caffeinequeen

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About caffeinequeen

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  1. This is a question I'm not sure I can legally ask the plaintiff during discovery, but hoping someone may know. NYS has a law against "unjust enrichment", meaning someone may not collect an amt. that is far in excess of what is owed. From what I have read, JDB purchase accts. at drastically reduced $$, sometimes for $.05 or $.10 on the dollar. Since that is the case, am I allowed to ask the JDB for proof of what they paid for my acct.? And if they are asking to collect the balance due from the OC, would that constitute "unjust enrichment". I may be grasping at straws here, but I'm just waiting for replies to my first set of interrogatories and wondering what my next step should be.
  2. I have been searching through the NYS Supreme Court's website, especially the section aimed at pro se litigants and debt issues, and it seems that the court does not handle cases in which the plaintiff is seeking less than $15,000. Cavalry SPV is suing me for a little less than $5k. Could I ask the court to dismiss on the grounds that the suit was filed in the wrong court? I'd appreciate advice from anyone who has knowledge of NYS Supreme Court procedures.
  3. Excuse me if this seems too basic, but I'm having trouble understanding when I need an affidavit of service, and how it should be done. I've read everything I can find on this forum, as well as plowing through what I could find in the NY CPLR, and I'm still stumped. Here's what I need to know. When do I need to file an affidavit of service? Does everything I send to the plaintiff require an affidavit of service? Also, from what I understand, even for an affidavit of service by mail, I am not allowed to drop the thing in the mail myself. So essentially, I need to find a notary and bring along with me someone who will then drop the whole thing in the mail. And I have to do this each time I file something?? I cannot tell you what a pain in the a$$ it is to find a notary, and find someone with time on their hands just to go along with me to the notary and drop an envelope in the mail. And frankly, I'm not crazy about telling random strangers or neighbors about my legal troubles. Is there any way around this?
  4. http://www.nycourts.gov/JUDGES/ConsumerCreditManual.pdf If you're involved in a consumer credit case in NY, click on the above link. It's got lots of updated info re: obligations of plaintiffs & defendant in cc cases in NY.
  5. As admin suggested, here's the info on my case: 1. Named plaintiff is Cavalry SPV I, LLC 2. Name of the law firm is Schachter, Portnoy in Valhalla, NY 3. They are suing for approx. $5k 4. The OC is FIA Card Services/BOA 5., 6. 7. Plaintiff got a default judgment against me. Claims to have served me at my home, to my husband. My husband claims it never happened. I got a traverse hearing to dispute validity of service, but the judge decided that since the description of the man the process server claims to have served could match my husband, service was valid. For reasons too complicated to go into, my husband refused to go to the hearing, so it was essentially the process server's word against mine. The description he gave was so vague it could have been anyone: "male, 5 ft. 6- 5 ft. 11; average weight, bald (my husband isn't bald), wearing glasses. I brought a photo of my husband to show he's not bald. But the judge found in their favor, so service was held to be valid. But In my petition to have the default vacated, I raised a number of other defenses & the court vacated the judgment. 8. I had no correspondence with plaintiff prior to notice of lawsuit. 9. I live in New York State 10. Plaintiff claims last payment was August 2011 11. SOL in New York is 6 years, but Bank of America is a North Carolina corp. and the SOL there is 3 years. I have recently submitted my answers to their interrogatories as well as replied to a Request for Admissions. I am now working on my own set of interrogatories and Request for Admissions. They have not at any time submitted any documents showing that Cavalry SPV I purchased the acct. from BOA. Their summons & complaint pretty much said "You owe $XX, we asked you to pay it & you haven't done so, therefore we're suing you".
  6. Yes, I know I have only a short time to respond. I can't afford an attorney, so I haven't really looked into that. Do you know where I could find NY rules for discovery?
  7. Sorry, I suppose I was unclear. The JDB bought the acct. from BOA and they are the ones suing.
  8. I know this topic hasn't been active lately, but I hope someone who's knowledgeable can help. I am being sued by a JDB re: a CC acct. they purchased from Bank of America, who bought it (so they say) from FIA cardservices. BOA's HQ is in N. Carolina, where the SOL is 3 years. FIA is/was located in Delaware, where the SOL is also 3 years. JDB alleges the CC acct. went into default in August 2011, which put it outside of the SOL in both those states, but not in New York where I now reside. Please correct me if I'm misinterpreting this, but my understanding is that the court found in Portfolio Recovery v. King that the SOL is determined by the state in which the plaintiff or creditor is located/does business. If that is so, then the case against me by the JDB is time barred, since they are past the 3 year SOL. Would that be a valid reason to ask for dismissal of the complaint?
  9. Just an update & thanks to those who've posted advice: I sent in an answer essentially denying their complaint because they were too vague. I received from them 2 documents. One is a Request For Admissions. There are a number of items. In summary, they ask me 1. to admit to having applied for a received an acct. #XXX from XXX; 2. admit to having agreed to pay charges on said acct; 3. admit to not having made such payments; 4. admit to having agreed to pay interest; 5. admit to having defaulted on dateXXX; 6. admit that there is a balance owed by me to plaintiff; 7. admit that I am not entitled to any credits, offsets, or deductions; 8. admit that there are no facts which I rely upon as the basis of any defense in this action 9. admit that there are no documents, writings, letters or papers of any sort which defendant intends to use as evidence or as a basis for any defense in this action 10. admit that defendant has made or allowed to be made purchases on subject CC 11. admit that defendant has not made all payments on said CC. How should I reply? Should I answer with my own set of interrogatories, requiring them to provide a bill of sale, details of the acct., etc? It all seems very broad. I don't want to perjure myself, but I don't want to hurt my case, either. I also received a document called First Set of Interrogatories. There are about 20 items listed, but basically they are asking me to provide information like who else may have used the acct., whether any charges were disputed, to provide a copy of the contract with plaintiff, a full record of any payments made, etc. With regard to the interrogatories, it seems I am being asked to assume that the debt is valid and to supply them with the evidence to prove it. I thought that since they filed the summons and complaint, that the burden of proof is on them. If that is the case, how do I reply? They say that failure to comply will cause "sanctions under any applicable law" to be held against me. I know this a lot. I get the sense that some of this is pure litigation by boilerplate, but I don't want to make any mistakes.
  10. I won a motion to vacate a judgement against me filed by Cavalry SPV I, and the court ordered that an answer be filed within 30 days. I assume that they mean that I have to answer the original summons & complaint. Is this correct? If so, I need some advice on how to go about that. The original summons & complaint says that Cavalry is the owner by assignment of the debt they are trying to collect, but does not state who the assignor is, or even an acct. # or date of alleged default. It just states an amt. owed, that payment was demanded, and payment was not received. How do I answer something so vague?
  11. Thanks to all for your advice. I'm playing catch up here...again. I've been ill & hospitalized on and off the last month and scheduled for surgery next week, so I missed the court date for the order to show cause. The clerk's office said I didn't need to be there, but I checked online to see what the outcome was and saw that Schacter Portnoy filed an affidavit in opposition, so today I have to get to the courthouse and speak to the pro se attorney about how I handle this. Our bank has so far not been cooperative. I showed them the order to show cause, signed by the judge, directing that the restraining notice be stayed. But the bank insists that they have to do what Schacter Portnoy wants! My husband managed to stop his paycheck direct deposit, but the restraining notice is on both the checking and savings, and since I haven't been able to get to the courthouse to sort out what to do, we're behind on utilities and other bills because our money is locked up. The return date for the order to show cause was yesterday, and while court website shows Schacter Portnoy filed an affidavit in opposition, it doesn't say when the court will act on it. So I guess I have to find that out, too. I think I have the option to file a Reply Affidavit, but again, I'll have to get to the pro se attorney to get advice about that. If the court does not agree to vacate the judgement, is there any other way to sort of hit the re-set button? I think if I could tackle this from the beginning I have a chance of prevailing. I just wonder if it's too late. As for the stipulation offered by Midland, in the process of handling the other matter, I learned that one month before they offered me the stipulation with prejudice withdrawing their action, they had made a motion to move the matter to another court. The motion was granted. But since they never filed the stipulation with the court, I wonder if they are bound by it? Why move the matter to another court and then a month later offer a stipulation withdrawing it? I hope I can get this all sorted out before I have surgery, because I don't know how long I'll be laid up afterwards. I'm hoping that even if the judge
  12. I asked for a received an order to show cause why a default judgement against me by Cavalry SPV I should not be vacated and told the court that I believed that the matter had already be settled via stipulation in an earlier case. I had never been served by Cavalry and did not learn of the suit until my bank notified me that Cavalry's attorneys, Schachter Portnoy had placed a restraining notice on my bank account. The court granted the order to show cause and stayed the restraining notice. My question is, what is the effect of staying the restraining notice? Can I now access my bank account? My bank says no, and I'm very worried because my husband and I have no other account and our rent is due on the 15th. and if we can't get into our account, we'll be unable to pay our rent and any other bills. In addition, my husband has his paychecks deposited directly and I don't think we'll be able to stop that in time to prevent his next check from going into that account. What is the effect of a stay in this situation? How long does it last? I have not worked in nearly 3 years and all of the money in the account is my husband's salary. Naturally, he's very angry about the situation, which makes it harder to cope with this. But if he could show that all the money in the account is from his salary, could he have the restraining notice removed entirely? Could he simply close the account and open one in his name only? I'm trying to juggle a lot of things right now...the lawsuit by Cavalry, another problem with Midland which I thought had been settled, and now this. Any advice or can anyone point me to a resource with the answers I need?
  13. No, there was no agreement to pay. The stipulation states that the action is discontinued and will be filed with the Clerk of the Court (which they did not do). The stipulation "discontinues all claims arising from acct. #####, index # 1234567.
  14. Back in September 2014, I received from Midland Funding LLC a stipulation discontinuing an action they had taken against me. I signed it and sent it back, retaining a copy for myself. Just as background, I went through the usual rigmarole, asking for proof of assignment, etc., etc., and sending them interrogatories. They never replied to the interrogatories, just sent me the stipulation, which I was happy to sign. Case closed, i thought. Not so fast... Last week I got a letter from my bank stating that Portnoy Schachter, attorneys for Calvary Portfolio had a default judgement against me and that a restraining notice had been placed on my bank account. I'd never heard of Calvary, but after dealing with Midland, I assumed it was the same sort of outfit, and moreover, the amt. being demanded was the same. I went to the courthouse and filed an order to show cause asking that the default judgement be vacated and the restraining notice on my bank acct. be stayed. The motion was granted and the restraining notice was stayed. I attached a copy of the cover letter from Midland and a copy of the stipulation as supporting documents for my motion, as I raised the issue that I believed the matter had already been settled with Midland. That's when I learned that Midland never filed the stipulation with the court and instead filed a motion for change of venue. The motion was granted. I never learned of it until that day, April 9th. Now I am concerned that the court will feel I have been dishonest in representing to them that I believed the matter was settled. How can I prove that I had no knowledge of the change of venue or that Midland never filed the stipulation with the court. I guess I should have know that that was required, but I was just so relieved when I got that stipulation that I just filed it away. I haven't been able to get to the courthouse of the jurisdiction to which the action was moved, so I don't know what it will say. I know this is long winded, but I need to know what recourse, if any, I have against Midland. And if Cavalry is indeed suing me for the same debt, how do I proceed?