HELP! Filing a counterclaim/answer to small claims suit by CITIBANK IN MO!

[PMama]

Hello all,

I need to file an answer/counterclaim against "CITIRANK" and their attorney's office in a MO small claims court by the END OF THIS WEEK (the court date is next Tuesday and I have to get my answer sent to the firm and filed with the clerk before the hearing).

Some questions:

1) In MO, defendants are given a form on which to file a counterclaim. I don't want to recover any money from Citibank, but I would like to maybe sue to get them to remove negative reports from my credit report. Can I ask for that or does it HAVE to be a dollar amount? (The form has a blank for a specific dollar amount).

2) How do you verify that an attorney's office is also a debt collector? I'm filing a claim stating that they violated the FDCPA under the harassment and abuse clause and I'm pretty sure that the attorney's office I'm dealing with is a debt collector as well as legal representation (they clearly state in their voicemails to me that they are attempting to collect a debt). They seem to fit with the FDCPA's definition of a debt collector, but how can I be sure? Call them? Do they have to tell me this information?

3) Are debt collectors or creditors allowed to contact you AFTER they file suit? I have received three phone calls from the attorney's office which I ignored. I don't have any money with which to settle at this point and would rather not hand them any more ammunition against me over the phone so I have not called back.

ETA: 4) Are the denials I used in Counterclaim I enough for a graduated denial, or would I need to go ahead and do the "I deny this is my debt and if it is my debt, I deny that it is still a valid debt and if it is a valid debt, I deny the amount sued for is the correct amount." spiel? It seems overkill to me, but I will add or substitute it if it will help me.

Below is a rough draft of my answer/counterclaim ... do you all think it's okay? Unfortunately, instead of sending a validation letter, I sent a PFD offer and got sued immediately, so all I can bank on is the FDCPA harassment clause. They called me excessively (IMHO) (10-20 calls/day) for about 3-4 months ... I'm hoping the judge has mercy on me with this one

COUNTERCLAIM

The Defendant, xxxxx xxxxx xxxxxx, states he/she has a claim against the Plaintiff in the amount of $________. The counterclaim arose on or about xxxxx xx, 2010 as a result of the following events:

COUNTERCLAIM I

The Defendant:

1. DENIES having information and knowledge sufficient to form a belief as to the truth of the allegations at paragraph 1, 2, 3, 4, 5, 6, 7 and 8 of Count I.

2. DENIES the allegations of paragraph 1, 2 and 3 of Count II.

3. DENIES every other allegation not previously admitted, denied or controverted.

COUNTERCLAIM II

1. Defendant is a "consumer" as that term is defined by 15 U.S.C. § 1692a(3), lawfully resides in xxxxxx County, Missouri, USA and is therefore protected under 15 U.S.C. § § 1692-1692p.

2. Defendant is a natural person allegedly obligated to pay a debt; in this case CITIRANK/XXXX & XXXX, P.A. alleges that Defendant is obligated to pay a debt to CITIRANK./xxxxx & xxxxx, P.A.

3. The obligation CITIRANK /xxxxxx & xxxxxx, P.A.

which alleges Defendant is obligated to pay is a "debt" as that term is defined by 15 U.S.C. § 1692a(5).

4. The alleged contract sued upon is believed by Defendant(s) to be a purported monetary obligation arising from transactions on a credit card made primarily for personal, family, or household purpose; the purported account is personal rather than a business account.

5. xxxxxx & xxxxxxx, P.A. is a “debt collector” by its own admittance, as that term is defined by 15 U.S.C. §1692a(6), with a principal place of business at [insert address here], operating as a collection agency law firm.

6. CITIRANK /xxxxx & xxxxxx, P.A. uses the United States Postal Service in the regular collection of debts owed to another.

7. On May 4, 2010, XXXXX & XXXXX, P.A. sent Defendant a debt collection letter requesting payment for alleged debt owed to CITIRANK. The letter contained a validation notice per 15 U.S.C. §1692g 809. A copy of XXXXX & XXXXXX, P.A.’s letter is attached and marked “EXHIBIT A”.

8. The Defendant alleges that before the debt collection letter was received by the Defendant on XXX XXX, 2010, XXXXX & XXXXX, P.A. violated 15 U.S.C. § 1692d (5) by making an average of 10-15 phone calls per day to the Defendant’s cellular phone between XXX XX, 2010 and XXXXX XXXX, 2010 with the intent to annoy and harass the Defendant. Copies of phone records under the Defendant’s primary contact number are attached and marked “EXHIBIT B”.

AS AND FOR AFFIRMATIVE DEFENSES

9. Plaintiff fails to state a claim upon which relief can be granted. Plaintiff’s complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. Defendant alleges that the document(s) the Plaintiff attached to their petition is not sufficient evidence with which the Court can grant relief in the rules set forth by Vintila v. Drassen, 52 SW 3d 28 - Mo: Court of Appeals, Southern Dist., Div. 1 2001 and later re-affirmed in Citibank (South Dakota), NA v. Whiteley, 149 SW 3d 599 - Mo: Court of Appeals, Southern Dist., Div. 2 2004.

10. Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorney’s fees because the alleged contract did not include such a provision.

11. The Defendant is informed and believe and thereon allege that the Plaintiff has failed to mitigate and lessen damages, if any it sustained, as required by law, and are barred from recovery by reason thereof against the Defendant.

12. The Defendant alleges that the Plaintiff(s) and Plaintiff’s attorney intended to and did inflict severe emotional distress upon the Defendant by engaging in actions that intended to harass, annoy and intimidate the Plaintiff, the purpose of which was to intimidate and coerce the Defendant into paying a debt which was not legitimately owed. Photocopies of phone bills constituting the Defendant’s primary contact number with the Plaintiff and Plaintiff’s attorney illustrating the above allegations is attached hereto, made a part hereof, and marked “Exhibit B”.

WHEREFORE, Defendant prays the Court take nothing of the Plaintiff’s Complaint by virtue and dismiss the complaint.

(CAN I INSERT A REQUEST HERE TO HAVE ALL NEGATIVE REPORTING REMOVED FROM MY CREDIT REPORTS AT PLAINTIFF'S EXPENSE?)

THANKS IN ADVANCE FOR ANY ADVICE OR HELP YOU CAN GIVE! I am hoping to get a hold of someone at this pro bono law firm in my town beforehand to give me some sage legal advice, but if that is not possible I would appreciate any additional help I can get.

Edited August 4, 2010 by PMama
added another question

[Massive]

Check PM

[PMama]

@ massive ... thank you SO much. Still can't PM you because of those darn # of post blocks. I will use the letter you provided me with ... is it valid if they receive the request before trial? And how should the defense be worded exactly? And yes, it is the law firm you mentioned in your PM that is the "attorney".

[PMama]

bump, bump, bump ... would really appreciate some more critiques/help here folks!

[Massive]

@ massive ... thank you SO much. Still can't PM you because of those darn # of post blocks. I will use the letter you provided me with ... is it valid if they receive the request before trial? And how should the defense be worded exactly? And yes, it is the law firm you mentioned in your PM that is the "attorney".

I'd add it as an affirmative defense "Illegal Suit" and explain how the Federal Courts have ruled on that particular aspect. Make sure you challenge the Law Firms authority to collect and demand the agreement between the law firm and Citibank (South Dakota), N.A. granting them the authority to file suit.

[PMama]

I'd add it as an affirmative defense "Illegal Suit" and explain how the Federal Courts have ruled on that particular aspect. Make sure you challenge the Law Firms authority to collect and demand the agreement between the law firm and Citibank (South Dakota), N.A. granting them the authority to file suit.

@Massive

I think I have a problem here. I just looked over the papers I was served and there is a little NOTORIZED document attached that basically states that an employee of a subsidiary of Citibank authorized this suit and that they are a custodian of records for them and blah, blah, blah. So, unfortunately I think they got around the illegal suit thing. Is that affadavit enough to prove their attorney-client relationship or can I still demand that they have to enter into evidence the agreement between the law firm and Citibank?

[Massive]

@Massive

I think I have a problem here. I just looked over the papers I was served and there is a little NOTORIZED document attached that basically states that an employee of a subsidiary of Citibank authorized this suit and that they are a custodian of records for them and blah, blah, blah. So, unfortunately I think they got around the illegal suit thing. Is that affadavit enough to prove their attorney-client relationship or can I still demand that they have to enter into evidence the agreement between the law firm and Citibank?

What does it say and when was it dated??

[PMama]

What does it say and when was it dated??

Check your PM box ... I think I FINALLY have enough posts to write you back now

[BigJ99]

I would love to have an idea of what you guys are discussing via PM. My situation is almost identical, I was just served by Berman & Rabin (Citibank) in Mo, And trying to figure out how to fight this.

[Downto0]

I hope you straightened up your counter claims. You really don't need to explain that you are a consumer protected by the FDCPA and that the attorney for Citi is a debt collector and obligated to follow the FDCPA. Just assume the fact until the attorney counters with an argument that they are not obligated. Don't make any bridges to cross.

You should send a subpoena to the affiant to appear in court. This will cost a little money to have it served but it will turn up the heat on Citi. Commonly, Citi grabs someone who isn't busy at the time to fill out affidavits. There was a court case where Citi, at least I think it was Citi, was found to have done this and the affiant back peddled on the witness stand and said that their boss told them to "just sign it".

I'll see if I can find the case. Someone else can chime in if they know the case I speak of.

In MO, defendants are given a form on which to file a counterclaim. I don't want to recover any money from Citibank, but I would like to maybe sue to get them to remove negative reports from my credit report. Can I ask for that or does it HAVE to be a dollar amount? (The form has a blank for a specific dollar amount).

Counter claims are generally about money. If you want your points adjusted on your cr them you have to file a dispute with the CRA's.

You should also file a sworn denial but it doesn't have to be in graduated form. Is citi suing for account stated or breach of contract?

Edited November 22, 2010 by Downto0

[mylumnad]

I would love to have an idea of what you guys are discussing via PM. My situation is almost identical, I was just served by Berman & Rabin (Citibank) in Mo, And trying to figure out how to fight this.

For some reason, it looked like you were being sued by Batman & Robin at first glance..

[Downto0]

I found the article by Bud Hibbs:

One infamous consumer attorney challenged the validity of the Citibank filings by deposing the employee signing hundreds if not thousands of affidavits attesting to the authenticity of the court filings. Persistent questioning on behalf of the attorney directed the “employee” to confess that she actually did not work for Citibank, but rather a Citibank subsidiary in another state and signed or verified anything her superior instructed. The testimony resulted in a number of cases dismissed by the court.

http://nextlevelunlimited.net/blog/lvnv-unifund-citi-citibank-and-experian-jaw-dropping-facts-of-collection-agencies/

You should also request the resume of the affiant in your request for documents.