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Cohen & Slamowitz - Capital One


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Here is the questionaire I see other people using in order to provide more background, below the questions is some more extensive detail ...

1. Who is suing you?

Original Creditor, according to the complaint, I doubt they are the real plaintiff, I think C&S "purchased" the account from them

2. For how much?

about $3,000

3. Who is the original creditor?

Cap One

4. How do you know you are being sued?

Served by Nail & Mail, over 3 years ago

5. How were you served? Were you served?

Nail & Mail at primary residence

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

None, I never received anything from them, the 1st contact was a summons taped to my door.

7. Where do you live?

New York State (outside NYC)

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

allegedly about 5 years ago I think, they haven't provided any proof of last payment

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).

See below, I filed a timely answer denying they had standing and denying the amount. It sat for 3 years, then apparently they filed a Note of Issue

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, it said I need not go to the court to file an answer. What a crock, but I knew better and filed a timely answer.

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

Absolutely nothing, but I vaguely recall that it may not be necessary in NY state.

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

6 years in NY, 3 years in VA. SOL wasn't raised as an affirmative defense in the answer so I don't think its viable now. Plus they filed their complaint in 2009 so under NY law it wasn't over SOL allegedly, but under VA SOL it was, only I wasn't aware at the time of my answer that VA law could be applied so I didn't raise it.

I was sued by Cohen & Slamowitz about 3 years ago. I filed a timely answer without counterclaims then waited. Thought it was abandoned after no activity/contact for 3 years. All of a sudden I got a letter from the judge saying we are on for a pre-trial conference.

I showed up to the pre-trial conference on time, C&S didn't show up at all. Clerk called me into an office and asked me what I wanted to do, I said move to dismiss. She said OK, file a motion to dismiss, serve it on plaintiff, give copy to court clerk, and she put it on the calendar.

My questions:

1.) C&S didn't show up, shouldn't I have won automatically? I never got to talk to the judge, the clerk just commended me on how well constructed my answer was and when C&S didn't show told me she'd put my motion hearing on the calendar.

2.) Clerk said C&S filed "Note of Issue", I never received a copy of it, shouldn't I have been served with it? I looked up what it is and apparently means that discovery is over and plaintiff is ready for trial.

3.) Should I proceed with discovery? Should I file a motion for discovery along with the motion to dismiss? They have provided no proof, no affidavit, no nothing.

4.) Since this sat for 3 years without any activity can I get it dismissed as abandoned under CPLR 3215? I had another one dismissed under 3215 on court's own initiative after it sat for 3 years with no activity, in fact it was another C&S special that was dismissed.

5.) Can I bring up laches as a reason for dismissal? Why would they sit on this for 3 years?

6.) Does anyone know of any decent NY case law that would help me in my motions? I'll continue to search these boards and do my own research and stuff but if you have anything you want to share just let me know.

7.) Whats my prognosis? For those of you more experienced people out there what you rate my chances of successfully getting this tossed? Do you think C&S will show up to defend against my soon to be filed motions if they didn't show up to their own pre-trial conference?

If you have any other suggestions please feel free to chime in. I'll let you guys know how I do and if it works out I'll share what I figured out to help any future people who have to deal with these bottom feeders.

Edited by JimmyTheHammer
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Here are a couple of suggestions to help you get the most from this site...

1. While background is helpful for those answering. When you write 6 paragraphs (a couple very large) single spaced, it is very hard to find the questions you want answered.

2. Generally best to give a small bit if information, then ask your question, and make sure the question is easily found.

3. You have mutliple issues better to have 2 threads working, one for Capitol One and another for the Student Loans, that way folks answering and as others chime in you don't get an answer for one circumstances mixed with the other.

If it were me I would post a couple of questions that are based on the larger amount of information provided around the Cap One case. Then start another thread regarding the Student loan.

This will allow you to get the most from the site....

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Some more questions:

I have been doing some more reading and people on here are definitely suggesting BOP (Bill of Particulars?) and discovery. There is no trial date set that I know of, again they never showed up to the pre-trial so I'm kind of lost as to what is exactly going on.

So

1.) What is a bill of particulars? Does anyone have any resources to point me to in order to draft one.

2.) How do I get discovery started? I'm pretty sure I file a motion to compel discovery but it would be nice to see a copy of one that was already filed to use as a sort of template.

3.) What should I ask for in the Motion to Compel Discovery? What is it that I am looking for? And what is a CCP98? Is that only for California?

Thanks guys!

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Check the OC's entry on your credit report. It the OC reports the account as "sold/transferred" or "purchased by another lender"...something to that effect...then the account has been sold.

If the account is merely charged off, the OC still owns it.

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Some more questions:

I have been doing some more reading and people on here are definitely suggesting BOP (Bill of Particulars?) and discovery. There is no trial date set that I know of, again they never showed up to the pre-trial so I'm kind of lost as to what is exactly going on.

So

1.) What is a bill of particulars? Does anyone have any resources to point me to in order to draft one.

2.) How do I get discovery started? I'm pretty sure I file a motion to compel discovery but it would be nice to see a copy of one that was already filed to use as a sort of template.

3.) What should I ask for in the Motion to Compel Discovery? What is it that I am looking for? And what is a CCP98? Is that only for California?

Thanks guys!

The BoP is a California thing, and so is CCP98. For the most part, all states have similar rules, but each state is going to have a few unique things. I'm not sure how unique CCP98 is to Cali, but I know that only one or two other states have something similar to CCP 454 (i.e. the BoP.)

Also, I am not familiar with NY's discovery process. Most aspects of discovery are going to be similar from state to state, but again, there may be a few details that differ. You'll need to read your state's rules of civil procedure to see what they say. You may simply be able to draft some discovery requests and send them to the opposing attorney on your own, or you may need to wait for the court to give you the OK. I don't know how that works in NY.

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BOP is California law. Forget that. The first thing you should do is familiarize yourself with the rules of practice for NY State. These are the rules that all parties to a case must abide by. Failure to understand them or abide by them can kill your case. The rules will tell you what to do, how to do it, and how long you have to do each step. First off, you're up against one of the dirtiest law firms in existence. Just know that. Give them NOTHING except a hard time. Here is a link to the rules:

Laws of New York

Right now, study 21-31. These are the rules that will cover the first part of your case.

They will send you "disclosure." In other states we call it discovery. That means they will send you questions, requests to produce documents, and requests to admit certain facts. DO NOT answer them before you post them here and let us see them. One wrong answer, and you can lose your case.

You may want to look into arbitration, others here like Linda are experts on that, not me. I like straight up hard core stick it in their a-- litigation. Another guy here you should listen to is Coltfan1972. He has his own graveyard full of lawyers who thought they could beat him in court. Also listen to Nascar. He beats me up occasionally, but he is brilliant. Damn, I hate to admit that! But facts are facts.

This will NOT be easy, but it will be a lot of fun. You'll get some answers here you may not like, but be mindful.....we DO know this stuff. Our take is not to criticize you, but to save you from your own mistakes which are innocently made. Kinda like a drill sergeant who wants to make sure you survive combat. Don't take it personally. A judge will not appreciate a pro se who fails to follow procedure.

Look into the statute of limitation for your state for credit card bills. Prob won't apply, but some of your resonses above are ambiguous. If you like to fight, you came to the right place. If you want to settle, that's your choice. Keep in mind NY can garnish you for 10 percent of your income. I posted the law here for somebody else, you can read all my posts or those of anybody by clicking on their name. Keep posting, stay alive on the site, otherwise you'll get little help. People who disappear are too frequent.

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I showed up to the pre-trial conference on time, C&S didn't show up at all. Clerk called me into an office and asked me what I wanted to do, I said move to dismiss. She said OK, file a motion to dismiss, serve it on plaintiff, give copy to court clerk, and she put it on the calendar.

This would be the first thing I would do, and see what happens. Motion for the dismissal, for lack of prosecution. Keep it simple and straightfoward, try to find a NY Civil Procedure that deals with this.

I checked 3215 you should read it carefully, as it deals with default judgements. Look at © in that statued and you may base your motion on that section. There are others that are probably more appropriate, but you will have to search...

Your other questions are premature until you see what happens to the MTD...

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Thanks guys, I'm reading NY Rules 21-31 tonight in its entirety.

It seems really strange, like you said legaleagle, these guys are dirty, the Note of Issue seems like some sort of ploy, I just don't see anyone else on here that had a situation similar to mine with Cohen & Slamowitz.

So I'm going to read those rules, but the court I am in doesn't seem to be sticklers for procedure. I wish I could watch some other cases but nobody really makes it to trial here, it was just me and another guy there and he was trying to show he paid it, no legal arguments or anything. The clerk seemed stunned I even filed an answer and wanted to put me on the calendar for December the 8th until I pointed out the 21 day notice for mailed motions. I don't think the judge is all pro-creditor, I won my last Cohen & Slamowitz on the court's own initiative, they tossed it without discovery or anything. And a different one I got a stipulation of discontinuance filed by the plaintiff, sans a stipulation, so basically they dropped it after receiving my answer. So I'm hoping the judge will be somewhat sympathetic, its the same judge as the other 2 cases I won.

But I really appreciate your guys help, and anything I receive or do I'll check with you guys first before responding or doing it. I'm down for some fun and learning about the legal system.

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This would be the first thing I would do, and see what happens. Motion for the dismissal, for lack of prosecution. Keep it simple and straightfoward, try to find a NY Civil Procedure that deals with this.

...

Your other questions are premature until you see what happens to the MTD...

This. The clerk pretty much told you to. File the motion to dismiss for lack of prosecution ask for with prejudice for missing the Pre-Trial after three years sitting dormant.

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This. The clerk pretty much told you to. File the motion to dismiss for lack of prosecution ask for with prejudice for missing the Pre-Trial after three years sitting dormant.

Agree. This might end the thing before it gets started. However, I would strongly recommend that while your waiting on the decision and/or hearing you devote time to researching other defenses and getting very familiary with discovery.

If this starts down the litigation trail, you want a head start. Get different opinions and how you want to persue. My advice, if it makes it past a MTD, is to back a UHAUL to there door so full of discovery, request for production of documents, motions, and anything else you can think of. I'm sure you can also find something to countersue them for. Look at it as getting a shot at them without having to pay the filing fee (at least in my state there is no fee to counter).

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I know none of you guys are in NY, but just as a matter of course in your states are you allowed to file multiple motions? For example, lets say I motion to dismiss based on lack of prosecution, it gets heard and denied.

1.) Can I then file more motions using different defenses later?

2.) Would you recommend I put all my defenses on this motion or break them up and file them one at a time?

Yesterday I had a good feeling about this case, but today I'm not so sure. It looks like in NY it is so stacked in favor of the plaintiff, the plaintiff can basically do whatever the heck they want whenever they want and its my responsibility to notify them that they are messing up. Its ridiculous, its as if the whole system was designed by plaintiffs, everything from sewer service, default judgement, the fact that if I miss one thing I'm sunk but they can miss anything they want.

So I'm definitely going to continue with the motion, but I need to do discovery too.

3.) Does anyone know what I should be asking for in discovery?

It doesn't matter if you aren't in NY, I'll double check everything and modify anything in accordance with NY rules if its not compatible. I'm just not sure what I'm even supposed to ask for in discovery and could use a place to start.

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You're confusing two separate parts of procedure. A defense, as you mention it, is either a response to the complaint (affirmative defense) or it is your strategy at trial. It will consist of evidence you present to the cort that supports your position.

A motion is a request to the court that they do something for you. Throw out the case, give you a win (summary judgment or MSJ) exclude the other guy's evidence, order compliance with discovery, stuff like that. It does not involve your defense to the action.

Motions should only be filed with good reason. Some of them require a memorandum of law and oral argument in court. Too many motions get you in trouble with the court.

What you are experiencing is common, the system can seem overwhelming until you learn how to use it. Like your MTD..... normally you may have had a shot, but the judge may deny this because you waited so long to file it. He may ask you that. The rules are the same for everybody. The only difference between a lawyer and a well informed pro se is that they know how to abuse the process better and they know a few procedural tricks you may not. If you get a bad ruling, you can always file a motion to reargue. Otherwise, save it as grounds for an appeal.

Discovery is where you find out what they have. OCs are not infallible, some of them do not have the paperwork. I would suggest Google Scholar. Type in "Capitol One v." and nothing else. Use the advanced tab to choose New York cases. that will give you some basic info as to how these go. Watch the motions, ask here before filing anything else. Maybe you'll get lucky and they'll dismiss the case.

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Wow, a lot to handle here not really sure how to start. First, do not do a motion to dismiss and a motion for discovery at the same time. They contradict eachother. Why would you ask for the case to be dismissed and then at the same time say no I do not want it dismissed I want discovery.

Second, you do not bring a motion to conduct discovery. You send the plaintiff's attorney a set of discovery demands and they are to answer them. If they do not respond to the requests them you may bring a motion to compel the discovery responses.

I think a MTD for lack of prosecution is a good try. I've heard of cases floating in nowhere land for some amount of time, but never 3 years. Most I've seen in 2 years, and that was in Supreme Court with attorneys on both sides.

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I think a MTD for lack of prosecution is a good try. I've heard of cases floating in nowhere land for some amount of time, but never 3 years. Most I've seen in 2 years, and that was in Supreme Court with attorneys on both sides.

The problem he may have is that he never filed the motion in the timeframe that was appropriate. Why did he wait 3 years? Should have been done in what, 30 days? The motion is filed now, but the judge may think this is just as much his fault as theirs. If this thing gets on the calendar, he may have to appear and argue it. I'm surprised the court let it languish this long, but you can't raise that issue. It's up to each litigant to know and follow the rules. If you don't the court has the option of interceding, but they can do as they wish.

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Yeah, I wasn't aware that it was also up to me to do anything, I thought that it was solely up to the plaintiff if they want to pursue it, although that isn't a valid defense in court its why I never pursued it either.

I'm just kind of confused as to how to know where we are in the proceedings or what is going on. All my other cases got dismissed after the answer so I've never made it this far.

Well, I've got to follow through with the motion now since its on the calendar. If they never showed up for the last hearing maybe they'll skip this one as well. I just want to make sure I'm not losing my rights to do discovery if they do end up appearing at this next hearing.

Edited by JimmyTheHammer
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So I've been reading up on NY Civil Procedure and this is all messed up.

Cohen & Slamowitz, according to the clerk, has filed a note of issue. A note of issue in NY means that a pre-trial conference was held, discovery is over, and they are ready to proceed to trial.

1.) I was never served the note the issue nor have a copy of it in order to respond to in order to vacate it.

2.) The note of issue is filed and served after discovery and the pre-trial conference is complete. I have 20 days to vacate it but I never received it, it looks like they filed a note of issue, never served it, then the court was like, "Wait a while." and calendared us for a pre-trial conference, which the plaintiff failed to appear at.

3.) There are so many things wrong with this I don't know where to start. I looked at all the other 450 cases involving these clowns in 2009 and for those that do actually show up with an answer, C&S just files a motion for summary judgement within a year at the most. There was only one case where the defendant filed a motion to dismiss and he was successful, it was tossed, so I think I might have a shot.

I just wonder why my case is so strange. I really want to make sure that I can do discovery and I'm not losing any of my rights from my lack of knowledge.

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Here, we call that "closing the pleadings." That means we're done with the paperwork, let's get ready for trial. In your case, I suggest filing an objection to the plaintiff's Notice of Issue. Follow the format and tell the Court that you never received any such copy despite any certification filed with the court. You may want to petition the court to force opposing counsel to provide all motions, etc by email so as to avoid this in the future.

One thing is not clear.....the notice of issue says it's closed after a pre trial hearing which you say they did not attend. Did you attend? If you did, this defeats your argument that you were not served with notice. Why would you go to something if you weren't told of it? It's connected to their notice. I don't know, this is not clear.

I don't get the time lag. Just see what happens with the motion to kick this for failure to prosecute. The plaintiff bears the ultimate burden of pursuing the case, but pro se's are supposed to know the rules too. All I can say is go to court, explain to the judge that it took you some time to learn the rules, and now you know what they did wrong.

"My apologies to the court, but with work and all, I have limited time to learn how to oppose plaintiff's learned counsel. I have now acquired that knowledge, albeit a bit late. That aside, these are members of the bar opposing me, and therefore should be held to a higher standard than myself. Their failure to prosecute this matter should weigh heavily on the Court's decicion."

Someting like that. A little begging for mercy. Most judges will give it to you.

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The letter I received was from the judge saying that we had a pre-trial conference. I showed up, they didn't. That's where I learned they had filed a Note of Issue, the clerk just told me they had, they never served me with it.

I went to the meeting because the letter was from the judge, I didn't know anything about this Note of Issue or anything else. I have no idea when they filed it or what the Note of Issue says.

Plus, like you said, from what I read, its only supposed to be filed after we have a pre-trial conference and sort out discovery requests and such, a conference they never showed up to.

I'm just kind of confused and keep reading about this stuff, I don't want to raise too many motions but I don't want to give up any more rights based on my lack of knowledge.

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Note of Issue is a statutory form... the party filing a note of issue just has to check boxes off. A copy can be found here: http://www.blumberglegalforms.com/Forms/537.pdf

This is very similar to our form ES-47, pre trial memo. The thing that is interesting is that it mentions bill of particulars. I thought only CA had this. Is it similar? That they have to produce the entire record from day one?

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The letter I received was from the judge saying that we had a pre-trial conference. I showed up, they didn't. That's where I learned they had filed a Note of Issue, the clerk just told me they had, they never served me with it.

I went to the meeting because the letter was from the judge, I didn't know anything about this Note of Issue or anything else. I have no idea when they filed it or what the Note of Issue says.

Plus, like you said, from what I read, its only supposed to be filed after we have a pre-trial conference and sort out discovery requests and such, a conference they never showed up to.

I'm just kind of confused and keep reading about this stuff, I don't want to raise too many motions but I don't want to give up any more rights based on my lack of knowledge.

You'll have to go back to the clerk and request a copy so we can see what it says. This looks like a form to request a trial. Very odd for a CC case.

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