Sued by Citibank - long post

[janos5303]

New member here looking for encouragement and advise. Being sued by Citibank, same scenario as most people. Citi refused to work with me on resolving the issue, no hardship available etc. Sent it to collection co. that ebgan harassing my married sister in MA ? different last name, no idea how they found her and not my mother or other single sister). Eventually sent it to an attorney in FL. I sent a letter requesting Validation and got served. I answered their interoggatories and sent my own. They objected on the grounds they were vague and harassing. How is "Who is anwering this interrogatory ?" harrassing ?

I sent a Motion for Order to Compel on the 2nd and haven't heard a response back. The copy I sent to the attorney CMRR apparently got lost somewhere between the PO counter and the mailbag as it was never delivered. Can they object to my motion based on improper service ? Can I send it again adn include a statement with the tracking number to show that I did in fact send it and the PO lost it ?

The account is 2 1/2 years past due and shows as a charge off on all credit reports. The attorney will not identify himself as the purchaser of the account although the legal filing shows Citibank as the plaintiff. The account was defaulted on at $6,000 and now shows more than $14,000 at 32.4%.

I am considering Ch 13, as I have no house and no real assets. I have tried to keep up with payments but haven't had a raise in 7 years and with the cost of gas etc, I just can't do it anymore. I have 2 accounts with balances of less than $200 and was going to try and pay them off before I file. The others, Best Buy, Chase and Household are $5,000, $2,000 and $3,000. Plus I owe $3500 in back taxes.

Any advice ?

[jetscarbie]

It sounds like Citi didn't sell your account, they just hired an attorney to collect for them or they are using one of their attorneys.

Here's a good thread to read about being sued. Great advice and articles in this thread

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=214300

[Lecasbas]

In my state Request for Admissions are deemed "admitted" if they are not answered within the time allowed by law. Check your RCP and see if you have something similar.

If you do, then you can file a Motion for Summary Judgment because, if you asked for the right admissions, the Plaintiff has admitted to all your claims and the Plaintiff's claims should be dismissed and your Counterclaims should be approved.

I know this because a CA did the same thing to me. The thing here is that it doesn't matter if the admissions suddently are mailed to your doorstep - they are still late and deemed admitted. In my case the MSJ was withdrawn by the Plaintiff because I simply said I had not received the Request for Admissions and it could not prove otherwise. The Plaintiff, in your case, has already admitted to receiving the Request for Admissions.

This legal stuff is a lot of work. If you spend hours and hours researching you will probably find your way out of this. BK, on the other hand, is costly and also requires hours of your time.

[bubbaboo]

In Florida, the request for admissions are admitted if you do not answer them. So make sure you answer them.

[janos5303]

I answered all of my admissons, interrogatories and provided documents that were requested. The Atty for Citi refused to answer my ROG's, sent the same old computer printouts of the account and an old xerox of a card holder agreement. Nothing with a signature.

[Lecasbas]

Original post by: janos5303

The copy I sent to the attorney CMRR apparently got lost somewhere between the PO counter and the mailbag as it was never delivered. Can they object to my motion based on improper service ? Can I send it again adn include a statement with the tracking number to show that I did in fact send it and the PO lost it ?

So...you do not have the "green card" with someone's signature on it from the attorney's office...or do you?

They objected on the grounds they were vague and harassing. How is "Who is anwering this interrogatory ?" harrassing ?

But the attorney obviously got the interrogatories. Usually Request for Admissions are sent with Interrogatories and Request for Production of Records. If this be the case then, I think, you should file a MSJ.

My state's RCP allows this and another poster previously said that FL does. You should check your RCP to make sure.

Motions to Compel are a lot of work with little result. They are generally used to prod the other side into moving a little faster. Still, since you started the process...I'd send a copy of the MTC CMRRR until I got a signature from someone at the lawyer's office. The lawyer could, if it wants to continue this charade, say that, "well, yes, I got a certified letter but it did not contain the MTC.

If you have already filed this motion with the clerk then a hearing should be put on the trial docket. Take a copy of the MTC with you and hand it to the attorney at the hearing. The Court, in good faith, will probably allow the attorney a 30 - 90 day continuance to prepare its answer but at this point the attorney has been served.

You're time would be better spent on the MSJ if, in fact, your state's RCP allows it.

[janos5303]

What grounds would I have for MSJ ? Frustration of the discovery process ?

[brokeinok]

go back and read what lecabus wrote again.

they got the admissions and rogs and didn't answer them in a timely manner. check your rules of civil procedure. in most states, not answering in a timely manner means that everything in the rogs and admissions becomes official evidence before the court. so basically they just screwed themselves.

your motion for summary judgement would be based on this assuming your state has this same clause admitting unresponded discovery items.

[janos5303]

But they did answer with Boilerplate BS. They objected to every question, does this count as NOT answering at all ?

[brokeinok]

No it doesn't count as a non-answer.

Hopefully Leb will come back and answer this one for you, as I don't know.

[Lecasbas]

Original post by: janos5303

They objected on the grounds they were vague and harassing.

Okay, here's my state's rule on Request for Admissions:

1.510(2) The matter is admitted unless, within 30 days after service of the request, or within such shorter or longer time as the court may on motion allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection

So...they did object to the Request for Admissions but...

If objection is made, the reasons therefor shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter

they did not set forth in detail. In addition to saying that the admissions were "harassing", they would also, according to the Rule, need to "set forth in detail" why they were harassing.

If you file a MTC then the Plaintiff will likely be given a chance to "set forth in detail" by the Court as a "good faith" gesture.

If you file a MSJ then the Court would be required to decide on the spot if the Objections are, in fact, "set forth in detail". In theory, the Court should not give the Plaintiff another chance to Answer. What has already been put forward is being judged. Even if after you file your MSJ the Plaintiff does serve you Request for Admissions with either Answers or Objections which reasons for are "set forth in detail", they are untimely and deemed admitted.

Personally, I'd withdraw your MTC because all that is going to happen is that the Court will give the Plaintiff another chance. This isn't an ex parte type of thing. The Court would likely give you another chance to Answer too.

I'd cut to the chase and file the MSJ and withdraw the MTC. If the judge rules against you you can then file the MTC.

Your Rules should mirror mine for this strategy to work. You should also spend some time reading up on the Rules for Summary Judgment.

[janos5303]

I sent my motion for order to compel and it was recieved at the courthouse on Jan 2. On Jan 4, they received the responses to my interogs from the atty. How long do I wait. I checked my case on line and there is no further action after Jan 4th and no dates set on the calendar. Since a judge was already assigned to this case shouldn't they have responded to my motion by now ? How long before I can file a motion to dismiss ? I checked the rules for civil procedure for my state and can't find any specific timeline.

[janos5303]

bump ?

[janos5303]

anyone?

[willingtocope]

All I can suggest is call the court clerk on monday and see what's going on....

[NYMatt]

All I can suggest is call the court clerk on monday and see what's going on....

You mean Tuesday.Monday is a holiday.

[TTigggers]

You mean Tuesday.Monday is a holiday.

I wish it was for me.

[janos5303]

I just received a copy of the Plaintiff's Request for Summary Judgement. This A*hole never answered my interrogs, nor did the court ever respond to my Motion to Compel Discovery. In addition to filing an objection to SJ can I also file a Motion for Dismissal at the same time ?

[flacorps]

I just received a copy of the Plaintiff's Request for Summary Judgement. This A*hole never answered my interrogs, nor did the court ever respond to my Motion to Compel Discovery. In addition to filing an objection to SJ can I also file a Motion for Dismissal at the same time ?

Courts don't respond to motions to compel discovery. Parties who have filed such motions contact the judge's secretary and the secretary for the attorney on the other side and schedule a hearing on the motion, they notice up the hearing, they go to the hearing and present their argument, and they ask the court for a ruling on it, which the court gives to one side or the other.

If you don't understand how to run a hay baler, you're never going to get a bale of hay out of the other end of it....

[janos5303]

now I'm totally confused.

[willingtocope]

I think what flacorps was trying to point out is...if you're going to fight something in court, you need to know the rules for your particular court. You might want to check to see if there is an www.naca.net lawyer in your area that would be interested in helping out. Trying to learn law from an internet forum is like trying to learn heart surgery by watching CSI:Miami...the proper terms are there, but, the scenarios may not be appropriate for your bypass.

[flacorps]

now I'm totally confused.

Motions just sit there unless they get heard.

They can't get heard without a hearing.

They can't get a hearing without a date and a time.

They can't get a date and a time without coordinating with the court and

with the other side.

The coordination isn't finalized without a notice sent to the court and to the

other side.

Then it's a date, everybody shows up on time in a suit and the judge hears 'em out and calls a ball or a strike.

The jump cutting on the TV lawyer shows leaves a whole lot of the mundane stuff sketchy beyond words ... and you won't find it in the RCP either. It's the difference between what's in engineering textbooks and actual know-how on the catwalks of a refinery...

[Lecasbas]

Original post by: janos5303

I just received a copy of the Plaintiff's Request for Summary Judgement. This A*hole never answered my interrogs, nor did the court ever respond to my Motion to Compel Discovery. In addition to filing an objection to SJ can I also file a Motion for Dismissal at the same time ?

One thing at a time...why did the Plaintiff file a MSJ? Did you read your RCP for MSJ's? As some of the other posters have said, the Rules and other legal references won't fight your battle for you but it is a place to start. You should have a copy at your fingertips.

At any rate you should Object to the Plaintiff's MSJ with counterargument. If you will put the reasons for the MSJ on the forum someone will critique them.

[janos5303]

Here are the grounds for SJ...

D has acknowledged to having the credit card and using it to make purchases

D has responded to the complaint with a general denial without providing an explanation of any dispute

D had admitted liability but denies amount of damages

P has provided D with copy of the Cardholder Agreement, copies of checks D sent to P for this account and copies of Billing Statements indicating how the sought amount has accrued

D has not properly or timely disputed the charges pursuant to the FCBA or Membership Agreement

In accord with the Doctrine of Laches, D failure to timely dispute the charges bars D from now alleging that a valid dispute exists

D has failed to raise any affirmative defenses to P claims

There is no genuine issue as to any material fact and P is entitled to Judgement as a matter of law, as appears from the pleadings, the responses and/or non-responses to P discovery, and affadavits filed with the court

P is relying on the following documents for the Motion for Summary Judgement

Cardholder Agreement

Statements

Affadavit

My argument has always been that Citibank engaged in predatory and fraudulent practices by refusing to resolve the matter before it went to collection as evidenced by multiple letters to Citibank offering repayment schedules. Citibank failed to respond to letters or telephone callls until the account was seriously past due. Citibank requested a specific amount to keep the account out of collection, when payment was made Citibank failed to credit the account until after the account was sent to collection.

Am I just spinning my wheels here ? They are seeking over $15,000 for a $6,000 account. MY only alternative is BK, should I just file now ? Even at a 10 % offer, I still can't afford it.

[Lecasbas]

Original post by: janos5303

Am I just spinning my wheels here ? They are seeking over $15,000 for a $6,000 account. MY only alternative is BK, should I just file now ? Even at a 10 % offer, I still can't afford it.

Well...BK would stop the collectors from calling but it isn't so easy or cheap either. And it would depend upon how many other Bad Debts you have. I perused your first post and added up about 30k including the taxes. The government will probably draw blood for the taxes regardless of the BK.

You should read up on BK to help yourself make this decision. I personally would not do it until after the first judgment. I believe BK would erase that too.

OC's are more difficult to deal with than CA's because OC's are not required to follow the FDCPA plus they still own the Bad Debt. Once the Bad Debt is sold or assigned the CA's have a problem of proving ownership or assignment.

Has the Plantiff or you submitted your letters to the Court trying to work out a settlement with CitiBank? This, IMO, would substanciate that the Bad Debt itself is admitted to by you. You could no longer deny the Bad Debt but there is a matter of usury interest rates. The Plaintiff cannot collect more than it is owed.

My argument has always been that Citibank engaged in predatory and fraudulent practices by refusing to resolve the matter before it went to collection as evidenced by multiple letters to Citibank offering repayment schedules. Citibank failed to respond to letters or telephone callls until the account was seriously past due. Citibank requested a specific amount to keep the account out of collection, when payment was made Citibank failed to credit the account until after the account was sent to collection.

You know, I agree with this. I've tried to call my previous creditors and work with them but they all seem to have a concrete set of rule that are contrary to common sense.

It doesn't really matter now because you are in court. The court will decide whether you owe the Bad Debt or not. Using the argument above will, IMO, only prove that you do.

D had admitted liability but denies amount of damages

This is your best defense. If the Court decides that you do, in fact, owe the Bad Debt it still cannot issue an judgment without an appropriate amount.