SleeplessinNY

Confused about my summons

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I didn't understand it at first either.

You won't see a judge for some considerable time yet. All they are asking is that you show up to the courthouse where they say to go. You go to the clerks office and tell them you are appearing for this summons and please help to fill out what is needed. 1st is just the answer to the summons. the 2nd paper is for answering the complaint.

I did not answer my complaint for 9 days. When you answer it you go back to the court with a paper that states you are telling the court that you have answered the complaint . That it was delivered to the parties of record(law firm or collection agency). This is called certification with the court.Even though you used certified mail to send your answer you MUST certify on the record that it has been sent.If your unsure of how to answer a simple deny will suffice. Discovery starts after you answer. If you know HOW to use an affirmative defense and counter claims then Great! If you don't ...you will have to prove your own claims right off the bat.Not any court costs for defending yourself.

Edited by My~Cuz~n~Vinny~

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usctrojanalum,

While the exact timing of when an answer is due, it is always best to error on the side of caution.

If she was served in person it would be 20 days. She has been told that by mail or on the door it is 30 days.

Please don't confuse her or any more new people reading this with technicalities.

As a new person it is very hard to get a grasp on this at all.

So, we will work with the 30 day time frame and that is plenty of time to get the answer done, filed and sent off to the atty.

SleeplessinNY...

I am going to PM you shortly.

But first... as BrunoTheJDBkiller said. Slow down.

Take a deep breath and DO NOT PANIC.

This is a JDB.

Your answer will be pretty straightforward and I do have one question on here for you at the moment and then I will PM you.

You say your SOL is 6 years?

When exactly was your last payment? It is important.

Chase uses DE choice of law in their agreements. That is 3 years.

I do not know N.Y. law at all but does anyone here know how N.Y. regards choice of law?

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Q #1:

First of all what does A/S/I/I stand for in the context of:

MIDLAND FUNDING LLC

A/S/I/I TO A CHASE ACCOUNT

I ask this just because some of the reading I've done mentions the JDB as the OWNER OR ASSIGNEE, and will my answers differ if they are assignees rather than owner?

AND what exactly is an assignee? I didn't understand the definition of that either.

Q #2:

Also what is the difference between these 2 phrases?

  • Defendant lacks knowledge about the truth in paragraph # and is unable to admit or deny these allegations.

  • Defendant has insufficient information and is unable to admit or deny the material allegations contained in paragraph # of Plaintiff's complaint.

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Well, I re-read my complaint and found my own answer to part of my question #1, but still don't know EXACTLY what that means..

PLAINTIFF, AS SUCCESSOR IN INTEREST (A/S/I/I), TO THIS ACCOUNT, WHICH WAS ORIGINALLY OWNED BY THE ABOVE CREDITOR, PURCHASED IT FOR VALUE.

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Plaintiff is the party suing you. Successor in interest means that they are now the legal owner of the account because they bought it from the original creditor. (purchased for value) It's just legal jargon. Now they have to prove it, and that's the fun part, they rarely can.

New York has a "borrowing statute." This means that they will enforce the other side's state statute of limitations. Chase is in Delaware, 3 year SOL. If they sued more than 3 years after the date of default, the case can be dismissed. Date of default is the first payment you missed. I posted the borrowing statute today for someone else, check my posts.

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§ 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 is still mumbo jumbo to me.

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But if Chase is no longer the owner and Midland's address is in CA does the OC's agreement/location apply?

Absolutely it still applies.

Midland is a JDB. Junk Debt Buyer. As such,, when they but any debts, the agreements that were provided by the OCs .. original creditors... become the agreements that the JDBs are to use.

Therefor the choice of law would be DE. Because that is the choice of law when the account was defaulted on and during the time Chase had this account.

Now in answer to the above other questions part 2.

Also what is the difference between these 2 phrases?

Defendant lacks knowledge about the truth in paragraph # and is unable to admit or deny these allegations.

Defendant has insufficient information and is unable to admit or deny the material allegations contained in paragraph # of Plaintiff's complaint.

Defendant lacks knowledge , simply put, means that you have no idea about what they are talking about.

Example... I come up to you and say to you the Spot was chasing a red ball.

and then ask you if you don't agree.

You should ... in semi-legal jargonese... (that is not a real word... I made it up)

reply. You lack knowledge about the truth because there simply is no way for you to know that unless you were an eye witness.

Defendant has insufficient information , simply put, means you need to find out more, or have more information given to you in order to agree with the statement.

Example... I come up to you and say to you the Spot was chasing a red ball.

and then ask you if you don't agree.

Now if you know for a fact that Spot does chase balls. And earlier you did see Spot running but did not know what he was running after then you should answer You have insufficient information because you have no proof that Spot was chasing any ball, and you certainly donm;'t have proof the ball was red.

As to admitting or denying in a summons.

If they were to say that defendant owes XYZ company $ 2,847.16.

How did they get to that exact figure? Unless they provided every single billing statement from a zero balance and the accounting method with the

summons, this cannot ever be admitted to because the defendant has not been given anyway to determine the proof. Even if you want to say yes. I own this you cant cause you cannot be sure.

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I've been studying the rules/laws..all still very confusing. Just when I think I "get" it I read something else that makes me wonder. I also checked my records for SOL. No go on that.

As far as affirmative defenses - I am still unsure which defenses I would be able to claim. I did not receive any notices of the purchase of this alleged account and there was no documentation attached to the summons and complaint.

Any suggestions or direction would be GREATLY appreciated!!! Thank you all for being here.

Here is what I have (I have original complaint text included) my answers in bold.

*************************************************

CONSUMER CREDIT TRANSACTION

Comes now, Defendant, XXXXXXXXXXX, Pro Se, who was served the complaint by the above Plaintiff, MIDLAND FUNDING, LLC. (Who, for simplicity sake, will from now on, be referred to as Defendant and Plaintiff).

Defendant 1) is filing this answer to said complaint with responses keyed to the paragraph numbers of the Complaint. OR 2) who admits and denies the following paragraphs in the Plaintiffs Complaint:

Also, very respectfully, Defendant asks the Court to keep in mind: Traguth v. Zuck, 710 F. 2d 90, 91 (2nd cir. 1983);

2.

“Implicit in the right to self-representation is the obligation on the part of the Court to make reasonable allowances to protect Pro Se litigants from inadvertent forfeiture of important rights because of their lack of legal training." And “the Court's duty is even broader in the case of a Pro Se defendant who finds himself in court against his will with little time to learn the intricacies of civil procedure and law." See 28 U.S.C.A. 1654.

I: ANSWER:

COMPLAINT

1. THAT THE DEFENDANT(S) RESIDES IN THE COUNTY IN WHICH THIS ACTION IS BROUGHT; OR THAT THE DEFENDANT(S) TRANSACTED BUSINESS WITHIN THE COUNTY IN WHICH THIS ACTION IS BROUGHT IN PERSON OR THROUGH HIS AGENT AND THAT THE INSTANT CAUSE OF ACTION AROSE OUT OF SAID TRANSACTION.

1. Defendant admits in part. Defendant denies in part.

Defendant is a resident of Putnam County in the State of New York.

Defendant denies the remainder of the paragraph 1 of the complaint as defendant is without sufficient knowledge to admit or deny this.

2. ON INFORMATION AND BELIEF THE DEFENDANT IN PERSON OR THROUGH AN AGENT MADE CREDIT CARD PURCHASES OR TOOK MONEY ADVANCES UNDER A CREDIT CARD OR LINE OF CREDIT ACCOUNT OR PROMISSORY NOTE/LOAN- A COPY OF WHICH WAS FURNISHED TO DEFENDANT. PLAINTIFF, AS SUCCESSOR IN INTEREST (A/S/I/I), TO THIS ACCOUNT, WHICH WAS ORIGINALLY OWNED BY THE ABOVE CREDITOR, PURCHASED IT FOR VALUE. THE DEFENDANT WAS NOTIFIED OF SAME.

2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 2 of the Complaint and therefore denies the same and puts Plaintiff to its strictest proof thereof.

3. THERE REMAINS AN AGREED BALANCE ON SAID ACCOUNT OF $ ,DUE AND OWING ON PLAINTIFF'S CAUSE OF ACTION. NO PART OF SAID SUM HAS BEEN PAID ALTHOUGH DULY DEMANDED.

3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 3 of the Complaint and therefore denies the same and puts Plaintiff to its strictest proof thereof.

4. DEFENDANT(S) IS IN DEFAULT AND DEMAND FOR PAYMENT HAS BEEN MADE.

4. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 4 of the Complaint and therefore denies the same and puts Plaintiff to its strictest proof thereof.

5. PLAINTIFF, AS OWNER, IS AUTHORIZED TO PROCEED WITH THIS ACTION.

5. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in paragraph 5 of the Complaint and therefore denies the same and puts Plaintiff to its strictest proof thereof.

THAT THERE IS NOW DUE PLAINTIFF FROM DEFENDANT(S) THE AMOUNT SET FORTH IN THE COMPLAINT, NO PART OF WHICH HAS BEEN PAID, ALTHOUGH DULY DEMANDED.

WHEREFORE, PLAINTIFF DEMANDS JUDGMENT AGAINST DEFENDANT(S) FOR THE SUM OF XXXXXXXX WITH INTEREST THEREON FROM THE 8 DAY OF JULY ,2012,

TOGETHER WITH THE DISBURSEMENTS OF THIS ACTION.

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Try this, it doesn't give away as much as yours. Also, leave out the case law lecturing the judge, this is improper. I'm sure he knows all about pro se litigants.

Comes now, Defendant, XXXXXXXXXXX, Pro Se, ("Defendant") who was served the complaint by the above Plaintiff, MIDLAND FUNDING, LLC. ("Plaintiff").

Defendant, for his / her response to the Complaint, answers as follows:

1. THAT THE DEFENDANT(S) RESIDES IN THE COUNTY IN WHICH THIS ACTION IS BROUGHT; OR THAT THE DEFENDANT(S) TRANSACTED BUSINESS WITHIN THE COUNTY IN WHICH THIS ACTION IS BROUGHT IN PERSON OR THROUGH HIS AGENT AND THAT THE INSTANT CAUSE OF ACTION AROSE OUT OF SAID TRANSACTION.

1. Defendant admits in part as Defendant is a resident of Putnam County in the State of New York. As to the remainder, Defendant is without sufficient knowledge to formulate a response and leaves the Plaintiff to his proof.

2. ON INFORMATION AND BELIEF THE DEFENDANT IN PERSON OR THROUGH AN AGENT MADE CREDIT CARD PURCHASES OR TOOK MONEY ADVANCES UNDER A CREDIT CARD OR LINE OF CREDIT ACCOUNT OR PROMISSORY NOTE/LOAN- A COPY OF WHICH WAS FURNISHED TO DEFENDANT. PLAINTIFF, AS SUCCESSOR IN INTEREST (A/S/I/I), TO THIS ACCOUNT, WHICH WAS ORIGINALLY OWNED BY THE ABOVE CREDITOR, PURCHASED IT FOR VALUE. THE DEFENDANT WAS NOTIFIED OF SAME.

2. Defendant is without sufficient knowledge to formulate a response and leaves the Plaintiff to his proof.

3. THERE REMAINS AN AGREED BALANCE ON SAID ACCOUNT OF $ ,DUE AND OWING ON PLAINTIFF'S CAUSE OF ACTION. NO PART OF SAID SUM HAS BEEN PAID ALTHOUGH DULY DEMANDED.

3. Defendant denies paragraph 3 in its entirety.

4. DEFENDANT(S) IS IN DEFAULT AND DEMAND FOR PAYMENT HAS BEEN MADE.

4. Defendant denies as to the term default. Defendant admits that Plaintiff has made a wholly unsupported demand for payment.

5. PLAINTIFF, AS OWNER, IS AUTHORIZED TO PROCEED WITH THIS ACTION.

5. Defendant is without sufficient knowledge to formulate a response and leaves the Plaintiff to his proof.

THAT THERE IS NOW DUE PLAINTIFF FROM DEFENDANT(S) THE AMOUNT SET FORTH IN THE COMPLAINT, NO PART OF WHICH HAS BEEN PAID, ALTHOUGH DULY DEMANDED.

6. Denied as to liability.

WHEREFORE, PLAINTIFF DEMANDS JUDGMENT AGAINST DEFENDANT(S) FOR THE SUM OF XXXXXXXX WITH INTEREST THEREON FROM THE 8 DAY OF JULY ,2012,

TOGETHER WITH THE DISBURSEMENTS OF THIS ACTION.

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I wouldn't put the ole "sufficient information" phrase. It's sort of overused in the annuals of internet recommended responses. You can add something like this, though to statements such as this:

5. PLAINTIFF, AS OWNER, IS AUTHORIZED TO PROCEED WITH THIS ACTION.

Calls for guesswork on behalf of Defendant, who has not seen proof of the authorization. Defendant denies.

Just my opinion.

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I'm still confused and overwhelmed with everything I've read here and in other places. I just don't want to leave anything out that I should have in my answer. And I probably should get my answer sent out the end of this week. Even reading laws/rules for the "time" I have to answer is quite confusing.

I think I understand that in NYS I need to state "Lack of Standing" in my affirmative defense. I don't plan on using any others after reading stuff on here.

One question is do I need to respond to the "closing" statement of the complaint, which was:

THAT THERE IS NOW DUE PLAINTIFF FROM DEFENDANT(S) THE AMOUNT SET FORTH IN THE COMPLAINT, NO PART OF WHICH HAS BEEN PAID, ALTHOUGH DULY DEMANDED.

WHEREFORE, PLAINTIFF DEMANDS JUDGMENT AGAINST DEFENDANT(S) FOR THE SUM OF XXXXXXXX WITH INTEREST THEREON FROM THE 8 DAY OF JULY ,2012,

TOGETHER WITH THE DISBURSEMENTS OF THIS ACTION.

Do I have to have a "prayer for relief" in my answer?

Do I need to address their lack of details regarding their interest charges or attempts to recover attorney fees?

ALSO - I believe I can mail my answer CMRR to the County Clerk (like I will do to the attorney) but is it better to personally file with clerk, get stamped as filed and then send a "filed" copy to the atty? Or does that not matter?

Lastly, does anyone know (NEW YORK STATE) if just a "Certificate of Service" is the only other thing I have to include with my answer? And if so, can it be on the same page as my answer or a separate page?

There are no online resources for the court I am in. And the person at the Clerk's ofc was less than helpful on the phone.

Thanks in advance!

There are so many good things on here, but everyone seems to understand the terms better than I do! And when I read the laws and rules, just when I think "I'VE GOT IT!" I read further and something else seems to be contradicting or I wonder which one I read is applicable to me. Sheesh!

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I just don't want to leave anything out that I should have in my answer.

Don't stress over it that much, in the scheme of things the answer does not really matter. What will matter is discovery and evidence provided in motions.

Do I have to have a "prayer for relief" in my answer?

Yes. You request that the complaint be dismissed.

Do I need to address their lack of details regarding their interest charges or attempts to recover attorney fees?

No. Interest and attorney fees are set by the CPLR in article 5200

ALSO - I believe I can mail my answer CMRR to the County Clerk (like I will do to the attorney) but is it better to personally file with clerk, get stamped as filed and then send a "filed" copy to the atty? Or does that not matter?

If you live close to county clerk, drop it off in person. I myself, live over an hour away from the county clerk where I live so it was never practical.

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