Being Sued by Citibank (Bernhardt & Strawser)

[QM07]

Hello Everyone:

I am being sued by Citibank represented by Bernhardt & Strawser:

1. Who is suing you?

>> Citibank, South Dakota, N.A.

2. For how much?

>> $2,415.52

3. Who is the original creditor?

>> Citibank, South Dakota, N.A.

4. How do you know you are being sued?

>> Served summons

5. How were you served? Were you served?

>> In person by deputy.

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

>> I received an original dunning letter from Bernhardt & Strawser on Dec. 3, 2008. I followed up with a DV request which they received CMRRR on Dec. 12 -- They responded with a generic verification letter on Dec. 22 re-hashing the info on the original dunning. I send a follow up letter informing them that they haven't led me to beleive I owe them any money, and requested documentation in order to resolve this matter. They received this letter on Jan 12. They responded to this letter with a duplicate copy of the verification letter on Jan. 21st.

The interesting thing to note is that although they wrote this second verification letter on Jan 21st, they had actually already filed the complaint on Jan 14th, the day they received my second DV request.

7. Where do you live?

>> New Hanover County, NC

8. When is the last time you paid on this account?

>> January 2008 (13 months ago)

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily).

>> The document says Civil Action has been commenced against me.

I have 30 days to to serve a copt of my written answer from today.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

>> I have not disputed the OC TL with the CRAs, nor with the OC.

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

>> I requested timely validation from Bernhardt & Strawser twice, but received none. They filed complaint the day they received my second request.

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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?

>> Yes, within 30 days The charges are as follows:

The Plaintiff, complaining of the Defendant, says and alleges:

1. That Plaintiff is a National Bank located in the State of South Dakota.

2. That Plaintiff is informed and beleives and therefore alleges that Defendant is a citizen and resident of New Hanover County, North Carolina, and is of legal age and under no legal disability.

3. That Defendant owes Plaintiff $2,415.52 for charges made by Defendant to his/her MasterCard account with Plaintiff.

4. That Plaintiff has made demand upon Defendant for payment of said $2,415.52, but no payment has been made.

5. The credit card agreement provides that the Defendant will be held liable for the Plaintiff's reasonable attorney fees and Plaintiff has given notice to the Defendant as required by N.C.G.S. 6-21.2.

6. Based on the foregoing, the Plaintiff is entitled to have and recover of the Defendant its reasonable attorney fees as provided by N.C.G.S. 6-21.2

WHEREFORE, Plaintiff prays for Judgment against Defendant in the amount of $2,415.52, interest at the rate of 8% per annum from the date of entry of Judgment until paid, and the costs of this action, including reasonable attorney fees as provided by N.C.G.S. 6-21.2

This the 14 day of January, 2009

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

>> I received an affadavit from an individual employed by the Citicorp Credit Services, Inc (their subsidiary) basically claiming intimate knowledge of my account and that it is due an oweing, that I opened it, etc. They attached a fax copy of 1 billing statement, which for some reason does not have my street address but only my Apt #.

14. What is the SOL on the debt?

>> 3 yrs.

I can not express my sincere gratitude to anyone who can offer me insight while I devour all the information on the sticky threads. I've never been sued before, so I am trying to learn as much as possible prior to filing my answers.

[Lecasbas]

>> I received an affadavit from an individual employed by the Citicorp Credit Services, Inc (their subsidiary) basically claiming intimate knowledge of my account and that it is due an oweing, that I opened it, etc. They attached a fax copy of 1 billing statement, which for some reason does not have my street address but only my Apt #.

There is case law which says that the creditor must be able to account from a zero balance to where the debt is today:

http://bulk.resource.org/courts.gov/states/Ohio.Ct.App.04/2004-ohio-623.pdf

I would write another DV letter and ask for a "Bill of Particulars". Let them answer you again with the same duplicate letter. In this DV letter I would not tell the attorney something it is supposed to know since it is a collection attorney. Go to court citing this case as persuasive argument. This is not new evidence in which the attorney should receive a continuance.

There is other case law which would support your request for a "Bill of Particulars".

http://caselaw.lp.findlaw.com/data2/circs/7th/034108p.pdf

You could also request that the affiant appear in court to explain why the plaintiff does not have a record of the debt. How could the affiant possibly hold all of that info in its head for all of the accounts of citi bank and chant all the charges from 0 to where it is today?

[retmar]

Be sure and answer this summons. Do not put this off. Be sure it is timely.

Look up Spears v. Brennan. It falls within this very scenario. Brady v. Credit Recovery might have something also. And, yes, look up what was also recommended to see if they offer anything.

Regarding the "proof" supplied by this attorney, you mentioned it was generic. Could you be more specific? The proof, to meet the burden, must be on the letterhead of the OC. If this is just a printout from this attorney's own computer, or his clients if a CA/JDB, it does not meet the burden.

Also, if you do end up in court before you are satisfied all is proper, be sure and make it clear that the plaintiff failed to properly prove liability of the claim as required by the statute. Assure the court knows that you continue to dispute the claim until such time as legitimate, and required proof of liability is provided. Stress this to the court. To assure all parties are aware of this, you will include it in your answer, and cite FDCPA 807(8). There is no timeframe and all you need to show is they had knowledge, yet, failed to respond. Yes, you could file a defendant's claim to offset the proceedings, but, to me, if you can move for dismissal would be the better move.

Most important here is that your goal is to assure the end is for you, not them. Even if you do owe and must pay, demand deletion of TL upon payoff.

[QM07]

There is case law which says that the creditor must be able to account from a zero balance to where the debt is today:

Hello Lecasbas:

I sincerely appreciate your help. I am going to read through the links you've provided me and send the aforementioned letter to the law firm.

How exactly would one word this letter? Just simply, plese provide me with a Bill of Particulars?

I'm unfamiliar with the term, so I will research it. In the meantime, should I file for discovery or file my "answers" to the law firm as well?

Thank you kindly.

QM07

** Edit ***

Dear Retmar:

Thank you for providing your insight and suggestions also. By generic, I mean their responses to my DV letter were simple "verification" letters that only restated their initial dunning claims:

"As per your request to verify this debt and pursuant to the Fair Debt Collection Practices Act and the cases interpreting the Act, be advised thta the principal balance due of $2,415.52 is owed to Citibank South Dakota, N.A. on your Citibank Mastercard account bearing the number XXX"

I re-sent validation request letting them know this does not provide me with any insight as to whether I owe this debt. They filed complaint with the court the day they received the follow up, and then fired off a second duplicate copy of this same letter a week later.

The actual attachments to the summons were 1 statement (from Nov. 2008, two months prior to last payment) which was a faxed copy. The portion of the billing statement which was photocopied and faxed does not even contain my billing information, only an account number because of the way Citibank's statements are designed.

What I mean is, the only portion of the bill with any actual identifying information OTHER than an account # is the bottom portion which is torn off for remitting payments. The actual bill itself contains only an account # with no address or name.

Therefore, what they did was make a photocopy of the actual bill with nothing other than this account # but somehow superimposed information on the top wiht about 2 inches of blank space before the actual TOP of the real bill. I'm considering scanning and posting a copy of this if you are interested to see it.

I will file my response as well, but so unsure as to how to go about doing that I am going to continue reading on the forum tonight.

Thanks again to you both.

[Lecasbas]

I'm unfamiliar with the term, so I will research it.

This definition gives a few applications.

http://legal-dictionary.thefreedictionary.com/bill+of+particulars

You should check your own RCP to see what your state allows. If you do a Google for "Bill of Particulars" you will find an array of subjects to choose from. I wouldn't spend too much time on this for the moment. I wanted to give you an idea of what you were asking the attorney to send to you.

plese provide me with a Bill of Particulars?

Good enough. The attorney will know what you want. If the attorney sends another duplicate letter then package the three answers with your DV's and use them in court for noncompliance.

I'm considering scanning and posting a copy of this if you are interested to see it.

It is not necessary to post exact info about your case.

Original post by: retmar

Be sure and answer this summons. Do not put this off. Be sure it is timely.

Number one thing to do.

Do a search on this forum for Answer, Affirmative Defenses, and Counterclaims. Spend most of your time here until you formulate a proper response.

You can ask questions as you go along. Someone will help.

[QM07]

Thanks again Lecasbas. I'll follow your advice and begin to put something together. Thanks for everyone helping me get on the right path.

[retmar]

Most definitely keep those alleged "validation" as close to you as possible.

The law is clear on this and they are a total fabrication, and unacceptable under the statute. Read the statute until you know it by heart. Look up the two cases I cited. Each offer information you can use. A section of Spears I take all the way is in the decision. The judge who wrote it said, in simple words, may not be exact here:

"It does not matter that a debt be valid. What matters is how the debt is collected."

Be sure and have in your hands when this goes to court and you still have not received proper validation, the following:

The applicable section, word for word, what the responsibility of the collector upon receipt of a request for validation is. Any cases to show, do so.

The proof that the collector has knowledge that you still dispute the claim as they have failed to meet the burden to show proof of liability. Yes, since you have clearly stated this in your papers, including a letter sent CMRR that the claim is still disputed. Since these "ADUB's" will probalby try and get around it by saying they proved validity, therefore the dispute is resolved. I got two words for that, the first being "BULL". FDCPA 807(8) has no timeframe and "have knowledge" is the only requrement. Yes, you would have proof on your CR that they still report the TL without the "dispute" notation. You could also throw 809© in. Yes, it does refer to a dispute not being made, but, again, just by saying the words "the court can't construe" will place a bug, in the judge's ear.

Remember, your main goal is to get the claim dismissed with prejudice, at the most, or, an acceptable offer of settlement that benefits you, not them. Example is if the court does not dismiss, and maybe cuts the award in half, you throw inas a bonus to their violations, that the TL be deleted in it's entirety.

Remember, if this is reported by a collector, or this atty, and you were not properly notified, this is also a violation. As it stands now, your only "working" violation is their failure under 809. A thought, look up this atty and see what thier primary profession is. Also, understand that Citi's negative reporting properly passes muster as they, like others, include the proper verbiage in their monthly statements.

Personally, I say you owe the debt and should pay. BUT, when the collector/atty/JDB, whoever, acts in an unprofessional and illegal manner, they do not deserve to prevail, or, at the least accept at most 30% of balance claimed, as a form of apology.

[QM07]

Most definitely keep those alleged "validation" as close to you as possible.

The law is clear on this and they are a total fabrication, and unacceptable under the statute. Read the statute until you know it by heart. Look up the two cases I cited. Each offer information you can use. A section of Spears I take all the way is in the decision. The judge who wrote it said, in simple words, may not be exact here:

"It does not matter that a debt be valid. What matters is how the debt is collected."

Be sure and have in your hands when this goes to court and you still have not received proper validation, the following:

The applicable section, word for word, what the responsibility of the collector upon receipt of a request for validation is. Any cases to show, do so.

This is what confuses me, because I see a lot of conflicting information regarding their responsibility. I've read that the Chaudry case is controlling on this subject, and that the lame "verification" letter is all the collector needs provide based on Chaudry.

Just to clarify, the collection attorney is not reporting a collections account on my credit report. Of course, I have a negative TL with the OC, who is suing me.

[Lecasbas]

Personally, I say you owe the debt and should pay

retmar...I'm a little surprised with this statement. Are you going to hang the op before the trial? Won't you at least buy a new rope?

The op has not made any acknowledgement that the op may have made an agreement with the OC and charged on the card. In any event, I seriously doubt if the op owes the debt as it stands with all the add-on charges.

After all, this is the way CitiBank does business:

SAN FRANCISCO- California Attorney General Edmund G. Brown Jr. today announced that he has reached a settlement with Citibank after a three-year investigation into the company’s use of an illegal “account sweeping” program. Nationally, the company took more than $14 million from its customers, including $1.6 million from California residents, through the use of a computer program that wrongfully swept positive account balances from credit-card customer accounts into Citibank’s general fund.

“The company knowingly stole from its customers, mostly poor people and the recently deceased, when it designed and implemented the sweeps,” Attorney General Brown said. “When a whistleblower uncovered the scam and brought it to his superiors, they buried the information and continued the illegal practice.”

Between 1992 and 2003, Citibank employed a computerized “credit sweep” process to automatically remove positive or credit balances from credit-card customer accounts. An account could show a credit balance if a customer double-paid a bill or returned a purchase for credit. The credit sweeps were done without notifying the customer and without regard for whether the customer had any unpaid balances or other charges owed to Citibank.

The credit sweeps targeted more than 53,000 customers nationwide. All of the affected accounts were in a recovery status, which includes accounts of customers who have died, sought bankruptcy protection, or been the target of litigation or other collection efforts by Citibank.

In July of 2001, a Citibank employee uncovered the practice and brought it to the attention of his superiors. The employee was later fired for discussing the credit sweeps with an internal audit team. In the words of a Citibank executive, “Stealing from our customers is a business decision, not a legal decision.” The same executive later said that the sweep program could

not be stopped because it would reduce the executive bonus pool.

The Attorney General launched its investigation of Citibank in 2005 to determine whether the company violated the California False Claims Act by filing false holder reports with the California State Controller that omitted any reference to the swept funds. The 3-year investigation led to today’s settlement.

The settlement includes:

• Permanent injunction – Citibank will be permanently prevented from re-initiating the credit sweeps.

• Refunds to victims – Citibank will refund all improperly swept funds to customers who were victimized by the sweeps. Citibank will also pay California customers 10% interest on the amount taken.

• Penalties – Citibank will pay $3.5 million in damages and civil penalties to the State of California.

• Compliance audit – After Citibank’s refund process is complete, an independent auditor will review Citibank’s work to ensure that it has lived up to its obligations.

I think your old ropes should be used on CitiBank in hopes that CitiBank can be hung again...and again...and again...

This is what confuses me, because I see a lot of conflicting information regarding their responsibility. I've read that the Chaudry case is controlling on this subject, and that the lame "verification" letter is all the collector needs provide based on Chaudry.

Right now you are dealing with information overload. You should, as retmar appropriately said, focus on your Answer. These cases that we are posting are intended to give you an idea of how to argue your claim with support.

Go to the sticky at the top of the page and look at some examples:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=252142

[retmar]

Since mst OC's include the proper verbiage in their monthly statements, that TL is most likely legit. All you want to do now is watch the dates and amount due. These would be your primary disputes.

Lescasbas, you're reading something into my comment that is not there.

The claim is within the SOL, thus, a legal, as well as a moral, obligation does exist. The OP even admits this. The OP"s intent is, as I read the post, is to assure they are not getting the proverbial shaft in resolving this matter.

I will stand by the OP to assure this is resolved amicably to both parties, but, due to the actions of the other side, a "spanking" is necessary. If the court finds 100% in favor of the OP and awards accordingly, including a monetary award, deletion of all TL's, no 1099, and no further recourse is available, that is the all time glory which can be used by many other consumers. This is a perfect example of Spears.

IF all was properly handled, such as proper validation, etc., I would advise the OP to contact in writing a reasonable payment plan to avoid a judgement. By this, the OP offer a set amount on a normal 30 day rotation, the OC suspends additional interest, aggrees to reage the account upon last payment, thus, no negatives. As long as the OP continues faithfully, this will stand. If not, the OC may bring this back to court and receive a proper decision.

Never misunderstand me. If we can close down a CA/JDB, who constantly violates, let's do it. If we can get an attorney disbarred, let's do it. At the same time, if we continue to fight to avoid paying a legitimate, legally owed, morally owed claim by looking only for a way out due to violations, we will never win in the end. Think back to the change in BK's. Who won on that change? They did by demonstrating we ran away from our obligatons. Who was there to stand up for the consumer by showing the constant violations of CA/JDB/atty's? Not even the consumer advocates stood up for us. They allowed the changes to go, and, we got screwed again. Since sites like this began to evolve, the FTC has received more complaints over the years than they did before. Our only chance of winning in the end is by our showing who is the better person. To me these collectors think they are God by displaying the ACA logo on thier letters. What good is the ACA? No good whatsoever. They are no more than a glorified fraternity who think they are perfect. Do they cite, fine, or "remove" violators? No! Go back a few years in their forums. You will find a CA in California who bragged of filing on a person's last known, though already had the current address, obtain their default, then go to the current and collect. Not one of the others went off on this ADUB. The sternest comment was that he should not do this. And they want us to respect them? Not in this lifetime unless they find a way to chastise and remove those who consider themselves above the laws as they are written.

Forgot to say something. Citi does not like me. They had my mortgage a few years ago. When I found that they had my info in India, I went off on them. Of course, no one cared, but, I told them, just as I told Countrywide, that I would cost them millions in lost reveneue. Part of my family had banked with them for years. The closed all acocunts and told them why. I'm not done yet.

Regarding Chaudry, use the law as it is written, not just what one court says. Besides, this case is quite old if I recall properly, and, has no real standing today. You'd have to go back into the archives as this was discussed a few years ago.

Lecasbas is correct. Prepare as was pointed out.

[admin]

Never misunderstand me. If we can close down a CA/JDB, who constantly violates, let's do it. If we can get an attorney disbarred, let's do it. At the same time, if we continue to fight to avoid paying a legitimate, legally owed, morally owed claim by looking only for a way out due to violations, we will never win in the end. Think back to the change in BK's. Who won on that change? They did by demonstrating we ran away from our obligatons. Who was there to stand up for the consumer by showing the constant violations of CA/JDB/atty's? Not even the consumer advocates stood up for us. They allowed the changes to go, and, we got screwed again. Since sites like this began to evolve, the FTC has received more complaints over the years than they did before. Our only chance of winning in the end is by our showing who is the better person. To me these collectors think they are God by displaying the ACA logo on thier letters. What good is the ACA? No good whatsoever. They are no more than a glorified fraternity who think they are perfect. Do they cite, fine, or "remove" violators? No! Go back a few years in their forums. You will find a CA in California who bragged of filing on a person's last known, though already had the current address, obtain their default, then go to the current and collect. Not one of the others went off on this ADUB. The sternest comment was that he should not do this. And they want us to respect them? Not in this lifetime unless they find a way to chastise and remove those who consider themselves above the laws as they are written.

Bravo!

[QM07]

Hello:

I'm going to spend the next few days taking advantage of the benefits you've all provided through your insight and suggestions.

I'll follow up after I think I've formulated a solid response.

[Lecasbas]

Personally, I say you owe the debt and should pay.

So what value does this statement have? It doesn't motivate the op to question the claim. Rather, it is right in line with the simplism "just pay the debt".

The claim is within the SOL, thus, a legal, as well as a moral, obligation does exist. The OP even admits this.

More simplism. Okay, the debt is within SOL. The op figured this from the last payment which was made on the account. Well...the op is guilty. We can move on.

Where do you get this moral obligation stuff? The OC comes into court with one or two statements and an affidavit from the OC. Well...again, the op is guilty and we can move on.

There is no agreement, no proof of consideration (one statement which tells us nothing about everything which the op received and an affidavit supporting that one statement), and the attorney keeps sending the same noncomplying answer to the request for DV regardless to the different ways the op asks the question.

Yea, I know there is a case which may support the attorney's answer because the FDCPA is so vague as to what DV really is. However, a DV is also a way to settle things out of court. By sending the same old bull the attorney, thus OC, is stonewalling any efforts to resolve the matter. It thinks it can use the law as a tool to have its way with the consumer.

If the OC does not provide the agreement where is the moral obligation?

If the OC does not provide proof of consideration why should the consumer "just pay the debt because it is morally obligated"?

I don't see how you can bring moral into this thread when the OC is clearly taking the low road to begin with. This includes the original "take it or leave it" agreement which the op may have entered into where the OC basically dictates that by using our card we can continuously rake you over the coals forever. This is legal, but to use your word, not moral.

Yea, I know, the consumer doesn't have to agree to these terms. Good luck on getting a card that won't demand these things, however. The OC knows this and purposely puts the outrageous criteria in the agreement because it knows that it can get away with it and the law will support it.

I think you can see by now that when someone says something like,"you owe the debt and you are morally obligated to pay", it's like chalk squeaking on the chalkboard to me.

Anyway, I don't think the op should admit to anything since the OC is far from its preponderance of evidence. I say this because even admitting a little guilt is like admitting to being a little pregnant.

The OC will run with the ball.

[retmar]

The last post doesn't deserve a response. It is apparent it's intent is to confuse the whole of the thread in what the OP is asking.

For example, if the OP continues to just flat out deny the claim, continue demanding items that will not prove otherwise, the courts will nail them in the end for giving false answers, other sanctions, which can result in serious problems, over and above the original claim against them The only way to avoid this is to deny liability until such time as proper validiation, as required by law, is provided the debtor. At that time, the debtor must be provided sufficient time to examine and make a reasonable determination. This is the only protection this OP has.

I have a better way to state this, but, have to dig into my files. Hopefully, by Monday, I can find it and note it here.

[Lecasbas]

if the OP continues to just flat out deny the claim, continue demanding items that will not prove otherwise, the courts will nail them in the end for giving false answers

the defendant must deny all liability. This is the only protection this OP has.

Who is confused?

[Recovering Attorney]

You are inside your statute of limitations, which is a problem. Make sure you have some other defenses available.

Citibank usually has impeccable records, but make sure you seek, in discovery, the documents they will use in a trial or dispositive motion.

Cash talks today. Look at other threads, and you will see Citi is offering 40-60% off in settlement. So, try to keep them busy with discovery but be ready to make a solid offer

[retmar]

First off, Lecasbas, thanks for catching that error. That sentence was supposed to have been deleted as I had decided on different wording to my comment. I've deleted it so it won't confuse others.

As to your constant claim that the OP should simply deny all is the wrong decision to make. Even you made comments to a previous thread on this very matter. Yes, you brought up good points, but, those points were, overall, based solely on what the thread was about. Go back and look for yourself. It is titled "Your thoughts on my response to admissions."

nascar spent time to locate proper statutes on this and noted each to show how this avenue could cause unnecessary problems to the consumer. nascar also commented so any who read could understand it clearly. In short, it can't be said any clearer.

Referring to the whole of this discussion, any who continue to deny liability by denying all that was provided them by the CA/JDB/ATTY that meets the burden is taking the wrong approach. If the information is received on, for example, any "bill" or "statement" not on the letterhead of the OC, or appears to be a "scanned" copy of different items, yes, deny until such time as proper is provided. The important thing to do is to state as such in your denial. By this, you make it clear that upon sufficient proof that meets the burden, and you are afforded reasonable time to examine, and allowed to make a reasonable decision, you must deny it's authenticity.

For those who want to learn more, just go to that thread and read. I would set it up here, but, with my new server, "I've had several problems getting things to work right. If someone else can, please do, as it is important that all who have been following this thread, have the opportunity to understand better the consequences they face if they take the wrong path.

[Lecasbas]

Caught me on the run but I believe I have a moment to explain my position.

I basically believe in the graduated denial. Here, as you know, the whole debt is denied. As each point of the claim is debated, the defendant can admit to or deny each successive one.

For this system to work, however, the defendant must deny the whole debt in the beginning or risk losing the right to. The defendant won't be thrown into jail for perjury because most of the evidence brought forward is subject to verification. As each point is verified to the point of obvious guilt the defendant can then admit and go on to the next point.

Pretty common procedure in with almost any case in the courts.

[retmar]

This is my last post here as Lecasbas is getting ridiculous in the comments.

At no time has the OP denied the claim made in it's entirety. The OP responded in kind to an initial communication letter that afforded the right to dispute and ask for proper validation of alleged claim. The requested information did not meet the burden for validation, and the OP responded in kind. A suit was filed which moves this to another venue. The only proper and reasonable response to this is to deny until such time as the OP is in receipt of proper validation that meets the burden, afforded time to examine, and arrive at a reasonable decision. This whole thread is a perfect example of Spears and should be handled in the same manner. The OP, if not in receipt by time of court date, may ask this of the court, as the plaintiff cannot prevail if a dispute is still present. Otherwise, justice is denied. By the OP's own actions, the court cannot deny that the OP took the proper avenues to resolve, but, were denied by the actions of the attorney.

To flat out deny knowing that claim can be properly proven, can result in problems the OP does not deserve. It is fololish to want to take the wrong road knowing in the end you will lose.

[Lecasbas]

Well, you know, I was in a hurry and didn't have the time to explain the drawn-out version of the sworn denial. I thought you could follow my hastily prepared definition of sworn denial.

I did a search for sworn denial on Google and came up with several credit repair sites which were talking about just such a thing. I guess they must have drunk out of the same glass of ridiculous juice.

I read through several of them and found this one to be the most detailed:

http://debtcollectionlawyer.blogspot.com/2006/08/how-to-not-pay-your-debt-or-beat_03.html

It is interesting to note that the author of the first post is a debt collection attorney. It doesn't matter as the info is just as good, maybe even better because it reveals a point of view from the other side.

If you don't want to visit this site go to one of the others. They are all pretty much saying the same thing.

[QM07]

At no time has the OP denied the claim made in it's entirety.

In my original response to their first dunning letter, I did outright deny their claim, stating that this was a "nonexistant alleged debt" that they were "erroneously claiming I owed". Will this make a difference here and now?

The OP responded in kind to an initial communication letter that afforded the right to dispute and ask for proper validation of alleged claim. The requested information did not meet the burden for validation, and the OP responded in kind. A suit was filed which moves this to another venue. The only proper and reasonable response to this is to deny until such time as the OP is in receipt of proper validation that meets the burden, afforded time to examine, and arrive at a reasonable decision. This whole thread is a perfect example of Spears and should be handled in the same manner. The OP, if not in receipt by time of court date, may ask this of the court, as the plaintiff cannot prevail if a dispute is still present. Otherwise, justice is denied. By the OP's own actions, the court cannot deny that the OP took the proper avenues to resolve, but, were denied by the actions of the attorney.

This is where I am a little confused, and I hope you can help me out because I'm still feeling overwhelmed. I read through Brennan in its entirety, but it felt like it was more geared toward the fact that the lawyer filed suit during the 30-day validation period. In my case, my correspondence with the law firm as they stonewalled by attempts at validation took us beyond the 30-day period.

I understand exactly what you are mentioning but I'm not sure how to translate this information into affirmative defenses.... that is what Im having trouble with. I have my answers to their complaints finished, but really could use help with how to craft the verbiage of my defense. Please take a look at my answers, which I used from reading other threads:

STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE

DISTRICT COURT DIVISION

COUNTY OF NEW HANOVER

Civil Action No. xxxxxxxxxx

Citibank, South Dakota, N.A.

Plaintiff

Vs.

QM07

Defendant

ANSWER OF THE DEFENDANT

Defendant, appearing pro se, for its reply to the Complaint naming Citibank, South Dakota, N.A. plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS

1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

2. Admit

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

5. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

6. The Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

I sincerely appreciate all your help to everyone offering, and the efforts of Retmar and Lecasbas, although your debate is a bit above my head right now. I'm also wondering if I should file counterclaim for the interpreted FDCPA violations of continued collection activity, even if I won't win them, just to cause a headache?

[brjmhome6]

Check out my thread http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=292720

Good example of an answer w/affirmative defenses.

I

[QM07]

Check out my thread http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=292720

Good example of an answer w/affirmative defenses.

I

Hi brjmhome6:

Thanks for stopping by and sharing your information. Your help is much appreciated. I'm going to read through your thread.

[merrybucks]

1,3,4,5 & 6 are vague. You should admit or deny.

[yescats]

Be sure and answer this summons. Do not put this off. Be sure it is timely.

Look up Spears v. Brennan. It falls within this very scenario. Brady v. Credit Recovery might have something also. And, yes, look up what was also recommended to see if they offer anything.

Regarding the "proof" supplied by this attorney, you mentioned it was generic. Could you be more specific? The proof, to meet the burden, must be on the letterhead of the OC. If this is just a printout from this attorney's own computer, or his clients if a CA/JDB, it does not meet the burden.

Also, if you do end up in court before you are satisfied all is proper, be sure and make it clear that the plaintiff failed to properly prove liability of the claim as required by the statute. Assure the court knows that you continue to dispute the claim until such time as legitimate, and required proof of liability is provided. Stress this to the court. To assure all parties are aware of this, you will include it in your answer, and cite FDCPA 807(8). There is no timeframe and all you need to show is they had knowledge, yet, failed to respond. Yes, you could file a defendant's claim to offset the proceedings, but, to me, if you can move for dismissal would be the better move.

Most important here is that your goal is to assure the end is for you, not them. Even if you do owe and must pay, demand deletion of TL upon payoff.

Be sure and answer this summons. Do not put this off. Be sure it is timely.

Look up Spears v. Brennan. It falls within this very scenario. Brady v. Credit Recovery might have something also. And, yes, look up what was also recommended to see if they offer anything.

Regarding the "proof" supplied by this attorney, you mentioned it was generic. Could you be more specific? The proof, to meet the burden, must be on the letterhead of the OC. If this is just a printout from this attorney's own computer, or his clients if a CA/JDB, it does not meet the burden.

Also, if you do end up in court before you are satisfied all is proper, be sure and make it clear that the plaintiff failed to properly prove liability of the claim as required by the statute. Assure the court knows that you continue to dispute the claim until such time as legitimate, and required proof of liability is provided. Stress this to the court. To assure all parties are aware of this, you will include it in your answer, and cite FDCPA 807(8). There is no timeframe and all you need to show is they had knowledge, yet, failed to respond. Yes, you could file a defendant's claim to offset the proceedings, but, to me, if you can move for dismissal would be the better move.

Most important here is that your goal is to assure the end is for you, not them. Even if you do owe and must pay, demand deletion of TL upon payoff.

The exact thing is happening to my mother in Florida. From the help I'm getting, I would say to start with a flurry of Motions to dismiss. such as no proof of liability other than a Proof of Claim Affadavit (BTW what statute says this?). IMO the Answer should be kept to one liners such as "count 1 : denied... count 2: not enough information. Also mention a Counterclaim is to be entered at a later date... etc." (or state your counterclaim now) I'd rather save that for later. Next ids the discovery process. There you will ask for a Request for Admissions. There you get them to admit they don't have a signed contract, among other tidbits I hope other can suggest to us.

I'm not sure if both the Motion to Dismiss and the Answer should be filed on the same day. If you don't file both make sure the clerk tells you the MTD will stop the clock.

Also in my mother's case, she had a stroke and was/is incompetant and pennyless and on Medicaid. I'm trying how to figure how to work that in as an affirmative defense. I also notice the Affadavit is notarized by a Missouri Notary and it looks like the Citibank agent is in South Dakota. The lawyer is of course a Florida lawyer.