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Sued by AA in small claims


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

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

3. How much are you being sued for? 19K total in 3 cases, all scheduled for the same day

4. Who is the original creditor? (if not the Plaintiff) Citi on 2 of them, Raymour and Flanagan (Wells Fargo) on the 3rd one

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

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

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

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? Usual dunning letters

9. What state and county do you live in? PA, Pike

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Oct '09 on one, Jan 2010 on the other two

11. What is the SOL on the debt? To find out: 4 yrs

Statute of Limitations on Debts

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). Hearing set for May 22.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

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. No

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 responded to the court with my intent to defend

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? List anything else they attached as exhibits. Nothing, complaints filed in small claims here only ever have the basic information: OC's name, amount, date opened and date of last payment.

 

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It appears I may be duking it out with Asset in Magisterial District Court (PA version of small claims).

They are suing me for three accounts, total of about 19K. I notified the court April 16 of my intent to defend all three cases.

Court is scheduled for May 22, and as of today Asset has not withdrawn. I don’t want to wait till the last minute,

so I’m preparing.

As is usual here in PA, there is never anything attached to a small claims complaint except a certification.

They are never notarized, the certifier never says who he or she works for, and in my case, there isn’t even
a full name, just first initial and last name. The following is the entirety of the complaint.

 

Plaintiff is the owner of a certain NAME OF OC account bearing number XXXXXXXXXXXXX

(hereafter, “the Account”) by virtue of the assignment of the account. As a result of the
assignment, plaintiff now holds all rights, title and interest in and to the Account.

Upon information and belief, defendant entered into a credit agreement
with OC, used or authorized the use of the Account to obtain loans for the
purpose of obtaining goods and/or services and/or cash advances. Defendant
breached the agreement by not paying the amounts due and owing on the Account.
Based upon review of records kept on behalf of plaintiff, the last payment
posted to the Account on October 1, 2009. The Account shows that the defendant
owes 6 grand plus interest which has accrued from the date of assignment at a
rate of 6% per year in the amount of 6 hundred.

 

I, first initial/last name verify the facts set forth in this complaint are true and correct to the
best of my knowledge, information and belief. This statement is made subject to
the penalties of blah blah blah yada yada yada.

 

Since there was nothing attached to the complaint, I can voice preliminary objections, but I’m pretty much limited to the these four.

Anything else would have to be objected to as the plaintiff tries to introduce it.

 

1. Pa.R.C.P. Rule 1028(a)(2) provides that any party to a pleading may file a preliminary objection to the pleading on the
basis that the pleading fails to conform to law or to rule of court. Plaintiff failed to state whether the agreement upon
which the cause of action is based was oral or written. Pa.R.C.P. Rule 1019(h) requires that when any claim or defense is based upon an agreement,

the pleading shall state specifically if the agreement is oral or written.

2. Pa.R.C.P. Rule 1028(a)(2) provides that any party to a pleading may file a preliminary objection to the pleading on the
basis that the pleading fails to conform to law or to rule of court. Plaintiff failed to attach the Cardmember Agreement upon

which the cause of action is based. Pa.R.C.P. Rule 1019(i) requires a party to attach a copy of a writing to
its pleading when the cause of action alleged is based upon that writing.

3. Pa.R.C.P. Rule 1028(a)(2) provides that any party to a pleading may file a preliminary objection to the pleading on the

basis that the pleading fails to conform to law or to rule of court. Plaintiff failed to attach the assignment under which Plaintiff

purportedly acquired its interest in this cause of action. Pa.R.C.P. Rule 2002(a) requires that all actions be prosecuted by and
in the name of the real party in interest.

4. Pa.R.C.P. Rule 1028(a)(3) provides that any party to a pleading may file a preliminary objection to the pleading
on the basis that the pleading is insufficiently specific. Plaintiff's Complaint is insufficiently specific, as it fails to set forth any charges

or payments made by Defendant that are alleged to comprise the balance claimed to be due.  Rule 1019(a) provides that the

material facts upon which a cause of action or defense is based must be stated in a concise and summary form.

 

If I want to file these in writing, I have to do it by next Wednesday (May 15).

 

What do you think? File them with the court and serve them on the plaintiff's attorney, or wait and bring them up to the judge?

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I would file them, that way you dont have to plead your case at the hearing-- They are just going to set for trial right?  How does your small claims work after that, usual discovery, or do they just come to court with all they have, and you defend as each item is introduced?  Can you file motions before the trial based on what they plan to introduce?

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I would file them, that way you dont have to plead your case at the hearing-- They are just going to set for trial right?  How does your small claims work after that, usual discovery, or do they just come to court with all they have, and you defend as each item is introduced?  Can you file motions before the trial based on what they plan to introduce?

No discovery here. The parties are just supposed to show up with what they have. I think I will file the objections on Monday, if for no other reason than to let them know I'm not one of those defendants who thinks court is for giving the judge your sob story.

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What's the limit on recovery of damages.  In AZ, it's $2500.  $19K even split between 3 cases seems like a lot.  

It was raised to $12K two years ago. I know, seems high for small claims. The county courts (Common Pleas) were over-crowded and the Magistrate courts were sitting empty. I guess they figured raising the small claims limit would help.

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You will need to attack them on standing to sue. Make them show you chain of ownership which they will prolly have the typical fake affidavits. Some of the Judges are aware of standing,others are not. If the Judge rules against you appeal it.It then goes to Pa. common pleas court and they have have to file an actual complaint and starts fresh.Appeal costs are about $200.How far away is the attorneys office? If far away they might send a local attorney who most likely know nothing about the case. Better chance of winning. If you are 2 for 2 in common pleas then just appeal it.

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AA is a junk debt buyer they will not have proper chain of custody. Doe PA allow for a bill of particulars?

Make sure you ask for a bill of sale if they do not have it in court that day motion to preclude it. They are claiming account stated and breach of contract, make them show the contract.

 

The bill of sale goes towards standing. Any affidavits they try to introduce should be objected to as hearsay. They will claim the business exception to the hearsay rule but your argument to that is one simple statement "any documents prepared for the sole purpose of litigation does not fall under the business exception, affidavits are prepared for litigation purposes only, and does not fall under the scope of business records." there is case law to support this. Look for some from your state.

 

Since they claim account stated, when they introduce their evidence they will more then likely have one or two statements with the balance they claim. Do not let them get by with this, you ask for an accounting of the alleged debt from a zero balance. They will argue about this but you make your statement that they only way they can prove that the alleged debt is correct is to show an accounting from a zero balance. 

 

Your home work will be to find some case law to support all of this, preferably from your state.

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You will need to attack them on standing to sue. Make them show you chain of ownership which they will prolly have the typical fake affidavits. Some of the Judges are aware of standing,others are not. If the Judge rules against you appeal it.It then goes to Pa. common pleas court and they have have to file an actual complaint and starts fresh.Appeal costs are about $200.How far away is the attorneys office? If far away they might send a local attorney who most likely know nothing about the case. Better chance of winning. If you are 2 for 2 in common pleas then just appeal it.

 

Hi fastback, the attorney is 155 miles away.

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Paycut you have Citibank X2 that has arbitration in the credit agreement.Send a letter to the otherside electing arbitration with jams. This should make them go away.

See Linda7's posts on arbitration.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

http://www.jamsadr.com/rules-clauses/

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=citi+bank

Wellsfargo also has arbitration in the credit agreement

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=wells+fargo

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Paycut you have Citibank X2 that has arbitration in the credit agreement.Send a letter to the otherside electing arbitration with jams. This should make them go away.

See Linda7's posts on arbitration.

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

http://www.jamsadr.com/rules-clauses/

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=citi+bank

Wellsfargo also has arbitration in the credit agreement

http://www.consumerfinance.gov/credit-cards/agreements/search/?q=wells+fargo

 

Hey Racecar,

I have the card agreement with JAMS in it. It doesn't seem as consumer friendly as others I've seen.

 

Who pays? Whoever files the arbitration pays the initial filing

fee. If we file, we pay; if you file, you pay, unless you get a

fee waiver under the applicable rules of the arbitration firm.

If you have paid the initial filing fee and you prevail, we will

reimburse you for that fee. If there is a hearing, we will pay

any fees of the arbitrator and arbitration firm for the first day

of that hearing. All other fees will be allocated as provided by

the rules of the arbitration firm and applicable law. However,

we will advance or reimburse your fees if the arbitration firm

or arbitrator determines there is good reason for requiring

us to do so, or if you ask us and we determine there is good

reason for doing so. Each party will bear the expense of that

party’s attorneys, experts, and witnesses, and other expenses,

regardless of which party prevails, but a party may recover

any or all expenses from another party if the arbitrator,

applying applicable law, so determines

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Ask them for the fees.

"we will advance or reimburse filing and other fees"

This is whats great about arbitration make it not worth their while to pursue your claim.

If the junk debt buyer wants to fill the shoes of the original creditor let them,They wont want to pay for arbitration.

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Pa. magistrate court is an informal court. The plaintiff will present what they have and then you present your defense. No objections etc. It all boils down to the knowledge the judge has in regards to debt cases. I know judges that have asked the attorney for the chain of ownership and when they couldnt produce the defendent won, Other cases they gave them 30 days to produce evidence.

Just be polite and roll with the judge. You will sense how he feels about the case. The good part is it can be appealed and then the fun begins. You won before you can win again. Same procedure.

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AA is a junk debt buyer they will not have proper chain of custody. Doe PA allow for a bill of particulars?

Make sure you ask for a bill of sale if they do not have it in court that day motion to preclude it. They are claiming account stated and breach of contract, make them show the contract.

 

The bill of sale goes towards standing. Any affidavits they try to introduce should be objected to as hearsay. They will claim the business exception to the hearsay rule but your argument to that is one simple statement "any documents prepared for the sole purpose of litigation does not fall under the business exception, affidavits are prepared for litigation purposes only, and does not fall under the scope of business records." there is case law to support this. Look for some from your state.

 

Since they claim account stated, when they introduce their evidence they will more then likely have one or two statements with the balance they claim. Do not let them get by with this, you ask for an accounting of the alleged debt from a zero balance. They will argue about this but you make your statement that they only way they can prove that the alleged debt is correct is to show an accounting from a zero balance. 

 

Your home work will be to find some case law to support all of this, preferably from your state.

 

Hey Gunny,

In PA, a lot of the stuff that would be included in a BOP is supposed to be attached to the complaint, per the Pa. R.C.P. When we get sued in Common Pleas Court (a step up from small claims) we use Preliminary Objections to get the complaints thrown out, because the JDB never attaches the writing that is the basis of the suit, or an admissible BOS. In small claims, you have to do all this verbally. I have case law for everything I'm going to attack. As soon as I round it all up, I'll post a laundry list and would appreciate if you would give it the once over. Thanks.

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Pa. magistrate court is an informal court. The plaintiff will present what they have and then you present your defense. No objections etc. It all boils down to the knowledge the judge has in regards to debt cases. I know judges that have asked the attorney for the chain of ownership and when they couldnt produce the defendent won, Other cases they gave them 30 days to produce evidence.

Just be polite and roll with the judge. You will sense how he feels about the case. The good part is it can be appealed and then the fun begins. You won before you can win again. Same procedure.

 

Hey FB, ya know, if they had sued me in Common Pleas I wouldn't be sweating any of this. I know how to navigate county court but MDC is all new to me. I did just think of one question. They're suing me on 3 accounts (total of $19K) with all 3 set for hearing on the same day at the same time. What are the implications of them trying to combine all 3 other than that it would put the amount sought over the court's jurisdictional limit?

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Ask them for the fees.

"we will advance or reimburse filing and other fees"

This is whats great about arbitration make it not worth their while to pursue your claim.

If the junk debt buyer wants to fill the shoes of the original creditor let them,They wont want to pay for arbitration.

 

 

You will have to wait to common pleas court to motion to compel arbitration. Wont fly in the magistrate office.

 

I was also thinking that by filing my intent to defend, I might have gone too far in the process to now demand arb.

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I was also thinking that by filing my intent to defend, I might have gone too far in the process to now demand arb.

No, you have not gone too far.

 

I was sued by an OC who used Weltman, Weinberg and Reis. In PA.

 

It was in common pleas. But for a ridiculously small amount.

 

I had actually answered the summons and went all the way through

discovery with them.

 

I answered theirs, they never answered mine but motioned the court

for a date for judgment on the pleadings.

 

We attended a hearing to get a date for this to be heard and it was

not until an actual court date was set did I motion to compel.

 

It was granted.

 

I firmly believe in arbitration.

 

I also faced AA with this and the outcome worked for me.

But my deal with AA came when I initiated pre-suit.

 

As is suggested above, Linda 7s thread will lay it all out for you.

 

If you want to go the litigation route... the main defense...

really the best defense is STANDING.

 

The following link explains it quite well, and why.

 

http://www.creditinfocenter.com/community/topic/312714-standing-when-dealing-with-jdb/?hl=standing

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You can file for arbitration if it goes to common pleas court. They want their judgements from people not showing up. Did they file 3 separate suits? I guess they would have had to,  if it was over 12k. They would prolly combine them in common pleas court.Even if the judge is not familiar with standing by you presenting a good case they might give you a later ruling to check the laws.Do not admit the alleged debt is yours.

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You can file for arbitration if it goes to common pleas court. They want their judgements from people not showing up. Did they file 3 separate suits? I guess they would have had to,  if it was over 12k. They would prolly combine them in common pleas court.Even if the judge is not familiar with standing by you presenting a good case they might give you a later ruling to check the laws.Do not admit the alleged debt is yours.

 

Yes, they filed three suits. I was going to suggest to the judge they only did it to circumvent the $12K limit. Based on the good info from you, racecar and donqIII, a motion to compel arbitration is an option. But since it has to be done in Common Pleas, I would have to lose in Magisterial and then pay $600 to get there. That said, I might as well fight my butt off and try to win at this level.

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https://www.citicards.com/cards/acq/cma.do

I would print out 3 credit agreements hand one to the plaintiff and one for the judge

and one for yourself, Tell the judge "All Claims are subject to arbitration".

I would highlight the arbitration agreement and have the page folded to it.

You can elect arbitration in small claims.

Claims Covered

What Claims are subject to arbitration? All Claims relating

to your account, a prior related account, or our relationship

are subject to arbitration, including Claims regarding the

application, enforceability, or interpretation of this Agreement

and this arbitration provision. All Claims are subject to arbitration,

no matter what legal theory they are based on or what

remedy (damages, or injunctive or declaratory relief) they

seek. This includes Claims based on contract, tort (including

intentional tort), fraud, agency, your or our negligence,

statutory or regulatory provisions, or any other sources of

law; Claims made as counterclaims, cross-claims, third party

claims, interpleaders or otherwise; and Claims made

independently or with other claims. A party who initiates

a proceeding in court may elect arbitration with respect to

any Claim advanced in that proceeding by any other party.

Claims and remedies sought as part of a class action, private

attorney general or other representative action are subject to

arbitration on an individual (non-class, non-representative)

basis, and the arbitrator may award relief only on an individual

(non-class, non-representative) basis.

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