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Small Claims Court Summons from Unifund Corp


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Hello, I live in Massachusetts and have received a statement of small claim and notice of trial for a credit card debt that has been sold to a JDB.  The debt is within the SOL and the plaintiff's claim info is filled out correctly and the amount demanded falls within the small claim limit.

 

 My defense is that I have no knowledge of this debt, of the amount being demanded, and most importantly I have no knowledge of the JDB that is submitting the claim.  My question is - what specific proof does the plaintiff need to present in order to win a judgment?  Clearly just typing out the name of the OC, last four of the original account number, and last four of my social is not enough.  Any 10 year old hacker could dumpster dive for that info or just plain make some information up.  At least it's not enough if this was a typical court summons (not a small claim).  I would expect that legal documentation proving the amount owed, original statements, and legal documentation of assignment of debt from OC to JDB would be needed.  is this true?  what else would they have to legally produce and should I be requesting this proof prior to attending the hearing?

 

Thank you.

 

Roger

 

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In Mass small claims no discovery is allowed unless you show good cause. Since it is a jdb that bought your account you will want strict proof from the plaintiff that they own the debt, if they present a receipt of a portfolio or an assignment of transfer, if that paper work does not specifically show that your account was in that portfolio, motion for a dismissal for failure to state a claim for which relief can be granted.

 

What counts are they claiming?

 

Probably either breach of contract, account stated or both. and maybe common counts as well.

 

If they claim breach then they need to cough up the contract, if they have no contract they have no claim for breach.

 

Under account stated they will claim that by not challenging any of the billing statements you agreed to that amount, but if you challenge it you could imply that the debt is yours. You will want to concentrate on making them prove the debt is yours. Under the Truth in Lending act 1666 billing errors disputes are alternative and not exclusive. So you have the right to challenge the amount if they prove the debt is yours.

Ford Motor Credit Co v. Milhollin, 444 U.S. 555 (1980);
Mourning v. Family Publications Service, 411 U.S. 356 (1973).
As does defendant, the FRB interprets 15 U.S.C. § §1643
(unauthorized use) and 1666 (billing errors) as alternative,
non-exclusive options:

 

Citibank (South Dakota) v. Mincks 135 S.W.2d 545 (Mo. App. Ct. 2004). Citibank has lost the argument that failure to take
advantage of the statutory remedies waives the consumer‘s
claims and defenses.―Nothing in the statute affirmatively imposes any penalty on the consumer for failing to take advantage of the benefits of this statute

 

Account stated is an attempt to work around the evidence required to prove a breach of contract. They try to say that the contract was implied. But the Supreme Courts have held that an “account” applies to transactions in which, by sale on one side and purchase on the other, title to personal property passes from one to the other. credit card purchases rarely account for any goods or service being sold by the credit card company to the consumer. It is nothing more than the lending of money.

they will claim that there is an implied contract for the interest and fees, but the Truth in Lending Act specifically states that these type terms cannot be implied.

 

MASS. GEN. LAWS Ch. 266, § 37A.

A credit card is "any instrument or device... issued with or without
fee by an issuer for the use of the cardholder in obtaining money,
goods, services or anything else of value on credit."

 

Credit cards and credit agreements are generally enforced by debt
collectors by a claim for breach of contract. See Lechmere Tire &
Sales Co. v. Burwick, 360 Mass. 718 (1972) (treating a credit card
agreement as an adhesion contract); Connecticut Nat. Bank of
Hartford v. Kommit, 31 Mass. App. Ct. 348, 349 (1991)
(identifying an action to collect debt on a charge card as a contract
action).

 

An action for an account stated must be based on previous
monetary transactions to create a relationship between the creditor
and debtor. Rizkalla v. Abusamra, 284 Mass. 303 (1933).

 

The creditor must prove that the debtor agreed to a certain amount due
to the creditor. See Milken v. Warwick, 306 Mass. 192, 196-97
(1940).

 

An account stated "cannot be made the instrument to
create liability where none before existed, but only determines the
amount of a debt where liability exists. Chase v. Chase, 191 Mass.
556, 562 (1902).

 

A debt collector cannot recover on an account stated where
evidence shows a balance due which is different than that pleaded.
Baker Auto Co. v. Bennett, 219 Mass. 304, 308 (1914).

 

Braude & Marguiles, P.C. v. Fireman's Fund Ins. Co., 468
F.Supp.2d 190 (D.D.C., 2007) ("The mere mailing of a bill and the
recipient's silence do not reflect an agreement to pay").

 

Note that debt collectors will attempt to add contractual interest on
an account stated. As one New York court has held, a "request for
contract interest should not be made if judgment is requested on an
account stated, for this claim is independent of any contract
provision." Citibank (S.D.) v. Martin, 807 N.Y.S.2d 284, 291
(Civ. Ct. 2005). The same case also held that attorney's fees are
not available to the debt collector on an account stated cause of
action. Id. at 290.

 

 

 

 

They will also claim the by rights of assignment they inherit the rights to collect the money plus interest and fees, but without the governing contract how would a court know if interest and fees were contained in the language of the original contract? They have failed to prove all the elements of there claim.

 

They also need to prove the terms of the assignment, it may give the debt buyer the right to collect the debt but not the right to sue, they need to prove this.

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I know mass. Small claims is supposed to make it easier for the normal joe blow to bring suit and collect for non legal parties. When action is brought by a lawyer against a non legal person, I think that person is at a huge disadvantage. They have no discovery, disclosure, or evidence rules. The rules basically say show me what you got, and the judge will decide.

You can choose to answer the claim, or just show up. I would read your rules for small claims very carefully. BTO has given you great advice, know your rules, and dispute anything they have using the case law he provided, search out some of your own.

You asked about requesting proof, mass. Has no discovery except for good cause. So you could at trial ask for these things. I suspect the judge may continue the case and allow it, but I would have a list of everything I wanted, don't think he would do it twice.

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@BTO429, thank you for your response.  Looking at the 'statement of small claim  and notice of trial' there is really no details on specific counts being claimed.  The formed states 'The defendant owes $6742.38 plus $150.00 court costs for the following reasons:

 

August 12, 2012

Balance Due on Citibank credit card debt

Last 4 digits Defents Social xxx-xx-1234

original account # ***********************1254

Date of Last Payment February 18th, 2009  Amount $100.00

 

 

they filled in the amount owed and court costs and provide the information above (obviously I changed the last 3 of social and the account number).  besides my info and the plaintiff info there's nothing else on the summons.  Should I be seeking this proof of amount demanded, billing statements, proof of assignment, etc. prior to the hearing of should I go there under the assumption that they won't bring adequate proof?

 

Also, The Event is for a Magistrate Hearing next month.  Is this the actual small claims trial or some kind of pre-trial?

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I know mass. Small claims is supposed to make it easier for the normal joe blow to bring suit and collect for non legal parties. When action is brought by a lawyer against a non legal person, I think that person is at a huge disadvantage. They have no discovery, disclosure, or evidence rules. The rules basically say show me what you got, and the judge will decide.

You can choose to answer the claim, or just show up. I would read your rules for small claims very carefully. BTO has given you great advice, know your rules, and dispute anything they have using the case law he provided, search out some of your own.

You asked about requesting proof, mass. Has no discovery except for good cause. So you could at trial ask for these things. I suspect the judge may continue the case and allow it, but I would have a list of everything I wanted, don't think he would do it twice.

Shellie, thanks for the response.  I've gone through the Mass-specific rules at a high level.  just need to determine if I benefit more in asking for the proof from the JDB prior to the hearing or going there and asking for it as a continuance at the hearing (or requesting a dismissal if they don't have the info with them at the hearing).  decisions, decisions...

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You can't ask for proof prior to your court date, small claims has No Discovery. Asking for proof is asking for discovery. I believe according to your rules the date listed for you to appear is the actual trial date. You can file an answer but don't have to as long as you show up for court.

By filing an answer you give the other side a heads up you are disputing, so they better bring proof to court. If I were you I would look into what kind of proof they typically provide, so that you can challenge it in court. You can also at that time ask the judge (or magistrate) for discovery at that time.

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The advantage of the rules in Mass is you can spring all your defenses on them and they will not have any time to prepare for what you may challenge. It keeps an atty on their feet. My state is very different, but I have a house on the Cape in Popponesset that I use about five months of the year so I know Mass laws too.

 

Make them show proof they own the debt first, if they can't prove the own the debt they have no standing and have failed to state a claim for which relief can be granted. If they do prove they own the debt you then challenge the amount, they can't prove the amount then they have still failed to state a claim.

 

More case law to help you

Herman v. Fine, 314 Mass. 67, 68, 49 N.E.2d 597, 598 (1943),
citing Ayers v. Ratshesky, 213 Mass. 589, 593, 594, 101 N.E. 78.
See also 65 C.J.S. Names § 31.

In Massachusetts, "bald identity of name without confirmatory
facts or circumstances is not sufficient to prove identity of person."

 

In Herman, the plaintiff brought an action on a judgment he
alleged he had recovered against the defendant. The judgment was
made against a "Jacob Fine" and the defendant's name was Jacob
Fine. The defendant made a general denial. The court found that
the "defendant's general denial made it incumbent upon the
plaintiff to prove every element of his case, including the fact that
the defendant was the person against whom he had a judgment."
Herman, 314 Mass. at 69. Additionally, "[a]lthough very slight
evidence might have been enough, at least something more than
identity of names was necessary." Id.

 

In Hinds v. Bowen, a car-accident tort suit in which the identity of
the defendant was disputed, the court found that the "similarity of
[the defendant's] name is not sufficient evidence to warrant a
finding of identity; although taken with other evidence of likeness
it may suffice to take the issue of identity to a jury." 268 Mass. 55,
58 (1929). The court dismissed the action, explaining that the
plaintiff failed to meet her "burden of proving the identity of the
defendant with the driver of the car..." and that the "defendant was
under no obligation to be present in court or to introduce evidence
until the plaintiff had show enough to require it." Id. at 59

 

The case law indicates that, in Massachusetts debt collection cases where the defendant denies that he is the alleged debtor, the plaintiff (1) has the burden to show that the defendant is, in fact,
the debtor and (2) that the plaintiff must provide more evidence in addition to the identity of names to do so. These rules are very helpful to defendants. Since many debt collectors will not have
additional information beyond the debtor's name, the debt collector may not be able to show that defendant is the debtor.

 

If a debt buyer sued without any reasonable investigation of the facts, (due diligence)and
there is no evidence to show that the defendant is liable, you can make a
Rule 11 demand in your answer that plaintiff withdraw its unfounded and
unsubstantiated complaint within a specified number of days. Where an
attorney has failed to show a subjective good faith belief that the pleading
was supported in both fact and law, the judge is authorized to grant
attorneys fees and costs to the moving party. Vittands v. Sudduth, 49
Mass.App.Ct. 401 (2000).

 

Rule 17 (a) of the Massachusetts Rules of Civil Procedure requires
that every action be prosecuted in the name of the real party in
interest. MASS. R. CIV. P. 17(a).

 

If the debtor has no property that is not exempted from execution
under Massachusetts or federal law and is unable to pay the
judgment, the court must dismiss the case under MASS. GEN. LAWS
Ch. 224, § 16.

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The advantage of the rules in Mass is you can spring all your defenses on them and they will not have any time to prepare for what you may challenge. It keeps an atty on their feet. My state is very different, but I have a house on the Cape in Popponesset that I use about five months of the year so I know Mass laws too.

 

Make them show proof they own the debt first, if they can't prove the own the debt they have no standing and have failed to state a claim for which relief can be granted. If they do prove they own the debt you then challenge the amount, they can't prove the amount then they have still failed to state a claim.

 

More case law to help you

Herman v. Fine, 314 Mass. 67, 68, 49 N.E.2d 597, 598 (1943),

citing Ayers v. Ratshesky, 213 Mass. 589, 593, 594, 101 N.E. 78.

See also 65 C.J.S. Names § 31.

In Massachusetts, "bald identity of name without confirmatory

facts or circumstances is not sufficient to prove identity of person."

 

In Herman, the plaintiff brought an action on a judgment he

alleged he had recovered against the defendant. The judgment was

made against a "Jacob Fine" and the defendant's name was Jacob

Fine. The defendant made a general denial. The court found that

the "defendant's general denial made it incumbent upon the

plaintiff to prove every element of his case, including the fact that

the defendant was the person against whom he had a judgment."

Herman, 314 Mass. at 69. Additionally, "[a]lthough very slight

evidence might have been enough, at least something more than

identity of names was necessary." Id.

 

In Hinds v. Bowen, a car-accident tort suit in which the identity of

the defendant was disputed, the court found that the "similarity of

[the defendant's] name is not sufficient evidence to warrant a

finding of identity; although taken with other evidence of likeness

it may suffice to take the issue of identity to a jury." 268 Mass. 55,

58 (1929). The court dismissed the action, explaining that the

plaintiff failed to meet her "burden of proving the identity of the

defendant with the driver of the car..." and that the "defendant was

under no obligation to be present in court or to introduce evidence

until the plaintiff had show enough to require it." Id. at 59

 

The case law indicates that, in Massachusetts debt collection cases where the defendant denies that he is the alleged debtor, the plaintiff (1) has the burden to show that the defendant is, in fact,

the debtor and (2) that the plaintiff must provide more evidence in addition to the identity of names to do so. These rules are very helpful to defendants. Since many debt collectors will not have

additional information beyond the debtor's name, the debt collector may not be able to show that defendant is the debtor.

 

If a debt buyer sued without any reasonable investigation of the facts, (due diligence)and

there is no evidence to show that the defendant is liable, you can make a

Rule 11 demand in your answer that plaintiff withdraw its unfounded and

unsubstantiated complaint within a specified number of days. Where an

attorney has failed to show a subjective good faith belief that the pleading

was supported in both fact and law, the judge is authorized to grant

attorneys fees and costs to the moving party. Vittands v. Sudduth, 49

Mass.App.Ct. 401 (2000).

 

Rule 17 (a) of the Massachusetts Rules of Civil Procedure requires

that every action be prosecuted in the name of the real party in

interest. MASS. R. CIV. P. 17(a).

 

If the debtor has no property that is not exempted from execution

under Massachusetts or federal law and is unable to pay the

judgment, the court must dismiss the case under MASS. GEN. LAWS

Ch. 224, § 16.

BTO329, awesome stuff!  thanks for the info.  I'm also currently leaning towards staying silent until the court date and just springing my defenses on them in front of the magistrate hoping that they won't have the proof.  Obviously the downside is if they have everything they need I wouldn't have had to opportunity to settle prior to the court date.  Does a judgment in small claims show up in pubic records as a judgment in civil court does?

 

The upside of waiting for the trial date is the element of surprise.  Typically speaking the rent-a-lawyer is just  hoping the defendent doesn't show up or just settles in the waiting room prior to the hearing without knowing if the plaintiff has any proof.  but there's always a chance the lawyer will come prepared.  If I ask for proof or answer the summons prior to the hearing then this would give me the opportunity either to have them show their hand prior to hearing and settle if neccessary, or it would alert them that I have somem knowledge of the law and give them time to gather more evidence. 

 

I suppose the fallback could be I just confront them in the waiting room prior to the hearing and see what they have.  If all their ducks are in a row I could just settle it right there...

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Read up on what they usually have, and then write up on how you would dispute it. That way in court it won't be a surprise, and you can counter. For instance an affidavit from the JDB cannot authenticate the business records of the oc. Look up case law to support that statement for your state, and have it handy. Do the same type thing for statements they may have are unauthinticated, bill of sale to JDB does not reference your account, etc.

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If they try to present any affidavits to enter as evidence you challenge them as hearsay. They will probably argue that the affidavit is a business document and falls under the Business record exception to hearsay, you object out loud so the Judge can hear you, Your honor an affidavit is not a business record, it is not created in the ordinary course of business and not for the use of the business, it is created for the sole purpose of litigation.

Melendaz Diaz v Massachusetts, 557 U.S. 309 (2009)

A business document will be inadmissible under the exception when "calculated for use essentially in the court, not in the business."

 Your honor I would also state that I cannot cross examine a piece of paper, if the affiant is not in court to attest to the affidavit it is hearsay

Crawford v Washington 541 U.S. 36 (2004)

a witness's testimony is inadmissible unless he or she appears at trial, or if unavailable, the court afforded the defendant the opportunity to cross examine the witness.

 Therefore I would ask for the affidavits to be stricken from the record.

The atty may argue that this is a Washington case and does not hold and grounds in Mass, but you tell the court that the court in Melendez v Mass used the same exact case to determine admissibility.

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@BTO429

 

Unless Unifund's attorney is incredibly dumb (yes, I know we're talking about a JDB attorney), he won't try to introduce an affidavit as a business record because it's not a business record, and you can't move to strike it under that premise.   That affidavit is being used to authenticate business records such as billing statements and to support summary judgment.  The business records exception and the summary judgment rule allow for an affidavit to be used for those purposes.

 

It would be more proper to move to strike or preclude it because it's insufficient to lay the foundation for the admission of the business records, nor is it sufficient to show that the affiant has the personal knowledge required for summary judgment.

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  • 1 month later...

Thanks for all the info everyone.  So I had the small claims 'trial' today in front of a magistrate.  prior to the trial the rent-a-lawyer for the law firm representing Unifund approached me in the waiting area and asked me how I wanted to handle the debt.  Long story short I had him show me what he had and all he had was the last few pages of a credit card statement with a final amount that didn't match with what they were looking for.  I asked him who Unifund was and why they were looking to get paid for an alleged Citi debt (I was playing dumb).  he told me the account 'came to them' and they were collecting on it.  I asked him to show me the assignment of the alleged debt from Citi to Unifund and he of course had nothing.  I said 'so you have a few pages of a CC statement with a different amount than on the claim and absolutely no proof that this 'Unifund' can even legally collect on anything having to do with me.  He said 'Yes. they didn't give me any of that information.  I'm going to request this be dismissed'.  So I said 'I am going to go for a ruling in my favor unless you're talking about a dismissal with prejudice'.  He said 'no, I'm asking for without prejudice'.  Even longer story short went in front of the magistrate and I presented their lack of proof and skewed numbers and how MA law states that the plaintiff needs to be reasonably prepared to prove their claim and they have absolutely nothing, etc. etc..  The plaintiff lawyer kept saying that he wanted it dismissed without prejudice and I kept saying it should be 'with' since they were not complying with the law in their lack of preparation and if they had this proof they surely would have supplied their lawyer with it.  on and on....  Ultimately the magistrate decided that since this was the first time this was brought before the court and I lived in close proximity to the courthouse that he would dismiss it without prejudice.

 

So not exactly what I was looking for but I'm not sure they'll go through the same effort again and refile.  we'll see...

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