NJ help with Answers Midland/Pressler

[JBDBEAN]

1. Who is suing you? Pressler & Pressler

2. For how much? $3200

3. Who is the original creditor? Chase then Midland Funding LLC

4. How do you know you are being sued? I Received a summons

5. How were you served? Were you served? Registered mail

6. What was your correspondence (if any) with the people suing you before you think you were being sued? No

7. Where do you live? New Jersey

8. When is the last time you paid on this account? 12/2007

9. What is the status of your case (if anything has been opened)? awaiting answers by 10/22 (sister-in-law works in the special civil part)

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 questionnaires.

Yes they require response in writing.

I have been doing a lot of research here and on Pacer. Well, as much as I can while caring for my two sons. I want to submit my answers but I am a little confused. All I have is a summons with 2 items, I guess those are the complaints? Here they are in there entirety:

Plaintiff having a principal place of business at <blah blah blah> says:

1. It is now the owner of the defendant(s) CHASE BANK USA, N.A. account number XXX_XXX which is now in default. There is due the plaintiff from the defendant(s) the sum of $1,635.57 plus finance charges from 07/31/2008 to 09/03/2010 of $821.61 for a total of $2,457.18.

2. As provided by contract, the plaintiff is entitled to attorney fees of 25.00% of the amount due. Plaintiff demands attorney fees of $614.30

That's it! So, this is the first I am hearing of the huge increase in my original $1600 debt. I'm not sure if I am using Pacer correctly, but when I search for midland, I only seem to get the answers that P&P provides to the plaintiff.

I'm just confused, I guess. Can anyone offer any insight as to how I should answer?

Thanks!

Edited October 13, 2010 by JBDBEAN

[admin]

Even though there are only two items, I would merely address each one and then list affirmative defenses. Plenty of examples here.

[RebelLady]

This is a good place to start:

http://www.judiciary.state.nj.us/rules/part4toc.htm

Those are the New Jersey Rules of Civil Procedure.

You will need to answer the complaint and be sure to include affirmative defenses (these are very important!). You can find 'creative' ways to respond as well as many excellent affirmative defenses on this site. Pacer is also an excellent site to use.

This being Midland Credit, and with such a little bit of information listed on their complaint, its a good bet they don't have enough information to get a judgment. But never underestimate a JDB.

Good luck

RL

[JBDBEAN]

Rl, thanks for the link. I have been looking for that...

I just can't seem to get the hang of Pacer.

So you guys are saying I answer points 1 and 2, I get it, I think, but what are they asking? Aren't they just statements?

Oh, boy...

Jeanie

[RebelLady]

Yeah...basically its just Midland Credit doing its usual whiney-pout dance to the court...

I would simply answer both individually with a general denial (Defendant lacks sufficient information...yadda, yadda, yadda).

Be sure to include some affirmative defenses with your answer. If you don't respond, Midland will get a default judgment against you. Possibly that's what they're hoping will happen since they more than likely can't provide proof enough to convince a judge.

Once you've answered their complaint, you will have more options but be sure you get your answer filed in time. Read New Jersey's RCP to find out how long you have to file your answer (usually between 20-30 days).

(a) Time; Presentation.

Except as otherwise provided by Rules 4:7-5© (crossclaims), 4:8-1( (third-party joinder), 4:9-1 (answer to amended complaint), and 4:64-1(i) (governmental answer in foreclosure actions), the defendant shall serve an answer, including therein any counterclaim, within 35 days after service of the summons and complaint on that defendant. If service is made as provided by court order, pursuant to R. 4:4-4((3), the time for service of the answer may be specified therein. Service of the answer shall be complete as provided by R. 1:5-4. A party served with a pleading stating a counterclaim or crossclaim against that party shall serve an answer thereto within 35 days after the service upon that party. A reply to an answer, where permitted, shall be served within 20 days after service of the answer.

RL

Edited October 13, 2010 by RebelLady

[KentWA]

Here is how I would take this up, especially since Pressler & Pressler gets it wrong so often.

Deny #1 as plaintiff has not produced any evidence of said debt, nor proof that they are a successor in interest.

Deny #2 as Plainiff has not produced any contract evedenicing such claim.

Counter claim for FDCPA for #2, every chase Terms and Conditions I have seen state reasonable attorney fees, I have never seen the 25% they are claiming and if they can not produce said contract it is an FDCPA violation.

You need to list your affirmative defenses as well and there are plenty of examples here.

[Savoir]

The paragraphs numbered 1 & 2 on the complaint are the charges that are being leveled against you. You have to answer those charges.

If it were me ..... and this is just my opinion mind you .....

I would answer #1 in this manner .....

"In response to paragraph #1, Defendant is, at this time, without knowledge or information sufficient to form a belief as to the truth and accuracy of Plaintiff's alleged assignment(s) and entitlement(s) or ownernship, and on that basis generally and specifically denies the allegation(s) contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. "

I would answer #2 in this manner .....

" In response to paragraph #2, Defendant is, at this time, without knowledge or information sufficient to form a belief as to the truth and accuracy Plaintiff's allegations or entitlements as Plaintiff has not entered into record nor has he supplied Defendant the alleged contract which substantiates his claims."

...... or something similar ... and along that line of reasoning. Of course, if they have attached exhibits demonstrating ownership or assignment or have supplied a contract then you should answer a little differently ......

Above all else ..... answer the summons within the timeframe allotted by your summons ... and pay special attention to what RebelLady says ..... learn to LOVE your Rules of Civil Procedure.

And ...... What KentWA said ....

Edited October 13, 2010 by Savoir

[JBDBEAN]

This is just fantastic information, I'm going to have a busy weekend formulating a response.

My sister works as a clerk in the special civil part, she tells me I have until oct 22 to answer (35 days, right you are rl!)

Anyway they have a PDF of the form, I can't post the link, I don't think. Search for 10542.pdf in google if your interested, it's like the seventh one down on the return.

I don't have to use that, right? As long as it is formatted correctly I should be ok?

Oh and they what $15 to accompany the answers...nice.

Counter claim? Really? I'll need to read more about that, I know that if I do it has to be included with my answers.

Jeanie

[RebelLady]

Counter claim? Really? I'll need to read more about that, I know that if I do it has to be included with my answers.

Jeanie

The longer you can keep Midland playing, the more likely they become to blow it and give you a counterclaim. Just keep your eyes open and be ready to jump on whatever they give you. They don't hire the most intelligent, efficient or motivated individuals to work for them.

Also...be sure you download and read, read and re-read the FDCPA. Its your best friend when it comes time to look at counterclaims.

RL

[JBDBEAN]

RL, I don't need to use the form the court provides, right? It has check boxes with filled in responses.

As long as I follow the format (and pay the $15) in my response, I will be ok?

Jeanie

[RebelLady]

As long as its in writing. Sometimes those canned forms just don't have enough information or say exactly what you mean. As long as your response is in writing as opposed to over the phone, etc.

RL

[JBDBEAN]

Woke up early this AM to get this done, mostly generic things that I picked up from the GREAT forum and the internet. I did change some verbage, for the most part.

What is the deal with the affirmative defenses? Do I have to many? Can you have to many?

ANSWER TO COMPLAINT WITH AFFIRMATIVE DEFENSES

ANSWER OF THE PLAINTIFF

The Defendant’s reply to the Complaint, naming MIDLAND FUNDING LLC Plaintiff, as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

1. Defendant is, at this time, without knowledge or information sufficient to form a belief as to the truth and accuracy of Plaintiff's alleged assignment(s) and entitlement(s) of ownership, and on that basis generally and specifically denies the allegation(s) contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

2. Defendant is, at this time, without knowledge or information sufficient to form a belief as to the truth and accuracy of the Plaintiff's allegations or entitlements as Plaintiff has not entered into record nor has he supplied the Defendant the alleged contract which substantiates his claims.

AFFIRMATIVE DEFENSES

1. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

2. The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

3. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

4. 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.

5. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

6. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

7. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

8. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

9. 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.

10. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Defendant prays this case be dismissed with prejudice along with any further relief the court deems just and proper. Further the defendant sayeth not.

I certify the matter in controversy is not the subject of any other court action or arbitration proceeding now pending or contemplated, and that no other parties should be joined in this action.

I certify that confidential personal identifiers have been redacted from documents now submitted to the court, and will be redacted from all documents submitted in the future in accordance with Rule 1:38-7(.

I further certify that this answer was served on all other parties within 35 days of the date the summons and complaint were mailed to me as indicated on page 2 of the summons.

By the Defendant acting pro se.

Thanks!

Jeanie

[RebelLady]

My two cents worth...lol:

1. Plaintiff's Complaint fails to allege that the Assignor has conveyed all rights and control to the Plaintiff or that the Assignor has knowledge of this action. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

4. Find and cite New Jersey's Statute of Frauds (12A:2A-201. Statute of frauds)

Make sure you read the statute and know what it says

Take out 'even' and put the 'conveyed all rights and control' part first, then the 'has knowledge of this action' part second.

I believe I would make number five number one...

Remember...you want to hassle them over and over about the purchase/assignment of this alleged debt. It is very difficult for a JDB to prove conclusively that they own or have been assigned a debt from an OC.

RL

Edited October 15, 2010 by RebelLady

[JBDBEAN]

Thanks again RL, points well taken.

So, do you think there is too many defenses? I'm thinking of trimming it down.

I guess it doesn't matter because they will dismiss/deny each one, right?

Jeanie

[RebelLady]

There might be a couple that say basically the same thing...about the assignment. But then again, that's the button you need to keep pushing.

You might also go to LexisOne and get yourself a free account. You can do searches in your state courts as well as federal courts. Its always good to study them so you will know how your state interprets the FDCPA, chain of title, standing to sue, etc.

I usually just do a Keyword Search in state courts first, then in federal courts. I found an interesting case in New Jersey (3rd District Circuit Court of Appeals) where Pressler was the Plaintiff (on behalf of a different JDB).

Its always good to know not only what the law says, but how it is interpreted and used in your state courts.

RL

[JBDBEAN]

I filed my answers and affirmative defenses on 10/18. On 10/22 I received interrogatories and admissions, that was fast! 13 pages, regular mail and registered mail. They provided a stamped envelope, albeit, a tiny 6.5 x 3.5 one. That just rubs me the wrong way, jerks.

Anyway, for the interrogatories the 1st question is:

Set forth in detail each defense which the defendant has to the above-entilted cause of action, and in detail, give the factual basis for each, setting forth dates, places, names and addresses of persons present, or involved in the conversations. Attach hereto copies of all writings.

What are the looking for? My affirmative defenses AGAIN?

Then for each of my affirmative defenses (10 of them) they ask:

a) With respect to the FIRST (this is the only word that changes, from first through tenth) affirmative defense alleged by you in answer to the plantiff’s complaint, please set forth:

i. “Identify” each and every person having knowledge or claiming to have knowledge regarding this defense.

ii. As to each such person, state hir/her name, last known or present address, and telephone number.

iii. State specifically the facts of which such person has knowledge or claims to have knowledge and how such person came to have possession of such knowledge.

iv. “Identify” each and every “document” which supports, tends to support or is claimed by you to support each said defense. As to each such “document”, “identify” those facts as to which each “document” refers or relates. Attach hereto a copy of each “document”.

Like I said this goes on for EACH of the ten affirmative defenses that I claimed in my answers. What is the point of this?

What are some options in how I should respond?

Jeanie

[Falcon1871]

I am in NJ and my wife is being sued by Rab Performance Recoveries, LLC. But, She was sued with someone else, and the actual debt is that other person's debt. My wife has nothing to do with the debt. Not a co-signer, not an authorized user. The only thing that both have common is that the other person used to live in our address before we moved in. Somehow, both names are being sued.

I am answering the complaint with affirmative defense, and also I am going to file a counter-claim.

Let's see where this is gonna go.

[JBDBEAN]

Funny, I found a thread on here that had the same EXACT questions in the same EXACT order for both the interrogatories AND the admissions. Funny!

Anyway, I think I have a real good handle on how to answer. One thing I couldn't find is the format and process to follow. That is, do I format it like I did my answers to the summons? Also, is it a good idea to include "general objections?"

Do I answer the admissions and interrogatories at the same time? How do I let the courts know I answered? Do I send it registered mail?

Ugg, just when I think I'm getting closer, 50 more questions

Thanks!

Jeanie

[RebelLady]

Check your RCP/RoC and see if there's a limit to the number of interogs/RfA they can send.

Watch out for repetitive admissions and interogs. I would simply say, Objection - repetitive (and boring...lol)

Isn't this just the greatest site for information...grief!! Keep reading and studying and sooner or later you'll find your case posted by someone else...lol

RL

[JBDBEAN]

Isn't this just the greatest site for information...grief!! Keep reading and studying and sooner or later you'll find your case posted by someone else...lol

RL

This site is the best!

[JBDBEAN]

So, do I just use the format of the interrogatories and admissions for my interrogatories and admissions back to them?

Do I need to let the courts know? I answered all the interrogatories and admissions, so I want to send everything at once.

Oh, also, how to I format the "answers" to the interrogatories and adminssions, that is should I have something like CIVIAL ACTION - INTERROGATORIES ANSWERED?????

HELP! LOL

Thanks,

Jeanie