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Jl130

Need NY advice regarding JDB suit

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Hello everyone, I was referred here by a friend who said you guys are the best people to ask for advice regarding legal matter.
 
I am helping a family member by translating on his behalf on a case with a junk debt buyer in NY (Portfolio Recovery associates) for the amount of $6000. During the first meeting, he didn’t have a translator and he requested me so the judge gave him 4 months for me to come back. During the second case,  I questioned the junk debt buyers creditability in court by asking them to provide proof of account transfer from Chase, they had no answer so they delayed the case 4 more months, now it’s the third time next month, what should my actions be this time? Please reply, any advice would be helpful.

 

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So you have 2 separate cases? How far into litigation are they? There is a pinned thread at the top of this forum, with like17 questions. Copy and pasted them here, an answer the best you can. Then we can help direct you better. Take out any personal identifying info.

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So you have 2 separate cases? How far into litigation are they? There is a pinned thread at the top of this forum, with like17 questions. Copy and pasted them here, an answer the best you can. Then we can help direct you better. Take out any personal identifying info.

Thanks for the reply, this is one case, just been to court two times with the third meeting coming up. This case has gotten no where because the JDB had no proof of debt sale with them the last time 

 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates

2. What is the name of the law firm handling the suit?

3. How much are you being sued for? $6000

4. Who is the original creditor? Chase Bank

5. How do you know you are being sued? Already answered summons, third meeting coming up.

6. How were you served? Notice on door.

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None, they were a JDB that just served.

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

10. When is the last time you paid on this account? Not sure, but on credit report, it says 30 days past due as of nov. 2009, so I assume last payment was October 2009.

11. What is the SOL on the debt? To find out: NY is 6 years so if payment was being made up to 2009 then it has not past SOL.

12. What is the status of your case? Suit served? Motions filed? Third court appearance coming up. First court appearance, delayed due to need for translator. Second court appearance, Asked for proof of account sale from chase to PRA, plaintiff didn’t have it so postponed again.  

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? No

15. How long do you have to respond to the suit? Already Responded third appearance coming up.

16. What evidence did they send with the summons? The summons sent last year only contained a page of demands and accusations such as when the credit card was open, the defendant’s name, address. The summons did state defendant agrees to pay attorney fees of up $0.00

 

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http://scholar.google.com/scholar?q=Portfolio%20Recovery%20Associates&hl=en&as_sdt=4,33,349,350,351,352

http://webcache.googleusercontent.com/search?q=cache:w8FmN1S4qOcJ:www.jdsupra.com/legalnews/memorandum-in-opposition-to-motion-for-s-24281/+&cd=1&hl=en&ct=clnk&gl=us

http://www.thelangelfirm.com/Debt-Defense-Blog.aspx

Read thru the Portfolio Recovery Associates cases and you will see what the junk debt buyer must provide to win. 

What did they allege Breach of contract, Account Stated, Money lent, Unjust Enrichment?

Are you done with discovery?

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http://scholar.google.com/scholar?q=Portfolio%20Recovery%20Associates&hl=en&as_sdt=4,33,349,350,351,352

http://webcache.googleusercontent.com/search?q=cache:w8FmN1S4qOcJ:www.jdsupra.com/legalnews/memorandum-in-opposition-to-motion-for-s-24281/+&cd=1&hl=en&ct=clnk&gl=us

http://www.thelangelfirm.com/Debt-Defense-Blog.aspx

Read thru the Portfolio Recovery Associates cases and you will see what the junk debt buyer must provide to win. 

What did they allege Breach of contract, Account Stated, Money lent, Unjust Enrichment?

Are you done with discovery?

 

Thank you I will go over all of these to see what I can use in court, this court case has been weird, nothing has been moving, I guess discovery is over because we been to court twice, my question is what are my options if the JDB do indeed bring the evidence of debt transfer from Chase? Does my family member settle, or move the case to a higher court, I apologize I am not familiar with the procedures of New York. 

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When is the 3 rd court date? That 4 months probably should have been spent in discovery. If you have 30 days, I would send some like yesterday.

Read the rules of civil procedure for N.Y., search out discovery and find out if you do it or disclosure. I'm thinking NY does regular discovery, but not sure. Then if i were you i would type up a court paper that looks like the complaint, but for the title I would put "defendants first request for production of documents". Then list the documents you want to send.

Then I would do the same thing, but title it " Defendants first request for admissions". And then list a bunch of admissions.

There are many samples around here for those requests, search them out so you know what to write.

(This is a very down and dirty, you have lost a lot of time, I doubt the judge will extend it again)

Do those 2 things, and when the plaintiff send you the bill of sale, post it in this thread so we can pick it apart. They will also probably send an affidavit, post that too.

Post anything they send you, start reading NY rules, and we can go from there. If they don't send you anything, (your rules will say how much time before the court date evidence they plan on submitting has to be in by) let us know, and we can show you how to object to anything they try to bring to trial. Looks like they are counting on you guys not knowing what your doing. If they come back to court with that bill of sale, but didnt send you a copy first, you can get it thrown out. But only if you object to it, with grounds.

Additionally, I would read read read all the posts in here by people that have won, it will give you a feeling for the flow of the procedure.

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Thank you for the suggestions Shellieh, unfortunately the court case is next week, the reason for the lack of discovery by the defendant is because he doesn't speak English so he has to wait for me to come back from graduate school every 4-5 months. My main question is now if they did bring the bill of sale, what are his options? Does he have to settle with the plaintiff or is there other options such as court arbitration?

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No arbitration, to late. They will ask if you want to settle before court. Ok, let's start over.

The ONLY thing they have sent you is the complaint? No cc statements, no affidavits, nothing else? ( you can't be THAT lucky)

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No arbitration, to late. They will ask if you want to settle before court. Ok, let's start over.

The ONLY thing they have sent you is the complaint? No cc statements, no affidavits, nothing else? ( you can't be THAT lucky)

 

I am not sure, I asked the defendant he said he hasn't received anything other than the original complaint, or signed for any certified mails from the plaintiff.  

 

Is he obligated to settle before court? what are his options if he does not want to settle. Thanks 

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Oh hell no. They have to prove he owes them. How did he answer the complaint? Did he deny the debt?

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How are your writing skills? This post, go to number 75. It is a sample of a motion for summary judgement. Some of it will apply to your case, some wont. http://www.creditinfocenter.com/community/topic/252142-sample-motions-forms-affirmative-defenses/page-4

If I were him, I would file a motion for summary judgement if they didnt send anything but the complaint. They cannot introduce anything in court at trial if they didnt send it to you first, and you object to it, based on surprise at trial,, plaintiff did not send it to you before hand.

This motion for summary judgement is to late to file it as such, but you will title it "motion in limine" and then it can be ruled on. Basically it is a motion that says they didnt send me any evidence, and they lack standing to sue.

If he answered the complaint and admitted to owing the debt, he just has to say plaintiff has not shown they have standing to sue. If they try to introduce anything at trial, you need to object because they dint send it to you, and it lacks foundation, it's unauthinicated hearsay. File the motion in limine, judge won't rule on it until trial, but you can use it as a guide. Don't forget to send the plaintiff one with Cmrrr, sign and date it.

Any of that make sense? Lol

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Oh hell no. They have to prove he owes them. How did he answer the complaint? Did he deny the debt?

 

I helped answer the complaint by denying the allegations, the case has been weird, the judge seems to expect us to settle, he asked if we wanted to talk and settle, and I replied no because they have no proof that they have the bill of debt sale from Chase, so he rescheduled it for 4 months later, I am trying to come up with a gameplan on what to do if judge asks us if we want to settle again. 

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How are your writing skills? This post, go to number 75. It is a sample of a motion for summary judgement. Some of it will apply to your case, some wont. http://www.creditinfocenter.com/community/topic/252142-sample-motions-forms-affirmative-defenses/page-4

If I were him, I would file a motion for summary judgement if they didnt send anything but the complaint. They cannot introduce anything in court at trial if they didnt send it to you first, and you object to it, based on surprise at trial,, plaintiff did not send it to you before hand.

This motion for summary judgement is to late to file it as such, but you will title it "motion in limine" and then it can be ruled on. Basically it is a motion that says they didnt send me any evidence, and they lack standing to sue.

If he answered the complaint and admitted to owing the debt, he just has to say plaintiff has not shown they have standing to sue. If they try to introduce anything at trial, you need to object because they dint send it to you, and it lacks foundation, it's unauthinicated hearsay. File the motion in limine, judge won't rule on it until trial, but you can use it as a guide. Don't forget to send the plaintiff one with Cmrrr, sign and date it.

Any of that make sense? Lol

 

I sort of understand everything you propose, but is it too late to file a motion now that the court case is days away? 

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No, you can file a motion in limine, he will rule on it at trial. The point is, if you file it send it to the other side, they will be more likely to dismiss before court. If they don't, you have it, and you will object to everything they try to introduce. Winning takes a little work, you got lucky they haven't sent you anything. This is very beatable in my opinion if you file that motion.

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If don't qualify for free legal aid and want to consult with a consumer lawyer, try him:

 

http://www.thelangelfirm.com/

 

Thank you for the suggestion. just fear the defendant doesnt have enough time to apply for free legal or have money to hire a consumer lawyer 

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This is in the chase credit agreement

Governing Law This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account.

limitations period for plaintiff's claim are governed by Delaware law, which provides a three-year statute of limitations for such claims (see Del Code Ann, tit 10, § 8106); therefore, this action is time-barred.

Check the new York rules of civil procedure or google scholar to make sure this would apply, Some states recognize choice of law provision some don't.

The credit agreement says the law of Delaware, will apply no matter where you live or use this account.

I would print a chase credit agreement and show it to the court.

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

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How are your writing skills? This post, go to number 75. It is a sample of a motion for summary judgement. Some of it will apply to your case, some wont. http://www.creditinfocenter.com/community/topic/252142-sample-motions-forms-affirmative-defenses/page-4

If I were him, I would file a motion for summary judgement if they didnt send anything but the complaint. They cannot introduce anything in court at trial if they didnt send it to you first, and you object to it, based on surprise at trial,, plaintiff did not send it to you before hand.

This motion for summary judgement is to late to file it as such, but you will title it "motion in limine" and then it can be ruled on. Basically it is a motion that says they didnt send me any evidence, and they lack standing to sue.

If he answered the complaint and admitted to owing the debt, he just has to say plaintiff has not shown they have standing to sue. If they try to introduce anything at trial, you need to object because they dint send it to you, and it lacks foundation, it's unauthinicated hearsay. File the motion in limine, judge won't rule on it until trial, but you can use it as a guide. Don't forget to send the plaintiff one with Cmrrr, sign and date it.

Any of that make sense? Lol

 

At this stage, I think we have to go with the motion in limine, I wonder if will it reach the plantiff on time or just send to plantiff's lawyer? 

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This is in the chase credit agreement

Governing Law This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account.

limitations period for plaintiff's claim are governed by Delaware law, which provides a three-year statute of limitations for such claims (see Del Code Ann, tit 10, § 8106); therefore, this action is time-barred.

 

Is that true for every chase credit agreement? I think it hasn't been 3 years because the last payment was october 2009 (I believe) and the complaint was june 2012, I think they sued because they knew sol was coming up

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Chase is governed by the laws of Delaware.

 

 

I see, but the complaint would be timely even under the shorter SOL, thank you for the input though. 

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They just made it.

Now we have to come up with something else.

http://www.nedap.org/hotline/defenses.html

http://www.nedap.org/hotline/clbasics.html

The plaintiff -- the creditor or debt buyer -- ALWAYS has the burden of proof in a debt collection case. This means that the plaintiff has to come up with evidence to prove to the court that (1) the plaintiff has the right to sue you; (2) the debt is yours; and (3) you owe the exact amount of money that the plaintiff claims you owe. You do not have to prove that you do not owe the money. Rather, the plaintiff has to prove that you DO owe the money.

If you admit that the plaintiff's allegations are correct, the plaintiff can rely on your admission to win the case. But if you challenge the plaintiff's right to sue you, the existence of the debt, or the amount of the debt, the plaintiff must provide the following evidence to the court:

•Proof that the plaintiff has the right to sue you. In the case of a debt buyer, the debt buyer must prove that it owns your debt by showing the court the contract of sale. This contract is called an "assignment." The assignment must mention your debt specifically. If your debt has been bought and sold multiple times, the debt buyer must present a chain of assignments that goes all the way back to your original creditor.

•Proof that the debt is yours. Usually, this means an original contract with your signature.

• Proof that the amount demanded in the lawsuit is correct. Usually, this means a complete set of bills or account statements. In the case of a credit card, the plaintiff also has to prove that each and every charge on the card was authorized.

All of this proof must come in a specific format, or else it is considered "hearsay," not admissible in court. If the plaintiff fails to meet its burden of proof by coming up with admissible evidence of your debt, the court must dismiss the case.

The plaintiff has to present quite a lot of evidence in order to meet its burden of proof. This evidence is often difficult or expensive for the plaintiff to produce. If your debt is old, or if it has been bought and sold multiple times, evidence of your debt may not exist at all.

http://www.americanbanker.com/issues/177_49/chase-credit-cards-collections-occ-probe-linda-almonte-1047437-1.html

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They just made it.

Now we have to come up with something else.

http://www.nedap.org/hotline/defenses.html

http://www.nedap.org/hotline/clbasics.html

The plaintiff -- the creditor or debt buyer -- ALWAYS has the burden of proof in a debt collection case. This means that the plaintiff has to come up with evidence to prove to the court that (1) the plaintiff has the right to sue you; (2) the debt is yours; and (3) you owe the exact amount of money that the plaintiff claims you owe. You do not have to prove that you do not owe the money. Rather, the plaintiff has to prove that you DO owe the money.

If you admit that the plaintiff's allegations are correct, the plaintiff can rely on your admission to win the case. But if you challenge the plaintiff's right to sue you, the existence of the debt, or the amount of the debt, the plaintiff must provide the following evidence to the court:

•Proof that the plaintiff has the right to sue you. In the case of a debt buyer, the debt buyer must prove that it owns your debt by showing the court the contract of sale. This contract is called an "assignment." The assignment must mention your debt specifically. If your debt has been bought and sold multiple times, the debt buyer must present a chain of assignments that goes all the way back to your original creditor.

•Proof that the debt is yours. Usually, this means an original contract with your signature.

• Proof that the amount demanded in the lawsuit is correct. Usually, this means a complete set of bills or account statements. In the case of a credit card, the plaintiff also has to prove that each and every charge on the card was authorized.

All of this proof must come in a specific format, or else it is considered "hearsay," not admissible in court. If the plaintiff fails to meet its burden of proof by coming up with admissible evidence of your debt, the court must dismiss the case.

The plaintiff has to present quite a lot of evidence in order to meet its burden of proof. This evidence is often difficult or expensive for the plaintiff to produce. If your debt is old, or if it has been bought and sold multiple times, evidence of your debt may not exist at all.

http://www.americanbanker.com/issues/177_49/chase-credit-cards-collections-occ-probe-linda-almonte-1047437-1.html

 

Thank you for all of that useful information, the plaintiff's lawyer had no evidence with him last time at all, he just had a paper saying how much the defendant owed, he was very underprepared, so the judge postponed it 4 months, how do I quote the law that the plaintiff needs to have all of the proof, is there a section number for the law that says that the plaintiff must provide the proof or else the case should be dismissed? 

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