Need help with summons answer in NY

[tummytrouble]

1. Who is suing you? Cavalry Portfolio Services LLC, as Assignee of Cavalry SPV I, LLC, as Assignee of FIA Card Services, NA

2. For how much?over 10K

3. Who is the original creditor? Bank of America, I think

4. How do you know you are being sued? Received Summons left stuck in fron door

5. How were you served? See above

Were you served?

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? NY

8. When is the last time you paid on this account? April 2009, if it's the account I think it is

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). Need to answer

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? Yes - must respond in writing, no - received no questionaire

COMPLAINTS ($ changed)

1. That at all times Cavalry Portfolio... is a limited liability co with a place of business in NY

2. Plantiff's primary business activity is the purchase of consumer receivables.

3. Plantiff, through assignment, is the lawful ower of a consumer credit executed by the defendant.

4. The defendant(s) did breachthe aforesaid consumer credit contract and owes Plantiff the sum of $K plus interest $K, on a certain book account. Payment has been demanded by Plantiff but has not been made.

5. There is due and owing from the defendant(s) the sum of $k, plus interest of $k, on a certain book account. Payment has been demanded by Plantiff but has not been made.

6. The Plantiff sues the defendant(s) for the goods sold and delivered and/or services rendered by Plaintiff, it's agents, servants, and/or employees to the Defendant(s), upon the promise by the defendant(s) to pay the agreed amounts. Payment has been demanded by Plantiff but has not been made.

7. The Plantiff sues the defendant(s) for the reasonable value of the goods sold and delivered and/or services rendered by Plaintiff, it's agents, servants, and/or employees to the Defendant(s), upon the promise by the defendant(s) to pay the agreed amounts. Payment has been demanded by Plantiff but has not been made.

8. The Defendant(s), being indebited to the Plantiff in the sum of $k plus interest of $k, upon an account stated between them, did promise to pay the plaintiff said sum upon demand. Payment has been demanded by Plaintiff and has not been made.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? None

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

There is no account number or indication of the original creditor.

My head is spinning and I wonder what my chances of a positive outcome are. So many questions.

These are the answers I have prepared using information from this site. Please take a look and give me comments/suggestions/HELP

Thanks!

FIRST: Cannot Admit or Deny - Responding party is unfamiliar with Plaintiff.

SECOND: Cannot Admit or Deny - Responding party is unfamiliar with Plaintiff.

THIRD: Deny - Plaintiff has provided no evidence in support of this statement, therefore, Responding party denies the allegation and demands strict proof.

FOURTH: Deny - Responding party objects to this claim on the ground that it is vague, ambiguous and unintelligible in that the Responding party has to speculate as to the meaning of "consumer credit account”.

FIFTH: Deny: This claim calls for admission of matter the Responding party has already denied and thus it is improper.

SIXTH: Deny: This claim calls for admission of matter the Responding party has already denied and thus it is improper.

SEVENTH: Deny: This claim calls for admission of matter the Responding party has already denied and thus it is improper.

EIGHTH: Deny: This claim calls for admission of matter the Responding party has already denied and thus it is improper.

NINTH: Deny: This claim calls for admission of matter the Responding party has already denied and thus it is improper.

Edited March 15, 2011 by tummytrouble

[Guest usctrojanalum]

I don't really like your answer tbh. It's not that big of a deal but I'm not a fan of people repeating the same thing over and over again.

1) Defendant is without information and belief to respond to the truth of the allegations in paragraphs 1 and 2.

2) Defendant denies the allegations in paragraphs 3, 4, 5, 6, 7, 8, and 9.

AFFIRMATIVE DEFENSES

list your affirmative defenses here.

After you file your answer, you should then send them a discovery demand pursuant to article 31 of the CPLR. When you are ready to do that, I will give you some ideas of what to ask for in discovery.

[jackson212]

some possible affirmative defenses can be found in CPLR 3211

statute of limitations, failure to state a claim, lack of capacity,

you can and should add plaintiff's lack of standing

you should also read CPLR 3015 and see if they comply with the section about licensing (cplr 3015(e) (although most jdb's usually just forget to put their license, that's their problem to deal with, let them go through the work of amending the complaint)

and yes, prepare to engage in some good discovery. you can usually win the battle during or shortly after discovery.

good luck!

Edited March 15, 2011 by jackson212

[tummytrouble]

So I don't need to answer each complaint seperately?

Also, should I send a validation request immediately following the answer? I can only speculate on which account this is referring to.

How and where should I address the lack of stated license? Is that part of affirmative defenses?

As for affirmative defenses, this is where I am having some difficulty. I have read the NY Civil Practice Law Rules (specifically the sections mentioned) but I cannot see what's applicable to my situation. I don't see where it addresses lack of standing? Or failure to state a claim? What is that anyway?

I need to have this completed by the first week of April but I'd like to get it done asap. Thanks for your help!

[Guest usctrojanalum]

So I don't need to answer each complaint seperately?

Nope, nobody in their right mind wants to read all that stuff anyway. It also saves paper.

should I send a validation request immediately following the answer?

Negative.

As for your affirmative defenses, honestly just put down whatever you want. The answer is never really taken that seriously anyway it really is just a way to tell the Court and the other party that you are appearing in the action and going to defend yourself.

Example of things you can put down are

Lack of personal jurisdiction

Lack of subject matter jurisdiction

Lack of privity of contract

Plaintiff lacks standing

I personally like to use lack of personal jurisdiction every single time because that typically automatically buys you 2 months before anything happens. When you raise lack of personal jurisdiction the defendant has 60 days pursuant to 3211(e) to bring a motion to dismiss on those grounds. If those 60 days expire, that defense is waived.

However, collection attorneys will often wait at least 60 days before proceeding with anything because they are aware that basically no pro se defendant on the face of the earth is aware of 3211(e) and they will let them unknowingly waive that defense.

[workingpoor]

I personally like to use lack of personal jurisdiction every single time because that typically automatically buys you 2 months before anything happens. When you raise lack of personal jurisdiction the defendant has 60 days pursuant to 3211(e) to bring a motion to dismiss on those grounds. If those 60 days expire, that defense is waived.

However, collection attorneys will often wait at least 60 days before proceeding with anything because they are aware that basically no pro se defendant on the face of the earth is aware of 3211(e) and they will let them unknowingly waive that defense.

Aren't 'lacks personal juridiction' and 'lacks standing' the same things?

[Guest usctrojanalum]

Nah, lack of personal jurisdiction is the summons and complaint was not served properly. Lacking standing is when the plaintiff does not have a right to bring a lawsuit because they are not the real or proper party.

[workingpoor]

Nah, lack of personal jurisdiction is the summons and complaint was not served properly. Lacking standing is when the plaintiff does not have a right to bring a lawsuit because they are not the real or proper party.

Oh ok, that's how I was interpreting lack of personal jurisdiction; They can't sue you because they're not the injured party. I didn't realize personal jurisdiction had to do with service. I guess that's why I couldn't find it where I was looking in my RCP. :o

[tummytrouble]

Here's what I have so far. Please critique.

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 lacks standing. Defendant never entered into contract with Plaintiff, as such is not obligated to them, monetary or otherwise.

3.Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff. (is this saying the same thing as above?)

4.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

5.Defendant was not notified of any assignment of the purported debt that is the subject of the Complaint.

6.Defendant reserves the right to plead other affirmative defense that may become applicable and/or available at a later time.

Lack of personal jurisdiction? I don't know enoght about it and I'm not comfortable claiming something I can't support. Wouldn't that hurt my case?

Thanks for all the great help!

[Guest usctrojanalum]

lack of personal jurisdiction just means the summons wasn't served properly

[tummytrouble]

I filed my answer today and the clerk told me I should get a letter next week for a court date in early May, and one will also be sent to the atty for Calvary. Isn't that incredibly soon for a trial? Maybe I heard her wrong, guell I'll wait to get the mail.

At any rate, how do I proceed, what are my next steps? Should I take the first step and contact the other atty with a discovery demand? Can someone point me towards informationon how to do that?

(And I need some moral support too)

Thanks for your help.

[Guest usctrojanalum]

Your Court date in May most definitely is not going to be a trial. Depending on which Court you are being sued in trial probably won't happen for a year if you get to that point, a lot of times the plaintiff will bring a motion for summary judgment to try and speed up the case but you can worry about that later, you should be able to beat a motion by cavalry

[tummytrouble]

According to the court's website, once the summons is answered the matter is scheduled for a pre-trial conference.

Do I send a discovery request prior to this or will this be covered on that day? Either way I need to start preparing. What should I ask for? I need to see, first off, some specifics on this account (oc, account #) since they have not identified the source of this alleged debt. Once that is shown I would then need a vaild assignment, showing they are the leagal owners of the debt with the right to collect on it.

What else?

[Guest usctrojanalum]

You can do it both ways, you can handle it before the PTC or when you go to the PTC, (you are likely going to have multiple conferences) you can then say that you are going to request discovery and you will have it prepared before the next conference and give them an idea of what you are going to request.