Colorado Account Stated Suit by Original Creditor

[BTKCAs]

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

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

3. How much are you being sued for? ~ 6k

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

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) Personally

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? Received dunning letter; timely sent validation letter; received a response giving me the name and address of the creditor.

9. What state and county do you live in? colorado . La Plata

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never - but attached statement has a date within SOL

11. What is the SOL on the debt? To find out: - It's within SOL

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    looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Served about 10 days ago. There isn't a case file yet, but clerk said they usually file electronically a few days before the response date (June 10).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I recently sent a dispute to Equifax. Still waiting to get Trans and Exp via mail.

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 and they responded with the name and address of the creditor.

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 must file by June 10.

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.

They attached an affidavit and a statement. The affidavit looks to be robo signed. Should I attach a redacted version?

 

 

 

[shellieh98]

yes attach it.  That is all they sent, one statement and the affidavit? 

 

Since ths is an OC account, they usually hav ethe records to prove your account, so lets find out if citibank has an arb agreement.  What year did you open the account?

find the cardmember for that year, and research arbitration with JAMS in the agreement.  then come back.  Don't file an answer with the court until you do. 

[BTKCAs]

OK - I've attached a sample affidavit that is similar to the one I have.

 

It appears to be robo signed. The way it is crafted looks like it is made to be churned out in an assembly line fashion.

 

My name isn't mentioned in the affidavit and the affiant's statements are very generic. The account in question is only referenced with 4 numbers, which seems a little far reaching as well. If they had the goods, why wouldn't they reference the entire account number?

 

I also found out that the notary's signature is different from the signature on her oath.

 

Is it possible to motion to dismiss in lieu of an answer?

 

Otherwise, I plan on filing my answer. I would like to attack the affidavit as being fraudulent - is there any current case law regarding this "robo-signing 2" issue?

 

I am still trying to understand the rules - I cannot motion until after I answer, but their cause of action is based on very thin prima facie evidence. Do I file my answer and then motion to strike the affidavit?

 

There's an option to counter claim and move to the district court - should I do that as it will allow me to request discovery?

 

I can also request discovery at the pre-trial hearing and would need to verbally make the motion.

 

However, I am still trying to avoid MSJ by plaintiff due to their robo affidavit.

 

Appreciate the insight.

imgweb.charlestoncounty.org_CMSOBView_Service1.pdf

[shellieh98]

Well here is a little info on cheryl preston.  she no longer works there, so trying to subpoena her would be impossible, that would be helpful in your objection to any MSJ they try to file. she is a robo signer, and she lives in Az., and is now an event planner lol. 

 

 

 

Unit Manager, Personnel and Planning Citi March 2007 – March 2011 (4 years 1 month)

Tucson, Arizona Area

• Management of a 25 member team providing financial oversight
• Responsible for internal Banking/Mortgage Default departmental control
• Project planning of statistical/analytical site performance for efficient resource allocation
• Plan, direct, control and implement strategies and activities to generate and maximize overall revenues and increased business development
• Provide sales, forecasting of market and sales supervision for business growth
• Monitor and analyze monthly financial performance, making necessary corrections
• Develop, write and communicate policies and procedures required to ensure adherence to acceptable program standards

 

 

OK so seriously, can you scan the one you got?  Then we can compare the 2.  

There are lots of samples on motions to strike affidavits around here.

 

Lets talk about moving your case to district.  Not so sure that is a good idea.  Since this is an OC lawsuit, they probably have the records to produce if pushed to do so.  I would think a better plan of action might be to keep it in county court, and play dumb.  don't let them know you know what they need to prove their case.  You can send them form 9 as soon as you answer your suit.  That is your disclosure statement.  If you have nothing to disclose just state on it "defendant has nothing to disclose at this time, but retains the right to update as documents become available.  Send it to them, along with a blank disclosure statement, which they will have 40 days to fill out.

What ever they send you is all they can use at trial.  You in turn can focus on defeating what they do have.  If they file MSJ before then you can bring up materials of fact  as the defective affidavidt, and you have not recieved any disclosure from plaintiff as required by rule 26a.

I settled an original creditor lawsuit before I found this site, and knew the rules for colorado.  It was for 7k, I settled for 3750.00. (ouch) One day before trial, I had done nothing on the case and knew I would lose.  Hindsight, I wish I would have had this site, and done my homework.  The only thing they ever sent me were credit card statements about 6 months worth.  They also subpoenaed my bank records for 8 years worth, and sent every bank statement to me. (how thoughtful).  HAD i known this was ILLEGAL for him to do so without order of the court, things may have turned out differently.  Even if they are considered an officer of the court, they are not allowed to subpoena anything without asking the courts permission.  I could have won that case because I could have objected to the unauthenticated copies of my statements, and to their illegal seizure of my bank account records.  They sent nothing else. 

2nd case was one I won today.  I had already settled this case, but threw out my stipulation letter over a year ago.  chase sold the account to JBD, and they sued me.  I had to make them prove standing, filed a great motion in limine, and they dismissed with prejudice today.  Judge was disappointed, he said he sees hundreds of these cases, and usually pays no attention, but was following this one, he was looking forward to hearing oral arguments  He also said I did a good job if they were dismissing with prejudice as that almost never happens.   

Just learn the rules, read the article by peter holland here http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2079155 and scrutinize everything they send you.  I wouldn't be asking for to much, or you might get what you wish for.  Disclosure rules can work to our advantage, especially if the other side thinks you know nothing about the law.  They will try to win with the least amount of work, and if you can get them to trial after they have provided nothing, all the better for you.  But it is your call.  The advice above I gave about arbitration may have been hasty, as I now hear citibank is one of the bulldogs, but so some research on it as an option.  Just know after you send off that disclosure form 9, it is to late.

 

also here is another affidavidt of cheryl preston, they were all typed up and printed off, they do what we do, redacted and put the info they wanted in there lol.  http://imgweb.charlestoncounty.org/CMSOBView/Service1.asmx/StreamDocAsPDF?viewertype=cms&ctagency=10002&casenumber=2010CP1007762&docseq=P1A5

[BTKCAs]

Thanks shellieh98 for the links and insight.
 

I don't think it's the same Cheryl Preston, since this affidavit is in Missouri and not Arizona.

 

However, it appears that there has been a slight "adjustment" to the robo affidavit in relation to CCSI.

I've attached a redacted affidavit, which does not reference CCSI.

Did Citi dissolve CCSI? Is this a word game to keep folks from understanding the robo signing process?

Your thoughts appreciated.

One other thought - there is no case # yet, but the clerk told me they will file some time just before the due date. Should I bother looking to see if a case number has been generated, or should I just file my answer a couple of days before the deadline?

 

Affidavit Scrubbed.pdf

[shellieh98]

Well that is pretty special.  They send you an affidavidt that is not dated, so they can't say when it was actually signed.  When was the account defaulted on?  It is the same cheryl preston, and she no longer works for citi, she left in 2011.  I would get it thrown out based on it is not dated, and looks to be a self serving document that was robosigned.  What dates does it state are the statements? (you redacted them) I would do a search on what you can do if they supplied a false document in support of their case.  If your charge off date is after she left citi, there is no way she could have signed it.  I would also find all the affidavidts you can signed by her and where they were signed in support of your case.  It's a start.

[BV80]

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never - but attached statement has a date within SOL

 

What does that cc statement show? 

 

Since you never made a payment, is this your account?

 

Which of the 2 affidavits that you attached is yours?

 

Is it possible to motion to dismiss in lieu of an answer?

 

See what your court rules state, but usually to dismiss in lieu of an answer, you have to show that the lawsuit should not have been brought in the first place.  That could be because of the SOL, Citi isn't the real party in interest, you're the wrong person...something like that.  I don't believe allegations of robosigning would cause the judge to dismiss. 

 

 

Otherwise, I plan on filing my answer. I would like to attack the affidavit as being fraudulent - is there any current case law regarding this "robo-signing 2" issue?

 

Just as Citi has to prove you owe the money on the account, if you claim the affidavit is robosigned, you have to prove it or at least give the judge a good reason to believe it.  

[BTKCAs]

I'm looking to file a motion of extension of time, so I can prepare my answer.

 

Anyone know the time allowed to extend out to?

 

Anyone have a template or where the template for this motion can be found?

 

It's for Colorado County Court under simplified rules.

[BTKCAs]

OK - I found the rule for extending time.

 

Now - how do I figure out how much time I can ask for? This "rule of 7" was included as a comment at the bottom of the Rule 306 page. Can it be any denomination of 7 or is there a cap?

 

 

COLORADO RULES OF COUNTY COURT CIVIL PROCEDURE  

CHAPTER 25 COLORADO RULES OF COUNTY COURT CIVIL PROCEDURE

C.R.C.P. 306 (2013)

Rule 306. Time.

(a) Computation. (1) In computing any period of time prescribed or allowed by these rules, by order of court, or by an applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. Thereafter, every day shall be counted including holidays, Saturdays or Sundays. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a legal holiday. The "next day" is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(2) As used in this Rule, "Legal holiday" includes the first day of January, observed as New Year's Day; the third Monday in January, observed as Martin Luther King Day; the third Monday in February, observed as Washington-Lincoln Day; the last Monday in May, observed as Memorial Day; the fourth day of July, observed as Independence Day; the first Monday in September, observed as Labor Day; the second Monday in October, observed as Columbus Day; the eleventh day of November, observed as Veteran's Day; the fourth Thursday in November, observed as Thanksgiving Day; the twenty-fifth day of December, observed as Christmas Day, and any other day except Saturday or Sunday when the court is closed.

( Enlargement. When by these rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the court for cause shown may, at any time in its discretion (1) with or without motion or notice, order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 325 and 360( , except to the extent and under the conditions stated in them.

 

 

COMMENT

After the particular effective date, time computation in most situations is intended to incorporate the Rule of Seven. Under the Rule of Seven, a day is a day, and because calendars are divided into 7-day week intervals, groupings of days are in 7-day or multiples of 7-day intervals. Groupings of less than 7 days have been left as they were because such small numbers do not interfere with the underlying concept. Details of the Rule of Seven reform are set forth in an article by Richard P. Holme, 41 Colo. Lawyer, Vol. 1, P 33 (January 2012).

 

 

[shellieh98]

So you would ask for 1 week, or 2 weeks, or 3 weeks, etc., not say 10 days, or 15 days etc. they will go by calandra days for extensions, but for filings I believe it excludes holidays weekends etc. colorado is screwed up that way. I heard the clerks one day tryin to figure out if something was late or on time....they don't even know lol

[shellieh98]

Here is a blank template.

COUNTY COURT Template blank.docx

[BTKCAs]

shellieh98

Thanks so much! Should my caption be "Defendant's answer to Summons and Complaint"?

 

Also - should I change the "Attorney for Plaintiff" section to my information?

[shellieh98]

no, your name under defendant, attorney under attorney.  name your court and court address at the top, on the bottom right is where you put your case number, and where in court (if applicaple) like div. 1 whas where mine was.

Yes caption is good, and it goes in the blank space at the bottom of the header, center it.  

Then list what they wrote in the complaint by number, and state your denials after each number of the complaint. (does that make sense?) 

example

 

1. Defendant entered into a contract with plaintiff and owes xxxx.xx

answer- deny defendant did not enter into any contract with the plaintiff

 

2. Defendant owes Plaintiff xxxx.xx

answer-deny, .........................................etc.

 

You can list any affirmative defenses on a separate sheet.  Be careful what you use, if SOL is up, that would be one touse--Debt is time barred.  Also plaintiff lacks standing.  But you don't have to list any.  If you list a bunch of them, you may be required to prove them.

[BTKCAs]

I sent a disclosure request via CMRRR and have not received a response.

 

Here's the rule on disclosure:

Rule 316. Pretrial Procedure -- Disclosure and Conference.

(a) Disclosure Statement.

(1) At any time after the answer is filed but no later than 21 days before trial, a party may request from an opposing party a list of witnesses who may be called at trial, and copies of documents and pictures, and a description of physical evidence which may be used at trial. Such request shall be made by serving pursuant to C.R.C.P. 305 a blank disclosure statement, which shall be in the form and content of Appendix to Chapter 25, Form 9, on the opposing party and shall be accompanied by the requesting party's properly completed Form 9 and its attachments. The opposing party shall serve pursuant to C.R.C.P. 305 a completed Form 9 with attachments on the requesting party within 21 days after service but not less than 7 days before trial. The court may shorten or extend that time. A party may not supplement the disclosure statement except for good cause.

(2) The court may order the parties to exchange and file Form 9 disclosure statements at any time before trial.

(3) Any party failing to respond in good faith to a Form 9 request or court order under this subsection (a) shall be subject to imposition of appropriate sanctions at the time of trial.

 

 

Question:

 

Should I motion for sanctions? If yes, how do I do so?

[shellieh98]

when is your trial?

[shellieh98]

Here is the rule for non disclosure.  Looks like you need a meet and confer first.  But I think that would depend on when your trial is.  also I did not know about this, but disclosure rules say you should file a notice of compliance, so that might be something you need to do, basically a statement saying you sent your disclosure to other party, signed and filed with the court.  They may even have a form at the court for you to do this.

If it is 7 days before trial, they are out of luck, and case should be dismissed, hopefully with prejudice. 

 

http://web.lexisnexis.com/research/retrieve?_m=7179df2f40da84ef8b280dab78df14eb&csvc=lt&cform=&_fmtstr=FULL&docnum=1&_startdoc=1&wchp=dGLzVzB-zSkAz&_md5=ff50ae3cd611ecae8fdbb3a810806f30

 

if it is more than 7 days before trial, I believe you would need to send a meet and confer, but read the rule carefully.

[shellieh98]

this is good, if they don't give it to you, they cannot present anything at trial.  I think you would have needed a meet and confer first though,  I would send it out close to trial, not giving them much time.  In my case plaintiff did not send any disclosure until 10 days before trial, but since you sent them yours, and they did not respond within the 21 days, that would be good for you if you did a motion in limine after they sent it (if they do)  Maybe @KentWA may know, he knows utahs rules pretty well, they are similar, although they have traditional discovery without permission from the court, and we need permission to do traditional discovery, but they have sanctions for non disclosure, and that is what you need to know.

[BTKCAs]

when is your trial?

Trial has not been set yet.

 

I have submitted a motion to strike on the affidavit, which should be looked at by the judge next week some time.

 

From what I can tell, the rule says 21 days after and not less than 7 days before trial.

 

The next step should be a pre-trial hearing. At that point I will verbally request discovery. It may be the "law firm" will simply let this die on the vine, since it's not low hanging fruit. Is that too many fruit metaphors in one sentence?

[shellieh98]

The judge may let them submit their disclosure despite the fact it has been over 21 days, and there is no trial set, unless you send out a meet and confer. I would send them one, hopefully they will ignore it since this is a OC case. If they do send it, it will give you time to try and tear it down. Give them 10 days in tour meet and confer, if they don't comply, do a motion to preclude. In your pre trial you can bring it up. If the judge lets them anyway, that is the time you say you would like leave of the court to do formal discovery. ( you need permission from the court to do formal discovery). To bad a trial is not set yet, it would be easier to get it precluded. On what grounds did you ask the affidavit be thrown out? Might be premature this early in the case if it was not a slam dunk reason. It was not dated, but that might have been a better argument once trial was set and they didnt have time to correct it. If they would have already sent you their disclosure, it would have been easier to get it precluded, but they are sloppy, and may do nothing to correct the error.

[shellieh98]

hey you said the notaries signature doesn't look like the one in her oath.  Where did you find the oath signature, I looked on sos for mo but could not find it.

[BTKCAs]

I attacked several issues with the affidavit. We'll see what the judge says. I heavily redacted the affidavit, due to my paranoia. I requested a formal investigation into the notary with the MO SOS. They declined. This particular notary has changed her signature 3 times! She says her hand cramps, so she has to sign with her initials only. Quite telling if you ask me. Their own notary rules state the signature must match the name, so initials should be out of the question. However, I have a feeling the state receives lots of revenues from the banks, so they let these kind of things slide.

 

When I read the county court rules for disclosure, it clearly says within 21 day AFTER service and 7 days before trial. Wouldn't that mean they only get 21 days to respond, regardless of whether there is a trial date or not?

[shellieh98]

yes it should but you never know what the judge will do.  He may let it slide.  You still have to send the meet and confer according to the rules, giving them some extra time. (doesn't say how much) You have to do this before you can file a motion to preclude any evidence.  If you don't do it, I think the judge will let them slide as long as they send it 7 days before trial, even though a trial has not been set yet. If you get it done before your pretrial hearing, you can motion to preclude and ask at the hearing. 

 

Rule 37

Rule 37. Failure to Make Disclosure or Cooperate in Discovery: Sanctions.

(a) Motion for Order Compelling Disclosure or Discovery. A party, upon reasonable notice to other parties and all persons affected thereby, may apply for an order compelling disclosure or discovery as follows:

(1) Appropriate Court. An application for an order to a party or to a person who is not a party shall be made to the court in which the action is pending.

(2) Motion. (A) If a party fails to make a disclosure required by C.R.C.P. 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion shall be accompanied by a certification that the movant in good faith has conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action.

[racecar]

They attached an affidavit and a statement. The affidavit looks to be robo signed.

 

I'm sure your being sued by CACH LLC Hiding under the name of Citibank.

Citibank is not going to use a 3 year old affidavit to sue you with.

To constitute “an account stated," there must have been

(a) an accounting between the parties,

( b )a balance struck, and 

( c ) a promise, express or implied, to pay such balance to the plaintiff. Teller v Ferguson , 24 Colo. 432, 437, 51 Pac. 429.Mace v. Spaulding, 110 Colo. 58, 130 P.2d 89 (1942), Conyers v. Lee, 32 Colo.App. 337, 511 P.2d 506 (1973).
To constitute an "account stated" there must have been an agreement between the parties as to the amount due and owing.

[shellieh98]

@racecar that first affidavit is not his, he said it looked like his.  The 2nd one is his, and it is not dated.

[racecar]

That is her signature I found about 4 with her name signed just like his.

Then some were just stamped with her name.

Im sure its a robo fill in the blank job.

Read this

http://www.debtdefenselaw.com/2011/01/living-dead-or-robo-why-most-affidavit-signatures-on-debt-collection-lawsuits-are-meaningless-and-an-insult-to-our-justice-system/