiff and Plaintiff's assignor rendered to Defendant(s) accurate accounts of the indebtedness owing by Defendant(s) as the result of the credit card agreement which account statements were delivered to and accepted without objection by Defendant(s) resulting in an account stated for
14. No part of the said sum has been paid despite due demand.
15. By reason thereof, an account has been duly stated by and between Plaintiff and Defendant(s) showing the amount due Plaintiff of
AS AND FOR A THIRD CAUSE OF ACTION
16. Plaintiff repeats and realleges each and every allegation contained in paragraphs numbered "1" through "15" of this Complaint as though fully set forth at length herein.
17. The credit card agreement states first use of the credit card constitutes acceptance of its terms and conditions.
18. The credit card agreement further states that in the event of default, Defendant(s) would be responsible for collection costs including reasonable attorney fees.
19. Defendant(s) used the credit card and then defaulted by failing to make payments when due.
20. By reason thereof, there is an additional amount due of
WHEREFORE, Plaintiff demands judgment against Defendant(s) for the sum of
DATED: June 22, 2009