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ColdStone

Summoned by PRA in upstate NY

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I am new to all of this, I have started reading and Ill admit I am confused. I seek guidance, basically where to start. I know that I need to "answer" the summons but as to the how and what to say currently escape me. I am hopeful the with your guidance and my own research I will be able to navigate through this storm.

 

On to the Questions,

 

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates, LLC

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

Unknown, Signed by a "Catherine M. Hedgeman, Esq" Dated 9/30/2013

This looks them: http://www.hedgemanlaw.com/

3. How much are you being sued for?

$1200.00+

 

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

GECRB/Amazon

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

Wife was served the summons (for me)

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

Summons served in person (to my wife as stated)

7. Was the service legal as required by your state? Process Service Requirements by State - Summons Complaint

Yes - Called Court to confirm summons

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

New York State, Albany County

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

Feb. 13th 2012

11. What is the SOL on the debt? To find out: Statute of Limitations on Debts

Feb. 13th 2018 (6 Years in NYS)

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).

Summons only, no Motions filed

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No & 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? Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

20 days to answer the summons

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

"Statement of Account", a Notarized Affidavit, a Certificate of Conformity, and 3 copies of the same "Bill of Sale" (each with a space for 6 signatures, 1st has 3 signatures (same person) and not dated, 2nd has 1 dated signatures, and the 3rd has 2 dated signatures)

 

Thank you all in advance.

 

C

 

 

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Electing Arbitration might be an option for you.

Your credit agreement  http://www.consumerfinance.gov/credit-cards/agreements/search/?q=ge

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

Its expensive for the plaintiff so this might run them off.

 

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.

 

• What claims are subject to arbitration

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your

account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an

individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming

any wrongdoing, we may require you to arbitrate.

3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability,

coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence).

However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to

decide.

• No Class Actions

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN

COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS

NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY

BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void,

and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against

us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means

that we will not have the right to compel arbitration of any claim brought by such an agency.

• How to start an arbitration, and the arbitration process

1. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in

papers filed in the lawsuit. Otherwise, your notice must be sent to GE Capital Retail Bank, Legal Operation, P.O. Box 29110,

Shawnee Mission, KS 66201, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which

can be either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or

JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to

handle the dispute, then the court will appoint an arbitrator.

2. If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel

arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten

years of legal experience. Once appointed, the arbitrator must apply the same law and legal principles, consistent with the FAA, that would

apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4. The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or

arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs,

to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

• Governing Law for Arbitration

This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant

under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter

judgment upon the arbitrator’s award.

• How to reject this section

You may reject this Arbitration section of your Agreement. If you do that, only a court may be used to resolve any dispute or claim.

To reject this section, you must send us a notice within 60 days after you open your account or we first provided you with your right

to reject this section. The notice must include your name, address and account number, and must be mailed to GE Capital Retail

Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this section

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I believe you file a motion to compel arbitration. Linda7 has a great thread in the arbitration sub-forum.

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OK, I would like to as the saying goes keep everything on the table, Atfer much thought and reading I think I am going to go the route of Answering (Generaly denial) and filing a motion to dismiss, on the basis that

 

A) the "Statement of Account" is nothing more that a PRA generated docuent (hearsay)

B) the "Affidavit" is again nothing more that a PRA generated document signed by another PRA employee

C) the "Bill of sale" doesn't seem compete or leagal (looking for legalese here) as stated above I have 3 copies of the same "Bill of Sale" (each with a space for 6 signatures, 1st has 3 signatures (from same person) & 3 Blank Spaces and is not dated, 2nd has 1 dated signatures (5 blank spaces), and the 3rd has 2 dated signatures (4 blank spaces)

 

 

Thoughts?

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How to answer 1 of the summons questions.

 

Basicaly my sommons (cliff notes version)

 

1) PRA is a Dellaware LLC authorised to operate in NY and a base of opperation in VA

 

2) My Address

 

3) PRA purchased My Debt

 

4) reassert 1 - 3

 

5) Statement that I owe PRA

 

6) Statement that I will pay legal fees

 

---

 

My Answers:

 

1) The defendant dose not have sufficent knowledge or information to know wheather the statement is true or false.

 

2) Affirm

 

3) Deny

 

4) ??

 

5) Deny

 

6) Deny

 

 

How would one answer #4? I assume I could break it up? i.e. 4) a) Cannot affirm nor Deny (See answer #1), B) Affirm, c) Deny

 

Thoughts?

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Denied.

Have you looked at your rules of civil procedure yet?  google them, then look up summons.  It tells you how to answer.  I don't know if it is true in your state, but some states require a reason behind each denial.  Find out before you send it off.

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Shellieh, Yes thank you I have been and they gave a short "free civil court forum" and have an acceptable defense list of which I used. Based on some of the other Anserws I have read and what they provided This is what I have crafted for my Answer. Let me know what everyone thinks and if I should change something. I hope the format sticks.

 

Thanks everyone. :)

 

STATE OF NEW YORK

CITY COURT CITY OF ALBANY COURT

 

 

PORTFOLIO RECOVERY ASSOCIATES, LLC,

 

Plaintiff,

-against-

 

ColdStone

 

Defendant.

 

 

 

 

Defendant, ColdStone (hereinafter “Defendant”), appearing pro se, answers the Complaint naming Portfolio Recovery Associates, LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Compaint(s). All allegations of the Complaint(s) are denied unless expressly affirmed herein.

 

  1. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of this allegation.

  2. AFFIRM

  3. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of the allegation. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

  4. The Defendant lacks knowledge or information sufficient to form a belief as to the truth of this allegation as it is written.

  5. Defendant is without knowledge or information to validate this claim or to form a belief as to the truth of the averment. Based on lack of information, Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

  6. Defendant denies the allegation and leaves the plaintiff to provide proof. Defendant demands strict proof thereof.

 

 

 

 

Wherefore the Defendants DEFENSES are as follows:

 

  1. Defendant claims No business relationship with the plaintiff as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

  2. Defendant claims a General Denial, as there has never been an exchange of any type between the plaintiff and the Defendant.

  3. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date

 

 

 

VERIFICATION

State of New York, County of ___________________ss:

 

_____________________________, being duly sworn, deposes and says: I have read the Answer in Writing and know the contents to be true from my own knowledge, except as to those matters stated on information and belief, and as tothose matters I believe them tobe true.

 

Sworn to before me this ____ day of ________, 20____.

 

____________________________________________

Signature of Defendant

 

____________________________________________

Notary/Court Employee

 

____________________________________________

Defendant’s address

This case is scheduled to appear on the calendar as follows:

Date:____________ Part:_______ Room:______Time:______ Both sides notified:______________

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Be careful about the order in which you are proceeding. This is especiallly critical if you decide to go the arbitration route. I beleive if you file a motion to dismiss in lieu of an answer and the court does not dismiss, you can then file an answer after. This may still allow you to go the arbitration route.

 

If you file an answer and later file a MTD and let's assume that the court does not dismiss, you may have an issue if you decide to try to arbittrate. By filing an answer and then later on filing a MTD, the court may very well take the position that "you've set foot in the court house" and as a result, your actions demonstrate that your intent is to litigate not arbitrate.

 

While NY is not quite as harsh as Florida when it comes to litigate vs. arbitrate, it is strict.

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Ok, Filed and answer, the NEXT day this is the reply that I have gotten from the court.

 

Dear Counselor and Litigant:

  

     The Court has received the defendant answer. Since the defendant has appeared in person as self-represented and this matter involves a cause of action in the sum of $6,000.oo or less, this action shall be referred to Arbitration in accordance with 22 NYCRR Part 28 and pursuant to the provisions of UCCA 1301. Prior to referring the action to arbitration, however, the parties shall have sixty (60) days from the date of this letter to file any motions with the Court. Should the period of sixty (60) days pass without the Court receiving any motions from the parties, this action will them be referred to Arbitration and further motion practice will be precluded.

 

Very truly yours,

Anthony J. Mancino

Chief Clerk

 

Wondering how I should proceed.... I was going to file a motion to dismiss, however I am wondering with this letter if I should move forward with a insistence for JAMS arbitration... Thoughts?

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Court ordered arbitration is likely something completely different than going with JAMS arbitration. Illinois has something similar. If your plan is to go JAMS then file the motion for it.

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It was not my original Intent to go the Arbitration route, not to say that I have not looked into it.

 

I was going to fight the "Statement of account", the Affidavit, and the iffy "Bill of sale" as hearsay based on what I have read here and here

 

However now that the court has forced this arbitration... I am confused (more so than befor) and I am second guessing myself.

 

The way I am reading this I now have 60 days to file my MTD/MTS or any other motion or it will be forced to Arbitration?

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Motion to dismiss

1) The Plaintiff has failed to state a claim for which relief can be granted

2) Plaintiff has failed to prove they own the alleged debt, and if they do own the alleged debt, there is no contract from the seller that states the plaintiff has all rights of assignment to include the collection of the debt.

plaintiff supporting documents fail to prove more likely than not, that the plaintiff is entitled to relief.

3) Plaintiffs statement of account has no supporting document that will prove its accuracy or who generated the document, it is hearsay and moot at best.

4) Plaintiffs bill of sale does not specifically mention the defendant in any way, it does not prove they own the alleged debt. The bill of sale does not set forth proof that the alleged debt was contained within the portfolio the plaintiff purchased.

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@BTO429

 

Did you read #16 in his first post?  The JDB included an affidavit and bill of sale.  Unless the JDB has the wrong person, wrong evidence, or NY requires a heck of alot more to be attached to the complaint, they've stated a claim.

 

Since when do JDBs have to prove their case in the complaint?  

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Thank you guys for the advise! I REALY appriciate it!

 

I want to strike the affidavit and well, everything as hearsay, would I do that 1st? and then File a motion to Dismiss?

 

Also I've seen this mentioned several time on other threads, while I know everycase is different.. seems like a fair guide to things. yes?

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