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So I have been served with a lawsuit from RSIEH (Raush, Sturm, Israel, Enerson & Hornik, LLC)

So after sending my affirmative defenses RSIEH sent me 5 documents

Both the Letter and Packet were received today with the same date code. The date code is: 016H26523313

Based on my decoding of the date code: 33 Means: Week 33 which is from Monday August 13, 2012 until (and including) Sunday August 19, 2012

and 13: is the Day of the week

all hand signed in blue ink from the attorney in Utah but sent from Toledo OH.

This packet included:

1. Last 13 Statements on the account

2. Plaintiff's Initial Disclosures - Certificate of Service on 8/13/2012

3. Request for Admission - Certificate of Service on 8/10/2012

4. Plaintiff's First Request for Production of Documents - Certificate of service on 8/10/2012

the letter included 1 item

1. Request for Pre-Trial Conference - Certificate of Service 8/13/2012.

Since 2 of the items stated they mailed on 8/10/2012 but were included in the 8/13 packet can i use this to my advantage?

Additionally in the statements show this is a home improvement loan and the account was setup under a loan - 1 time charge and then pay.

But in the admissions it asks: admit i applied for a credit card and used it as a credit card but it was a loan with a 1 time charge

I'll Provide the documents in PM

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You broke their encryption .Founded in 1977, the creditor's rights law firm found itself required under the Payment Card Industry Data Security Standard (PCI DSS) to encrypt the cardholder data it collected, stored and used during the course of its business operations.

RSIEH collects sensitive information in several locations within its IT infrastructure, which is about 80 percent virtualized through a VMware ESX environment, says Rick Olejnik (left), chief information security officer at the firm.

Utah State Courts - Utah State Court Rules

After you answer the complaint you will have to send them some discovery,Interrogatories,Requests for Admissions.

Save those documents so you can use those against them,you will have the correct format for sending discovery to them,where it says plaintiff you put defendant and where it says defendant you put plaintiff.

Edited by racecar
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1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

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?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). 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?

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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1. Who is the named plaintiff in the suit?

CitiBank N.A.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

RSEIH

3. How much are you being sued for?

2100

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

Served from Different County Sheriff Deputy

6. How were you served? (Mail, In person, Notice on door)

In Person at home at 9:36 PM

7. Was the service legal as required by your state?

I don't believe so due to the time of day

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?

2 letters of debt validation

9. What state and county do you live in?

Utah

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

about 12 mths ago

11. What is the SOL on the debt?

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

have a pre-trial date set

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No marks from lawfirm. Standard charge off from citi

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

Yes

15. How long do you have to respond to the suit? (This should be in your paperwork). 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?

I resonded with answers and affirmative defenses within 7 days. I did not admit to any charges.

I filed a motion to dismiss on 8/10 due to inproper plaintiff since another collection account was also collecting on this when the plaintiff during the dunning period.

They sent the above mention items but talking with the court today everything they gave the court is dated 8/13 including the forms i have that is dated 8/10

The court tells me I have 5 days to file my response from the certificate of service.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Only a Summons and a Complaint

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Rausch is a debt buyer mostly, but they do some collection work for JDBs. There is a grey area of Utah law that lets a debt buyer list the OC, but if challenged they are going to fail on that point. Also in Utah it is an FDCPA and Utah Consumer Sales Practices Act (UCSPA) violation to file any false pleadings in court.

You stated that you were served by a Deputy from a different County? Are you being sued in a court from another county? The legislature fell on its face this year and still allows debt collectors to sue in a single court no matter what county they live in. That is why Provo court docket is backed up for 6 months or more, with almost 91% of the docket being debt collection. To bad the FDCPA makes it an automatic violation. If this is the case, counter sue so they have incentive to go away.

Even if the OC is the real party, you can use the UCSPA against them.

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So the lawsuit is in the third district court of utah in salt lake county. The Third district covers Tooele, Salt Lake, and Summit Counties.

But the process server was from davis county and served the papers at 9:36 at night. Can a argument for this as improper service?

And the fact that I have papers signed, dated on august 10th including a certificate of service dated august 10th but all of the papers filed with the courts date august 13. And they came in a packet dated august 13th on the envelope.

Edited by ravinmiist
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After Reading UT Rules i see the clerk may not be right in the responding time.

Rule 34: Production of Documents - Can't post link too few posts

The responding party shall serve a written response within 28 days after service of the request.

Rule 36: Request for Adminission - Can't post link too few posts

The matter is admitted unless, within 28 days after service of the request, the responding party serves upon the requesting party a written response.

The courts stated there is a pre-trial hearing scheduled and it was mailed yesterday should get it today.

Would you suggest I go with what the clerk said of 5 days or what the court rules say?

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So i have been looking over the information and here is what my defenses will be during the pre-trial hearing.

1. Force the plaintiff to prove he sent the documents from utah and not from toledo oh as the postal stamp shows.

2. Since all the documents that the court has is dated the 13th have them explain why the copies that I have are hand signed and the copies that have different dates have them either removed from the case or move to dismiss the case

3. I will object to the plaintiff's initial disclosure. Which lists the fact witness "Person Most Knowledgable from Citibank, N.A. c/o attorney1 and or attorney2 for plaintiff, RSIEH UT address.

According to chapter 13 of the utah state bar rule 3.7 Lawyer as witness "Combining the roles of advocate and witness can prejudice the tribunal and the opposing party and can also involve a conflict of interest between the lawyer and client" As well as UT court rules of evidance - Rule 602 Lack of personal knowledge states: "A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703."

Rule 703 states: "An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect."

How can RSIEH state their the fact witness when they didn't even know of the account in question until after charge off

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Forget all of this, it won't work. Read this again:

witness "Person Most Knowledgable from Citibank, N.A. c/o attorney1 and or attorney2 for plaintiff, RSIEH UT address.

This means their witness will be a person most knowledgeable from Citibank, CARE OF Atty 1 etc., which means Citibank will contact the attorney and tell them that Shyna, Teri Ryning, or Ramona Aragon is on the way to court. Will they actually pay to bring them to Ohio from Missouri for a 2100 debt? I doubt it.

I think the home improvement loan vs. credit card angle will not work either. Apparently you qualified for the home improvement LOC and they issued you a card to use in connection with that LOC. The rules are the same.

Other than the misplaced arguments you make above, what is your defense? Consider arbitration through the agreement if there is that option.

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Then what about the angle that the plaintiff filed paperwork and sent me different paperwork

Another angle is that the current plaintiff and another collector was attempting to collect on this debt at the same time but after 3 DV letters they backed off.

Also for Arbitration I have asked for the agreement 2 times with debt validation request and stated in my affirmative defense and the plaintiff still failes to provide it.

Edited by ravinmiist
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You have to serve them with a request for production of documents in proper format or they are not obligated to respond. Or, you can go on line and find credit card agreements if that applies to what they gave you. That's what you need to find out, the original agreement or contract you signed will have the terms. Otherwise, we're just guessing.

Forget the other angles, these were probably settlement letters offering you a certain deal. They all send these out. First one to score gets a percentage. If they were collections letters threatening potential legal action, and they don't own the debt or were not hired to collect it, you have an FDCPA violation. I year SOL as I recall. They aren't usually that stupid, however. Probably a settlement offer.

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Forget the other angles, these were probably settlement letters offering you a certain deal. They all send these out. First one to score gets a percentage. If they were collections letters threatening potential legal action, and they don't own the debt or were not hired to collect it, you have an FDCPA violation. I year SOL as I recall. They aren't usually that stupid, however. Probably a settlement offer.

there was no settlement letters. History of communication

2/23 - first dunning letter

3/20 - my DV response with a 30 day response time requested, and asked for why UCB was attempting to collect, C&D and request for contract

5/15 - their response to the validation letter with last 13 months of statements

6/12 - My DV response with 15 day response time requested and asked again for the contract

7/19 - Served with a lawsuit. This included the complaint and summons. Served from a different county sheriff deputy at 9:36 PM

7/30 - Responed with my answers and Affirmative Defenses

8/14 - Court filed the request for pretrial, initial discoveries, request for admissions, request for documentation - Certificate of service for all dated on 8/13 - per phone call to the clerks office

8/15 - I Received the pretrial notice - Certificate of service 8/13 in its own envelope, The rest were all included in a single packet with the Initial discoveries - Certificate of service for 8/13, Request for adminissions - Certificate of service on 8/10, and request for documentation certificate of service on 8/10. All documents are hand signed and not copies

8/17 - Received the court document stating pretrial for 8/27.

So what RSEIH filed with the courts they didn't provide me with an exact copy of. Would that be considered fraud to the courts since the certificate of service is different then what was given to the courts?

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Likely you were served under Rule 3(a)2 where they are not required to file until 10 days after service. Angles and believed technical defects are not going to get you anywhere but pissing off the judge and a Judgement. You need real defenses and not technical issues. Your answer should be simple and to the point. Deny each allegation made in their complaint except your name and address if they managed to get that right.

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Likely you were served under Rule 3(a)2 where they are not required to file until 10 days after service. Angles and believed technical defects are not going to get you anywhere but pissing off the judge and a Judgement. You need real defenses and not technical issues. Your answer should be simple and to the point. Deny each allegation made in their complaint except your name and address if they managed to get that right.

I did that. There were 2 claims with 7 responses required. I admitted that I lived in salt lake county and denied the rest of them.

Here are my Affirmative Defenses when I filed them

1. Plaintiff's Attorney(Rausch, Sturm, Israel, Enerson & Hornik LLC) Complaint further fails to allege that the Assignor(Citibank N.A.) even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff (Rausch, Sturm, Israel, Enerson & Hornik LLC). The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

2. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, Section 807(2), 15 U.S.C. § 1692e(2)from collecting interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify if such interest is allowed.

3. Plaintiff is barred under the FDCPA, Section 809(B), 15 U.S.C. § 1692f(B) and failed to respond to the debt validation request within a reasonable time.

4. Plaintiff is barred under the FDCPA, Section 811(a,2), 15 U.S.C. § 1692i(a,2) and failed to attach a signed contract that show’s Defendant’s signature. The Defendant specifically requested such documentation and was ignored by the Plaintiff.

5. Plaintiff is barred under the FDCPA 809(B), 15 U.S.C. § 1692f(B) that no further collection activity while the debt is being validated. Defendant sent the Plaintiff a validation letter requesting agreements and Plaintiff never responded and filed this complaint.

6. Defendant reserves the right to plead other affirmative defenses and/or counter claims that may become applicable and/or available at a later time.

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Oh, bad idea on the affirmative defenses. There is no such bar to action under the FDCPA. Do not worry it is not fatal to your case unless you try to run with it. Read Coltfan's recent posting that is from Utah:

http://www.creditinfocenter.com/forums/there-lawyer-house/315919-how-not-beat-midland-look-like-pro-se-fool-appeal.html

Under the FDCPA you can recover damages for a violation, but it does not stop them from collecting on the debt.

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You need to get the basics straight, you are being sued by the original creditor. The FDCPA does not apply to them. RSIEH is the law firm representing Citibank. They are acting as attorneys, not third party debt collectors, so the FDCPA probably does not apply to them either. Even if it did, a federal statute is not a special defense, it is a separate lawsuit if you have a violation, which you do not have here against Citibank.

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Have you done discovery yet? If not then you need to start on that before they attempt a MSJ. Although it is not for me, have you thought about private arbitration? If the account open date predates 2010, then you are on the old arbitration clause that includes JAMS. Arbitration with JAMS will cost Citi at least $5K, they will likely never pay that much for this small amount of debt. The Utah Arbitration Act gives the Judge no discretion when Arbitration is invoked, he must stay or dismiss the action. If the other side opposes a motion to compel arbitration, the only question the judge can inquire about is if an arbitration clause does exist or not. If one exists, he must send it to arbitration.

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Ok so I have been pouring over this case and here is the situation.

The plaintiff is Citibank N.A. but on the statments furnished by the plaintiff it states Home Depot Credit Services. No where anywhere on these statements does it state Citibank N.A.

Since the plaintiff has not furnished any information stating this account was linked to Citibank do I have an argument for the pretrial on monday?

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I did go to the court house today and looked at the paperwork filed.

The dates on the admissions and the documentation paperwork state that the lawyer is the 13th for both the documents and the certificate of service. I showed the clerk my paperwork and she was stumped that my paperwork is different than what was filed and suggested to bring it up in pretrial.

I also did sit in the judge's courtroom (criminal cases, better than nothing) but I learned that the judge is very reasonable to arguments and plea's but will also stick to the rules and laws and will not show favoritism. He is an avid Utah Ute fan and actually was making small talk with the clerk, bailiff and both councils in between cases

I feel i'm as prepared as much as I can to go before the judge on monday. Unless anyone can think of any more items I could go off of. if the case goes south I will motion for arbration with Jams as the latest copy of the citibank agreement still has the clause in it.

Edited by ravinmiist
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So after doing some more digging I figured out why the paperwork seems soo sloppy. The Attorney representing RSIEH has only had his bar since 10/31/2011. So i'm going up against a hot head that thinks he can win every case.

He is backed by another attorney who got his bar in 1993 but that attorney has let this younger one take full charge with the case.

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