Another Pressler, New Century bogus lawsuit

[getbacktoworkyoushill]

Hi folks, 

answers to questions

1. Who is the named plaintiff in the suit? New Century Financial Services

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

3. How much are you being sued for? 11,000 and change

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

5. How do you know you are being sued? (You were served, right?) Yes, though process server made 1 attempt and during that attempt simply nailed summons and complaint to door. Mind you, I no longer live there, but a family member does so I received the mail from her.

6. How were you served? (Mail, In person, Notice on door) door notice for the orrigial answer and summons, then snail mail at same address

7. Was the service legal as required by your state? No, they should have made 3 attempts to hand deliver. Didn't happen. I knew this and raised this issue in my answer. Also brought it up over the phone with Pressler attorney (and paras)...they seemed less than concerned.

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? NOT A THING. In fact, as far as I know they debt was owned into the fall of 2012 by another company, who was not even the first to own the debt, to my recollection. NCFS is the 3rd to own the debt, at minimum.

9. What state and county do you live in? Suffolk County, NY

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) app. 2007

11. What is the SOL on the debt? To find out: 6 years in NY 

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). Currently ball is in my court to respond to a motion to strike answers and for summary judgment. Stupid me didn't write out objections to their interrogatories, rather just called them and went on record saying I was still waiting (since right after I was served in late Feb) for any validation--chain of title, copies of statements. 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I don't even know if it is on my credit report. Currently disabled, my credit is now horrible.

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. The first time I even heard of either company was with the complaint and summons. So, no. But, I have been attempting to get proof they are entitled to collect since February and so far all I've gotten is an affidavit from a person of employ at either Pressler or NCFS who said they are familiar with the records, and can swear I owe the debt, along with a copy of a bunch of card numbers they bought, allegedly mine is on that list.

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?  Yes, received interrogatory. I have only 5 more days to mail my affidavit in opposition to their motion to strike and request for summary judgment.
The motion to strike claims is based on CPLR 3126, even though it is premature for them to use this, as I have not been "willful" in my refusal to answer their interrogatories, nor have they filed a motion to complet, on CPLR 3124, which should have been their next course of action, not the 3126. On terms of the ground or charges, the motion to strike uses the term "breach of contract:", though term is nowhere to be found in the summons or complaint. The interrogatory I got was so long and yes, I now know I should have answered it and made objections and said the "scope to broad, etc." statements, but unfortunately, I didn't. I'm new and dumb
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. No contract, no bills, no chain of title, no affidavit. Literally, not one sheet of paper to prove their debt. After I had requested proof, validation they sent me what I mentioned above, a spreadsheet that looked like it was their own or the DC that owned the acct directly before them (not Citibank), and an affidavit from their own employee saying she's familiar with their records and the debt is therefor valid. But along with the actual summons and complaint as I said there was nothing.

 

 

 

 

I did go through the boards here and elsewhere on the internet, and I am looking for some time-sensitive help. I love how the folks at avvo tell me to "get an attorney". I cannot afford one, no not even $100 I am broke, unemployed and unable to...that is why places like this forum have really been helpful. But, I need some advice specific to my case.

To briefly recap, my case is in Supreme Court, Suffolk County, NY. I am being sued by Pressler and Pressler for New Century Financial Services. I had NEVER heard of either before the notce was posted at my old address and given to me. They claim to be trying to collect on a Citibank card. I am not sure if it is 6 years (hence time-barred), but it's awfully close. NCSF is either the 3rd or 4th CA to own the debt, if in fact they do. I was given the summons, and did research, answered in a timely manner and served them with same. Even prior to this, I had called them and sent a letter requesting validation of debt.

To date, all they have sent me is a letter from someone at Prssler or NCFS's emply, saying they are familiar with the records, and it did have a Citibank account number on it. It's been so long, I genuinely have zero clue if the number is the one I owned. The amount they are claiming however (just over 11,000) is appx 3500 more than I recall owing. Other than this letter (which when I called back even they admitted was not what I had asked for), they have given me nothing. No chain of title, no account statement, nothing wth my name--in fact the document they sent me with the alleged CC number was within a list on many CC numbers.

I have requested this validation many times, and each time they are "waiting for NCFS to produce". Yeah right. I highly doubt it exists. Anyway, they send me interrogatories 2 months ago. I called them and told them I would be happy to answer the pertinent questions, as soon as they validated the debt. They never did, and (now I realize stupidly) I never answered them. To wit, their demands are extremely broad, contain many things I don't know, and essentailly, as Ive read elsewhere, they want me to prove their case for them. I should have written back and objected, but I didn't.

Now I received a large packet from them as of last Friday. They have filed a motion to strike my answers, as well as asking for summary judgment (through questions on avvo, I seem to think they are asking for the 1-2 punch together, though I would have assumed the need to be separate motions. Guess not). I have spent several hours researching over the last few days. I am unemployed and have plenty of time--yet no money. I am aware that I must file both an affidavit in opposition as well as a memorandum with case law to back it up. I have many examples of case law, and at some point maybe I can get clarification on how detailed to get in the affadavit, and how to format it.

I do have a couple of questions though:

1. Do I write out the affidavit and memorandum as one (with one list within each stating why I oppose the motion to strike, and one list regarding why summary judgment should be answered?

2. What is the proper way to say, basically, that I want the validation first, and then I will provide what information is due. In other words, I have had an attorney at avvo tell me I need to get a restraining order (which I think is extreme--I just want the right paperwork after all which I don't think they have). Or, do I have to write out for the judge something that lists their massive interrogatories (some 17 questions, many with several parts) and notice to admit truth of facts (9 questions)? If I need to go line by line and write why I oppose the questions, what is the proper form for this? I have seem examples, and I don't think this requires a motion as it is part of discovery. To me, I think since they haven't filed validation of debt, I SHOULD simply be able to request they provide this, and not have to answer their ad nauseum questions--but I am not sure. Any help would be appreciated.

3. Also, and this is more of a general question: How does Pressler get away with this? If Joe Schmo filed a lawsuit and had zero evidence, I'm sure he would be reemed by the judge, possibly sanctioned, fined, warned not to do it again,etc. How is it that Pressler keeps filing these cases and is not fined for wasting the court's time, tazpayer's funds, etc. I realzie they are in pockets in NJ, but in NY...I don't know.

4. I have used the scholar:google that someone here referenced--what a great help. Now, am I allowed to only bring up NY case law? Can I use other states? What about federal?

5. Plaintiff is attempting to strike my answers based on CPLR 3126. However, I would not say I have been "willful" in not replying to them. Nor have I violated a court order to do so. How do I bring this up. Would this be in the affidavit or memorandum (I'm assuming memorandum, that is where case law is referenced, correct?) Do I say that they should first file a CPLR 3124, and have the court demand I produce documents....how much detail do I go into here?

6. This is also a broader question, but I'm again baffled as to why some folks have summary judgment entered against them when no validation of debt exists. Some judges (even in cases where the defendant has not done any answering or anything) bring this up and direct plaintiff's to submit such proof within a certain time frame before they can act on the motion. Other judges seem to just blindly favor the plaintiff (because they have representation?) and completely ignore the fact that the plaintiff has not proven that they are entitled to collect on the debt. How do they get away with this and why do they violate the law in doing so?

7. Finally, do I have to go to court the day this motion is to be heard, or can I just answer and file and serve (I have severe, severe debilitating anxiety, so even if t would provide a slight edge, I hope I don't)?

 

I realize how long this is, and appreciate any help, even if you only have help for one of the questions. I only have until Friday to get this in, as when I received the notice, it was less than 20 days from the motion is to be presented before a judge, and I need to serve them with the affidavit at least 7 days before. This, btw, seems ridiculously not enough time. Is this a legal timeframe?

 

Thanks again. If I forgot anything, please let me know as I plan to check back often.

 

I have attached what I have gotten thus far, it is by no means organized finally but if anyone is willing to check the meat of the document, it would be great.

 

THANKS!

lawsuit.docx

[BTO429]

Once you are in court validation of the debt is gone, you do not need it. But you can use it as an argument. Since they want to play hardball you could always file a motion to deem admitted, for your questions on your rogs.

What you have to do now is concentrate on the summary judgment, All you have to do to beat a summary is prove that their are still issues that have not been resolved, and it seems their are plenty.

 

They have not proven they own the debt, which goes toward standing to sue. They can not rove that the alleged amount is even accurate, did you ask for an accounting from a zero balance? Discovery is still on going. They have not provided you with your discovery.

[getbacktoworkyoushill]

Thanks for your reply. No, I haven't specifically asked for an "accounting from a zero balance". What is that? Would that be ALL the statements? They haven't provided even one statement, so I doubt they would be able to provide the, all--is this what is meant by the accounting from zero balance?

[admin]

That is asking for a request of production of documents of all the account statements from the original creditor.  Ping RecoveringAttorney, I believe he is from NY.    You also need to read your rules of procedure.  

[getbacktoworkyoushill]

Sorry to be daft, but what does ping mean?

I have tried to read up on rules of procedure, just as I'm sure you know I could probably spend a year doing so. I generally know what they are, but that is by piecing bits together. Is there a resource where they are available in one piece-perhaps a book I could borrow from the library?

 

Thank you for the advice, admin.