Jump to content

Being Sued By Discover & In NJ - Is This Correct?


Recommended Posts

Hi All. I’m being sued allegedly by ‘Discover Bank’ (I’m assuming from the use of a credit card). My plan is to settle the debt but I need to buy more time. Plus I want to make sure the law firm is authorized to collect from me and that this is legit. Below are answers to basic questions about the matter. My next post contains text from the actual complaint. I guess my next step is to answer the complaint (not sure when it arrived at the UPS store but one of the two copies came via certified mail which is postmarked 2/14/11 – it says I have 35 days after being served to respond) and demand discovery? After reading this site it looks like I should request, at a minimum, members card agreement, signed credit application, letter of authorization from Discover to law firm, and a complete accounting of account from zero to current balance. Is this requested in the answer or is this a separate document that is filed?

1. Who is suing you? Discover Bank using the law firm Forster, Garbus & Garbus

2. For how much? $15k

3. Who is the original creditor? Discover

4. How do you know you are being sued? Served a complaint at my UPS store address.

5. How were you served? Were you served? Not sure. I’m assuming an employee at the ups store signed for it.

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? 10 miles from ups store

8. When is the last time you paid on this account? About a year ago

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

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

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? None. Only a summons, A ‘Special Civil Part Summons and Return of Service – Page 2, and the complaint.

14. What is the SOL on the debt? To find out: Should be 20 years but I am well within that.

Link to comment
Share on other sites

Complaint:

RECEIVED THURSDAY 2110/2011 DELETED AM DELETED FILED Feb 10, 2011

ATTORNEY(s): FORSTER, GARBUS & GARBUS

7 Banta Place

Hackensack, NJ 07601

(800) 245—9943 x Attorney(s): for Plaintiff

DISCOVER BANK

.

Plaintiff

Vs. )

)

)

)

) SUPERIOR COURT

LAW DIVISION:

UNION COUNTY .

OF NEW JERSEY SPECIAL CIVIL PART

Da6Cents Defendant(s) )

) DOCKET NO: DC-CIVIL ACTION

Acct. No.: {DELETED} Ref. No.: {DELETED} )

) COMPLAINT (ON CONTRACT

Plaintiff: DISCOVER BANK

Located at: % 6500 NEW ALBANY RD

NEW ALBANY OH 43054

complaining of defendant (s) , say(s)

1. Upon information and belief, the defendant(s) DA6CENTS in person or through an agent, made credit card purchases or took money advances under a credit card or line of credit account or promissory note or loan which a copy was furnished to defendant, or services rendered or used, as indicated above in the total amount of $15,000

2 . Defendant (s) DA6CENTS has/have defaulted and there Is now a balance due and owing of $15,000 which includes all charges, service charges and reasonable attorney’s fees plus interest and costs which the defendant(s) did agree to pay in accordance with the terms of their contract.

3. Demand has been made upon defendant(s) for payment, but payment has been refused.

WHEREFORE, judgment is demanded for $15,000, including reasonable attorney’s fees and lawful interest, plus costs of suit.

I CERTIFY that pursuant to Court Rule 4:5-1, the matter in controversy is not the subject of any other Action or arbitration proceeding, now or contemplated, and that no other parties should be joined in this action.

FORSTER, GARBUS & GARBUS

DATED: 1/xx/11 /

By:

Attorney for Plaintiff

(PLEASE NOTE THAT WE ARE REQUIRED, UNDER FEDERAL LAW, TO ADVISE YOU THAT WE

ARE DEBT COLLECTORS AND ANY INFORMATION WE OBTAIN WILL BE USED IN ATTEMPTING

TO COLLECT THIS DEBT.)

Edited by da6cents
Link to comment
Share on other sites

Guest usctrojanalum

File an answer. Admit or deny the allegations being made against you in the complaint, then list a set of affirmative defenses.

As for discovery, don't request things like a signed application or letter of authorization because they will not need to provide it. I'd ask for such things as copies of cashed checks, the agreement governing the contract; if there were any amendments copies of all amendments

Link to comment
Share on other sites

Thanks much for the response. Are you saying that they do not need to supply proof that they do indeed represent the OC? Or are you saying that copies of cashed checks should be sufficient? And I'm assuming I can find a list of affirmative defenses on this site, correct?

Link to comment
Share on other sites

Thanks much for the response. Are you saying that they do not need to supply proof that they do indeed represent the OC? Or are you saying that copies of cashed checks should be sufficient? And I'm assuming I can find a list of affirmative defenses on this site, correct?

He's basically saying don't go down that rabbit hole.

There are plenty of holes in their case, concentrate on those: no contract, statements, proof of debt, etc.

Link to comment
Share on other sites

Guest usctrojanalum

I'm just saying it's not an area that needs to be looked, plus you'll just get brushed back with "attorney-client privilege" or some other type of objection. If an attorney states they are representing someone, they simply are until the attorney or the client explicitly says in writing and under oath that they are not.

The deal with F&G is that they will try and do a lot to get you into settling the claim. I say don't settle it. Let the case be litigated.

Link to comment
Share on other sites

I'm just saying it's not an area that needs to be looked, plus you'll just get brushed back with "attorney-client privilege" or some other type of objection. If an attorney states they are representing someone, they simply are until the attorney or the client explicitly says in writing and under oath that they are not.

The deal with F&G is that they will try and do a lot to get you into settling the claim. I say don't settle it. Let the case be litigated.

Ok, so file an answer and wait for discovery? and there's a chance the case will be dismissed, especially if they do not legitimately represent Discover? or all in the essence of buying time to ultimately still settle in the end? and going directly to Discover to attempt to settle is ill advised?

Link to comment
Share on other sites

Thanks BV80 - I read somewhere on here where it is suggested that you don't just copy template affirmative defenses but also include some that are specific to your case? (If I understood correctly) In any event, this is what I'm filing on thursday. Comments Please?

I'm also filling out the CIS forms. Should I request a jury?

Da6cents (PRO SE)

DISCOVER BANK

.

Plaintiff

Vs. )

)

)

)

) SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: SPECIAL CIVIL PART

UNION COUNTY

Da6cents Defendant(s) )

) DOCKET NO: xxxxxxxx-xxx

Acct. No.: xxxxxx Ref. No.: xxxxxxx )

) ANSWER TO COMPLAINT WITH AFFIRMATIVE DEFENSES

Defendant: Da6cents

Located at Da6cents

Da6cents

Answering to Plaintiff’s complaint(s) , say(s):

1. As to the first paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

2.. As to the second paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

3. As to the third paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

AFFIRMATIVE DEFENSES

As For a First Defense

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.

As For a Second Defense

Plaintiff failed to produce a copy of credit card, line of credit account or promissory note or loan that was alleged in Plaintiff’s complaint.

As For a Third Defense

Plaintiff denies the accuracy of amount owed as alleged by Plaintiff.

As For a Fourth Defense

Plaintiff failed to produce a copy of alleged contract with Defendant’s signature agreeing to terms alleged by Plaintiff.

As and for a Fifth Defense

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.

As and for a Sixth Defense

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.

As and for a Seventh Defense

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

As and for a Eighth Defense

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.

WHEREFORE, Defendant demands a copy of the aforementioned credit card, line of credit, promissory note or loan. Defendant also demands an accounting of all charges, fees , interest and costs alleged by Plaintiff as well as a copy of contract alleged by Plaintiff as having been given to Defendant.

I CERTIFY that pursuant to Court Rule 4:5-1, the matter in controversy is not the subject of any other Action or arbitration proceeding, now or contemplated, and that no other parties should be joined in this action.

DATED: xxx/xx/xxxx Da6cents

Link to comment
Share on other sites

Actually the online answer form for my state (I just found it) states the following after my answer and right before my affirmative defense:

"Wherefore the defendant demands judgment dismissing the complaint with costs."

Doesn't that contradict with my statement right after my affirmative defense?:

"WHEREFORE, Defendant demands a copy of the aforementioned credit card, line of credit, promissory note or loan. Defendant also demands an accounting of all charges, fees , interest and costs alleged by Plaintiff as well as a copy of contract alleged by Plaintiff as having been given to Defendant."

If so, where in my answer do I make my demands for a copy of contract, copies of cashed checks etc,?

Link to comment
Share on other sites

1. As to the first paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

2.. As to the second paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

3. As to the third paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

You need to include your denial. Something like "Therefore, Defendant must respectfully deny."

If you're denying the debt, at the beginning of your answer, you might want to include something like, "All allegations of the Complaint are denied unless expressly admitted herein."

Your 3rd defense is a denial, not an affirmative defense.

Link to comment
Share on other sites

Great, thanks! I now have the following. But I'm wondering if both demands (that begin with WHEREFORE) are needed in the complaint. Is the second demand considered a request for discovery?

All allegations of the Complaint are denied unless expressly admitted herein.

1. As to the first paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

2.. As to the second paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

3. As to the third paragraph Defendant does not have enough information needed to ascertain the accuracy of the accusation.

WHEREFORE the defendant demands judgment dismissing the complaint with costs.

AFFIRMATIVE DEFENSES

As For a First Defense

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.

As For a Second Defense

Plaintiff failed to produce a copy of credit card, line of credit account or promissory note or loan that was alleged in Plaintiff’s complaint.

As For a Third Defense

Plaintiff failed to produce a copy of alleged contract with Defendant’s signature agreeing to terms alleged by Plaintiff.

As and for a Fourth Defense

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.

As and for a Fifth Defense

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.

As and for a Sixth Defense

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

As and for a Seventh Defense

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.

WHEREFORE, Defendant demands a copy of the aforementioned credit card, line of credit, promissory note or loan. Defendant also demands an accounting of all charges, fees , interest and costs alleged by Plaintiff as well as a copy of contract alleged by Plaintiff as having been given to Defendant.

I CERTIFY that pursuant to Court Rule 4:5-1, the matter in controversy is not the subject of any other Action or arbitration proceeding, now or contemplated, and that no other parties should be joined in this action.

DATED: xxx/xx/xxxx Da6cents

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.