Affiramtion in Opposition. How to respond? NY Help

[Voiceofreason]

I found out that BofA or FIA services had a judgment against me.

I was never served with a summons

I went to court and obtained an order to show cause.

I appeared in court and the plaintiff had someone appear "Of Counsel".

The appearance took place in late September.

The judge told the plaintiff that they had to reply within a week or two and to provide me with a copy of their "Affirmation in Opposition"? He also instructed that all correspondence be certified return receipt and that the little green stickers were sufficient proof for him. The judge said that I should respond to the plaintiff by October 31 and no later than Nov 1 or 2nd.

Friday November 2nd i got a package in the mail from the plaintiff sent regular mail. It was their "Affirmation in Opposition".

In it they have a copy of the original summons that was not served on me.

They also have an affidavit dated January 2011 from an officer of FIA Services stating that the last date of activity on the account is May, 8, 2008

There is also an "Affidavit of Service" That says I was served personally on 3/19/2011.

Then there is a copy of the default judgment they obtained against me Dated May 6, 2011 and a couple of months bills from back in 2008 and 2009

that show no activity on the account and a "charge off" as of 12/31/09.

So here's the thing.The process server claims that I am 6 feet tall and 185 lbs. I am around 5'10 and weigh more than 250lbs

More importantly on the date they claim I was served, I was out of the country. They claim to have served me on 3/19/11. I have a stamped passport that shows entry to another country on 3/17/11 and a return stamp into the US from Homeland security 3/30/11. There is no way that they could have served me. I also have a receipt from the airlines and the condo I stayed in.

Also I think that the statute of limitations has passed on any action on this debt. In their papers the last activity on the account was 5/8/08. NY SOL is six years, however although not clear if the are operating under Delaware or NC laws. In either case the SOL is three years. So I'm thinking that they would have had to serve me prior to May of 2011.

So what do I do. The appearance date is 11/16/12. Do I respond to the papers and if so what is it called? Would it be a " Reply to Affirmation in Opposition", or something else? Or should I just appear on the 16th with the documentation to show that they could not have served me and demonstrate they did not follow the judge's direction?

Any help would be greatly appreciated.

[Voiceofreason]

My court date was moved to December 7th.

I sent a response certified return receipt to both the attorney for the plaintiff and the court.

How is it that 174 people read this post and no responses?

[BV80]

Something like this might require a response from someone who knows and understand NY Rules of Civil Procedure for your specific issue.

Some rules are pretty basic throughout the country. Other rules are state specific.

Contact NACA (National Association of Consumer Attorneys). Ask if there's a NACA attorney in your area. Or contact your state bar association and ask for the lawyer referral service. Tell them you need the name of a consumer attorney in your area. In my state, if I get a a name from the lawyer referral service, that attorney will give me a consultation at a reduced cost.

An attorney could tell you if you need to respond to the opposition.

In my state, a response to the opposition would not be necessary. I would show up at the hearing with my evidence.

And yes, the NY Court of Appeals ruled that the choice of law provision in a cardmember agreement applies to the statute of limitations.

Portfolio v. King - Google Scholar

Edited November 20, 2012 by BV80

[Voiceofreason]

Thank you for the response.

I think I am on the right track.

I filed my response without addressing the initial summons. I only addressed the issue that I was out of the country when they claimed they served me "personally".

The process server that they used in this case was operating under a conditional license in NYC. I am not in NYC but nearby. The process server in this particular case was required to keep detailed records of all of his work. He will not be able to demonstrate that in court. That will be a big issue for the other side if the judge orders a Traverse hearing.

I think they did the sewer service because they knew they would be "Time Barred" if they did not serve me quickly. I plan on using the Portfolio case as part of my argument if i have to go that far. I'm hoping the judge just dismisses the case with prejudice.

[racecar]

Email: [email protected]

Phone: (845) 232-0202

New York laws require that when a debt collection lawsuit is filed against you for things like old credit card debts, cell phone bills or even doctors’ bills, a process server has to deliver the lawsuit to you or someone at your home. The problem is, more often than not, this service never happens. The process server signs an affidavit saying that they delivered the papers to you (usually by the “nail and mail” method where they supposedly post the papers to the door of your home and then mail you a copy). In reality, the process server probably never delivered the papers to you at all; instead, he or she threw them down the “sewer”. Sewer service is unfortunately very common in the five boroughs of New York City and here in Rockland and Westchester Counties.

A debt collector’s bread and butter are default judgments. Make no mistake; they want to get that judgment with as little pushback and resistance as possible. The fastest way to a default judgment is when you don’t answer the complaint. If you are unaware that you have been sewed, the debt collector can have a default judgment entered against in less than 60 days. For this reason, it is no surprise that between sixty and ninety-five percent of all consumer debt collection lawsuits are estimated to result in default judgments.

New York’s judgment enforcement laws make judgment enforcement pretty easy for the debt collector and provide a number of enforcement devices at their disposal. In fact, many of the most powerful of these devices don’t even require the debt collector to go before a judge including:

• Freezing (restraining) a bank account;

• Wage garnishment;

• Auctioning your personal property; and

• Subpoenaing your friends, family and co-workers;

So what do you do if you discover that a default judgment has been entered against you? Fortunately, New York courts have recognized that default judgments are highly questionable particularly due to the pervasiveness of sewer service. For this reason, it is pretty easy to have the default judgment reversed or “vacated” as it is called in the law. To do so, you go to the courthouse and file an “order to show cause” along with a sworn affidavit from you (the court clerks have forms). Your affidavit must swear to two points, (1) that you have a reasonable excuse for your default (like you were never served with the papers); and (2) that you have a defense to the case (like you don’t owe all or part of the debt or that you have never heard of the plaintiff). You deliver the papers to the attorney for the debt collector and show up in court on the designated day where more times than not, your order to show cause will be granted and the default judgment will be vacated.

Beware, after the default judgment is vacated, that debt collector is still going to try and collect that debt or reach a settlement. Hiring a qualified and competent New York attorney can help to make certain that you get the best deal possible and that the debt collector is not taking advantage of you.

[racecar]

NEDAP - Defending Creditor Lawsuits

•Cohen & Slamowitz, LLP

•Eltman, Eltman & Cooper, P.C.

•Eric M. Berman, P.C.

•Goldman & Warshaw, P.C.(a/k/a Goldman, Warshaw & Parrella, P.C.)

•Houslanger & Associates, PLLC

•Jaffe & Asher, LLP

•Law Offices of Forster & Garbus

•Mel S. Harris & Associates, LLC

•Malen & Associates, PC

•Pressler & Pressler, LLC

•Rubin & Rothman, LLC

•Rosiki, Rosicki & Associates

•Steven J. Baum P.

Edited November 20, 2012 by racecar

[Voiceofreason]

No! None of the firms listed is involved.

The law firm is out of Rochester NY and the lead attorney on it recently joined the firm. Prior to ...... he was in private practice and is one of 30 attorneys that were sued by the NYS Attorney General where over 100,000 default judgments were reversed.

[Guest usctrojanalum]

100,00 default judgments weren't reversed, the NYAG actually lost that case but no one hears about that because he was running for Governor and it would have looked bad. But I digress.

File your response. Your passport and the description on the affidavit are your proof you werent served. Two things will happen depending on the judge and there is no way to predict it, either the judgment will be vacated and you will be allowed to file your answer with no jurisdictional defenses (meaning you can't say i was not served) OR the judge will order a traverse hearing to determine the validity of the service.

[Voiceofreason]

Thanks USC!

Will the judge even go through the cost and time of a Traverse hearing when I have such clear evidence that I was not served?

Assuming I win the traverse hearing and the action is dismissed, they could in fact serve me again correct? That being the case, wouldn't their action be time barred as it is is past the 3 year SOL?

I believe that is why they engaged in sewer service in the first place. They had to serve me by April or May or the SOL would have passed.

[BV80]

I believe that is why they engaged in sewer service in the first place. They had to serve me by April or May or the SOL would have passed.

I don't believe that's what they were thinking. It's probable that the vast majority of people in NY don't know that courts have allowed the SOL of a governing state in a credit card agreement. Some attorneys may not even know it. So I seriously doubt that was their reasoning.

It's possible they simply used a dishonest process server. Whether or not they knew the process server was dishonest is anyone's guess.

[alexander323bc]

BV80 is correct half of the people and the JDB's and their attorneys aren't aware of CPLR202. That statute and case law is your best friend in this case. If a suite was filed after the statute of limitations was passed using CPLR 202 you should have a solid case. I was not served correctly either, but that defense just means they can serve you again correctly. I went right after the SOL issue using CPLR 202 and got the complaint dismissed that way.

I didn't say more than one word and my motion was grated based on CPLR 202 using Delaware law. In my experience judges are familiar with tactics of JDB's and there attorneys and will look at the evidence. Just make sure you dates and case law is solid and you should be fine.

[Voiceofreason]

Thanks Alexander.

The fact is if hey had served me when they say they did they would have been within the SOL by 30 to 60 days.

However, they did not serve m, they out right lied in this case. So if I get the suit dismissed and the judgment vacated, they would have to serve me again. But if they did serve me now they are way outside the SOL.

Do I still win in this scenario?

[BrunoTheJDBkiller]

Some attorneys may not even know it.

Too bad, I really feel for you, you idiot law school graduate who doesn't even know the law concerning the statute of limitations in your own state, or the fact that the NY borrowing statute kills your case. I know it, and I'm not a lawyer and I don't even live in your state. What's YOUR excuse?

Who cares what they think? If they could think, they wouldn't pursue such a worthless argument. They know what they did, don't ever think otherwise. They just think YOU won't know what they did. They do this all the time, they serve improperly and blame you. Get the records of the service and give it right back to them.

[Voiceofreason]

Did you just call me an "idiot law school graduate"? WTF? I do not understand your response. try again?

or not.........

[Huey Pilot]

Did you just call me an "idiot law school graduate"? WTF? I do not understand your response. try again?

or not.........

That was a tongue in cheek third party reference to the NY Plaintiffs Jerk bag Attorney that is hassling you. Kind of like Eastwood's reference to "The Chair".

JDB attorneys are some of the most useless and hated on the planet. Some are also exceptionally good at what they do. None the less because of what they do to consumers they are befitting Bruno's comment. Not you.

[Guest usctrojanalum]

Will the judge even go through the cost and time of a Traverse hearing when I have such clear evidence that I was not served?

Assuming I win the traverse hearing and the action is dismissed, they could in fact serve me again correct? That being the case, wouldn't their action be time barred as it is is past the 3 year SOL?

I believe that is why they engaged in sewer service in the first place. They had to serve me by April or May or the SOL would have passed.

it all depends. if you are in the city of NY, they rarely dismiss the cases at OSC's. 90% of the time you are required to file an answer and have the case litigated on the merits. they do this because the way the law is written on the books not really practical, you need to have a reasonable excuse (such as being out of the country) AND a meritorious defense to the action. even if you could prove 100% sewer service, if you do not have a defense the judgment stands.

obviously the courts recognized how unfair the law is written so they will always vacate judgment and let the defendant answer.

If you are out of NYC, you could probably push hard for a traverse and get it.

[BrunoTheJDBkiller]

Did you just call me an "idiot law school graduate"? WTF? I do not understand your response. try again?

Ha, sorry about that, I was referring to their attorney, not you. Sometimes I make an answer as if I were addressing the opposing side. The more you deal with these people, you'll see just how incompetent they are.

[Voiceofreason]

Thanks USC.

Should I push for the Traverse hearing? If the judge vacates the judgement, do I just accept that and then allow them to serve me properly?

Then answer with the SOL as my defense?

What does the Traverse hearing accomplish?

[Guest usctrojanalum]

If the judge vacates the judgment, you either have 20 days to file an answer or a traverse hearing will take place. You will not be served again.

[Voiceofreason]

OK Bruno you are forgiven LOL!

I don;t understand what USC is saying now. If the judge vacates the judgment what is the point in having a Traverse hearing?

Can the Traverse hearing wipe out the case in its entirety?

If that is the case that's what I should be demanding ? And just forget about the SOL?

Sorry for being a pain in the a$$!

[Guest usctrojanalum]

The judgment is going to be vacated no matter what. However, that is not what the law is in the State of NY. The law states that there needs to be bad service AND a meritorious defense. If you have one but not the other, the judgment will stand. The Courts in NYC realize the law is unfair how it is written on the books so they vacate almost all default judgments and allow the case to proceed as normal and have the case decided on the merits. It seems like a pro-plaintiff policy to operate this way, but when you actually read the CPLR about how to vacate a judgment it is a fair compromise.

If the Courts did not allow this, most default judgments would never be vacated.

When a judgment is vacated the case is NOT dismissed. It either gets put on the pre-trial conference calendar or a traverse hearing is scheduled.

A traverse hearing is still not a guarantee that the case will be thrown out if the service is found to be bad. I had a judge rule that the service was most likely not correct as a matter of law but in the interest of justice forced me to file an answer and proceed on the merits.

[Voiceofreason]

Thanks USC.

If I "in fact" had been served, I'm not sure that I would have had a defense at that time. Other than the credit card statements that the plaintiff submitted. These statements showed no activity other than a balance and a final statement with a "Charge off".

However, if I had to answer the summons now.....the SOL would be my defense.

Will this work in this situation or am I just wasting my time?

[Guest usctrojanalum]

so long as the case was filed after the expiration of the SOL.

[Voiceofreason]

The original case or summons is from March of 2011. The only thing I have is from the plaintiff is an affidavit from an officer of FIA stating that the activity on the account ended in May of 2008. I have no way of determining if that is true. If that is true they continued to charge me interest on the balance through 2009 when they charged it off on 12/31/09. That's more than 18 months of usury finance charges!

If what your saying is accurate, "sewer service" is legal and a valid way of obtaining a default judgment against a defendant.

My argument is that how I would have answered a summons at a point in time in the past is moot. Because it did not happen. If I was not served at all, I should not have to answer the summons as though I had been. Why should they be rewarded for their fraud?

[Guest usctrojanalum]

I do agree with you, unfortunately our legislators and CPLR article 5200 do not.

Because the legislators poorly wrote the law, and the Courts are trying to compensate to make it fair to both parties. The law as it is written basically states if there was sewer service, but you have no defense to the merits of the lawsuit - the judgment is not going to be vacated because you would end up with a judgment anyway and we should not be wasting the Courts time when the outcome is not likely to be different.

This is flawed on many levels because 1) cases can be settled w/o judgment even if the defendant does not have a defense 2) defective service of process is an affirmative defense to lawsuits.

So the NYC Courts make a compromise. They will vacate default judgments extremely liberally, but in return they can't dismiss the cases on the plaintiff that would not have been dismissed had the law been followed verbatim.