Just served

[global251]

I was just served today. However the complaint was filed almost a moth ago and is past the 20 days from when it was filed. Sheriff left papers in the door just today.

What should I do? Will my answer to complaint be too late?

Thanks

[1stStep]

Generally, you have 20 to 30 days after being served to file your answer.

[legaleagle]

You should be able to file for an extension of time to answer. Cite the fact that you just received this, and give them the sherriff's name and a copy of the papers in case they want to call him to verify this. The clerk of the court should be able to do this for you.

[BV80]

I was just served today. However the complaint was filed almost a moth ago and is past the 20 days from when it was filed. Sheriff left papers in the door just today.

What should I do? Will my answer to complaint be too late?

Thanks

The 20 days to file your answer begins on the day you're served.

[IndiraMehta]

Who served you?

Collectively, the forum can provide better help for you if we know which OC (Original Creditor), JDB (junk Debt Buyer) or collections agency (CA) served you....

It's highly likely the person who served you has been discussed here before.

[global251]

I am being sued by CitiBank

[global251]

I can post a redacted version of the complaint if anyone would like to help me formulate the answer

[nascar]

I can post a redacted version of the complaint if anyone would like to help me formulate the answer

OK, be sure to remove ALL your personal information.

[legaleagle]

I am being sued by CitiBank

By all means post it here. I love Citibank. I'd send them a nice Xmas card, but letter bombs are illegal.

[Seadragon]

allow for overburdened sherriff's process server?

that is the thing to think about.

also let's look at the pleading requirements for In.

Indiana Rules of Trial Procedure

Rule 9.2 is going to be a key here:

Rule 9.2. Pleading and proof of written instruments

(A) When instrument or copy, or an Affidavit of Debt must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record. When any pleading allowed by these rules is founded on an account, an Affidavit of Debt, in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached.

( Proof of execution of instruments filed with pleadings. When a pleading is founded on a written instrument and the instrument or a copy thereof is included in or filed with the pleading, execution of such instrument, indorsement, or assignment shall be deemed to be established and the instrument, if otherwise admissible, shall be deemed admitted into evidence in the action without proving its execution unless execution be denied under oath in the responsive pleading or by an affidavit filed therewith. A denial asserting that another person who is not a party did execute the instrument, indorsement, or assignment may be made without such oath or affidavit only if the pleader alleges under oath or in an accompanying affidavit that after the exercise of reasonable diligence he was unable to make such person or his representative (subdivision (H)) a party, the reason therefor, and that he is without information as to such execution.

© Oath or affidavit of denial of execution must be made upon personal knowledge. An oath or affidavit denying execution as required and made under subdivision ( of this rule shall be made upon the personal knowledge of the person making it, and, if general in form (Rule 11(), shall be deemed to be made upon such personal knowledge.

(D) Burden of proving execution. The ultimate burden of proving the execution of a written instrument is upon the party claiming its validity, but execution is presumed. “Presumed” means that the trier of fact must find the existence of the fact presumed unless and until evidence is introduced which would support a finding of its nonexistence. potential pitfall

(E) Inspection of the original instrument. When a copy of a written instrument is filed with or copied in the pleadings under the provisions of this rule, the pleader shall permit inspection of the original unless it is alleged that the original is lost, whether by destruction, theft or otherwise, or unless it is alleged or established that the instrument is in the possession of another person and out of the control of the pleader or that the duty to allow inspection is otherwise excused. The pleader shall allow inspection promptly upon request of a party, and inspection may be ordered by the court upon motion without a hearing at any time. A party failing to comply with such request or such order shall be subject to the provisions of Rule 37(. This provision shall not diminish a party’s rights under Rules 26 through 38.

(F) Effect of non-compliance--Amendments. Non-compliance with the provisions of this rule requiring a written instrument or an Affidavit of Debt to be included with the pleading may be raised by the first responsive pleading or prior motion of a party. The court, in its sound discretion, may order compliance, the reasons for non-compliance to be added to the pleadings, or allow the action to continue without further pleading. Amendments to correct the omission of a required written instrument, an assignment or indorsement thereof, the omission of a denial of the execution of a written instrument as permitted or required by this rule, or an Affidavit of Debt shall be governed by Rule 15, except as provided by subdivision (A) of this rule.

(G) Exceptions--Infants, incompetents, dead and insolvent persons. The requirement of this rule that execution of a written instrument be denied under oath or otherwise, shall not apply against a party who is not required to file a responsive pleading, or against a party who, at the time the responsive pleading is due or before the pleadings are closed, is or becomes dead, an infant or adjudicated incompetent or is the representative of such person or of a person who is dead, an infant, an adjudicated incompetent, or in insolvency proceedings. Such parties shall be deemed to have denied execution or admissibility without any responsive pleading or denial. The presumption of execution as provided in subdivision (D) of this rule shall not apply to establish execution of a written instrument by a person who, at the time proof is required, is dead, an infant or adjudicated incompetent.

(H) “Execution” of a written instrument. “Execution” of a written instrument includes the following requirements:

(1) That a signature was made with express, implied or apparent authority and was not forged;

(2) That the instrument was properly delivered, including any requisite intent that it be effective;

(3) That the written terms of the instrument have not been materially altered without the express, implied or apparent authority of the person bound thereon;

(4) That the person seeking its enforcement is in possession of the instrument when required; and

(5) That the names or identity of the persons named in the instrument are correct.

(I) “Written instrument”: When pleading is founded thereon--When pleading is not founded thereon term includes documents. When a pleading is founded upon a written instrument, any written indorsement or assignment of rights thereof upon which the pleader’s title depends is included in the term “written instrument.”

You see where to go with this?

Indiana Rules of Trial Procedure

RULE 8© Affirmative defenses. A responsive pleading shall set forth affirmatively and carry the burden of proving: accord and satisfaction, arbitration and award, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, lack of jurisdiction over the subject-matter, lack of jurisdiction over the person, improper venue, insufficiency of process or service of process, the same action pending in another state court of this state, and any other matter constituting an avoidance, matter of abatement, or affirmative defense. A party required to affirmatively plead any matters, including matters formerly required to be pleaded affirmatively by reply, shall have the burden of proving such matters. The burden of proof imposed by this or any other provision of these rules is subject to the rules of evidence or any statute fixing a different rule. If the pleading mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleading as if there had been a proper designation.

Damn Coltfan's right again in Indiana.

Edited November 24, 2011 by Seadragon

[global251]

here is the complaint[ATTACH]281[/ATTACH]

[legaleagle]

Before we help you answer, what is the approximate amount of the debt? What is your area of concern? What sort of defense to you intend to put forth? The complaint looks rather vague, it doesn't mention a specific cause of action such as breach of contract or account stated. What was the "business record" attached?

There are some areas to probe here, I love paragraph 2. They are virtually stating that they don't have any records to prove their case, but they assume YOU have them. Either that or it's too much trouble to produce them. Bet they attached one statement with a high starting balance.

I would hit them with discovery (production of documents) and ask for a signed application (won't have it and will say they are not required by law to retain it for more than 2 years) charge slips (they'll say they don't have them) a signed cardholder agreement or contract (they'll say they are not required, pray they say cardholder agreements are not executed) and all statements from the inception of the account (they'll object) proof of mailing of all statements (won't have it, probably will object, their usual garbage is that the post office didn't return them, which is not proof of anything) At some point they are going to mention use of the card constitutes acceptance of the terms of the agreement they can't prove they sent you. That can be fun.

Fill in the blanks for us and we'll get you going

[usagi555]

By all means post it here. I love Citibank. I'd send them a nice Xmas card, but letter bombs are illegal.

I know how you feel.

[global251]

The approximate amount is 6K, and yes they sent a statement with my name on it, however the account number is blacked out. They also sent an attached active duty status (military i guess, which i have none), and a signed affidavit from what I presume is an employee of citibank. I have attached[ATTACH]283[/ATTACH] the affidavit for your review.

Thanks

[usagi555]

That's slightly different than what I had, but they filed their complaint against me prior to the Citibank (SD) NA - Citibank NA merger, so some differences were to be expected. It also looks as though they tightened up their language for getting "Exhibit A" admitted under the records of regularly conducted activity section. (paragraph 5)

That affidavit is signed by somebody who's job is to "review the business records for this account in order to verify and sign the affidavit in the complaint filed against the Defendant." In other words, any claims of personal knowledge are bogus or at the very best, vague. Assuming that the attorneys actually send the very few discovery requests they don't object to off to Citibank to be answered instead of answering it themselves, it is easy to get them to state that.

That affidavit was robosigned, so long as you consider being on a quota system that requires producing 37 (as of late 2009) affidavits per hour to be robosigning. Getting them to admit to that will be like fighting a badger though.

[global251]

still out there leagleeagle?

[global251]

Before we help you answer, what is the approximate amount of the debt? What is your area of concern? What sort of defense to you intend to put forth? The complaint looks rather vague, it doesn't mention a specific cause of action such as breach of contract or account stated. What was the "business record" attached?

There are some areas to probe here, I love paragraph 2. They are virtually stating that they don't have any records to prove their case, but they assume YOU have them. Either that or it's too much trouble to produce them. Bet they attached one statement with a high starting balance.

I would hit them with discovery (production of documents) and ask for a signed application (won't have it and will say they are not required by law to retain it for more than 2 years) charge slips (they'll say they don't have them) a signed cardholder agreement or contract (they'll say they are not required, pray they say cardholder agreements are not executed) and all statements from the inception of the account (they'll object) proof of mailing of all statements (won't have it, probably will object, their usual garbage is that the post office didn't return them, which is not proof of anything) At some point they are going to mention use of the card constitutes acceptance of the terms of the agreement they can't prove they sent you. That can be fun.

Fill in the blanks for us and we'll get you going

I have responded

[global251]

leagleeagle,

can you give me an example of how i request discovery with my answer.

thanks

[nascar]

Where is the signature portion of the affidavit? Is is actually missing or did you redact it?

[global251]

It's on a separate page.

[legaleagle]

In requests for production of documents, ask for the following below: understand they will have nothing you ask for, or will object, or will claim you have it, or some other BS, which is exactly what you want. Their major problem is that they are in SD. They have statutory weaknesses their own lawyers weren't smart enough to overcome, even though they wrote some of the statutes for Citi. Gee, I wonder how that happened. Google Frontline interview, Gov. Bill Janklow.

I am involved with these people and am formulating a defense that may or may not work. It involves intricacies of law you may not be prepared to handle. The affidavit is not a mjor issue here, your defense may come from another direction.

Ask them to produce:

The signed application

Signed charge slips

Signed Credit card agreement

Complete history of the account from day one establishing the balance

-------------------------------------------------------

I don't recommend ROGs but there are a few that could be useful;

State with specificity the choice of law provision in the alleged cardholder agreement.

State whether or not Citibank is bound by the statutes of the choice of law provision Citibank chooses in their cardholder agreement.

State whether or not the alleged cardholder agreement fully explains the statutes under which the cardholder is allegedly bound

If the response to above was in the negative, explain why Citibank refuses to divulge to the consumer the statutes under which they are allegedly bound

If the response to above was in the affirmative, state the specific statutes that apply.

If the response to above was in the negative, state why Citibank is not bound by the choice of law their customers are supposedly bound by.

[global251]

Are ROG's interrogatories. And should I copy them the way you have them written here.

Thanks

[usagi555]

Are ROG's interrogatories. And should I copy them the way you have them written here.

Thanks

Do you know what to do when they object to those? They will object. Can you argue as to why they are relevant and should be answered? If not, then you shouldn't use them.

You have A LOT of reading to do. It is a bad idea to just copy and paste something from the internet and use it in court proceedings. Sure, sometimes copying and pasting may be fine, but only when you know what you want and why you want it ahead of time, and what you found happens to fit.

There should be a valid reason behind everything that you do here.

At this point myself and others probably want you to be aware that there is this glorious process called Discovery, but first things first: Your answer, then learning the ins and outs of the system. Going off half cocked could come back to bite you.

[global251]

can you elaborate usagi?

[usagi555]

As for the reading, if you have clicked on the links with Indiana's rules of procedure you have seen how much there is. You need to know and understand that. Not every last section, but you need to know and understand all parts that might be applicable to whatever proceedings you are going to be involved in. That is not light reading and it is in a language that sounds foreign until you are used to it: Legalese.

You also need to know the relevant statutes and laws, and you also need to know if you are going down a rabbit hole. You basically need to know how things work. I was willing to bring up securitization, for example, and that would have required reading thousands upon thousands of pages to launch a defense that may or may not have worked. Most people would call that a rabbit hole. IMO, you probably have enough reading to do without worrying about something like that.

Fortunately, "Prove your case" and "You messed up big time" were good enough defenses and I didn't have to go chasing bunnies. Who am I to argue when they hand me goodies like that?

There are other things. For example, if they are claiming that the account was active prior to 2006, you might be able to attack the reliability of their evidence because they changed record keeping practices in Jan of 2006. To show that, you need to start reading some of their SEC filings, which will lead to a need to understand how static pool information relates to the alleged CC account in Jan of 2006. That's even more reading. If you start sending discovery requests over that, they will probably object claiming that it is irrelevant and/or proprietary. You will need to be able to effectively argue that it is relevant and that if it is proprietary information that they are unwilling to cough up, then their records should not be admitted because they cannot show that they were created and maintained in a reliable fashion. Your arguments will have to be presented in a fashion consistent with those pesky rules of civil procedure.

It would also be good to learn about the law firm representing Crappybank. If they have 5 attorneys filing 1000 cases per month, they may have a significant amount of discretion on when and how to drop the case. Yup, more reading. Also, looking on the docket and showing up to watch any hearings or trials that they are involved in would be a good idea. If you can show that there are some dirty things going on that could suck the lawyers into an FDCPA lawsuit, they may just cut and run.

Then there is case law. Tons and tons of case law.

You are going to have to go from being ignorant about our legal system to being able to go toe to toe with a licensed attorney in an unreasonably short amount of time. It sucks, but that's how it is. You're in far better shape than the occasional person who comes here and starts a thread "HELP! TRIAL TOMORROW!"

Unless there is an attorney who is licensed in Indiana on here, not a single one of us could step into the court room and make your arguments for you and the court is not going to stand for "Your honor, may I consult with the internet first?" We could be thrown in jail for even trying to step into the courtroom for you. At the end of the day, it rests on your shoulders to do it properly.

We can, however, tell you what you need to know, give our opinions and provide you with a wealth of information.

Edited December 3, 2011 by usagi555