Need help with Answer and Defense

[CreditCredit]

Hi All,

I've spent the last three days looking over every post I could find that fits my situation and have been learning a ton from everyone out there. I would appreciate any help or tips you all could give me.

1. Who is suing you?

Citibank, represented by Hunt and Henriques

2. For how much?

Over $10,000, but under $25,000

3. Who is the original creditor?

Citibank

4. How do you know you are being sued?

Looked at the court's open case access system and saw the filing (am being threatened a lawsuit by another CA). A couple of days later a proof of service was filed, but I never received a summons neither has anyone in my family.

5. How were you served? Were you served?

As stated above I was not personally served. I went to the court and looked at the case file. The proof of service filed states that I was served personally. I was at my uncle's celebrating a holiday at the time of supposed service. The address is listed as my mother's apartment, but the place would have been empty as she was with me at my uncle's. It's as if the process server just flat out lied about service.

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

A few letters sent by different CAs. At one point I sent them a settlement letter (without admitting the debt was mine) offering a settlement.

7. Where do you live?

Northern California

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

I'm not sure, but I believe sometime in 2007

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).

My answer needs to be filed in the next three weeks or so, but again, I wasn't properly served.

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

No

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?

No interrogatory was in the case file.

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

There is nothing included

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

I imagine it is 4 years so it should be coming up really soon or have passed.

Here are the charged from the complaint:

CC-1. became indebted to Plaintiff:

(a) within the past 4 years:

[1] on an open book account for money due

[2] because an account was stated in writing by and between plaintiff and defendant in with it was agreed that defendant was indebted to plaintiff.

( within the past 4 years:

[4] for money lent by plaintiff to defendant at defedant's request.

[5] for money paid, laid out, and expended to or for defendant at defendant's special instance and request.

[6] Unjust enrichment.

CC-2. $X amount, which is the reasonable value, is due and unpaid despite plaintiff's demand.

I'd like to answer the complaint, but want to know which affirmative defenses I should include. Should I bother with a cross complaint or with a motion to quash for improper service?

At what point should I file a motion for Bill of Particulars?

Thanks all!

[ADSOFT]

Alright, congratualations, you are in calif. and can file a document to get the jump on the competion.

Look into a Bill Of Particulars(see my thread) and have it served in person, they have 10 days to respond and might not be able to provide evidence. If they don't have all thier stuff you might be able to get out of it. If they do, you might be able to get arbitration or put up all kinds of defenses.

Filing a BOP will give you more weapons to deny stuff on the reply to the summons. You can then go to the court and file a response:

IMHO

Step 1: Mail the BOP: you don't have to file it or serve it, you might be able to deliver it personally

Step 2: Answer your Summons, deny everything(or as much as you can) and state that it's beyond SOL, it's up to them to prove that you paid within SOL

The BOP is important since they will not be able to use the evidence in trial if they can't come up with it in 10 days. I asked for the following.

1. All transcatiions itemized and how they came up with amount being sued for.

2. Contract/Agreement between you and plaintiff which states terms of contract

3. Account number which your are being sued for.

4. Proof they own the debt: They might have sold it to someone. Wern't you being contract by a third party (long shot but might work).

If they don't come up with that in 10 days they may blow their case and you owe NADA, ZILCH, $0000.00: Wouldn't that be nice!!!!

Edited October 1, 2010 by ADSOFT
Typo

[CreditCredit]

Thanks ADSOFT! Do you have a copy of the BOP you filed? It would be great to see a sample. Is a BOP something I can demand even-though they check off the "account stated" box? I've read that you can't use a BOP in these instances. Would I just use it for all the other claims?

Anyone have any thoughts on anything else I should include in the BOP request?

I've been reading conflicting posts...are BOPs filed with the court and then served just like an answer and complaint?

[ADSOFT]

Is a BOP something I can demand even-though they check off the "account stated" box? I've read that you can't use a BOP in these instances.?

Do you have a link that explains this?

... let me get you a link to what I have done.

[ADSOFT]

Here is a link. There is link in this thread with examples.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1077522#post1077522

Edited October 1, 2010 by ADSOFT
link

[ADSOFT]

btw, I don't think your case would qualify as an account stated since you never agreed to owing that amount, ... or did you?

Here is a link.

http://www.debt-consolidation-credit-repair-service.com/forums/archive/index.php/t-284706.html

If I understand this you would have agreed to this sum. Is "account stated" filled in the box of the summons, .... I will check mine.

Here is more info:

http://forum.freeadvice.com/auto-accidents-vehicle-claims-1/what-bill-particulars-4966.html

http://en.wikipedia.org/wiki/Account_stated

[Recovering Attorney]

Make sure you add the affirmative defense of " The Court has no personal jurisdicition over the defendant" to secure your non-service defense. If you answer the complaint but don't assert it you will lose it.

Also, you need to determine if CA requires you to move on this defense by a certain date or lose it.

Bad service like this one you set forth is not an FDCPA violation, but it could be an abuse of process claim .

[CreditCredit]

Would I file the abuse of process claim against the OC or the attorney representing them? Can I file this as a counter-claim?

Does anyone have the BOP pdf that Jewel has sent a few users. I wanted to send a PM, but couldn't because of the requirement to have a certain number of posts.

Thanks!

[CreditCredit]

Bump

[ADSOFT]

Would I file the abuse of process claim against the OC or the attorney representing them? Can I file this as a counter-claim?

Does anyone have the BOP pdf that Jewel has sent a few users. I wanted to send a PM, but couldn't because of the requirement to have a certain number of posts.

Thanks!

Search the threads that I started, it will have references to BOP and the one I sent.

[admin]

I'm not sure a "Bill of Particulars" (BOP) applies here. Each state is different. Listen to what Recovery is saying.