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I really hope I am not stepping on anyone's toes here. I searched the Forum and what I found did not apply to new york, or it was in the middle of active thread and I did not want to Hijack. I was served a summons by Malen and associates a law firm hired for Riverwalk Holdings who supposedly bought an account from Chase Bank. I answered the summons and just clarify there was not court date listed on the summons. I turned my copy into the court and sent one certified letter to Malen ( plantiff). I just joined this site today and found so much information here I am almost lost. From the reading I have done it seems that most people are recommending sending a letter of discovery as the next step? If this is the case If I understand correctly I need to contact my county clerk to make sure I do this correctly? Its not like a debt validation letter that I can just print or type up. From what I read I got the impression I need a court date to request discovery, this is where I got kind of confused. I tried looking up new york state discovery but the information I did find was for new york city or it was how to reply to discovery not request it. If anyone can help that would be great. If this was already covered and I just did not find it PlEASE DON'T HATE ME! Just posting a link to the thread would be great. Please and Thankyou!!! I also typed this from my phone so sorry about spelling and grammar.

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I really hope I am not stepping on anyone's toes here. I searched the Forum and what I found did not apply to new york, or it was in the middle of active thread and I did not want to Hijack. I was served a summons by Malen and associates a law firm hired for Riverwalk Holdings who supposedly bought an account from Chase Bank. I answered the summons and just clarify there was not court date listed on the summons. I turned my copy into the court and sent one certified letter to Malen ( plantiff). I just joined this site today and found so much information here I am almost lost. From the reading I have done it seems that most people are recommending sending a letter of discovery as the next step? If this is the case If I understand correctly I need to contact my county clerk to make sure I do this correctly? Its not like a debt validation letter that I can just print or type up. From what I read I got the impression I need a court date to request discovery, this is where I got kind of confused. I tried looking up new york state discovery but the information I did find was for new york city or it was how to reply to discovery not request it. If anyone can help that would be great. If this was already covered and I just did not find it PlEASE DON'T HATE ME! Just posting a link to the thread would be great. Please and Thankyou!!! I also typed this from my phone so sorry about spelling and grammar.

You need to read the Rules of Civil Procedure for the court in which you're being sue. They'll tell you whether or not you're allowed to send discovery requests. If you are allowed they'll tell you how many of each type you can send.

The format is just like the format for the Complaint. The header will contain the names of the court, the parties, case number, and title of the document.

In county court, the rule for Interrogatories is Rule 33. I might state:

Comes now BV80, Defendant Pro Se, and submits the following Interrogatories to Plaintiff, ABC Company, pursuant to Rule 33 of the South Carolina Rules of Civil Procedure.

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In New York is is called Disclosure, not Discovery. Here is the correct section, which explains all the rules. At this point, only requests for documents is necessary.

Laws of New York

This format below will work, just change it to suit yourself.

Attorney

123 Main Street

Anytown, US 12345

DISTRICT COURT OF ___________________

Joe Smith,

Plaintiff,

vs.

ABC Plumbing, Inc,

Defendant

Case No.: 123456-123

REQUEST FOR PRODUCTION

Plaintiff Joe Smith requests that Defendant ABC Plumbing, Inc. produce the following documents in connection with this matter. If objection is made, please state the reason for the objection. If denying the matter, please set forth in detail the reasons why the answering party cannot produce such documentation.

Please produce all receipts and sales records for the work performed in connection with the work performed on Plaintiff Joe Smith's residence.

Please produce a copy of the executed contract in Defendant ABC's Plumbing, Inc's possession in connection with the Plaintiff Joe Smith.

Please produce a copy of your business license authorized by the State of US to do work as a plumber.

Dated this 1st day of January, 2012

Attorney or Yourself

Here are my suggested requests:

Requests for Production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

This one is for a JDB ONLY

13. Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to susequent assignees. These documents should show the account number and name of the account holder.

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Thank you so much for both of your replies! I have read on here its good to be proactive in this manner so you know what the plantiff has if anything. Sorry I was looking up the wrong term that would explain my trouble. Thank you for the detailed response. So my next step is to research the procedure and make sure its done correctly. From my previous research I came across people that provided copies to the court clerk and some did not. I am thinking It would be good a idea to provide a copy of this clerk so the court is aware of my attempt. Is this a good idea?

Edited by alexander323bc
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Thank you so much for both of your replies! I have read on here its good to be proactive in this manner so you know what the plantiff has if anything. Sorry I was looking up the wrong term that would explain my trouble. Thank you for the detailed response. So my next step is to research the procedure and make sure its done correctly. From my previous research I came across people that provided copies to the court clerk and some did not. I am thinking It would be good a idea to provide a copy of this clerk so the court is aware of my attempt. Is this a good idea?

Ok...you're asking about filing your discovery requests with the court. The rules would tell you if that's necessary. In my state, we DON'T file discovery requests with the court. We simply include a certificate of service that states how and when we sent the requests to the attorney for the Plaintiff. For instance, I sent mine CMRRR (certified mail, return receipt requested). I made a copy (front and back) of the green card when I received it back in the mail, and kept it with my copies of the discovery requests and certificate of service.

Edited by BV80
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it does not seem to be required. The question was more or less one of does it look better to the judge showing the form I sent them as a reasonable request to answer the information in case they don't decide to answer it or just send there own later not responding to mine?. My logic is this way the court has a record of when I sent mine and what I sent before they sent me anything after I gave my answer to the summons. If this is just a silly idea sorry for wasting your time. But I am kind of hoping little things like this help.

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it does not seem to be required. The question was more or less one of does it look better to the judge showing the form I sent them as a reasonable request to answer the information in case they don't decide to answer it or just send there own later not responding to mine?. My logic is this way the court has a record of when I sent mine and what I sent before they sent me anything after I gave my answer to the summons. If this is just a silly idea sorry for wasting your time. But I am kind of hoping little things like this help.

If there's a hearing, you can present your copies of the requests at that time, if you need to do so. Your receipt for the certified mail will show when you sent your requests, and the green card will show when they received them. Just makes copies of everything.

You didn't say if you're being sued by an OC or a JDB? It would help if you'd answer the questions in the following thread.

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

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Discovery is never filed with the court. It is strictly between parties. No state I am aware of requires court filings, only when there are objections or in some states like mine, when admissions are requested. I would say in NY just send the requests. make sure you get a receipt of delivery. If you know the attorney's name, look them up or request that they provide an email so as to avoid "we didn't get it" funny business. You should be able to get it here.

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If there's a hearing, you can present your copies of the requests at that time, if you need to do so. Your receipt for the certified mail will show when you sent your requests, and the green card will show when they received them. Just makes copies of everything.

You didn't say if you're being sued by an OC or a JDB? It would help if you'd answer the questions in the following thread.

Sorry for any confusion. In my first post I stated I received a summons from Malen and associates. From what I gathered from the summons they were hired by Riverwalk holdings who allegedly bough the debt from Chase. Sorry if I did not make it clear, I will fill out the form you posted to try and clear up any confusion.

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Discovery is never filed with the court. It is strictly between parties. No state I am aware of requires court filings, only when there are objections or in some states like mine, when admissions are requested. I would say in NY just send the requests. make sure you get a receipt of delivery. If you know the attorney's name, look them up or request that they provide an email so as to avoid "we didn't get it" funny business. You should be able to get it here.

Thank you for the link. One of the first things I did was look up them up when I got the summons. Thanks for the email tip sounds like a great idea. Really appreciate your time and everyone elses for helping me with this.

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I hope they do battle in court just as sophisticated and intricate as their website looks (sarcasm).

I know right? As I just responded to eagle one of the first things I did after getting the summons was look up this attorney and I thought hmmmm I should apply for a job as a web designer at least they wont have to run another credit check.

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1. Who is the named plaintiff in the suit? Riverwalk

2. What is the name of the law firm handling the suit? Malen

3. How much are you being sued for? 8k

4. Who is the original creditor? Chase

5. How do you know you are being sued? summons

6. How were you served? Mail

7. Was the service legal as required by your state? From what I have read no, but the county clerk said mailing was fine.

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? New York, Cattaraugus

10. When is the last time you paid on this account? not sure, information is not on my credit report.

11. What is the SOL on the debt? To find out: New York is 7 years

Statute of Limitations on Debts

12. What is the status of your case? summons served

13. Have you disputed the debt with the credit bureaus? No I just received a summons and immediately sent an answer.

14. Did you request debt validation before the suit was filed? No see answer above

15. How long do you have to respond to the suit? The summons was mailed to me on feb 16, I was in Florida for 3 weeks and got back in march. Found the letter and gave response directly to the court on march 16th. Because feb is a shorter month I am waiting for something sneaky.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? Nothing just the amount owed and cost of lawyers fees if there was a judgement against me.

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You need to establish the date of the last payment. Chase is in Delaware, the SOL is three years. That's what's in the cardholder agreement, they insisted on it, you agreed to it, NY law should not apply. We argue this a lot here, there seems to be no cut and dry method, but normally courts do not change the terms of a contract where both parties agreed to the terms.

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You need to establish the date of the last payment. Chase is in Delaware, the SOL is three years. That's what's in the cardholder agreement, they insisted on it, you agreed to it, NY law should not apply. We argue this a lot here, there seems to be no cut and dry method, but normally courts do not change the terms of a contract where both parties agreed to the terms.

In New York, the statute of limitations a procedural issue, so the choice of law would be the forum state.

"However, Statutes of Limitation are generally considered procedural in New York because they are viewed as pertaining to the remedy rather than the right." Capital One Bank v. McGurk, 2010 NY Slip Op 50974 - NY: City Court, Civil Court 2010

HOWEVER...New York does have a borrowing statute. CPLR 202 states:

§ 202. Cause of action accruing without the state.

An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.

"This statute provides that where a nonresident sues on a cause of action that accrued outside New York, the claim must be timely both in New York and the state where the cause of action accrued." Capital One Bank v. McGurk, 2010 NY Slip Op 50974 - NY: City Court, Civil Court 2010

Chase is a non-resident of NY. Alexander is a resident. According to the following case law, the SOL of Delaware can be "borrowed".

"In contrast, the borrowing statute was primarily intended to prevent forum shopping by nonresident plaintiffs, as well as to afford resident defendants the benefit of the shortest limitation period." (Antone v General Motors Corp., 64 N.Y.2d 20, 27-28; National Sur. Co. v Ruffin, 242 N.Y. 413, 417; Stafford v International Harvester Co., 668 F.2d 142, 151.)

"When an alleged injury is purely economic, the place of injury usually is where the plaintiff resides and sustains the economic impact of the loss." Global Fin. Corp. v. Triarc, 715 NE 2d 482 - NY: Court of Appeals 1999

The Plaintiff is in DE and sustained the economic loss in DE.

"Here, it is evident that the contract causes of action accrued in Delaware, the place where Discover sustained the economic injury in 1999 when King allegedly breached the contract. Discover is incorporated in Delaware and is not a New York resident. Therefore, the borrowing statute applies and the Delaware three-year statute of limitations governs." PORTFOLIO RECOVERY v. King, 927 NE 2d 1059 - NY: Court of Appeals 2010

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Thank you for the reply guys, This was going to be my biggest argument in case it did go to trial. I did a do some research on case law and came across the court case from 2010 showing that collector can't take advantage of the states statute limitations if the card holders agreement is within the oc state. My struggle is now trying to get these dates. They are not on my credit report. Either from the OC or the JDB. I have been reading info on here all day how to get that correctly so I get correct dates. Anyone have any advice on this? I think someone posted you have to file a dispute to get these dates and other people said they called the OC. So after I get a hold of these dates trying to get last activity, payment and delinquency for both accounts. By both I mean chase and riverwalk are both on my credit report, Do I then send a letter of disclosure? Or can I still send that tonight?

Edited by alexander323bc
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Hope I didn't offend anyone or say anything that you feel was not necessary to respond to. I have searched the other forums and it appears people using the SOL defense are recommending waiting until the suit before you bring it up so you don't risk admitting the debt. I have the same fear with trying to get my Delinquency date. Since its not showing up my on credit report ( one got from experian) I am not sure how to get it without calling the O.C. This seems to may its like admitting the debt if your calling about it? Keep in mind I have the OC and debt collector on my report, both are listed and closed on the account. Only dates I have are the opened and closed dates.

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Invoking the SOL is not an admission of anything. It is simply a claim (by you) that the suit has no merit because it is time barred. You could include a signed confession that you owe every dime, the suit would still have to be dismissed. Procedure has nothing to do with proving a dead case.

Do you have check registers from around the time you think you made the last payment? It's odd that this is not on your credit report.

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I thought i was odd as well, I just made another post in the credit report section with all the dates I have in the report so hopefully someone has an answer on how I find this date. By "check registers" i presume you mean a copy of receipt or online payment receipt? I do not have any record of the last time I made a payment. I have moved a few times since then and they must have gotten tossed. I know its a horrible excuse but the fact is I don't have a clue when the last payment was made to the O.C. or the debt collector if one was ever made.

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I sent the letter of disclosure and the court verified they did not need a copy of it and the format was fine. Thank you for your help. I got the date of first delinquency as 09/2008. Should I wait 30 days to see if I get a response about the disclosure or just file a motion to dismiss based on the SOL?

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Usually, they state a cause of action such as breach of contract or account stated. I asked because I found a JDB case in NY where the court applied DE's SOL. But the court specified "contract claims".

"Applying Delaware's three-year statute of limitations, the instant action should have been commenced not later than 2002. Because the contract claims were not brought until 2005, they are time-barred in Delaware, where the causes of action accrued, and therefore they are likewise time-barred in New York upon application of the borrowing statute. This holding is consistent with one of the key policies underlying CPLR 202, namely, to prevent forum shopping by nonresidents attempting to take advantage of a more favorable statute of limitations in this state." Portfolio Recovery v. King, 927 NE 2d 1059

If you don't mind the Complaint word for word, leaving out identifying info and rounding out the amount claimed, we might be able to figure out if the case law could apply.

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