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Citibank Affiant Cheryl Preston caught lying?


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First: I just joined and posted this in another thread and someone said I should start my own, so sorry about the double post.  This site is awesome and I am so glad I found it. 

 

A little background:  My case was started 2 years ago in NC and we submitted a Motion to Dismiss and then we heard nothing for 2 years and then out of the blue there was a hearing for the Motion to Dismiss and we lost (we were not prepared because after 2 years we just thought it was behind us).  Now I am getting back into the right frame of mind and ready to prepare for the Motion for Summary Judgment in 1 month.

 

I was always wanting to find a way to discredit the Affiant and thanks to you guys I have the chance.  Cheryl Preston signed our Affidavit and the Notary was Sheri Preston (not sure if that has any red flags or not).  The Notary dated it Nov 11, 2011.  I went to Cheryl Preston's linkedin account as one of you guys recommended and as you said she states that she worked at Citi from March 2007 - March 2011.  According to the info reported on credit report, the account was opened in 2000 with Citibank (South Dakota) NA, and they closed the account Nov 2010. the last payment was Feb 15 2011.  Citibank NA got the debt from Citibank (south Dakota) NA in July 2011.  So Cheryl was not around when the account was opened, when it was bought by Citbank NA, and most importantly when she supposedly signed the Affidavit.

 

All of this hinges on the fact that the Cheryl Preston in Arizona who you found on LinkedIn is the same Cheryl Preston that supposedly signed in Missourri.  How can I prove that they are the same person?  Shellieh98, in another thread you sound so positive that she is the same (and I believe you 100%), but how do I prove it?

 

I attached a copy of the affidavit and complaint that were filed.  The only other thing they submitted was a 2 page copy of the August 2011 statement (which doesn't have much detailed information).

 

Also, since Citibank NA is not the original creditor and they got the debt after it was already closed and delinquent, then my understanding is they truly are now a debt collector according to FDCPA.  Is that correct?

 

Any help is much appreciated.

 

 

affidavit (summons 1-3-12).pdf

Summons Complaint (received 1-3-12).pdf

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Well we know it is the same one because at the time (I have not looked lately at her profile) it was in her profile.  But that really isn't going to help you in this original creditor case.  You could ask for her name and address in discovery so you can subpoena her, Or you could look line by line at wha she says, and if all the required verbage as to what is required is not there, get it precluded that way.  Your rules will tell you what the affidavidt needs to say to make the records admissable.

OC accounts are harder to fight due to they do not have to prove standing.  I would search out some of those threads and see what the common link is to those that won.  Some went to arbitration, some fought on the unsurious interest they charge, various things.

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Two years of not prosecuting a case can often trigger the opportunity/requirement of dismissal based on failure to prosecute. Whether affirmative action is required be a defendant to precipitate a dismissal in NC or what specifics any failure to prosecute rule contains is something I would probably look in to. Such a rule may not exist, it may be too late to benefit, or it may have some traction IDK.

 

Impeaching the affiant is always a good idea. I have not seen impeachment as the sole cause for a consumer to prevail in a collection case. I would want to determine the specific cause of action in the complaint and show that opposing cannot bring in admissible evidence proving up every required element. Apparently no damages must be proved in NC for  BoC claim which makes it easier for the plaintiff IMO.

 

Breach of Contract

http://www.floridalitigationguide.com/survey-50-states-breach-contract-claim/
North Carolina
Poor v. Hill, 138 N.C.App. 19, 26, 530 S.E.2d 838, 843 (N.C. Ct. App. 2000) (“The elements of a claim for breach of contract are (1) existence of a valid contract and (2) breach of the terms of that contract.”)

Turner v. Ellis, 633 S.E.2d 883, 887 (N.C. Ct. App. 2006) (“A prima facie case for breach of contract is shown by the existence of a valid contract and breach thereof.”)

 

Account Stated
CHANNEL GROUP, LLC v. LEA W. COOPER (I have not read this unpublished opinion but it may provide some insights to how to defend a MSJ, especially for account stated and most unpubs cite usable case law.)
An  account  stated  cause  of  action  consists  of  four  basic
elements:  “(1) a calculation of the balance due; (2) submission of
a statement to [the party to be charged]; (3) acknowledgment of the
correctness of that statement by [the party to be charged]; and (4)
a promise, express or implied, by [the party to be charged] to pay
the balance due.”
Carroll v. McNeill Industries, Inc., 250 S.E.2d 60, 296 N.C. 205 (1978).

 

I have proved, with admissible evidence that the opposition's agent lied to the court. I did not receive assistance from the court to prevail in that case but it gave me the leverage I needed to write my own settlement terms.  I would not rely on proving up a lie (very tough to do with admissible evidence from my experience) as causing a favorable ruling from the court. I would not expend too many resources hunting down the illusive Cheryl Preston. Discovery would be the tool I think most effective and determining who she is and whether she is a trustworthy party.

 

I would read and reread the affidavit until I fully understood what it actually does and does not say. In NC is the purpose of an affidavit to bring in evidence? If so where is that evidence? My quick read has me viewing the affidavit as a conclusory affidavit with ZERO evidence.

 

As far as I know subsidiaries, sibling entities own by the same parent are not typically obliged to comply with the FDCPA. State consumer laws may vary from that standard FAIK.

 

Any case, rule, or statute that opposing cites in pleadings or motion practice I would thoroughly familiarize myself with. One such cite was, "6. Based on the foregoing, the Plaintiff is entitled to have and recover of the Defendant its reasonable attorney fees as provided by N.C.G.S. 6-21.2."

§ 6-21.2.  Attorneys' fees in notes, etc., in addition to interest.

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Typically I would want to spend time at the courthouse reviewing collection cases won by consumers. If there is access to the pleadings and motion filings I would be very interested in reviewing those. If there is a winning consumer attorney I come across in my research I would be contacting them whether or not I believed I had the resources to pay. Speaking with attorneys is good practice and often valuable insights can be gleaned.

 

Google scholar and other online search tools can find useful case law based on jurisdiction. It can also find cases that opposing counsel has been involved in. I dig deep in my litigation. I want every advantage and understanding that I can get.

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The first thing I notice in the complaint filed against you is it is the ultimate in "boiler plate" complaints, and a pretty bad one at that. I'm not an attorney, but my experience tells me that in my state, a complaint must have a cause of action upon which relief can be granted. In other words, they have to accuse you of "breach of contract" or "account stated" or "unjust enrichment" or similar causes of action. This lawsuit does not state a cause of action. It would be helpful for any posters with experience in North Carolina to offer their thoughts on how NC's Rules of Procedure may apply to this issue. Before you ever get to the falsity of the Affidavit, you may have a valid reason to file a Motion to Dismiss. 

 

I successfully fought and won a dispute with an alleged Original Creditor, thanks to the great help of people on this board. Part of what won the case for me was attacking the Affiant. Generally, an Affiant's statement is worthless if not provided based upon personal knowledge. It's far worse and potentially perjury if, as it may be in your case, the Affiant attested to these facts with personal knowledge - but lied. In my case, I placed enough pressure that the Plaintiff's lack of proof of any debt combined with the Affiant's lie would not stand up, that the Judge dismissed their attempts at a Summary Judgement, and the Plaintiff eventually voluntarily dismissed its own case.

 

It's a known fact that many major bank's were using an assembly line process to spit out Affidavits in foreclosure and credit card cases, despite the Affiants never reading what they were attesting to. In my case, the bank in question stated in its own Annual Report that they used improper methods to create false Affidavits in debt collection cases. I printed out the relevant section and statements and attached it to one of my Motions. Using their own admission to the use of false Affidavits against them was a hint at the subpoena to come if they didn't back off. I think it made an impression on the Judge, too. Perhaps you can research if Citibank has admitted to similar actions in their public filings.

 

I think you need to attack the lack of a cause of action first. If you cant get the case thrown out on those grounds, a subpoena to the Affiant will cause them to seriously pause in the case. Like in your case, mine had well over a year of inactivity. I think this may happen when the Plaintiff knows the weaknesses in their case. Here are a couple of ideas to attack the Affidavit:

 

Collection case with false Affidavit on an alleged Citibank debt:  http://stopforeclosurefraud.com/2011/08/16/robo-affidavit-class-action-settles-for-5-2-million-midland-funding-v-brent/

 

Interesting article on the credit card robo signing issue, with useful links / resources:  http://business.time.com/2012/08/17/is-credit-card-debt-collection-the-new-robo-signing-scandal/

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@Determined1

 

The first thing I notice in the complaint filed against you is it is the ultimate in "boiler plate" complaints, and a pretty bad one at that. I'm not an attorney, but my experience tells me that in my state, a complaint must have a cause of action upon which relief can be granted. In other words, they have to accuse you of "breach of contract" or "account stated" or "unjust enrichment" or similar causes of action.

 

 

As you stated, it can depend upon one's court rules.  The allegations in the complaint allege that money is owed.  That can be a cause of action.   However, the failure to state a cause of action should usually be met with a dismissal.  Depending upon one's court rules, answering the complaint could waive that defense.

 

This case was filed 2 years ago so we probably need more details.

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...

I think you need to attack the lack of a cause of action first. If you cant get the case thrown out on those grounds, a subpoena to the Affiant will cause them to seriously pause in the case. Like in your case, mine had well over a year of inactivity. I think this may happen when the Plaintiff knows the weaknesses in their case. Here are a couple of ideas to attack the Affidavit:

...

Whether or not that is an appropriate path may depend in part what was previously claimed in the defendant's denied MTD.

 

The complaint would have likely caused me to consider filing a pre-answer Motion for More Definite Statement, assuming it is an available defense in my jurisdiction. It would appear that an answer was filed long ago so that would likely not be appropriate at this point as far as I know.

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BV80 and Credator both make excellent points. I re-read your post and my reply, and think my reply was incorrect on the issue of now attempting a dismissal based on the Plaintiff's failure to state a cause of action upon which relief can be granted. I believe this could have been used effectively in an initial Motion to Dismiss, and can even be raised in some states as an Affirmative Defense, however, it may not be timely or effective to do so now. I'm not sure of the timing of your Motion to Dismiss and Answer. Perhaps you can post for review and feedback?

 

Based on the dollar amount of your dispute, I think you should have an attorney review this case for you. Many attorneys will provide an initial consultation free of charge, before you decide to hire one. My hunch is, if the Plaintiff had a strong case, they would not have sat idle for two years.

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