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help sued by collection agency over wells fargo debt


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1. Who is the named plaintiff in the suit?

cypress financial recoveries a/p/o wells fargo 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
forster and garbus
3. How much are you being sued for?
about $ 3,000
4. Who is the original creditor? (if not the Plaintiff)
wachovia than purchased by wells fargo
5. How do you know you are being sued? (You were served, right?)
summon left on front porch
6. How were you served? (Mail, In person, Notice on door)
door
7. Was the service legal as required by your state? 
presumably


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
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
january 2011
11. What is the SOL on the debt? To find out: 
6 years

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).
ACTIVE
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? 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? 

30 DAYS 

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

NOTHING
 

 

 

 

Please help! I have no experience/idea how to proceed. I read through the forums and looked through my records and it seems that wells fargo had sent an arbitration amendment back in 2010 Can I still claim arbitration or do I reply with affirmative defense on basis that no evidence/signature has been provided?

 

I have been unemployed and actively looking for jobs..so legally I have no posessions, but I am hoping to start a new job soon as in the next few weeks.

 

Any advice on what the best way to deal with it?

 

Also, the court date is set in 3 weeks, although I just received the notice in the front porch...there is no mention of when the notice was delivered..do I still have 30 days to respond or should I do it before the court date?

 

the main allegations

 

defendant in default and demand for payment has been made.

plaintiff, as owner, is authorized to proceed with this action..

 

Please advise!!!!!! What do I do?

 

 

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Looks like you're being sued by a JDB, as Cypress Financial Recoveries A/P/O Wells Fargo means Cypress 'as proxy of' WF. In other words, Cypress purchased the alleged debt. What's MIGHT be better in your case is by your post it appears it's been sold twice.

Wachovia ----> Wells Fargo ----> Cypress Financial Recoveries

However, if Wachovia sold it to WF and you continued to use the account, I don't believe that link in the chain is very important. CFR has to prove standing either way, so long as you force the issue...which you should!

Here is info on New York service requirements:

http://www.nycourts.gov/courts/1jd/supctmanh/Self-Rep%20Forms/How%20to%20Serve.pdf

Doesn't appear that your service was legal, but you need to read up on it to be sure. Start reading posts from members in your state and search for anybody who might have dealt with CFR.

When I have a case, I like to get a calendar prepared with all the important dates highlighted [and changed accordingly] and start a binder that will hold all my papers so I don't lose them. Being untidy and un- or underorganized can make a big difference in the outcome of your case. Fail to serve or file something on time and you could very well sink your case. Practice amazing organizational skills and for goodness sake if you are a procrastinator it's time to get over that!

Most of all, don't give up. You're not alone.

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Arbitration may be available, but if they had a revision while you were still using the card, and it was not in default at the time (assuming the alleged account is one you had with wells fargo) I do not know if you will be able to use arbitration.  The people suing you are not doing it on behalf of wells fargo, they most likely purchased the account, and are doing it on behalf of themselves.  So while you may owe WF, you do not owe them.  here is a link to what they are about. http://www.cfrfinancial.com/

 

So the first thing you will need to do is answer the suit.  You will need to fill out a general denial the form is here  http://www.nycourts.gov/courts/nyc/civil/forms/CIVGP58E.pdf  take it to the court house and file it, along with proof of service.  You will also need to mail one to the lawyer for the plaintiff Certified, Return Receipt Requested..  Once that is done, we can help you get started on discovery requests. 

Deny the account.  Make them prove they own it, and that it is the same account you may think it is.  If you admit to it, they will file a motion for summary judgement, and it is game over.  You are going to ask for things in discovery that make them prove they own this account, and have standing to sue. 

 

If you must put an affirmative defense, it would be "plaintiff lacks standing"  but I don't think you need to put any.

If you want to consult a lawyer, this one here has dealt with cypress before.  http://www.thelangelfirm.com/Debt-Collector-List/Cypress-Financial-Recoveries-LLC.aspx

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Arbitration may be available, but if they had a revision while you were still using the card, and it was not in default at the time (assuming the alleged account is one you had with wells fargo) I do not know if you will be able to use arbitration.  The people suing you are not doing it on behalf of wells fargo, they most likely purchased the account, and are doing it on behalf of themselves.  So while you may owe WF, you do not owe them.  here is a link to what they are about. http://www.cfrfinancial.com/

I believe that if they are attempting to sue on that contract, and if arb existed prior to default, then arbitration is still an option regardless of whether or not the plaintiff is WF or they are suing on behalf of them. They cannot sue on a contract claiming the defendant is bound by it and then not have that contract apply to them as well. Both parties must be bound by it or neither are. I've seen it posted that the JDB slips into the shoes of the OC which is why they can sue in the first place.

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Don't panic to start you can plead arbitration as an affirmative defense in your answer.

 

Need to know the allegations in the complaint so we can come up with an answer.

 

Should say something like this.

 

1. Defendant is John Doe.

 

2. Plaintiff purchased the account.

 

3. Plaintiff entered into a contract with CC Company.

 

4. Terms and conditions of the contract.

 

5. Defendant used the charge card.

 

6.CC company has preformed all obligations under said contract.

 

7. Plaintiff has made written demand upon defendant.

 

7. Defendant breached contract.

 

8. Defendant owes Plaintiff $$$$

 

WHEREFORE, Plaintiff prays that this court find judgment for the Plaintiff in the amount of $$$$, grant plaintiff's attorney's fees, court costs.

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Cypress claims they own the debt, If so then their law suit is fraud. If they mention the name of the Original creditor in their suit they commit fraud. W#hy? Because the attorney does not represent Wells Fargo, they represent Cypress. I would file a counter suit for fraud. Wells Fargo is no longer in the picture, they only way they can even reference Wells Fargo is only to state they purchased the debt from them that is it. They have also violated the FDCPA for misrepresenting the character of the debt.

 

First File a motion to dismiss because as their claim does  not state the real party in interest. Then you can either file a new claim for fraud and fdcpa violations for misrepresenting the character of the debt. The attorney is claiming they are the proxy, which means the have the authority to act as the deputy or substitute for another. You ask for their sales contract for the debt if they won't produce it you claim that they wont because they know the contract does not state they are the proxy, If they do present the contract it better say they can act as the proxy for Wells Fargo. In other owrds make them prove they are the proxy if they cannot that is a fraudulent statement.

 

Now, they have committed fraud in two ways(if they cannot prove they are the proxy, they have committed fraud against you and they have committed fraud upon the court. Frud upon the court is a big no no and can cause them to be subject to sanctions from the court. I do not know of any lender giving their consent, when a debt is purchased, from the purchaser to be their proxy.

 

The junk debt buyers get away with way to much when they file their cases. It is time for the people to stand up and tell them we will not take it any more. If we start hitting them with fraud, as most of their suits are, then maybe they will stop praying on the people for their profits.

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Cypress claims they own the debt, If so then their law suit is fraud. If they mention the name of the Original creditor in their suit they commit fraud. W#hy? Because the attorney does not represent Wells Fargo, they represent Cypress. I would file a counter suit for fraud. Wells Fargo is no longer in the picture, they only way they can even reference Wells Fargo is only to state they purchased the debt from them that is it. They have also violated the FDCPA for misrepresenting the character of the debt.

 

@BTO429

 

 

The complaint most certainly can reference the OC.  If the OC is not referenced, the defendant would have no idea for which credit card he's being sued.

 

 

 

First File a motion to dismiss because as their claim does  not state the real party in interest. Then you can either file a new claim for fraud and fdcpa violations for misrepresenting the character of the debt. The attorney is claiming they are the proxy, which means the have the authority to act as the deputy or substitute for another. You ask for their sales contract for the debt if they won't produce it you claim that they wont because they know the contract does not state they are the proxy, If they do present the contract it better say they can act as the proxy for Wells Fargo. In other owrds make them prove they are the proxy if they cannot that is a fraudulent statement.

 

Now, they have committed fraud in two ways(if they cannot prove they are the proxy, they have committed fraud against you and they have committed fraud upon the court. Frud upon the court is a big no no and can cause them to be subject to sanctions from the court. I do not know of any lender giving their consent, when a debt is purchased, from the purchaser to be their proxy.

 

 

Whether or not the JDB owns the account is for the court to decide.  Please provide case law in which courts have ruled that a JDB who has not proven ownership of a debt in a court of law has committed fraud.

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@BTO429

 

 

The complaint most certainly can reference the OC.  If the OC is not referenced, the defendant would have no idea for which credit card he's being sued.

 

 

 

Whether or not the JDB owns the account is for the court to decide.  Please provide case law in which courts have ruled that a JDB who has not proven ownership of a debt in a court of law has committed fraud.

The complaint can mention the OC or the seller only to attempt to prove where the alleged owner allegedly bought the debt. When a debt buyer hires an attorney to sue and they sue in the name of the OC or the entity they bought the debt from it is a fraudulent statement. The attorney should sue in the name of the alleged owner not the OC or entity who they bought the debt from.  The OC or the seller of the debt is no longer a party in interest.

 

As stated by one of my instructors while at school, the only way you can sue in someone elses name is if that person lacks legal capacity to sue, and you are their representative. In order to lack legal capacity to sue you have to be a minor, declared incompetent

 

What case law do you need,

Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. Blacks Law Dictionary.

Bringing suit in someone elses name constitutes fraud. Since the jdb owns the debt they should be suing in their own name.

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@BTO429

 


The attorney should sue in the name of the alleged owner not the OC or entity who they bought the debt from.  The OC or the seller of the debt is no longer a party in interest.

 

I don't believe the OP stated that the JDB is suing in the name of Wells Fargo.

 

In addition, you said to go ahead and file a motion to dismiss based upon the fact that the complaint doesn't state the real party in interest.   Unless the OP has some kind of proof that the JDB doesn't own the account, isn't that what discovery is for?

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I think he means the way they stated who the plaintiff is. A/P/O means as proxy of -which means the debt was purchased by cypress financial, but to the unsuspecting consumer it might look like Wells Fargo is the plaintiff. So when they put cypress financial a/p/o Wells Fargo listed as plaintiff, that may look like Wells Fargo is the one suing. So wouldn't that be misrepresenting the debt? Or how does the consumer know who the real party of interest is?

The OP thought it was a collection agency suing for Wells Fargo. I think they listed it that way as a scare tactic.

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@shellieh98

 

In the complaint, Cypress claims they purchased the debt.  There really shouldn't be any confusion.

 

"a/p/o" may also mean "as purchaser of".  Check out the first post in the following thread from another NY resident.

 

http://www.creditinfocenter.com/community/topic/321932-sued-by-portfolio-recovery-associates-for-cc-debt/

 

 

 

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@BTO429

 

 

I don't believe the OP stated that the JDB is suing in the name of Wells Fargo.

 

In addition, you said to go ahead and file a motion to dismiss based upon the fact that the complaint doesn't state the real party in interest.   Unless the OP has some kind of proof that the JDB doesn't own the account, isn't that what discovery is for?

Why wait for discovery? Challenge their standing without standing or a competent witness the court lacks jurisdiction. Courts of inferior jurisdiction are empowered to act by pleadings that are sufficient enough to invoke their judicial authority.

 

U.S. v. White, 139 F.3d 998; "Courts can always consider questions as to subject matter jurisdiction  whenever raised and even sua sponge."

 

Boles v. State, 717 So.2d 877 (1998)

Jurisdiction over a defendant requires both personal and subject matter jurisdiction.

 

Everything you say can and will be used against you right? Well hold them to everything they say or imply. Always argue that the complaint does not set forth enough facts to invoke the courts jurisdiction, unless they know what they are doing and pled correctly, but how many jdb's do this?

 

Once challenged jurisdiction must be proven, and the court cannot determine jurisdiction for itself. The Plaintiff must prove their complaint sets forth enough facts for the court to have jurisdiction. Courts assume to much, they assume that a complaint is factual until you rebut the complaint. You have rights but the court will not freely give them to you. You have to invoke any right you have. The first thing that is needed for a case to continue is the Courts jurisdiction, so make them prove they have it. Once challenged jurisdiction has to be proven, and jurisdiction can be challenged at any time, even years later after the suit has been judged. Law of voids.

 

Whitmore v Arkansas, 495 U.S. 149 (1990)

Before a Court can consider the merits of a case, the person seeking to invoke the courts jurisdiction must establish the requisite of standing to sue. To do so he muse prove that their is a case or controversy by clearly demonstrating that he has suffered an injury in fact that is concrete in both qualitative and temporal sense. He must show that the injury can be traced to the challenged action and is likely to be redressed by a favorable decision. First, a plaintiff must demonstrate an "injury in fact," which is "concrete,” "distinct and palpable,” and "actual or imminent.”

 

Allen v Wright 468, U.S. 737

“standing” requires that a plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct, and likely to be redressed by the requested relief.

 

Averments to fact which are only in pleading are not before the court. Statements of attorneys in brief or in argument are not facts before the court. They have to prove an allegation before it becomes a fact. A court should dismiss if the alleged issues are not pleaded with particularity.

 

Bell Atlantic v. Twombly (2007) set the new standard the Court explained that Rule 8 of the Federal Rules of Civil Procedure requires that a complaint include facts (as distinct from legal "labels" and "conclusions") giving rise to a "plausible" (rather than merely "conceivable") entitlement to relief, and then Ashcroft v. Iqbal (2009) the Court stated that Twombly applies to all civil suits, not just antitrust cases or complex cases. So why tread on through discovery and argue all the crap as to why evidence should not be allowed blah blah blah and waste time when you can challenge the suit right out of the gate?

 

The complaint fails prima facie as it sets forth no concrete facts which are plausible, plaintiffs complaint sets forth only legal conclusions that are merely conceivable and do not state enough facts that would constitute an entitlement to relief.

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@BTO429

 

Why wait for discovery? Challenge their standing without standing or a competent witness the court lacks jurisdiction. Courts of inferior jurisdiction are empowered to act by pleadings that are sufficient enough to invoke their judicial authority.

 

 

Why wait for discovery?  Because if you make the claim in a motion to dismiss that they don't have standing to sue, you have to prove it.    Unless you have proof, the motion is denied.  

 

How do you know they don't have a witness?  A witness isn't required when filing a complaint.   Where's your proof?

 

Always argue that the complaint does not set forth enough facts to invoke the courts jurisdiction, unless they know what they are doing and pled correctly, but how many jdb's do this?

 

What exactly must they plead in order to invoke the court's jurisdiction.  Usually, if they state their name, the defendant's name, the cause of action, the name of the OC, account number, and amount, they've pretty much provided the needed information.

 

We know that JDBs must establish standing to sue.   Here's a citation from another U.S. Supreme Court case:

 

A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.  Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984).

 

When a JDB claims they've purchased an account, they've alleged that they've been injured and have standing to sue.   All they have to do is allege it.  Unless one's court rules state that absolute proof of ownership must be included with the complaint, they don't have to include it.

 

If you challenge that standing in a motion, you've become the party who must prove that they don't have standing.

 

If you can prove that the JDB doesn't own the account, fine.  File a motion to dismiss.  But it you can't prove it, why do want to set yourself up to be the one who must prove it?

 

The complaint fails prima facie as it sets forth no concrete facts which are plausible

 

It's not plausible that a JDB can purchase an account?  That's absolutely not true.  It most certainly is plausible.

 

 

 

do not state enough facts that would constitute an entitlement to relief

 

 

This is why some courts require a defendant to file a motion for a more definite statement, not a motion to dismiss.

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What case law do you need,

Fraud consists of some deceitful practice or willful device, resorted to with intent to deprive another of his right, or in some manner to do him an injury. Blacks Law Dictionary.

Bringing suit in someone elses name constitutes fraud. Since the jdb owns the debt they should be suing in their own name.

He (she?) would need case law from his state to back up the issues in any motions that you suggested he file.

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  • 2 weeks later...

Hello all and thank you very much for all your replies! 

 

 

I just received a notice from county court saying that a complaint/summons is filed and I need to respond by the date mentioned in the summon or else..the judge will decide.......and that if I haven;t received the summons I must go to court and see the clerk .

 

the summons is quite unclear about the date of court...just the general info that if it is delivered by hand or at the front door I have 20 (30 days) respectively to respond.

 

Here is what the complaint is about:

 

Plaintiff, by its attorneys complaining of the defendant upon information and belief alleges:

 

1. that defendant resides in the county on which this action is brought; or that defendant transacted bussiness within the county in which this action is brought in person or through his agent and that the instant cause of action arose out of said transaction 

 

2. on information and belief the defendant in person or through an agent made credit card purchases or took oney advances ......a copy of which was furnished to defendant. Plaintiff as a purchaser of (apo) this account which was orinigally owned by the above creditor purchased it for value. the defendant was notified of same.  (MY NOTE: I HAVENT' RECEIVED ANYHTIN OTHER THAN NOTICE)

 

3. there remains an agreed balnace on said account $3,000 due and owning on plaintiff's cause of auction. no part of said sum has been paid although duly demanded.

 

4. Plaintiff as owner is auhtorised to proceed with this action. Plaintiff is licensed by the NYC DEPT of consumers's affairs ...

 

 

 

dated october 24th 

 

 

 

I am planning to go to see the clerk...what should I do? 

 

1- acknowledge the summon's receipt?

2-deny charges?

3-file for motion to dismiss (how?)

4-There is no account number whatsoover mentioned in the summon can I make a case out of that?

 

 

 

Do you have any templates I can use? 

 

thank you again for your help!!!

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@sued2

 

1- acknowledge the summon's receipt?

 

Have you received the summons?  If not, then follow your court rules.  You may have to go see the clerk.

 

 

2-deny charges?

 

If you're a resident of the county in which the case has been filed, for #1, I might respond by saying "Defendant admits that he is a resident of the county in which this action was brought."

 

In regard to the other allegations, read your court rules.  The JDB hasn't provided enough information.   In some courts, if you respond by saying "Defendant has insufficient information to admit or deny", you might have to give an explanation as to why the information in the complaint is insufficient.  If your court rules do not require such an explanation, I might state that "Defendant has insufficient information to admit or deny and, therefore, denies."

 

3-file for motion to dismiss (how?)

 

Unless you have proof that the account is outside the SOL, it's already been paid off,  or that the plaintiff doesn't own the account, a motion to dismiss would not work.

 

4-There is no account number whatsoover mentioned in the summon can I make a case out of that?

 

Again, read your rules.  It might be possible to file a motion for a more definite statement in lieu of an answer.  See what your rules say about that motion.

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here is the county form i'm filling

 

ANSWER: (Check all that apply)
1.___X_ General Denial: I deny the allegations in the Complaint.
SERVICE 
2.____ I did not receive a copy of the Summons and Complaint.
3.__X__ I received the Summons and Complaint, but service was not correct as required by law.
DEFENSES
4.____ I do not owe this debt.
5.____ I did not incur this debt. I am a victim of identity theft or mistaken identity.
6.____ I have paid all or part of the alleged debt.
7._X___ I dispute the amount of the debt.
8.__X__ I do not have a business relationship with Plaintiff (Plaintiff lacks standing).
9.____ The NYC Department of Consumer Affairs shows no record of plaintiff having a license to collect debt.
10.___ Plaintiff does not allege a debt collector’s license number in the Complaint.
11.___ Statute of limitations (the time has passed to sue on this debt).
12.___ This debt has been discharged in bankruptcy.
13.___ The collateral (property) was not sold at a commercially reasonable price.
14._X__ Unjust enrichment (the amount demanded is excessive compared with the original debt).
15.___ Violation of the duty of good faith and fair dealing.
16.___ Unconscionability (the contract is unfair).
17.___ Laches (plaintiff has excessively delayed in bringing this lawsuit to my disadvantage). 
 
Is there anything else i might use or file?
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@sued2

 

I would include #4.  This goes to their standing to sue.  If they can't prove they have standing to sue you, they haven't proven you owe the debt to them.  Do you understand the meaning of "standing to sue"?

 

Do you know for a fact that this account is within the SOL?  Through your bank records, could the JDB prove you made a payment within the SOL?

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thanks BV80

 

last payment I made must have been in 2011--and it shows in my credit report

 

Does any one know what happens next and in the court?  

 

 

--thank Shellieh.... great point... so the burden of proof is on them>they have to show the judge that I owe the debt? correct?

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