Law Firm Lying!...There's a shock.

[hopen4800]

I had posted this in the wrong place earlier. I am answering a summons and Plaintiff is named as (Large Credit Card Provider). I called this LCCP ( I know pretty arrogant to create my own acronym) and they definitely sold it. Sorry, I am going to cut and paste my original post:

It's been awhile, but I return, hat in hand so to speak, to ask this question.

I have received a "complaint for money due". The complaint names a major credit card company as the plaintiff and is represented by, as near as I can tell a JDB/Law firm here in NM. I contacted the CC issuer. The robo voice on the other end said "(name of issuer) no longer handles or has access to this account it is being handled by ( a large national CA/lawfirm but not the one named in my complaint.

I have read and reread admin's and others comments re:"who really is the plaintiff here". It is apparently not the CC issuer. In answering this complaint should I:

1) Tip my hand that I know the JDB/Law firm is lying about who the plaintiff is, when it is in fact the JDB/Law firm named on the complaint?

2) Just answer the complaint on its own merit?

I have no other correspondence from the JDB so I have not dv'd them.

Thanks

[Coltfan1972]

Answer the complaint and then hit them with discovery is my opinion. Unless they get a default, they are going to have to prove standing.

[usagi555]

I bet I can name both the law firm and the plaintiff. Don't be surprised if they actually do own the debt, but sent the account to one CA/Law Firm who then sent the account to the attorneys who are suing you now.

[hopen4800]

Thanks for the speedy replies.

Coltfan, is my request for discovery made when I answer the summons? Or is that down the line after my answer is processed?

[usagi555]

You can propound discovery requests at any time without leave of the court up until the deadline that should be set at a scheduling conference - assuming that I'm correct about which law firm, because they do not use small claims. That still applies if you are in the 2nd judicial district and your complaint is certified for court annexed arbitration.

[Coltfan1972]

Generally speaking, and in my state, the Defendant can immediately move to discovery after answering the suit. So basically answer the suit and a second later start discovery.

However, I've learned by posting on this board and sticking my foot in my mouth a few times, that California law many times does not fall into the "generally speaking" category.

It appears you might actually be in New Mexico though. You would just have to check the rules. On a side note, USAGI555 is in New Mexico. For me personally, if I were needing info on NM law, I would 100% feel comfortable with his advice.

[hopen4800]

I am in the First Judicial District.

Thank you, usagi555 for your reply.

[usagi555]

The following link has all of the rules and statutes for NM:

New Mexico Compilation Commission - Search Statutes, Rules and Decisions

It uses frames for navigation. When you fenagle with the links in the frames to see links that have either "NMSA" or "NMRA" in them, you'll have what you need. NMRA is the rules. You'll need to know the rules of civil procedure, both for the state and for the local rules for the 1st Judicial district. You'll also need to know the rules of evidence to mount any sort of successful defense. NM's rules basically mirror the federal rules, even in numbering. NMRA 1-034 is the same as the Federal RCP 34, for example.

NMSA is the statutes. These will likely not be a huge help to you at the moment, but it doesn't hurt to start learning them. Pay attention to 57-12-1 through 57-12-26 in case you are feeling vindictive after this is all said and done.

[hopen4800]

For the moment I'm not quite confident enough to feel vindictive, but as I navigate through this I will reassess. Thanks again. I will cherish your input as this unfolds.

[hopen4800]

I found this in the magistrate rules:

D. Collection agencies. Collection agencies may take assignments of claims in their own names as real parties in interest for the purpose of billing and collection and bringing suit in their own names; provided that no suit authorized by this section may be instituted on behalf of a collection agency in any court unless the collection agency appears by a licensed attorney-at-law.

Does this mean that a CA can be the plaintiff,the law firm representing the plaintiff, and a Junk debt buyer all rolled into one seething puss-filled unit?

I hope I'm wrong.

[usagi555]

Yes, it does, though there may be some legal issues with a law firm purchasing defaulted debts in this state. That rule really only applies to JDBs. If a CA makes the decision to sue on behalf of an OC (or a JDB that it is collecting for,) that is unauthorized practice of law.

unlicensed practice of law - Google Scholar

Also, unless you are in magistrate court, you need the district court rules.

[BV80]

Just for the heck of it, check the OC's entry on your credit report. If the account has been sold, it will state "sold" or "transferred". You just want to be sure.

[1stStep]

Is there any language on the lawsuit that reads "JDB assignee of XYZ Bank?"

[legaleagle]

You should post the complaint here. (type it, no jpegs) Redact names and change the amount somewhat, just round it off. You are in good company, you now have four members of the CIC "Dream Team" looking at your case. Hey, I didn't make up that term, the members did. What is the Dream Team? A nightmare for any creditor. It sounds like you may be involved with the original creditor, we need to see the complaint.

[hopen4800]

The complaint is as follows

State of NM

County of xxx

1st Judicial District Court

Large Credit Card Provider

Plaintiff

vs:

Me, Defendant

Complaint for money due

omes now the plaintiff (ABOVE) by and through its attorney, Law Offices ofXXXX, and for its complaint for money due would state as follows:

1. Defendant is (me) residing ( where I reside)

2. Defendant obtained an account (see affidavit, exhibit A)

3. The plaintiff has referred this matter to local counsel to pursue collection on its behalf in state of NM

4. Interest was assessed against any balance owed from the day of the inception of the debt

5. The defendant, despite demand, has failed to make payments as required (see same exhibit)

6The balance is ( more than 5k less than 12k), see same exhibit)

7. Plaintiff is entitled to recover pre-judgement interest from the date the debt was incurred at the contract rate.

8. Plaintiff may be entitled to recover its reasonable atty fees and costs for initiating this action.

9. The defendant has breached the account agreement and is liable pursuant to the agreement or doctrine of the account stated.

10. This is an attempt to collect a debt and any info obtained shall be used for that purpose. This communication is from a debt collector.

Wherefore plaintiff would pray for a judgement against defendant in the amount of ( same as above), plus pre-judgement interest at contract rate from the date debt was incurred, and post judgement interest theron at the contract rate of (about 9%),whichever is higher, from date of judgement until pd in full , plus reasonable atty fees.

Signed: law firm

[Guest usctrojanalum]

I bet I can name both the law firm and the plaintiff. Don't be surprised if they actually do own the debt, but sent the account to one CA/Law Firm who then sent the account to the attorneys who are suing you now.

this is most likely what happened. what does your credit report say?

[hopen4800]

CR says "charge off"

Many, many thanks for all the input.

[usagi555]

Yeah, if you want to have some fun in discovery, start asking for the specific person who decided that the account was to be sent to the attorneys you're dealing with now. It's a legitimate question, as that person is a potential witness. If it indicates that, what I'm guessing is the National Attorney Network, received the account with anything other than instructions to find a local law firm to place the account with so that a lawsuit may be brought, expect them to do everything they can to avoid answering it. Even if that's all they were asked to do, there may be a problem.

[Guest usctrojanalum]

CR says "charge off"

Many, many thanks for all the input.

Then the LCCP still owns it.

[legaleagle]

9. The defendant has breached the account agreement

this sounds in breach of contract. Did they attach the agreement they referenced?

[usagi555]

The complaint is as follows

State of NM

County of xxx

1st Judicial District Court

Large Credit Card Provider

Plaintiff

vs:

Me, Defendant

Complaint for money due

omes now the plaintiff (ABOVE) by and through its attorney, Law Offices ofXXXX, and for its complaint for money due would state as follows:

1. Defendant is (me) residing ( where I reside)

2. Defendant obtained an account (see affidavit, exhibit A)

3. The plaintiff has referred this matter to local counsel to pursue collection on its behalf in state of NM

4. Interest was assessed against any balance owed from the day of the inception of the debt

5. The defendant, despite demand, has failed to make payments as required (see same exhibit)

6The balance is ( more than 5k less than 12k), see same exhibit)

7. Plaintiff is entitled to recover pre-judgement interest from the date the debt was incurred at the contract rate.

8. Plaintiff may be entitled to recover its reasonable atty fees and costs for initiating this action.

9. The defendant has breached the account agreement and is liable pursuant to the agreement or doctrine of the account stated.

10. This is an attempt to collect a debt and any info obtained shall be used for that purpose. This communication is from a debt collector.

Wherefore plaintiff would pray for a judgement against defendant in the amount of ( same as above), plus pre-judgement interest at contract rate from the date debt was incurred, and post judgement interest theron at the contract rate of (about 9%),whichever is higher, from date of judgement until pd in full , plus reasonable atty fees.

Signed: law firm

I can tell you that the attorneys you are dealing with are sloppy, but if they smell blood, they are tenacious. I've beaten them. The discovery process is your friend here. (Yes, I do know who you are dealing with as I have identically worded complaints in my desk drawer.)

You need to know rules 1-033, 1-034, 1-036 and 1-037 NMRA inside and out, and you need to start learning them now. For what you are going through now, these will be your sword to use.

Also, when I propounded discovery requests upon the plaintiff through their attorneys, Scruffy & Skeezy, I did so with what seems like counter intuitive reasons to many who've had no real exposure to civil litigation. I asked for the most damning possible evidence that could have been used against me in a CC case.

1) If they had it, and had I drug them all the way to trial, they would have brought it out to use it against me at trial regardless of whether or not I had asked for it in discovery. It's best to know way ahead of time.

2) If the plaintiff had it, but was slow in getting it to the attorneys, I could have asked the court to preclude pursuant to rule 1-037 after properly following procedure.

3) If the plaintiff had it, but failed to respond to my requests, then tried to spring it on me at the last minute, I could have objected because they did not respond to my requests and they did not give me an opportunity to review it.

4) Stuff that they don't want to produce or cannot produce will lead to some amazingly stupid objections.

In short, it's best to know just how hosed or not hosed you are ahead of time. If I had it to do again, I would have propounded the requests for the most damning evidence and everything that they needed to lay a foundation for that evidence with my response to the complaint. I would do it to start the clock ticking ASAP, because they did have a limited time to respond. As for stuff that would help me, I would send those as a separate set of requests. I would separate them to make a motion to preclude vs a motion to compel much cleaner by making them separate issues.

Edited March 29, 2012 by usagi555

[legaleagle]

seething pus-filled unit

SPFU! I love it. This has to join up with SCODB.

[hopen4800]

"this sounds in breach of contract. Did they attach the agreement they referenced?"

No, just a "fill-in-the-blanks" affidavit from some mid-level minion that is a custodian of records. Interestingly, the affidavit is dated ten months ago. I get the feeling that somewhere in some cheerless, dead-end cubicle, there is a stack of these "affidavits"that get a number attached as needed.

This is priceless, the poor hapless soul in charge of the rubber stamp that day stamped the"'affidavit" upside down,UPSIDE DOWN!!! Then realizing the mistake tried again and partially eclipsed the other one. I know, no big deal, but come on.

This,though may be significant, the notary stamp states that the notary is qualified in county "A" and the affidavit is in county "B". This will be another fun one for discovery, I think

[BV80]

"this sounds in breach of contract. Did they attach the agreement they referenced?"

No, just a "fill-in-the-blanks" affidavit from some mid-level minion that is a custodian of records. Interestingly, the affidavit is dated ten months ago. I get the feeling that somewhere in some cheerless, dead-end cubicle, there is a stack of these "affidavits"that get a number attached as needed.

This is priceless, the poor hapless soul in charge of the rubber stamp that day stamped the"'affidavit" upside down,UPSIDE DOWN!!! Then realizing the mistake tried again and partially eclipsed the other one. I know, no big deal, but come on.

This,though may be significant, the notary stamp states that the notary is qualified in county "A" and the affidavit is in county "B". This will be another fun one for discovery, I think

The notary stamp should say "State of New Mexico".

http://www.sos.state.nm.us/pdf/np-law.pdf

[usagi555]

The notary stamp should say "State of New Mexico".

http://www.sos.state.nm.us/pdf/np-law.pdf

I suspect he's talking about a notary stamp from the bank's home state. IMO, a notary issue like that, by itself, is no big deal. If other facts are found in conjunction with it, it could be something, but at this point, I would not personally waste any time with it. Bigger deals with the affidavits are whether or not they were robosigned, what records were actually reviewed, what records the alleged custodian keeps, creates or maintains on behalf of the bank, etc...