Being sued by Burton Neil for Citibank...need help with response please?

[cps850]

1. Who is suing you?

Burtonxx Neilxx

2. For how much?

$6K

3. Who is the original creditor?

Citibankxx

4. How do you know you are being sued?

Received Complaint

5. How were you served? Were you served?

Received at home.

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

None

7. Where do you live?

PA

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

2003

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).

Not sure

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

Yes

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

No

12. Does your summons require a response in writing? (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. No questionnaire is attached but a response is required within 20 days.

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

They attached a statement from June 2006 and a "Verification" allegedly signed by an employee of Citicorpxx.

14. What is the SOL on the debt? To find out:

4 years

I'm sorry, I am probably asking simple questions, but I have been reading for close to 8 hours and I am more confused than when I started.

What confused me at first is this account had been shown (recently as last year) on my credit report as closed and charged off by CB in April 2005 so I wasn't sure why 5 years later they are now suing me. I pulled my credit report again and it's no longer showing at all. Then I finally notice in small print at the very end of the complaint that BN is a debt collector so not really CB suing me, correct?

So I'm trying to craft a response but not sure what I can include. I did dispute this with the 3 CA last year as I felt the amount was incorrect but the dispute was denied and dummy me, I didn't pursue it.

Edited October 2, 2010 by cps850

[kingair41]

CPS850

I too have Burton Neal on my plate. When I D/V'd him I elected arbitration if the alleged debt has an arbitration forum. He agreed with arbitration and sent me the address and phone # for AAA. He has not provided a signed agreement or statements but one at the end of the alleged debt. I don't have any evidence provided to me that assigns this alleged account to me, or what other forums that are available. Waiting for him to make the first move and file a complaint. Then I build my counterclaims.

I'm a little confused. You said that your last payment on this account was in 2010. Then you stated that the account was charged off in 2005. If the account was closed then you couldn't have made a payment in 2010. Not unless you were paying a CA that bought it from Citibank.

[cps850]

Sorry I was multi-tasking when typing up this post and obviously not doing a very good job of it. I was reading my credit reports and answers to posts and have no idea why I typed 2010 as last payment. I think 2003 was the last time I made a payment. It's no longer on my credit report and didn't show a last payment date on last year's report, only that the account was charged off and closed in April 2005. Actually between the 3 agencies, this date is different .. one shows December 2004, one shows January 2005, and one shows April 2005.

[FL4answer58]

" notice in small print at the very end of the complaint that BN is a debt collector so not really CB suing me, correct?"

YES - if it says debt collector

You should trade notes here with 'kingair41' same collector may have same evidence and material fact issues.

Also if it is JDB - your best bet is to look at the evidence presented to strike before making decission to go Arb.

Creditors can sometimes prove their case; debt buyers usually cannot

Most often JDBs lack that the proof required to obtain a judgment in the creditor's favor, usually as a result of poor record keeping on the part of the creditor or no assignment. MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148A; 841 N.Y.S.2d 826

(N.Y.Civ. Ct. 2007).

Edited October 2, 2010 by FL4answer58

[cps850]

Thanks...I spent hours reading and came up with a response. I would greatly appreciate any feedback as I want to go file this on Monday.

The complaint seemed so generic and vague, perhaps on purpose I suppose. Basically it said:

1. Plaintiff is CB with place of business located at ...address...

2. Defendant is ME

3. Plaintiff is a national banking association, engaged in various types of banking...

4. Plaintiff furnished consumer credit to the defendant by means of a credit card with account number ending in XXXX hereinafter referred to as the credit card account.

5. Plaintiff kept acurrate running records of all debits and credits to the account.

6. Plaintiff mailed to defendant monthly statements for the account including the billing statement attached hereto as Exhibit A. The monthly statements accurately stated the previous balance, the debits and credits to the account for the prior billing period.

7. Before plaintiff mailed Exhibit A, defendant had for many months made payments on account of the billing statement or retained the statement without payment.

8. Defendant's actions as set forth above constituted an account stated between parties for the sum of $X,XXX.XX which sum reflects the Exhibit A statement balance less credits, if any, which were applied subsequent to the date of Exhibit A.

Wherefore, plaintiff demands judgment against defendant for the sum of $X,XXX.XX, and the costs of this action.

My response so far:

ANSWER OF THE DEFENDANT

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

ANSWER

1. DENIED – Defendant has no knowledge of Plaintiff’s business affairs.

2. Admits.

2. DENIED – Defendant has no knowledge of Plaintiff’s business affairs.

4. The Defendant denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

5. The Defendant denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

6. The Defendant denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

7. The Defendant denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

8. The Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

AFFIRMATIVE DEFENSES:

1. Plaintiff failed 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.

2. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

3. BN has not proven that they were retained by CB as its representative in this matter. BN is well known as a debt collector.

4. BN has not proven that CB is the real party in interest. Defense demands proof of ownership, specifically that the alleged account is still the legal property of CB with all of the original creditor’s rights and privileges intact. Full account number was not provided to Defendant, leaving to the Defendant to guess as to whether the account was hers.

5. BN has not proven that they are authorized and licensed to collect claims for others in the Commonwealth of Pennsylvania, or solicit the right to collect or receive payment of a claim of another.

5. Plaintiff has not produced a copy of the any credit card agreement establishing an obligation by the defendant.

6. BN has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, Defendant requests case be dismissed with prejudice along with any further relief the court deems proper.

[Massive]

Nice!!

[FL4answer58]

Nice!!

Yes - nice.

[kingair41]

If the last time you made a payment on this alleged debt was in 2003, how can it still be within SOL? Am I missing something here?

Edited October 5, 2010 by kingair41

[FL4answer58]

If the last time you made a payment on this alleged debt was in 2003, how can it still be within SOL? Am I missing something here?

Good question...SOL in PA is what? 4 years - 4 yrs + 6 months charge off.

Way out of SOL at best 2004-2008 ... say 2009 at least 2 years past.

Edited October 5, 2010 by FL4answer58

[RebelLady]

Being OOS doesn't mean a JDB won't try to collect it. It simply means the SOL can be used as an affirmative defense. Until someone presents an SOL challenge, the JDB can and will continue to try to collect.

RL

[kingair41]

That's why I brought it up. I don't recall the OP using it in his affirm. defenses.

We received a dunning letter from a CA representing Cap One for a debt over 12 years old. What a joke. Thanks to this forum and the great posters here I've learned what to do and the direction to take. A D/V letter sent to them and never heard back from them.

Edited October 6, 2010 by kingair41

[MoreOrLess]

" notice in small print at the very end of the complaint that BN is a debt collector so not really CB suing me, correct?"

YES - if it says debt collector

You should trade notes here with 'kingair41' same collector may have same evidence and material fact issues.

Also if it is JDB - your best bet is to look at the evidence presented to strike before making decission to go Arb.

Creditors can sometimes prove their case; debt buyers usually cannot

Most often JDBs lack that the proof required to obtain a judgment in the creditor's favor, usually as a result of poor record keeping on the part of the creditor or no assignment. MBNA America Bank, N.A. v. Nelson, 15 Misc. 3d 1148A; 841 N.Y.S.2d 826

(N.Y.Civ. Ct. 2007).

FL4answer58 Could you give me a bit of help in answering a summons being handled by CA for FIA?

[kingair41]

CPS 850,

I finally got my summons from BN. Like yours I got the same complaint word for word. Just different OC and amount. I'll start my own thread to find out what my next move should be. See I asked for arbitration if the agreement had that one of the forums. He agreed but with no production of agreement showing arbitration or what private forum it allows it stalled. My complaint has one statement and a verification from their legal Coordinater.

Initials T.L. Was this person the same as yours?

Edited October 25, 2010 by kingair41

[vballchick]

CPS,

I agree with a couple of the others with adding SOL as an affirmative defense!

[kingair41]

CPS850,

I filed Preliminary objections instead of the answer. Their complaint was just like yours. The complaint was not proper. I objected and they will have to do it again. Right this time.

[nitestare]

Hi, I received the same summons from BN. Curious to know how your case went. I'm hoping to delay this case for a few months (unless I can get it thrown out completely).

[voidjudgment]

1. Who is suing you?

Burtonxx Neilxx

2. For how much?

$6K

3. Who is the original creditor?

Citibankxx

4. How do you know you are being sued?

Received Complaint

5. How were you served? Were you served?

Received at home.

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

None

7. Where do you live?

PA

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

2003

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).

Not sure

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

Yes

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

No

12. Does your summons require a response in writing? (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. No questionnaire is attached but a response is required within 20 days.

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

They attached a statement from June 2006 and a "Verification" allegedly signed by an employee of Citicorpxx.

14. What is the SOL on the debt? To find out:

4 years

I'm sorry, I am probably asking simple questions, but I have been reading for close to 8 hours and I am more confused than when I started.

What confused me at first is this account had been shown (recently as last year) on my credit report as closed and charged off by CB in April 2005 so I wasn't sure why 5 years later they are now suing me. I pulled my credit report again and it's no longer showing at all. Then I finally notice in small print at the very end of the complaint that BN is a debt collector so not really CB suing me, correct?

So I'm trying to craft a response but not sure what I can include. I did dispute this with the 3 CA last year as I felt the amount was incorrect but the dispute was denied and dummy me, I didn't pursue it.

Did you win using the SOL Defense as you should have?? Please update.