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Sued by Discover/Kirschenbaum & Phillips


jg2933
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I need advice,

I am being sued by Discover through Kirschenbaum & Phillips. Discover is named as a Plaintiff. They are suing for $2600. I had this card for a while and I couldn't pay anymore at one point. They have been calling me threatening lawsuit and I finally agreed to pay $50/month to avoid that. So I've been paying for 12 months, and then suddenly the payments stopped (it was automatic withdrawal). I didn't even notice until a few months later this law firm started sending me letters.

I sent them a DV letter and never got any response. Fast forward several months later and I just got a letter from some law firm advertising their services, saying they got my name as a defendant in a lawsuit. I went online and looked it up and there was a case filed a month ago! I never got any mail and I wasn't served at all. I showed up in the courthouse and answered the complaint. I figure they just wanted a default judgment against me.

Anyway, I got a court date and I'm going to ask for proof of debt, etc. I know the card is mine, but I honestly don't recognize the amount and have no idea if the money I've been paying for the past 12 months has been accounted for. I was acting in good faith, making payments! I have no idea why they decided to stop them and then sued me.

Also, can I ask to exercise arbitration clause? I haven't been provided with my agreement, but I'm assuming there was one. Should I wait after the judge compels the Plaintiff to give me those documents? I know people say to deny you owe that card, but how??? I have records that I've been paying that debt, so I can't use them if I deny it. I guess I want them to give me documents as to what I owe vs what I already paid. I have no idea how the amount they want was calculated.

Another "weird" issue is that my name on the card doesn't match at all to my name on the complaint or the card. I've gotten married and I changed the spelling of my first name. But I assume that they have my SS#? So it's not like I can just forget the whole thing.

I'm also surprised they are suing me because I have no assets and no income, so there's nothing to take from me.

So what do I do? What should I tell the judge?

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Well what's done is done as far as you just showing up and answering the complaint without getting sued. However, if this happens in the future, you might want to just let them serve you.

You have to decide if you want to fight or not. Your all over the place with your post. You want to fight but don't want to deny. You don't want them to use your records to show you paid since that would help their case but then want to make sure you get credit for your payments.

Decide what you want is the first thing. If you don't want to fight then call them up and settle. At least you can avoid some atty fees. Don't go with the they were taking 50.00/month out and I did not notice for a few months they stopped taking it out. Then talk about how little you have. Does not lend a lot of credibility that you would not notice 50.00/month no longer being taken from your account. That's an excuse I would not use no matter what you decide. Nobody is going to buy that story.

Just so you know, if your sued they have the burden of proof. Contrary to what many will recommend, by using affirmative defenses, you can sit back and make them prove their case. It's the same theory in criminal law of being found not guilty instead of innoncent. You can be found legally not liable for the debt without it being ruled you don't owe the debt.

You can, if you wish, simply make them prove their case. If they can't, you win. It won't matter if you owe or not. It's just the way the system works. They sued you, they have the burden of proof. You don't have the burden to prove you don't owe. You do have that burden, once they meet a certain burden.

You need to decide if your going to fight. If you are going to do that, then you can't go half-a$$ with it. If your going to do that then just settle and save your money. It's fair to also tell you that fighting Discovery, which is an OC, after you have been making payments, and you have already admitted to the other side the debt, is not a walk in the park.

It can be done, but don't confuse the threads you read about fighting JDB (usually Midland) with your case. Good luck, but you need to make a choice and then we can help and/or direct you in the right direction.

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Thanks. I was fine with the agreement to pay the $50 and I have no idea why they decided to stop doing that. I can't settle for a lump sum now because I can't afford that.

I went in to answer what I thought was a lawsuit because I had no documentation from them. What exactly is a complaint and how does it differ?

My issue was that they didn't provide me with any documentation on the debt when I asked for it, which you would think would be easy for an OC. I sent them a certified letter asking for proof. I have no idea if the amount in the complaint is the amount that I owe. I vaguely remember the account only having $1k limit.

Should I ask for arbitration? This really should have never gone to court as I was making payments. I have no idea why it did.

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Coltfan gives excellent advice, you either want to defend or you are going to admit you owe. There are no gray lines in between.

Do have the entire complaint (summons)? is there a card agreement attached ?

is there an affidavit attached ?

Grab a copy of NY rules of Civil procedures to learn the steps.

If this is a small alleged debt, then choosing arbitration may be a good strategy. It makes it much more expensive to pursue a small amount.

Do you have any FDCPA violations? Did the law firm/CA call your cell phone , your family, your neighbors, work, boss?

Also in preparation you may need to look into past dealings with either DC or the firm.

Beware Discover card agreement clause requires you to notify them when and if you elect arbitration (if you decide to go that route).

Whatever you do prepare your answers with affirmative defenses and if you are electing arbitration make sure it is a part of affirmative. Some court's are sticklers if you don't use it you lose it.

Edited by howucan2
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Coltfan gives excellent advice, you either want to defend or you are going to admit you owe. There are no gray lines in between.

Do have the entire complaint (summons)? is there a card agreement attached ?

is there an affidavit attached ?

Grab a copy of NY rules of Civil procedures to learn the steps.

If this is a small alleged debt, then choosing arbitration may be a good strategy. It makes it much more expensive to pursue a small amount.

Do you have any FDCPA violations? Did the law firm/CA call your cell phone , your family, your neighbors, work, boss?

Also in preparation you may need to look into past dealings with either DC or the firm.

Beware Discover card agreement clause requires you to notify them when and if you elect arbitration (if you decide to go that route).

Whatever you do prepare your answers with affirmative defenses and if you are electing arbitration make sure it is a part of affirmative. Some court's are sticklers if you don't use it you lose it.

I didn't receive ANYTHING from them. The only reason I found out about this is because some other law firm pulled up my name in court records and was offering their services. I went to the court house to answer and at that point I was given a copy of the filed complaint which was just 1 page. There was nothing attached to it. No statements, affidavits, etc.

I didn't bring up the arbitration clause (and I don't even think it was one of the choices when I answered) because I didn't even have a cardmember agreement at the time. Since they filed on 10/4, my main concern was to show up ASAP and respond to this so that they don't get a default judgment. So now I have to come back to court after thanksgiving to I guess go before the judge with the representative from the law firm.

The amount they are asking for is $2600, so it's small enough where I think asking for arbitration makes sense. Can I ask for it at this point and what do I have to do? I'm in NY, if anyone is familiar with any details. I know I have to file a motion to compel arbitration, but don't know at which point to do this (or how it's done). Are there any expenses involved? I got a hold of Discover arbitration clause and they are specifying AAA as an arbitrator, which I heard isn't the best thing.

I guess here's my reasoning - yes, I did have this card and I did owe a balance but I have no idea if what they are asking is what the balance was. They didn't not provide any documentation after I specifically asked for it. Not only that, but I had a standing payment plan with them that they decided to discontinue and sue me (and didn't even tell me about it), so they weren't acting in good faith. I want them to show me my statements so I can verify the balance and I can see the payments I already made being reflected there. My goal from the start was NOT to be in court, hence the payment plan.

Any advice?

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It is very typical for docs not to be attached to the complaint, most firms file electronically and are sloppy which is good for the defendant. In my case the OC filed a contract complaint and forgot to attach the actual contract. My state laws require a written agreement or the complaint is defective. But since I chose arbitration and initiated, it put them in a real jam to start violating my consumer rights. (i initiate because the OCs as soon as election letter hits their desk will file with a more desirable forum (AAA) which favors their position. You want to avoid the favorite forum.

If you are going to draft a motion to compel arbitration then do file it ASAP with court (check to see if you need a hearing scheduled) send it via certified mail to the other party. (again check your court rules or call the clerk regarding the procedures, and don't be surprised if the clerk has never heard of the private arbitration). Just ask for motion rules if that happens.

BTW, I never got good advice from pro se help desks in court,they will deter from arbitration of any kind, just that they know the court rules if you need help.

Draft a simple motion to compel arbitration and make references to "private contractual arbitration per terms of the card agreement". Some sleezy lawyers will agree to court arbitration, which is not the same so be cautioned. Make sure to refer to (At&t vs Concepcions et al (SCOUTUS 2011) and FAA (federal arbitration act) which covers the DC agreement.

In Motion rules some courts require a certain amount of notice (time) to the other side, in my state it's 14 days notice for hearing. If you file with court now and are short on deadline then request for your motion to be heard first.

I had this issue once and asked my motion to be decided on before any proceedings.

Do follow the rules of card agreement too as there are instructions when you elect arbitration.

One last thing send a letter CMRR to the attorney for DC and elect arbitration so you have a record of electing.

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