I tried my best to search threads with similar cases but the more I read the more overwhelmed I get.
I have learned a lot and the arbitration route I should try and go, but I have a few questions of my own, as well as things I would like to confirm. I really don’t want to mess this up. I don’t know how different New Mexico laws are regarding this compared to the other cases I’ve read like from Texas and Georgia.
1. Who is the named plaintiff in the suit? Portfolio Recovery Associates LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Machol & Johannes LLLP
3. How much are you being sued for? $3,803.04
4. Who is the original creditor? (if not the Plaintiff): CITIBANK, N.A.
5. How do you know you are being sued? (You were served, right?) I was served.
6. How were you served? (Mail, In person, Notice on door): In person to my roommate. I was not home.
7. Was the service legal as required by your state? Yes.
8. What was your correspondence (if any) with the people suing you before you think you were being sued? None.
9. What state and county do you live in? State of New Mexico. County of Socorro.
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations): According to them my last payment was September 6, 2016.
11. When did you open the account (looking to establish what card agreement may be applicable)? 2015
12. What is the SOL on the debt? 4 years
13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit Served.
14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?): No.
15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No
16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I have 30 days from the date I was served. According to the summons the date I am considered served is determined by Rule 1-004 NMRA. They gave this to my roommate on April 9, 2019 and I received it that evening. However, the summons is dated March 26, 2019. I did not receive a questionnaire.
The only claim I see that they mention is "FIRST CLAIM OF RELIEF (Breach of Contract)" which says I entered an Agreement with CITIBANK, N.A., and they fulfilled it. On November 7, 2016 balance came due and/or charged off due to my failure to tender payment as agreed, the account was assigned and/or sold to PRA, and plaintiff demands judgement in the amount of $3,803.04 plus court costs and such further relief as the court deems proper.
17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They included an affidavit, bill of sale and assignment, one statement from citi, and a card agreement.
18. How did you find out about this site? Google search.
Regarding filing my written response,
I couldn’t find anything on my court’s website about rules on how to answer a complaint. I did find an Answer to Complaint form on the site that I’m planning to fill out, but I don’t exactly know what I should agree and deny. I’ve read to deny everything and I’ve read to deny everything but your name; should I deny everything except the first statement that states my name, address, and last 2 digits of my ssn? It makes the most sense.
Are there any consequences in me denying anything?
They say the balance came due and/or the account was charged off on or around November 7, 2016. However, the bank statement they provide states that the payment due date is 12/03/16. Can banks charge off an account before the due date of that last statement? Is this something I should point out in my answer? Maybe in section 3 of the form “I am without sufficient information or knowledge…” or should I just include it with the rest of my denials?
There’s a section on the Answer to Complaint form that says
WHEREFORE, Defendant respectfully request that the Court:
Dismiss the Complaint, or in the alternative;
Set the matter for a hearing;
Any other equitable relief that the Court deems appropriate.
What am I supposed to fill out on C?
Regarding filing my Answer and MTC,
I’m reading that I should file a Motion to Compel Arbitration WITH my Answer. Is that still a wise choice?
Is it ok for me to edit a form taken from the court’s website to add a “Affirmative Defense” section? Is there a sample of this section that I could reference? For the affidavit that needs to be filed along with my MTC, can I reference the card agreement that the lawsuit provided or would this go against my denying everything? I don’t believe I have the original card agreement anymore.
The summons says district court and not small claims court, so I should be able to file an arbitration, right?
It says on the card agreement whoever files the arbitration pays. Does that still mean that the max I would have to pay is $250 and PRA still might have to pay $5,000?
I apologize for any repetitive or similar questions and I really appreciate any help I receive. Thank you.