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Got Summon from CA, Please Help!!!!!


NYBoy
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Just got the summon from CA, Can some expert tell me the proper way to answer this summon Please!!!!!

Also I'm currently outside the US, won't be back until March this year, Can family member with proper power of attorney answer for me?

Family member already send out a DV letters to both CA and attorney yesterday (CMRR).

Thanks for the help..

Here's the summon:

Civil Court of The City Of New York, State of New York

Worldwide Asset Purchasing, LLC

AS ASSIGNEE OF Direct Merchant Bk, NA

Plaintiff

Vs.

Defendant(s)

Plaintiff, Complaining of the Defendant herein, respectfully shows to the Court as follows:

1. The Plaintiff is authorized to transact business within the State of New York.

2. Upon information and belief, each Defendant is a resident of County of Kings , and State of New York.

3. On or about November 8, 1996, the Defendant(s) made and delivered to Direct Merchant Bk, NA a credit card agreement and/or note in writing.

4. Pursuant thereto, Defendant(s) obtained an extension of credit for certain sums of monies, which monies were to be repaid to the plaintiff.

5. Plaintiff now the owner and holder in due course of said obligation.

6. The Defendant(s) failed to adhere to the term thereof by failing to pay one or more payments due pursuant to the term thereof and Plaintiff and/or Plaintiff’s assignor and/or successor in interest elected to and did declare the entire unpaid balance due and payable.

7. An account has been rendered to the Defendant(s) for the sums owing. Defendant(s) received and retained said statement and has made no objections thereto and more than thirty (30) days have elapsed since the account was rendered.

8. By virtue of the above, there is now due and owing the Plaintiff from the Defendant(s) the agreed upon amount of $11,197.00 with interest thereon from 2/10/04, no part of which has been paid.

9. There is now due and owing to the Plaintiff the sum of $11,197.00, plus interest on said principal sum at the contractual rate of 9.000% per annum from 2/10/04, no part of which has been paid although duly demanded.

WHEREFORE, Plaintiff demands judgment against the Defendant(s) in the sum of $11,197.00 plus interest on said principal sum at the contractual rate of 9.000% per annum from 2/10/04, together with the cost and disbursement of this action.

ATTORNEY CERTIFICATE

Signed by the CA Attorney

Thanks for the help..

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I'm not sure about the power of attorney stuff...I'll let someone chime in on that.

I wonder if you could file an Entry of Appearance and ask for a continuance until you're actually in the country? It doesn't seem right they can sue you when you're not. Are you in the military? That might make a difference...not sure.

What are the specifics? Is it out of statute? Do you have ANY counterclaims? The Plaintiff is a junk debt buyer...Worlwide Asset. Do you have letters from them? More info would be great.

Have you asked for validation on this debt at all? Did you ever dispute anything about it?

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Thanks for the reply guys..

No, I'm not in the military, I'm just outside of US on a business trip.. Before I left I gave the Durable general Power of Attorney that I've intial on the claims and litigation also to the family to handle my banking and in case things like this happen.. :(

I've moved twice since the last payment, so I wouldn't know if they sent any collection letter, The summon was the 1st time I've hear from them..the account was charge-off 5/2002, and my last payment was 11/2001.

After My family notify me about the summon thru email(They served and mailed), I asked my family to DV them right a way..Is it too late??

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  • 1 month later...

I've send out the validation request letter (CMRR) I copy from this board that request whole bunch stuffs and answer the summon attached a copy of the DV letter.

2 weeks later, got the answer back from the CA's attorney with copy of oringinal CC agreement with my signature and computer printout of the last statement..

also, got the postcard from the court to appear in court in 2 weeks.

Is it enough for validation?

If not, how do I response to them?

Thanks

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One thing I caught here is that the Plantiff states that they delivered a credit card and an agreement in writing. A mistake on their part. I'd ask for that in your discovery/counterclaims. BTW - is civil court of New York City considered Small claims?

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This is a typical breach of contract cause of action.

They have to identify what written instrument is their basis to sue you, otherwise you attack it as stated as an oral contract.

They have to attach the written instrument to the complaint that they identified as their basis to sue evidence exhibit.

Otherwise you can motion to dismiss for failure to attach.

Find out the SoL for a written contract CoA in your state.

Figure out when the debt when delinquent or last paid when delinquent and the date they filed the case and determine if they are separated in time more than the WC CoA SoL for your state.

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It's a WC CoA. They said 'in writing' in paragraph 3.

They had to attach to the complaint a copy of the document they allege in paragraph 3. If not attached or the wrong document, you attack with a motion to dismiss for failure to attach.

Force them to prove paragraph 5. Hit them with a interrogatory or subpoena duces tucum for that proof of assignment and the amount they paid for the debt.

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The SOL in NYS is 6 yrs for a contract/account stated action. There are pleading rules for attacing a copy of the instrument, but that relates only to certain rights and obligations you get as a matter of pleading, not whether a cause of action has been sufficiently pleaded.

Civil Court in nYC is a regular court, not small claims.

Who pulled your CR? If it was the lawyers suing you, it's a no-no. You could counterclaim vs. the plaintiff that their agent, the lawyers, violated the FDCPA.

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No, NYBoy:

It will do you no good to request a DV! It will just waste your time at this point.

You NEED TO ANSWER THE COMPLAINT!!.

Repeat: YOU NEED TO ANSWER THE COMPLAINT!!! :!:

Get a hold of the Rules of Civil Procedure--the "how to" book for proper procedures with the Court.

READ and FOLLOW it! Or, get the help of a lawyer.

*********

To Recovering Attorney:

I have a question which might also help the OP.

Can the JDB (Worldwide Asset Acceptance in this case) claim an account stated in this case based upon the evidence thus far presented (the last statement from the OC, DMB(Metris)? The alleged account was clearly IN DEFAULT when Worldwide purchased it , making Worldwide a CA under the FDCPA. This final statement would be sufficient to make an account stated between the OC and the OP (the original two parties).

From what I've read, however, when the JDB buys accounts, the transaction is considered a mere assignment NOT an automatic novation. For a JDB to be able to produce an account stated which will hold up as evidence in court, they must get a novation between ALL PARTIES to the transaction, INCLUDING the debtor! If any party does not sign off on this, the JDB is treated under law as a CA; a CA, under the FDCPA, Section 1692g, Subsection ©, is precluded from producing an account stated--

to wit: "The failure of a consumer to dispute the validity of a debt under this section"(in this case,the OC's alleged account stated)" may not be construed by any Court as an admission of liability by the consumer." .

There is NO evidence presented, so far, that indicates there is a valid novation in effect between Worldwide and the OP, hence there is NO valid account stated between the parties to this lawsuit! (DMB is out of the picture now.)

Is this so? Also, if there is no novation, and thereby no account stated in effect, does this also render the claim that this is a written contract

invalid also??

Please fill me in!! :?

Thanks!!

P.S.: I'm dealing with a defaulted DMB account that I suspect has been sold to a (yet unknown) JDB. I may have to deal with this problem myself sometime in the not-so-distant future! (I owe, currently, over $6000 on this (defaulted by (or before) last February) account.) :(

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