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Premilinary "conference", now what


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Okay, here's another thread since this is a new ? about my case.

I had preliminary conference in JDB CC debt case today. They send some harried lackey adjunct attorney. They wanted to settle. I said "you need to give me proof the debt it owed". She said they "didn't have" my interrogs. At one point she said they "never got it", but I reminded her it was both alluded to by the firm she is "filling in for"  (Pressler & Pressler), and it is INCLUDED in their own paperwork. Everything she said she seemed half-certain and when I doubted her would give it "well it's either here or it's there" type response. I told her "oh. well I just don't want you to say things that are, you know, NOT TRUE". LOL.

We never saw the judge and filled out together paperwork with a new return date of 1/16. We are both supposed to have our discovery in in 45 days, though where it says the exact date she chose to write "per CPLR". I told her flat out that I wouldn't be sending anything until they sent theirs. She said she "couldn't speak for anyone else so I can't say if they'll send it or not, but they should".

When I brought up to her first that what I am requesting should have been included when the lawsuit was filed--at first she said "no. no. no,. that's not true, see--you're pro se so you don't know". Later, when she saw that, although not an attorney I'm also not a moron, and I again brought up that they have had since Feb to provide me with proof and have failed to do so, and that they were supposed to do that when they filed (which I brought up in my affidavit in opposition and backed up in my memorandum of law), she relented to "well....it depends what type of case it is". Riiiight.

As we left, she was feverishly scrolling through her Samsung Galaxy, asking me to please, please wait and she'd see if she had more proof than what she had printed for proof of the debt. All she had printed was a few sheets from 2010. I told her "oh sorry, if you guys are suing on account stated and want interest, etc., I'm going to need that statement from a zero balance". She was already defeated emotionally, and she said "I know, I'm sure you would".

My question--what if it gets to the 11th hour and they don't provide me with my very brief 5 question (I could have asked many more in NYS, but wanted it to be brief so that if they wanted to deny and not provide information it would be more flagrant)?? Do I should I provide them with their interrogs. She stated that my notice to admit may be deemed agreed since I didn't answer it, and I kept reminding her that they got my interrogs before they sent theirs, and they didn't answer them, so let's see what the judge has to say about that. She was a mousy little woman and I almost felt like I was intimidating her. Should I wait a month and answer their (verrry lengthy) discovery (both interrogs and notice to admit) with the ususal deny, privileged info, etc., or should I wait to get theirs, and if they don't send them I don't.

The attorney kept saying "I'm sure they have the paperwork, they just need to send it to you. I mean, they just want their money". And I kept reminding her that they still, since Feb., had failed to provide anything. Right as I walked out the door, I said to her "come on, you know as well as I do that if they had something? They would have sent it by now. But I'll be waiting".  I had sooo much anxiety before going in, but once I got there I felt okay, considering I think all the research I have done and the help I have gotten from this site. So, to all you folks reading and who have posted or not--THANK YOU! -K

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Your thread is very confusing. First off if I or anyone else comes in here to try and answer any questions, we have no way of knowing where you are at in your case. If you have a thread you started about this case, you should post everything to that same thread, even new questions so that when someone comes along they can reference what has happened. That being said, from this post I take I they sent you some discovery?

If they sent you any discovery, you had 20 to 30 days to answer. It does not matter if they answered any discovery you may have sent them. If they sent you admissions, and in them there were phrases like "admit you owe me this debt" or " admit I own this debt, and you owe me" then if you did not answer them, and they have them deemed admitted, it is game over for you. They win.

My advice is priority one, answer their discovery. If you don't know what to put, post the requests, and we will help you, but if it were me I would do it before they can file a motion to have them deemed. If you are already late, I am surprised they haven't filed already, then served you with a motion for summary judgement.

What did you ask for from them? If they have not answered you also can file to deem admits admitted if you sent any. You could motion to compel answers for doc requests.

I would pull out your rules of civil procedure and study them. There are rules for discovery, just because they didn't answer yours, does not get you a pass on theirs.

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I'm sorry, you are right. I should have posted more about where I am at in my case.

They tried to get summary judgment already, and the preliminary conference was set up in light of that. It is not open and shut that they win though, at least not where I live in NYS. Judges want cases to be won on merit, not technicalities here.

 

I didn't answer their request in 20 days, or 30 days. In hindsight, I would have, and answered them vaguely. Too late for that!

 

My interrogs included 5 questions, including who will be witnesses, accounting from zero balance, all statement, proof of interest rate, dates to show SOL has not expired, complete chain of title (another JDB owned it between OC and current JDB). None were yes/no questions that would/could be "deemed admitted".

 

I think I'm farther along than you realized (I apologize my post was confusing). I have spent many (probably over 100) hours doing research, and should have done it from the get go, but woops--too late.

 

I think the take away is I should answer all interrogs right away, being sure not to give them what they really want (want me to prove I owe the debt). I included my former correspondence below. I only started new topics because at one point the moderator told me to when I had a different issue/question than what I had previously posted.

 

Thank you - K

 

HERE is my original responses:

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  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). 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.

 

 

HERE is my affidavit and memorandum:

Affidavit in Opposition to Motion to Strike, Summary Judgment

1.       Defendant asks that the court not grant the plaintiff’s motion to strike defendant’s answers; defendant additionally asks the court to deny summary judgment, as plaintiff lacks standing and there are material facts in dispute. Plaintiff has failed to establish that it had standing to commence this action. Plaintiff has failed to produce any assignment of this debt.

Plaintiff has not yet, at this time, provided any proof of standing in the matter. Until such proof is provided, plaintiff is assumed to be abusing the rules of procedure to obtain private, personal, and confidential information, that once provided cannot later be undone to correct the error. Proof of standing was previously demanded and has not been received in proper form and content.

Plaintiff should have included proof of the assignment of debt along with the original complaint and summons, as prescribed by law. Attached as Exhibit A is plaintiff’s own summons and complaint in its entirety, which shows that plaintiff failed to establish assignment of debt and the right to collect upon this debt.

Defendant has since attempted to complete discovery to no avail. In a letter dated 2-28-2013, and attached hereto as Exhibit B, along with several phone call attempts, defendant has attempted to complete discovery, and plaintiff has still failed to meet its obligation to prove ownership of debt.

2.       Plaintiff has not made any attempt to resolve the discovery dispute. Plaintiff should never have commenced this lawsuit and requested judicial intervention knowing that they did not have even the minimal requirements of proof to validate their right to collect upon this alleged debt.

Defendant further alleges that plaintiff has abused the court process as well as fair debt collection practices by 1) failing to investigate whether the defendant had been given notice of the assignment before the plaintiff commenced suit against the defendant as an alleged assignee; 2) filing a “verified complaint” without investigating whether Citibank has duly and properly assigned all right, title and interest in the account to the plaintiff New Century Financial Services, prior to the commencement of the action; and 3) filing a “verified complaint” without investigating the factual basis for its claims that Citibank extended credit to the defendant, that the defendant failed to make required payments, and that the balance was duly demanded by New Century Financial Services was then due and owing.

 

3.       Defendant never received the alleged “good faith” letter, supposedly dated 4/22/2013. The first time defendant received this was on 5-16-2013.

 

4.       Defendant’s refusal to answer the interrogatories demanded by plaintiff is not due to “willful” contempt, but rather due to the fact that plaintiff has never established it’s standing to collect this alleged debt. Nor was defendant’s refusal to provide evidence repetitive. Had plaintiff followed the law themselves, as defendant has asked them to do, defendant would and will provide any and all evidence which plaintiff is able to establish it is rightfully due.

 

 

 

Memorandum supporting Affidavit in Opposition to Motion to Strike and Summary Judgment

 

1.       Proof of standing is a necessary prerequisite for obtaining any form of relief from this Court. See Midland Funding v. Haye, index no. 09377/09, decision dated November 5, 2009; see also Option One Mortg. Corp. v. Duke, 2009 NY Slip Op 51773(U) (Sup Ct Kings Co. 2009) (denying order of reference in mortgage foreclosure case upon sua sponte inquiry into plaintiff's standing); LVNV Funding v. Delgado, 2009 NY Slip Op 51677(U) (Dist Ct Nassau Co. 2009)(requiring proof of assignment before Court will entertain application for extending time to serve alleged debtor).

A third-party debt collector must present proof of its status as an assignee to the person sued for credit card debt (see Palisades Collection, LLC v Kedick, 67 AD3d 1329, NY Slip Op 08259 [4th Dept 2009], Rushmore Recoveries X, LLC v Skolnick, 15 Misc 3d 1139 [A], 2007 NY Slip Op 5104 , Citibank, N.A. v Martin, 11 Misc 3d 219 [Civ Ct, NY County] and Palisades Collection, LLC v Gonzales, 10 Misc 3d 1058 [A], 2005 NY Slip Op 52015 [Civ Ct, NY County]). The third-party debt collector also must submit proof that the debtor was given notice of the assignment (see Caprara v Charles Court Assoc., 216 AD2d 722, 723 [3d Dept 1995]), proof that the assignment was not acquired for an improper or illegal purpose (cf MVB Collision, Inc. v Allstate Ins. Co., 25 Misc 3d 168 [Nassau Dist Ct 2009]), and proof that the plaintiff is not engaging in usurious conduct when initiating credit card lawsuits (see Citibank [south Dakota], N.A. v Mahmoud, 19 Misc 3d 1141 [A], 1008 NY Slip Op 51091 [Civ Ct, Richmond County]).

It cannot prove that the defendant owed a valid debt to the original creditor simply by submitting its own business records. See Rushmore Recoveries X, LLC v. Skolnick, 15 Misc 3d 1139(A), 2007 NY Slip Op 51041(U) (Dist Ct Nassau Co. 2007).

New York permits electronic records properly maintained to be admitted into evidence [New York State Technology Law §306] if compliance is made with Civil Practice Law and Rule [CPLR] §4539. There is no statement in the complaint, nor in the affidavits submitted in support of this motion as to whether anyone has reviewed hard copies of the defendant's account or if everyone's knowledge is based solely on electronically kept and generated files.

New York does not recognize "certification" as a means of authenticating the truth of the contents of a document [see McKinney's Practice Commentary by Patrick Connors after CPLR §3020 in regard to verification of pleadings].

 

2.       The remedy for the lack of response from interrogatories would be a motion to compelling the production of discovery items, not summary judgment. Plaintiff’s counsel seeks to circumvent the judicial processes for which it is likely aware. Plaintiff attempts to invoke CPLR 3126 versus CPLR 3124.

Although a Notice to Admit is clearly permitted under the CPLR in consumer credit situations [Midland Funding LLC v Goldberg, 29 Misc 3d 1214(A), (2010)], it cannot be used by a third-party debt buyer to build its prima facie case against the debtor because the debt buyer never acquires any real documentation from the credit card issuer. Any questions in the Notice directing the defendant to admit to the opening of the account, the charging of purchases, and calculation of the amount due and owing cannot become admissible evidence as the truth of that assertion in the Notice to Admit unless the consumer credit purchaser actually has the documentation in its possession to prove its case when the demand is made. In fact, applications, all monthly statements, and the like should be attached to the Notice in order for it to be effective.

In the matter of Erin Servs. Co., LLC v Bohnet, 2010 NY Slip Op 50327(U), a Nassau County District Court case, plaintiffs were sanctioned and fined due to their having violated Part 130 of the Uniform Court Rules; many of the same rules found to be broken in this case are broken in this case, as well.

 

3.       Plaintiff violates Uniform Rule 202.7(a) by not correctly serving papers.

 

4.       A court may strike an answer as a sanction if a defendant refuses to obey a disclosure order or wilfully fails to disclose information that the court determines should have been disclosed (see CPLR 3126; Hoi Wah Lai v Mack, 89 AD3d 990, 933 NYS2d 712 [2d Dept 2011]; Thompson v Dallas BBQ, 84 AD3d 1221, 923 NYS2d 357 [2d Dept 2011]; Mazza v Seneca, 72 AD3d 754, 899 NYS2d 294 [2d Dept 2010]). The drastic remedy of striking an answer is inappropriate unless there is a clear showing that defendant's failure to comply with discovery demands was willful or contumacious (see Hoi Wah Lai v Mack, 89 AD3d 990, supra; Polsky v Tuckman, 85 AD3d 750, 924 NYS2d 830 [2d Dept 2011]; Moray v City of Yonkers, 76 AD3d 618, 906 NYS2d 508 [2d Dept 2010]). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery together with inadequate explanations for the failures to comply or failure to comply with court-ordered discovery over an extended period of time (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 938 NYS2d 131 [2d Dept 2012], lv denied 19 NY3d 803, 946 NYS2d 106 [2012]; Commisso v Orshan, 85 AD3d 845, 925 NYS2d 612 [2d Dept 2011]; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 920 NYS2d 394 [2d Dept 2011]; Friedman, Harfenist, Langer & Kraut v Richard Bruce Rosenthal, 79 AD3d 798, 914 NYS2d 196 [2d Dept 2010]).  To date, there has been no court-ordered discovery, and plaintiff has failed to prove its own standing to collect on this alleged debt, which should occur when the summons and complaint are filed; certainly, plaintiff should meet this requirement prior to demanding personal information from defendant.

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I think your MSJ opposition is good. If it were me, since you have conferred with the other attorney already in your court date today, I would answer their discovery, and file a motion to compel them to answer yours. My opinion is if this debt has been sold 3 times, and the fact that it is for a pretty good chunk of change it might be timed barred, or they don't have any required paperwork to prove the debt. Because it is so large, and the suit is already in progress, they are going to try and get something out of it. If you follow the rules, I believe you will get to what they actually have and be able to put them to rest. Lucky for you, you have a smart judge. :)

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Apparently I was correct in your other thread about not seeing the judge today. You did the right things in court, keep pressing them for what you want and don't back down. You do need to answer their discovery. It may be too late now, but there are rules to follow on what to do if they opposing party doesn't respond to your requests which appears what they're trying to do to you with their motion to strike your answer. There's a pretty steep learning curve and by going Pro Se/Pro Per your expected to know the rules like an attorney would. Some judges will give us leeway but they aren't required to. I'm thinking that you should just answer their discovery, it makes their motion to strike moot.

Edit: It looks like @shellieh98 beat me to the punch.

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Thank you. They aren't actually time barred, because I did make the last payment in 2009 (I think I thought before it was 2007 but unfortunately that is yet another CC I had. Wer werh werh) and it is originally from Citibank, out of South Dakota, so they get 6 years. But, I'm trying to call their bluff. I don't believe they are sure, as yes, they are the 3rd owners on record. And I'm also fairly certain at this point they don't have what they need.

I will answer their discovery`. I will take the next few days to work on it. If either of you are around, I'd love to get feedback. I'll post as soon as I'm done, but with probably 60 questions btw the notice to admit and interrogs, I'll wait to post until I have something semi-ready.

And yes, this judge doesn't seem to have a bias as long as I follow procedures (I'll do my best after failing with the discovery), I looked up cases of his on nycourts.gov, and they can go either way. I never saw one case (as there were with some other judges in the area) of his where he entered a summary judgment before scheduling a mandatory preliminary conference. Thank goodness for fairness and judges who maintain the esteem their profession, courtrooms and constituents deserve.

 

THANK YOU GUYS ::daisy::  ::USA::  ::travolta::

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@ If you have any specific questions you need help with before you complete your draft, be sure to post them.

 

With that many questions, they're trying to bury and confuse you. I'm sure there will be a lot of repetition as well, be consistent with your answers.

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I would respond to their discovery request to you (especially the RFA's) regardless of whether or not they answered yours, and even if they are late. If they file a motion to deem the RFA's admitted; you will have a better chance of defeating that if you at least answered them late. Send your response to their discovery CMRRR or they will say they never got it.

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I'm sorry, you are right. I should have posted more about where I am at in my case.

They tried to get summary judgment already, and the preliminary conference was set up in light of that. It is not open and shut that they win though, at least not where I live in NYS. Judges want cases to be won on merit, not technicalities here.

 

I didn't answer their request in 20 days, or 30 days. In hindsight, I would have, and answered them vaguely. Too late for that!

 

My interrogs included 5 questions, including who will be witnesses, accounting from zero balance, all statement, proof of interest rate, dates to show SOL has not expired, complete chain of title (another JDB owned it between OC and current JDB). None were yes/no questions that would/could be "deemed admitted".

 

I think I'm farther along than you realized (I apologize my post was confusing). I have spent many (probably over 100) hours doing research, and should have done it from the get go, but woops--too late.

 

I think the take away is I should answer all interrogs right away, being sure not to give them what they really want (want me to prove I owe the debt). I included my former correspondence below. I only started new topics because at one point the moderator told me to when I had a different issue/question than what I had previously posted.

 

Thank you - K

 

HERE is my original responses:

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  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). 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.

 

 

HERE is my affidavit and memorandum:

Affidavit in Opposition to Motion to Strike, Summary Judgment

1.       Defendant asks that the court not grant the plaintiff’s motion to strike defendant’s answers; defendant additionally asks the court to deny summary judgment, as plaintiff lacks standing and there are material facts in dispute. Plaintiff has failed to establish that it had standing to commence this action. Plaintiff has failed to produce any assignment of this debt.

Plaintiff has not yet, at this time, provided any proof of standing in the matter. Until such proof is provided, plaintiff is assumed to be abusing the rules of procedure to obtain private, personal, and confidential information, that once provided cannot later be undone to correct the error. Proof of standing was previously demanded and has not been received in proper form and content.

Plaintiff should have included proof of the assignment of debt along with the original complaint and summons, as prescribed by law. Attached as Exhibit A is plaintiff’s own summons and complaint in its entirety, which shows that plaintiff failed to establish assignment of debt and the right to collect upon this debt.

Defendant has since attempted to complete discovery to no avail. In a letter dated 2-28-2013, and attached hereto as Exhibit B, along with several phone call attempts, defendant has attempted to complete discovery, and plaintiff has still failed to meet its obligation to prove ownership of debt.

2.       Plaintiff has not made any attempt to resolve the discovery dispute. Plaintiff should never have commenced this lawsuit and requested judicial intervention knowing that they did not have even the minimal requirements of proof to validate their right to collect upon this alleged debt.

Defendant further alleges that plaintiff has abused the court process as well as fair debt collection practices by 1) failing to investigate whether the defendant had been given notice of the assignment before the plaintiff commenced suit against the defendant as an alleged assignee; 2) filing a “verified complaint” without investigating whether Citibank has duly and properly assigned all right, title and interest in the account to the plaintiff New Century Financial Services, prior to the commencement of the action; and 3) filing a “verified complaint” without investigating the factual basis for its claims that Citibank extended credit to the defendant, that the defendant failed to make required payments, and that the balance was duly demanded by New Century Financial Services was then due and owing.

They do not have to notify you of an assignment prior to a suit being filed. Now that it is filed they need to prove the assignment.

3.       Defendant never received the alleged “good faith” letter, supposedly dated 4/22/2013. The first time defendant received this was on 5-16-2013.

 

4.       Defendant’s refusal to answer the interrogatories demanded by plaintiff is not due to “willful” contempt, but rather due to the fact that plaintiff has never established it’s standing to collect this alleged debt. Nor was defendant’s refusal to provide evidence repetitive. Had plaintiff followed the law themselves, as defendant has asked them to do, defendant would and will provide any and all evidence which plaintiff is able to establish it is rightfully due. This is not a proper defense, you should have filed your answers to their rogs and claimed there is an issue of standing in those rogs. Two wrong don't make a right. Always answer the opposing parties rogs, even if they do not answer yours, it makes you look like you are trying to resolve the issue but they are the one not cooperating.

 

 

 

Memorandum supporting Affidavit in Opposition to Motion to Strike and Summary Judgment

 

1.       Proof of standing is a necessary prerequisite for obtaining any form of relief from this Court. See Midland Funding v. Haye, index no. 09377/09, decision dated November 5, 2009; see also Option One Mortg. Corp. v. Duke, 2009 NY Slip Op 51773(U) (Sup Ct Kings Co. 2009) (denying order of reference in mortgage foreclosure case upon sua sponte inquiry into plaintiff's standing); LVNV Funding v. Delgado, 2009 NY Slip Op 51677(U) (Dist Ct Nassau Co. 2009)(requiring proof of assignment before Court will entertain application for extending time to serve alleged debtor).

A third-party debt collector must present proof of its status as an assignee to the person sued for credit card debt (see Palisades Collection, LLC v Kedick, 67 AD3d 1329, NY Slip Op 08259 [4th Dept 2009], Rushmore Recoveries X, LLC v Skolnick, 15 Misc 3d 1139 [A], 2007 NY Slip Op 5104 , Citibank, N.A. v Martin, 11 Misc 3d 219 [Civ Ct, NY County] and Palisades Collection, LLC v Gonzales, 10 Misc 3d 1058 [A], 2005 NY Slip Op 52015 [Civ Ct, NY County]). The third-party debt collector also must submit proof that the debtor was given notice of the assignment (see Caprara v Charles Court Assoc., 216 AD2d 722, 723 [3d Dept 1995]), proof that the assignment was not acquired for an improper or illegal purpose (cf MVB Collision, Inc. v Allstate Ins. Co., 25 Misc 3d 168 [Nassau Dist Ct 2009]), and proof that the plaintiff is not engaging in usurious conduct when initiating credit card lawsuits (see Citibank [south Dakota], N.A. v Mahmoud, 19 Misc 3d 1141 [A], 1008 NY Slip Op 51091 [Civ Ct, Richmond County]).

It cannot prove that the defendant owed a valid debt to the original creditor simply by submitting its own business records. See Rushmore Recoveries X, LLC v. Skolnick, 15 Misc 3d 1139(A), 2007 NY Slip Op 51041(U) (Dist Ct Nassau Co. 2007).

New York permits electronic records properly maintained to be admitted into evidence [New York State Technology Law §306] if compliance is made with Civil Practice Law and Rule [CPLR] §4539. There is no statement in the complaint, nor in the affidavits submitted in support of this motion as to whether anyone has reviewed hard copies of the defendant's account or if everyone's knowledge is based solely on electronically kept and generated files.

New York does not recognize "certification" as a means of authenticating the truth of the contents of a document [see McKinney's Practice Commentary by Patrick Connors after CPLR §3020 in regard to verification of pleadings].

 

2.       The remedy for the lack of response from interrogatories would be a motion to compelling the production of discovery items, not summary judgment. Plaintiff’s counsel seeks to circumvent the judicial processes for which it is likely aware. Plaintiff attempts to invoke CPLR 3126 versus CPLR 3124. The Plaintiff knows they lack both standing and the evidence to prove their case, they are attempting to work around this issue by filing for summary judgement in hope the Defendant does not know enough to litigate a defense against it. This is a common practice with debt purchasers.

Although a Notice to Admit is clearly permitted under the CPLR in consumer credit situations [Midland Funding LLC v Goldberg, 29 Misc 3d 1214(A), (2010)], it cannot be used by a third-party debt buyer to build its prima facie case against the debtor because the debt buyer never acquires any real documentation from the credit card issuer. Any questions in the Notice directing the defendant to admit to the opening of the account, the charging of purchases, and calculation of the amount due and owing cannot become admissible evidence as the truth of that assertion in the Notice to Admit unless the consumer credit purchaser actually has the documentation in its possession to prove its case when the demand is made. In fact, applications, all monthly statements, and the like should be attached to the Notice in order for it to be effective.

In the matter of Erin Servs. Co., LLC v Bohnet, 2010 NY Slip Op 50327(U), a Nassau County District Court case, plaintiffs were sanctioned and fined due to their having violated Part 130 of the Uniform Court Rules; many of the same rules found to be broken in this case are broken in this case, as well.

 

3.       Plaintiff violates Uniform Rule 202.7(a) by not correctly serving papers.

 

4.       A court may strike an answer as a sanction if a defendant refuses to obey a disclosure order or wilfully fails to disclose information that the court determines should have been disclosed (see CPLR 3126; Hoi Wah Lai v Mack, 89 AD3d 990, 933 NYS2d 712 [2d Dept 2011]; Thompson v Dallas BBQ, 84 AD3d 1221, 923 NYS2d 357 [2d Dept 2011]; Mazza v Seneca, 72 AD3d 754, 899 NYS2d 294 [2d Dept 2010]). The drastic remedy of striking an answer is inappropriate unless there is a clear showing that defendant's failure to comply with discovery demands was willful or contumacious (see Hoi Wah Lai v Mack, 89 AD3d 990, supra; Polsky v Tuckman, 85 AD3d 750, 924 NYS2d 830 [2d Dept 2011]; Moray v City of Yonkers, 76 AD3d 618, 906 NYS2d 508 [2d Dept 2010]). Willful and contumacious conduct may be inferred from a party's repeated failure to comply with court-ordered discovery together with inadequate explanations for the failures to comply or failure to comply with court-ordered discovery over an extended period of time (see Orgel v Stewart Tit. Ins. Co., 91 AD3d 922, 938 NYS2d 131 [2d Dept 2012], lv denied 19 NY3d 803, 946 NYS2d 106 [2012]; Commisso v Orshan, 85 AD3d 845, 925 NYS2d 612 [2d Dept 2011]; Rock City Sound, Inc. v Bashian & Farber, LLP, 83 AD3d 685, 920 NYS2d 394 [2d Dept 2011]; Friedman, Harfenist, Langer & Kraut v Richard Bruce Rosenthal, 79 AD3d 798, 914 NYS2d 196 [2d Dept 2010]).  To date, there has been no court-ordered discovery, and plaintiff has failed to prove its own standing to collect on this alleged debt, which should occur when the summons and complaint are filed; certainly, plaintiff should meet this requirement prior to demanding personal information from defendant.

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