Hess Kennedy is Suing Citibank
Date: Tue, 05/22/2007 - 04:19
Quote:
UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No.: 07-60658-CIV – UNGARO-BENAGES HAROLD TERRY, ) ) Plaintiff, ) ) v. ) ) CITIBANK (SOUTH DAKOTA), N.A. and ) ALLEN L. ADKINS ) Defendants. ) ) __________________________________________) PLAINTIFF’S MOTION TO DISMISS DEFENDANT CITIBANKS COUNTERCLAIM AND INCORPORATED MEMORANDUM OF LAW The Plaintiff HAROLD TERRY (“TERRYâ€Â), pursuant to the Federal Rules of Civil Procedure and Local Rules for the Southern District of Florida, respectfully requests the entry of an Order dismissing the Defendant CITIBANK (SOUTH DAKOTA), N.A.’s (“CITIBANKâ€Â) Counterclaim with prejudice and as grounds therefore states: 1. Plaintiff TERRY retained a law firm with the limited purpose of auditing whether or not Defendant CITIBANK was in compliance with the Fair Credit billing act (part of the Truth In Lending Act), 15 U.S.C. §1666 and Regulation Z issued thereunder. 2. Upon completion of the audit, it was determined that CITIBANK: a. Did not properly calculate the new activity, annual percentage rate, daily periodic rate, and finance charges; and b. Was improperly posting payments made to the account. 3. In response, TERRY sent CITIBANK a billing dispute notice in accordance with Fair Credit billing act (part of the Truth In Lending Act), 15 U.S.C. §1666 and Regulation Z issued thereunder. 4. CITIBANK ignored this notice and retained Allen L. Adkins, Esquire to collect on the disputed amount. 5. TERRY, by and through its attorneys sent a notice to CITIBANK attorneys requesting validation of the debt, as well as other information relating to as to whether or not CITIBANK and its attorneys were in compliance with Federal law. 6. CITIBANK ignored this notice as well. 7. In response, TERRY filed a Complaint against CITIBANK citing violations of the Fair Credit billing act (part of the Truth in Lending Act), 15 U.S.C. §1666 and Regulation Z issued thereunder. 8. CITIBANK removed the action from the County Court of Broward County, Florida to this Court, filed an Answer, Affirmative Defenses, and Counterclaim. 9. The Court should take notice that the Defendant has failed in its counterclaim to invoke the jurisdiction of the Court. Rule 8(a) (1) requires affirmatively that the pleader “must include†the grounds upon which the court’s jurisdiction rests. The Court should closely scrutinize the Defendant’s arrogant pleading practices that ignore basic rules of pleading. 10. The operant allegations of the Counterclaim begin at paragraph 1 wherein it is alleged that “A Citibank credit card account was issued in Plaintiff’s name â€Â, See CITIBANK’S COUNTERCLAIM ¶ 1, and conclude with paragraphs 8 through 11, wherein it is alleged that “Plaintiff is also liable to CITIBANK because Plaintiff has failed, refused, or neglected to pay the required payments balance on the Account; Plaintiff currently owed CITIBANK $6’372.77 on the Account that is due with interest since February 5, 2007, according to the account attached as Composite Exhibit “Aâ€Â; CITIBANK has been damaged by Plaintiff’s failure to pay the account; and CITIBANK is entitled to a $6’372.77 judgment against Plaintiff, plus costs, interest, and attorneys fees.†See CITIBANK’S COUNTERCLAIM ¶¶ 8-11. 11. CITIBANK’s attached exhibit purports to assert the truth of the matter alleged in CITIBANK’s COUNTERCLAIM, and Defendant’s counsel condescendingly alleges that “the statements speak for themselves.†12. These allegations and attached inadmissible hearsay that attempt to form the “core basis†of liability fail miserably are a perfect example of a poorly pleaded template that exhibits little or no understanding of the manner in which the banking system functions, and are both factually and legally defective. More alarming, this type of poorly pleaded complaint is one that has been filed against hundreds of thousands of consumers who lack any ability to properly defend themselves from CITIBANK’s predatory lending and arrogant refusal to comply with Federal Consumer Protection Statutes. 13. The Defendant’s counterclaim makes a claim for “attorney’s feesâ€Â. Nowhere, however, is there any basis given for such a claim. The Defendant cites no statute, contract, or other provision in the law which suggests entitlement to attorneys’ fees. All claims for attorney’s fees should be stricken. 14. WHEREFORE, Plaintiff TERRY requests the entry of an Order dismissing the Defendant’s Counterclaim with prejudice for failing to invoke the jurisdiction of the court, failure to properly state a cause of action and to strike all claims for attorney’s fees. As further relief, Plaintiff TERRY requests leave of court to amend its complaint adding an additional cause of action in accordance with 15 U.S.C. § 1642 (TILA §132); Regulation Z, 12 C.F.R §226.12(a)(1). |
Here is the Memo of Law This is a Hoot
These guys know what they are doing. I did not even know this is what happens when you get a credit card.
[quote]MEMORANDUM OF LAW
I. Standard of Review
Federal Rule of Civil Procedure 12(b)(6) provides that dismissal of a claim is appropriate when ???????it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.??????? Blackstone v. Alabama, 30 F.3d 117, 120 (11th Cir. 1994) (quoting Hishon v. King & Spalding, 476 U.S. 69, 73 (1984).
At this stage of the case, the Court must accept the Defendant????????s allegations in the Complaint as true and view those allegations in a light most favorable to Defendant to determine whether the Complaint fails to state a claim for relief. S & Davis International, Inc. v. Republic of Yemen, 218 F.3d 1 292, 1298 (11th Cir. 2000).
II. The Counterclaim
The Defendant CITIBANK alleges that a CITIBANK credit card account was issued in Plaintiff????????s name and that the Plaintiff has failed, refused or neglected to pay the required payments balance on the credit card account, and that ???????according to the account,??????? the Plaintiff owes $6????????372.77 plus interest since February 5, 2007. Defendant CITIBANK further alleges that it has been damaged by Plaintiff????????s failure to pay the Account. These allegations, if taken as true, fail to state a claim upon which relief can be granted upon any possible theory of relief.
III. Introduction to the Merchant Banking System
A credit card is a system of payment named after the small plastic card issued to users of the system. Upon request by a consumer, a user (???????cardholder???????) is issued a credit card by the credit provider (???????issuing bank???????). This relationship between cardholder and issuing bank is contractual in nature and its terms are disclosed in a ???????cardholder agreement???????. The cardholder agreement identifies the services contemplated, the costs for the services, and the responsibilities of the parties. The cardholder agreement itself is not a contract, but an agreement that becomes a contract upon the cardholder????????s use of the credit card account.
Federal law requires that the issuing bank adhere to Generally Accepted Accounting Principles (GAAP). GAAP follows an accounting convention that lies at the heart of the double-entry bookkeeping system called the Matching Principle. When an issuing bank accepts an application and signature from a cardholder, it creates a bookkeeping account ledger in the name of the cardholder and records a deposit in an amount equal to the pre-approved credit limit.
Adhering to GAAP, it must record offsetting liabilities that match the asset it has just created. The liabilities represent the amount that it owes the cardholder. To summarize, when an issuing bank establishes a credit card account in the name of a cardholder with a pre-approved spending limit of $20????????000.00, it records that $20????????000.00 as a demand deposit (liability of the bank to the cardholder) and $20????????000.00 (asset of the bank with which it can pledge as a security, sell, transfer or assign). In a fractional reserve banking system like the United States banking system, most of the credit advanced to users of the credit card payment system, are created by the banks themselves, and are not merely transferred from one set of depositors to another set of depositors.
Use of the credit card system involves a multilateral transaction between the cardholder, the issuing bank, the ???????merchant??????? whose goods and services the cardholder uses the card to obtain, and the ???????merchant bank,??????? a general bank with which the merchant has established a commercial relationship, namely, opened a merchant demand depository account.
The credit card system is maintained by a ???????network of issuing and acquiring (merchant) banks??????? that is responsible for the issue of a major universal card. VISA and MasterCard are the largest networks. These networks are not-for profit organizations whose primary functions are (1) to serve as a clearance network for their respective credit cards (the sending of authorization requests, approvals, or declines); and (2) to promote advertising, research and other common interests in a coordinated manner. CITIBANK is a member bank of both VISA and MasterCard.
Use of the credit card account begins with a cardholder attempting to use the card in order to effectuate the purchase of goods or services from a merchant. The merchant attempts to obtain electronic authorization from the bank that issued the credit card. An electronic transaction is sent to the merchant????????s bank, which in turn sends the electronic transaction through the network to the issuing bank requesting an approval. If the approval is given, the merchant permits the transaction to proceed, and generates a sales slip for cardholder signature. The cardholder presents this slip to the merchant as payment for the goods or services, and in so far as it relates to merchant and cardholder, the transaction is complete.
The issuing bank records the dollar amount of the transaction on the bookkeeping ledger account maintained in the name of the cardholder as a debit and then it must record an offsetting credit in an equal amount. Contrary to what people may think, no cash or cash equivalent is loaned or exchanged to the cardholder or merchant bank; instead, exchanges of money of account (credit) are exchanged between issuing banks and cardholders.
At the end of each banking day, the merchant bank accepts the sales slips from the merchant and records the sales slips as an asset with a dollar amount equal to the gross transaction amount minus its fees for processing the transactions. It must then record an offsetting liability that matches the asset that it accepted from its customer. The liability represents the amount of funds that it owes its merchant customer.
In accordance with the cardholder agreement, each month, the credit card user is sent a statement to its legal billing address indicating use of the card, the annual percentage rate, daily periodic rate, finance charge, late fees, and the amount of any payments posted during the last billing cycle. The user has the option of paying the minimum payment due, paying in full, or paying an amount in excess of the minimum payment due. The user also may dispute any charges that he or she thinks are incorrect.
IV. Argument
What is missing in the Defendant????????s poorly drafted counterclaim is any allegation of any acceptance of any offer from the Defendant, use of the card, and any promise to pay that would perhaps form the basis of liability of Plaintiff to Defendant. The fact that Defendant issued a credit card account in the name of the Plaintiff and the Plaintiff has failed, refused or neglected to pay the required payments balance on the account is of little or no legal import.
When did the Defendant issue the credit card? 20 years ago? 30 years ago? Was the card issued in accordance with a cardholder agreement? If so, where is it? Is it in writing? Is it oral in nature? Did the Plaintiff receive the card? How did a balance appear on the account? Where charges made to the account? Did the Plaintiff use the card? If so, where were the charges made? What were their amounts?
As previously discussed, the nature of the relationship between a cardholder and card issuer, is that of a contractual relationship privately governed by a cardholder agreement. In the absence of a cardholder agreement (contract), the scrivener knows of several Model Forms that the Florida Supreme Court has adopted in order to properly allege a theory of liability involving use of a credit card.
V. Conclusion
The Defendant????????s Counterclaim should be dismissed because it fails to state a claim upon which relief can be granted. If it is the Defendant????????s contention that the Plaintiff and Defendant entered into a valid contract; or that the Defendant loaned money to the Plaintiff, its attorneys should plead as such.
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I will be monitoring this case thru Pacer and would appreciate i
I will be monitoring this case thru Pacer and would appreciate if you can ask attorney to post any more cases for review.I wish you luck with your case,going after a major cc issuer will be tough!
Impressive Memorandum of Law
Did you read that memo? Impressive. I would love to see the citibank stuff. can you post that.
Quote:Citibank NV National Assoc. 8725 W. Sahara Ave. The Lake
Quote:
Citibank NV National Assoc. 8725 W. Sahara Ave. The Lakes, NV 89163-0002 General Information Original Business Start Date: August 1985 Local Business Start Date: August 1985 Type of Entity: Corporation Principal : Daniel Clark, President Customer Contact: Jess Boyle, Operations Manager Phone Number: (702) 797-4486 BBB Membership: This company is not a member Type-of-Business Classification: Banks Web Site Address: BBB Customer Experience Based on BBB files, this company has an unsatisfactory record BBB Definition: Unsatisfactory Record - A company has an unsatisfactory business performance record with the Bureau is based on the experiences reflected in BBB files. This file condition results when the company has failed to resolve or respond to complaints, repeatedly failed to respond or resolve issues in a timely manner, failed to resolve the underlying issues for a pattern BBB Definition: Pattern - More than 2 complaints involving the same allegations usually within 12 months that are significant in relation to the company????????s size and volume of business. of complaints, failed to honor their commitment to mediate or arbitrate disputes or honor mediated agreements or arbitrated decisions, failed to substantiate, modify or discontinue false advertising claims that are challenged by the BBB, or failed to discontinue unauthorized use of the BBB name and logo, a Federally protected trademark. with the Bureau due to two or more unanswered complaints. Complaint History When considering complaint information, please take into account the company????????s size and volume of transactions, and understand that the nature of complaints and a firm????????s responses to them are often more important than the number of complaints. The Bureau processed a total of 946 complaints about this company in the last 36 months, our standard reporting period. Of the total (946) in 36 months, (287) was/were closed in the last year. |
thats awesome looks like he will win...or am i wrong?
thats awesome looks like he will win...or am i wrong?
hess kennedy
IS this the same company that is known to operate out of Southeast Florida in coral springs or ft. lauderdale because if it is Hess Kennedy is a fraudulent company that has been ripping consumers off for over 3 years. I have had personal experience with this company and it is a company that individuals who seek debt settlement and consolidation services should avoid. The company will likely not win the case, and the person who posted this should have sought a more reputable law firm.
People need to WAKE UP! Hess voluntarily dismissed this case. Of
People need to WAKE UP! Hess voluntarily dismissed this case. Of the half dozen cases she has filed against Citibank on the same day, there may be one or two that are left, but they will never see trial. That complaint is so generic, take a look at the others she filed. It's just a matter of inserting a different plaintiff or defendant throughout the complaint. No research has gone into it, but they will charge you an arm and a leg for "legal services". She files these complaints in order to use them as leverage to "settle" the account.
I know of at least one financial company that wants to fight these fraudsters, and actually HK is afraid to confront one of those companies head on. Actually that company is looking for individuals that have been the victim of this company.
I just quit my job at citibank in the credit card depart. so i h
I just quit my job at citibank in the credit card depart. so i hope you win becuase they make there reps. They're not 100% accurate or quick to resolve issues with their customers. i hope you won you case