Being sued, question about a law

[flyaway14]

I am being sued by a DC. I was served the complaint and sent in my answer asking for a Bill of Particulars. In Delaware there is a law (10 Del. C. §1302(d) ) that states:

Complaint in Consumer Loan or Credit Card Debt Collection

Litigation Shall Be Accompanied by Certain Documents: In any cause of action initiated by a plaintiff/creditor in a consumer or credit card debt collection action, the following materials shall be attached to the complaint by the plaintiff/creditor:

a. a copy of the original contract or other documentary evidence of

the original debt; and

b. a copy of the assignment or other documentary evidence

establishing that the plaintiff/creditor is the owner of the debt. If

the debt has been assigned more than once, then each assignment

or other writing evidencing transfer of ownership must be attached

to establish an unbroken chain of ownership. Each assignment or

other writing evidencing transfer of ownership must contain at

least the last four digits of the original account number of the debt

purchased and must clearly show the debtor’s name associated

with that account number.

Well I received the Bill of Particulars and while it shows a chain of ownership it doesn't specifically identify my account as stated in the directive, nor does it include a contract or statements. (They are the third owner of this account.)

So I'm wondering what my next step is? Can I file for dismissal? Do I have to go to court to make some sort of motion? Below is what it says about judgement.

4. Judgment. If it appears that a plaintiff has failed to comply with this

Administrative Directive, the Court may, on motion or sua sponte, deny the entry of judgment, or withdraw entry thereof.

I'm very new around here so any advice would be appreciated.

Thanks!

[BV80]

Exactly what evidence have they provided? Just the bill of sale?

They won't include a contract because there isn't one. There usually isn't a written contract associated with a credit card account.

This is from the Rules of Civil Procedure in the Court of Common Pleas:

Rule 41. Dismissal of actions.

( Involuntary dismissal; effect thereof. -- For failure of the plaintiff to prosecute or to comply with these Rules or any order of Court, a defendant may move for dismissal of an action or of any claim against the defendant.

Just for future reference, 10 Del. C. §1302(d) is not the section where the rule is located. §1302(d) has to do with the qualification of judges. The judge included that section at the beginning of the directive simply to show he was qualified according to law to issue the directive.

I don't know if what you cited has actually been added to the court rules. However, it is a requirement, and I'd think you'd be able to use it. You might have to call it as a directive or requirement.

[flyaway14]

Thanks for letting me know how to reference it. Don't want to get that wrong!

They sent me what (I guess) is the Bill of Sale. It is a general sheet that says XXX Company sold XXX number of accounts to YYY Company. There is no specific breakdown that shows account numbers and name as required.

That's it. No statements or anything of that nature.

So if I can move for dismissal, how would I go about doing that?

[legaleagle]

Here's the entire directive:

http://courts.delaware.gov/commonpleas/docs/AD2011-1ConsumerDebt0.pdf

This one is interesting, the defendant lost on a couple of things, but got Citibank'

s Account Stated claim thrown out. They would have to write a new complaint.

http://courts.delaware.gov/opinions/download.aspx?ID=168990

[flyaway14]

I'm fine with just a dismissal, as they filed right before the SOL was about to expire. So according to paperwork that they submitted, with the alleged date of last payment, the SOL would keep them from filing (or getting judgement) in a new suit.

I guess I need to do some research on how to write a motion to dismiss.

[legaleagle]

The SOL still applies if the suit is dismissed for some reason that allows them to re-file. these are "curable" defects. Most courts allow you to re-file within a year after the dismissal, SOL is not a factor.

[flyaway14]

Well crap.

So what is my best course of action? Not sure what to do with this information.

It also says that the Court may on motion or sua sponte, deny judgement.

Does that mean the court may not even bring this to trial because there isn't compliance with the directive?

[legaleagle]

You can file this, but the result will be the same. Eventually they will correct their mistake. In the mean time, you make them bleed money for legal fees. How much of this will they take?

[flyaway14]

I guess that's what it is all about. Seeing how much crap the other person is willing to take before they bow out.

The only thing they produced was the three different mass transfers from collection agency to agency, which doesn't prove anything and definitely doesn't link to the account they are trying to collect. And then of course no contract information or statements.

You have been so helpful! Can you point me in the right direction to learn about filing a motion to dismiss?

[legaleagle]

Rules differ, each state has a standard for dismissal. My take is that it won't really matter, they will just re-file. It will cost them but that's about it. The directive shows you how to apply this, it must be in their complaint.

Edited May 6, 2012 by legaleagle