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smurfette in nyc

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Everything posted by smurfette in nyc

  1. Best of luck to you! I hope to read a positive update from you soon.
  2. Thanks for the reply. I guess what I need to figure out next is whether or not collection of the judgment can continue until that assignment is filed, since I'm assuming that it was not.
  3. It's been a long time since I last posted on this forum, so I just wanted to say hi again to all those familiar posters and mods still here, and wish you all a Happy New Year! In addition I hope to get to better know and help all the newer members here as well, so I look forward to being more active here once again. As for myself, other than the judgment I ended up with after 3 long years in court, my credit has improved and I've incurred NO debt whatsoever in the past 3 years. I'm hoping to purchase a new home within the next year or so, but in the meantime life is good. The only surprise I've had recently is the dunning letter I recently was sent regarding my judgment...I wont detail that here as I already posted about it in the post-judgment section of the is there a lawyer in the house forum...if any of you could offer advice about my situation I'd be very grateful. Anyway, I look forward to learning more and helping whenever I can here, cheers!
  4. It's been a long time since I posted on this forum, it's very good to see both long-time regulars and new members actively contributing here. A big thank you and best wishes for this new year to everyone! Now to my troubles...I have a judgment from 2009. I have been paying it off solely by wage garnishment. Each of my pay stubs has shown the original amount, and how much I have paid to date, which is being handled by a local marshal. Out of the blue last week, I receive a dunning letter from an infamous debt collector/JDB we all love to hate, stating that my judgment remains unpaid. The letter also states that the judgment was formerly with the previous debt collector I was dealing with, but is now being handled by them. Of course I quickly sent them a debt validation letter, BUT, I am totally confused here. What happened to the original creditor? The former debt collectors DID NOT own the debt, they were attorneys who represented the OC. Does the OC even still own this debt, or did they sell it to this new JDB who sent me the dunning letter? How do I find out? What makes me even angrier is the language "remains unpaid"...I've already paid over a third of this judgment off! Am I entitled to some kind of accounting statement from the marshal? If anyone has any insight or guidance to offer me here , I would really appreciate it.
  5. I found this Case Law: http://vlex.com/vid/25258562 Very interesting to read, and it gives me a lot of hope! Here is a summary: Contracts - Procedure/Rules - Evid/Wit/Trial: To prevail in an action on an account, the plaintiff must establish the existence of an account in the name of the party charged, as well as (1) a beginning balance of zero, or a sum that can qualify as an account stated, or some other provable sum; (2) listed items, or an item, dated and identifiable by number or otherwise, representing charges, or debits, and credits; and (3) summarization by means of a running or developing balance, or an arrangement of beginning balance and items that permits the calculation of the amount claimed to be due. (Brown v. Columbus Stamping & Mfg. Co. [1967], 9 Ohio App.2d 123, 223 N.E.2d 373, followed.) In ruling on a motion for summary judgment, a court may consider only those items that would be “admissible into evidence”: Documents submitted without an accompanying affidavit were not “admissible into evidence” and therefore should not have been considered by the trial court. Business records created by an entity other than the party offering them are admissible, provided that there are sufficient indications of trustworthiness and that all the other Evid.R. 803(6) requirements are met. Where a beginning balance on a credit-card account is not substantiated by an itemization of the credits and debits leading to that balance, a genuine issue of material fact remains as to the balance due on the account.
  6. This is what I feel Andy was referring to, in regards to the thread link I posted. Of course, I'm not stupid, lol, and realize his initial post about so-called "lawyer-bashing" was in response to the post I made about my experience with unethical attorneys. I pointed that thread out to remind him that my personal feelings about lawyers in general wasn't quite what he may have thought. Have a nice weekend everyone!
  7. I believe Andy is referring to this this thread, as far as a forumer complaining about him, where I happen to defend him and lawyers in general: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=257639 The beauty of a forum is that we are all able to voice our individual opinions. With that said, instead of getting upset about any comments we don't like, we just need to agree to disagree and move on. Again, I will reiterate that the lawyers whom were hired to represent Discover against me were as low as low gets. NOT because they were doing their job, but becuase they were HIGHLY UNETHICAL! They blatantly lied, did not abide by three different judges' orders, and I can go on and on about more, but I'll stop at that. I have, and will continue to say, that there are an overwhelming amount of attorneys at law who are ethical, professional, and even downright wonderful angels who will offer help and advice at no cost in the spirit of helping those who need it. There will always be bad apples amongst any bunch too!
  8. I don't mean to vent here, but Discover Bank, and some of the attorney's they hire to file these suits, are part of the biggest low-life's in the industry! They sued me in the summer of 2006, and they lost the case, (dismissed with prejudice) in the summer of 2008! They couldn't deal with that loss, so they filed an appeal last fall, which wont be decided until the summer of 2009-that will make THREE YEARS of aggravation I've had to endure from them! I really hope they lose their case against you as well, best of luck to you!
  9. No need to apologize, everything being discussed here is both interesting and informative. Anyway, has anyone on this board ever been sued by an OC, had the case dismissed with prejudice, only to have the OC file an appeal? If so, please share your experience and the ultimate outcome of the case. I hope that anyone here who has any experience with appeals posts in this thread. As always, replies are very appreciated!
  10. Again, this issue deals with CPLR 2309. In the past, the Appellate Court would decide that lack of an affidavit of conformity was a fatal defect. Not so anymore. In fact, reading the latest opinions and decisions of the court show that they feel this is merely a error that should be ignored.
  11. From NEDAP: Improper Service (no personal jurisdiction) The defense of improper service applies if (1) you never received the summons and complaint at all; or (2) you received the summons and complaint, but the manner of service was not correct. Under New York law, a process server must try to make personal service or substitute service. Personal service occurs when the process server delivers the summons and complaint to you in person. Substitute service occurs when the process server leaves one copy of the summons at your home (or place of business) with a roommate, relative, or other responsible party (known as a "person of suitable age and discretion") AND mails a second copy of the summons to you at your last known address (or place of business). If a process server makes three unsuccessful attempts at personal or substitute service service, he or she is allowed to use conspicuous service (otherwise known as nail-and-mail). Conspicuous service means slipping one copy of the summons under your door or attaching it to the door AND mailing a second copy of the summons to you at your last known address. Here are some common examples of incorrect service: Leaving the summons with your neighbor, who lives in a different apartment. Sending the summons to an old address where you no longer live. Throwing the summons on the floor in the lobby of your apartment building. Sending the summons to you by mail only. If you want to get a case dismissed for improper service, there are a few things you have to do: You MUST RAISE the defense in your answer the first time you appear in court. You need to GET A COPY of the "affidavit of service" from your file in the courthouse. The affidavit of service is a sworn statement by the process server that describes how you were served. The plaintiff will rely on this document to claim you were served correctly. You MUST ASK the court to dismiss the case for lack of jurisdiction within 60 days of filing your answer. Sometimes this means that you will have to file special papers, called a "motion to dismiss," before your first court date is scheduled. You MUST SCHEDULE AND ATTEND a special hearing called a "traverse hearing." At the traverse hearing, the judge will hear from both sides to determine whether you were properly served. If the judge decides that you were improperly served, he or she will dismiss the case. You also need to GATHER EVIDENCE to present at your traverse hearing. This evidence could include witnesses or documents that support your claim of improper service. If your case is dismissed for improper service, the plaintiff can sue you again. You have to decide, based on the facts of your case and the strength of your other defenses, whether it is worth it to go through with a traverse hearing. The plaintiff's attorney and court personnel will often try to discourage you from pursuing a defense of improper service. They will tell you that the defense will not help you because the plaintiff will only sue you again. But improper service is sometimes your best defense. If so, do not be afraid to insist on your right to a traverse hearing! Remember that the court has no power to issue a judgment against you if you were not served according to law. Sometimes process servers lie when completing the affidavit of service. For example, a process server may falsely claim to have left the summons with someone at your home. You can detect this false statement by looking at the physical description of the person the process server claims to have met at your home. Does it sound like someone you know? You can file a complaint against a lying process server with the NYC Department of Consumer Affairs.
  12. I would suggest you read up on "Defending Creditor Lawsuits" on the NEDAP site: http://www.nedap.org/resources/consumer.html#defending
  13. Is this debt still within the SOL? Also, did you ever write Midland a DV letter? Did they respond? Are they acting as a CA, trying to collect for an OC, or, as a JDB do they claim they own this alleged debt? All important info that you should post to get the best advice. Also, being that you are on disability, I would imagine makes you judgement proof, assuming that is the sole source of your income. Anyway, answer the above questions, and you will get great advice here to help you overcome this problem.
  14. First of all, consult with a NACA lawyer ASAP! If you have a case, the lawyer will take it on contigency, and you may find yourself being awarded damages for violations and such. Next, to begin the process of getting this CA's tradeline off of your credit reports, do the following: Send a letter to each CRA that lists the CA's tradeline and explain that they are reporting inaccurate information on your credit report. Specify the date the lawsuit was dismissed, and the corresponding account number as listed on your CR. State the name of the Judge who dismissed the case, as well as the exact court. Specify the index number of the court case, and be sure to include a certified copy of the original paper on file in the courthouse. Make sure you say that the alleged debt you were sued for is uncollectable and unreportable due to the dismissal, which is an adjudication on the merits. Also put in your letter that because reporting a non existing debt as yours is illegal, and a violation of the FCRA, the tradeline must be deleted within 30 days, or they will be in violation of FCRA, Section 623, and subject to damages as deemed by a Federal Court for defamation and willful injury should you have to file a lawsuit against them. Last of all, tell them that if they fail to respond to your formal dispute within 30 days, they will also be in violation of the FCRA, Section 611, and subject to a fine of $1,000. Good luck!
  15. Is this debt still within SOL or not? Who owns the debt, a JDB? Please provide this info, and we can better help you. In the meantime, I would suggest you read up on "Defending Creditor Lawsuits" on the NEDAP site: http://www.nedap.org/resources/consumer.html#defending
  16. Thanks for all the replies! The reason for my original post in this thread was to get some insight from all of you as to how my case, which is now going to be decided in the Appellate Term of the Supreme Court, will turn out. For background info, please read this: http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=289821 What I am solely worried about is Discover's argument: "Did the lower court err in denying Plaintiff-Appellant's motion for summary judgement by order dated June 14, 2007?" The lower court denied the summary judgement motion upon the grounds that the affidavit in support was sworn to outside the state of New York, and the papers did not contain an affidavit of conformity, pursuant to CPLR 2309©. OK, I thought I was golden there, but it turns out that is NOT a fatal defect, and should be ignored, according to the latest cases decided by the Appellate Term for the past two years. So, will my opposition papers suffice? I didn't know then, what I know now, and so I only listed the following: 1. I do not owe the debt Discover is suing me for. 2. Judge XXXX set a trial date to allow for triable issues of fact. Substantial evidence exists, and will need to be presented at trial, as a dispute of said facts exists. 3. Judge XXXX ordered that Discovery be facilitated. To date, my demands for Discovery have not been answered. 4. I have a counterclaim for which I seek relief from the Court, and require trial. The lawsuit Discover has brought against me is fraudulent and frivolous. In addition, I will be seeking relief from the Court for violations of the FDCPA against me by the law office of Scum Bag, P.C. in conjunction with this case. Now what do you think? Are there questions of fact as to the contract, and the amount that may be due? Do you think the Appellate judges will agree that the MSJ should've been denied? Many thanks again for the insightful opinions and feedback.
  17. Lets say a consumer is sued by an original creditor, for a charged off credit card account that is still within the SOL. This consumer fails to retain an attorney, and only files a general denial as their answer. The OC's lawyer then files a motion for summary judgement. That motion includes the following: -A completely ILLEGIBLE copy of an application the OC claims the consumer has signed, but again, cannot be read or understood by anyone because of the complete lack of clarity. -A boilerplate copy of the credit card's membership agreement (terms and conditions), which is unsigned and unnumbered. -An affidavit from an employee of the OC, who has intimate knowledge of the records pertaining to the credit card account, and alleges that the consumer breached the contract by failing to make monthly payments, in addition to the consumer receiving monthly statements that were never returned or disputed. -Copies of only the last 15 months worth of statements, although the account is more than 5 years old at the time of charge-off. Excluding any opposition that the consumer may file to this MSJ, do you think the above is enough for the OC to win a judgement with? I would really like like to hear your opinions, and get feedback on this. Many thanks in advance!
  18. Tony rocks!!! If you live in New York, I highly recommend you consult with him if you are having a problem with a predator, oops, I meant creditor, low-life collection agency, or scumbag JDB (excuse my language, lol.) I'm extremely pleased with his work, and would not hesitate retaining him again in the future if I were to encounter another problem.
  19. Hi Everyone! It's been a while since I last posted, and I hope all my fellow forumers are doing well! I look forward to catching up again here. I just wanted to update all of you as to what's been going on with the Discover Appeal. About a month ago, I decided to retain our own Recovering Attorney, Tony P., to write my Respondent's brief for the Appellate Court. He read Discover's brief, and quickly pointed out to me that their first question: 1. Did the lower court err in denying Plaintiff-Appellant's motion for summary judgement by order dated June 14, 2007? and subsequent two arguments: Point 1: Plaintiff-Appellant has set forth sufficient facts to demonstrate entitlement to judgement as no triable issue of fact exists. Point 2: The lower court erred in invalidating an affidavit which can be corrected NUNC PRO TUNC or the alleged defects may be waived by failure to dispute the contents of the affidavit. don't belong in this appeal, because they are appealing a judgement made in May of 2008, whereas the court denied their MSJ motion a year earlier! Legally, a party has only a certain number of days to file a notice of appeal, and the time to do so for the MSJ denial certainly expired long before they filed! I'm very optimistic and confident about this case. My brief is due on November 24th, and I can't wait to read it! I believe it may take as long as six months before the panel of three judges make their decision. Wish me good luck everyone!
  20. Quick question: are you sure you wish to proceed with this Pro Se? My gut tells me there are violations that a consumer attorney could sue for on, by taking this case on contigency. Even if you are sure about proceeding Pro Se, I advise you to call at least 2 or 3 consumer lawyers, (you can find them on the NACA site) for consultations. Whether you retain an attorney or not, I can tell you that from my own personal experience, these lawyers can give you great pointers and advice that will help you to win your case. Good luck!
  21. What a success story! Congrats!!! You are proof positive, once again, that "credit repair" determination can make all the difference in one's quality of life! You have purchased a gorgeous home-all the best to you and your soon-to-be wife! I wish you both the best of everything!
  22. Do you have their response about not having your correct address in writing? If not, do you have the name of the representative you spoke with? Generally, when people move, they file a change of address card with the post office, and their mail gets forwarded to their new address. If you did that, you should've received whatever they say they sent you. If you didn't, then they should've received the mail they sent you back. Have you disputed the late/past due status on your credit report with the CRA's? You should! See what happens. Then, if this issue is not resolved to your liking, you could file complaints with agencies such as the BBB, as well as the AG. Good luck!
  23. LOL! Was this guy simply stoned, or was his "offer of payment" a sign of the times? http://www.msnbc.msn.com/id/27167122/?GT1=43001 Cops: Man tries to pay for meal with pot McDonald's cashier calls 911 after drive-thru customer makes offer VERO BEACH, Fla. - A McDonald's cashier called 911 after a Vero Beach drive-thru customer allegedly offered to pay for his meal with marijuana. The Indian River County Sheriff's Office said the cashier called Monday with a description of the vehicle the suspect had been riding in. A deputy spotted the vehicle, found marijuana in the car and arrested its occupant, 27-year-old Shawn Alexander Pannullo. Pannullo was charged with possession of cannabis and posted $500 bail. It was unclear if he had an attorney. A sheriff's report did not say what the suspect ordered at McDonald's or if he ultimately purchased the meal using something other than marijuana.
  24. I agree. If you are able to keep a roof over your family's head, and be able to feed and clothe them, that is a blessing! Taking care of your family is far more important than your paying your credit card bills. I hope you are able to find a solution to your current financial problems soon, and wish you the best of luck.
  25. I think you know what you are doing, and appear to have a great game plan! If no cause was shown, and no valid excuse given for the delay in answering the interrogs, I too would oppose their motion for enlargement of time. Just know that it really depends on the mood and character of the Judge, as well as his opinion of the lawyer (assuming he knows him/her) that will determine how he rules, and whose motion will be granted and denied. I think the Judge will probably allow one enlargement of time, and then issue a warning of potential sanctions if your demand is not complied with in due time. Also, I would file a motion to compel discovery for the reasons you stated.
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