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Miami JDB Suing me for old Citibank card


zdrd2000
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Hello all, I am being sued by Superior Debt Recovery LLC in Miami Civil Court (over 6K). I asked the court for a motion to dismiss based on the FL Sol for Open-Ended accounts of 4 years (which passed October 2013). The lawyers for the JDB responded to my motion with a letter to the court saying "Citibank, NA Credit Card is goverened by the laws of the State of South Dakota". It goes on to say that South Dakota has a 6 years SOL and that the SOL has not expired and that the defendants Motion to Dismiss should be summarily DENIED.

 

I am waiting for the court. I know some of you will mention that a CC is a written contract and thus falls into the 5 year SOL in FL and I know the court may see it that way also. But since this Miami based JDB quoted South Dakota's SOL, my question is, can a Florida based company use the SOL in South Dakota of a credit card that I had with Citibank? I realize they purchased the debt from Citi but does the user agreement transfer over to the JDB and thus allow them to use the SOL in South Dakota even though I never had an agreement with the JDB in South Dakota? Understand?

 

Thank you all for your responses in advance.

 

 

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my question is, can a Florida based company use the SOL in South Dakota of a credit card that I had with Citibank?

 

If FL has a choice of law provision, yes they can.  The same way you as a consumer could assert a choice of law provision if the state referenced in the agreement was shorter than Florida's.  That assertion legally is not available to only the defense.  Both sides may avail themselves of a choice of law provision.

 

I realize they purchased the debt from Citi but does the user agreement transfer over to the JDB and thus allow them to use the SOL in South Dakota even though I never had an agreement with the JDB in South Dakota?

 

When they purchase the debt it is through assignment and in being assigned the debt they are also legally assigned to all the rights and responsibilities of the original creditor as well.  

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@zdrd2000

 

A JDB steps into the shoes of the creditor.  That means that they have the rights of the creditor.

 

Okay.   95.10 is FL's "borrowing statute".  It states:

 

Here's Florida Statute 95.10:

95.10 Cause of action arising in another state.—When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.

That says that if a cause of action arises in another state that has a shorter SOL than FL, then the action cannot be successful in FL.

They are claiming that the cause of action arose in SD.  So, I suppose it could be assumed that if the cause of action arose in another state with a longer SOL, then SD's SOL could be applied.

 

However, they have to prove that the cause of action arose in SD.  

 

Are they suing you for breach of contract?  Account stated?   Those are causes of action.  The cause of the cause of action was when you failed to pay.  They'd have to show that your failure to pay cause their claim to come due in SD.  Of course, if the judge rules that a credit card debt has a 5-year SOL, your motion and their argument is moot.

 

Did you file your motion to dismiss in lieu of an answer to the complaint?

 

We need some more details.  It would help if you would copy and answer the questions in the following link.

 

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

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Were you given 30 days' notice of the assignment to the JDB per FL law?

 

The 2013 Florida Statutes
600x3_gradient.gif   Title XXXIII
REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS Chapter 559 
REGULATION OF TRADE, COMMERCE, AND INVESTMENTS, GENERALLY View Entire Chapter
559.715 Assignment of consumer debts.This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.
History.s. 1, ch. 89-69; ss. 6, 13, ch. 93-275; s. 3, ch. 2010-127.
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I tried the same arguement and lost. Citi is governed by South Dakota and that SOL applies. just like Chase is governed by Delaware and that states SOL is 3 years so if they file suit in FL it wouldnt buy them another year.... What's great about your debt being sold is that you can settle for less than you owe!

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@debtzapper

 

No I did not receive 30 days notice of assignment. According to the summons this JDB is the 2nd JDB on record. Citi sold it and then it was sold again. I don't have the paperwork with me so I forget the name of the 1st JDB. I did not receive any notice from any of them. The first time I found out about this was when I was served. There is no record of the original card or any chargeoff on any of my credit reports. In other word this card does not exist in my credit history (not that that matters).

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I tried the same arguement and lost. Citi is governed by South Dakota and that SOL applies. just like Chase is governed by Delaware and that states SOL is 3 years so if they file suit in FL it wouldnt buy them another year.... What's great about your debt being sold is that you can settle for less than you owe!

Thanks for the info. That makes sense.

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I tried the same arguement and lost. Citi is governed by South Dakota and that SOL applies. just like Chase is governed by Delaware and that states SOL is 3 years so if they file suin FL it wouldnt buy them another year.... What's great about your debt being sold is that you can settle for less than you owI was tink

 

 

 

Were you given 30 days' notice of the assignment to the JDB per FL law?

 

The 2013 Florida Statutes

600x3_gradient.gif   Title XXXIII

REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS Chapter 559 

REGULATION OF TRADE, COMMERCE, AND INVESTMENTS, GENERALLY View Entire Chapter

559.715 Assignment of consumer debts.This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.
History.s. 1, ch. 89-69; ss. 6, 13, ch. 93-275; s. 3, ch. 2010-127.

 

This might be a stuid question but how do they issue 30 days' notice of the assignment? (Mail? Certified mail?) tnx

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I tried the same arguement and lost. Citi is governed by South Dakota and that SOL applies. just like Chase is governed by Delaware and that states SOL is 3 years so if they file suit in FL it wouldnt buy them another year.... What's great about your debt being sold is that you can settle for less than you owe!

I'm sorry, but that is terrible advice. They have to prove S.D. Sol applies, and that the cause of action occurred there. You may have tried the same argument, but just because you lost it does not mean the op will. There are many times when other states with borrowing statues apply but the court rules for the plaintiff because the defendant lives in the state where they have given juristriction.

I would fight tooth and nail and dig up all the case law I could. O.P. Hope the judge rules in your favor, if not we will help you make the JDB a court room nightmare who will have to work hard for their win.

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Sorry this took a little long as I could not find the summons, thankfully I finally found it.

 

1. Who is the named plaintiff in the suit? Superior Debt Recovery, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Law Offices of Noam J.Cohen, P.A.

3. How much are you being sued for? $6,203.46

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

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

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

7. Was the service legal as required by your state? Yes

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? None

9. What state and county do you live in? Florida, Miami Dade County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) according to the affidavit, 10/27/2009

11. What is the SOL on the debt? To find out: Florida is a little grey in this area, 4 years for open-ended accounts and 5 years for written contracts (depends on the judge). Citibank is out of South Dakota which is 6 years.

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). They sued me, I filed a motion to dismiss based on the 4 years FL SOL, Plantiff  responded that they are sueing me based on the SOL in South Dakota. Waiting for response from the court/judge.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Account is not an any of my credit reports so never had a reason to dispute

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 It was not on my credit report and I did not know I was going to be sued

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. 20 days (Filed the Motion to Dismiss on day 2 and court confirmed they received it and told me to wait for a response which would be coming in the mail).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. 

Count 1 - Open Account

Count 2 - Account Stated

Count 3 - Money Lent,

Count 4 - Unjust Enrichment

Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

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. Affidavit (Notary Public State of Missouri), 2nd Affidavit (Notary Public State of Ohio), Bill of Sale and Assignment, Citibank last statement showing my name, account #, $6203.46 balance

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

====================================================

 

Thanks for your help.
 

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Just out of curiosity, do you know that you made a payment in Oct of 2009, or do you only have the word of a JDB for that?

 

I'd recommend checking my own records, to be certain. It's not like they're famous for accuracy and honesty.

 

Even if you DO end up with SD SOL, you have the fact that they sued w/o following your state's law for giving notice, and the BIG fact that they are the second JDB to own this alleged debt. What that means for you is that they will have --IF YOU MAKE THEM--an extremely hard time proving that they have the legal right to step into the shoes of CitiBank.

 

They are counting on a default judgment; where you do one of two things. Either you do nothing at all and don't show up in court, and they get the default, or you don't properly submit an Answer to their summons, and they get the default.

 

Submit an Answer, with the reams of good case experience in your state that you can find here, and you are ahead of the 95% of people who are sued by JDBs--that's the average percentage, nationwide, for defaults in credit cases with JDBs.

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Just out of curiosity, do you know that you made a payment in Oct of 2009, or do you only have the word of a JDB for that?

 

I'd recommend checking my own records, to be certain. It's not like they're famous for accuracy and honesty.

 

Even if you DO end up with SD SOL, you have the fact that they sued w/o following your state's law for giving notice, and the BIG fact that they are the second JDB to own this alleged debt. What that means for you is that they will have --IF YOU MAKE THEM--an extremely hard time proving that they have the legal right to step into the shoes of CitiBank.

 

They are counting on a default judgment; where you do one of two things. Either you do nothing at all and don't show up in court, and they get the default, or you don't properly submit an Answer to their summons, and they get the default.

 

Submit an Answer, with the reams of good case experience in your state that you can find here, and you are ahead of the 95% of people who are sued by JDBs--that's the average percentage, nationwide, for defaults in credit cases with JDBs.

I don't know when the last payment was actually made, that date was the word (affidavit) of an employee of Citi bank. I would check my records but I have no record at all of this account. Original JDB was "Pilot Receivables Management, LLC in Ohio who bought it from Citi and was assigned the account on 3/25/13 then turned around and sold it to the 2nd JDB on 6/17/13. Although I already responded to the summons with a Motion To Dismiss should I wait to hear the courts response? Or go ahead and also answer the questions to their summons? I don't know that I could do both at the same time....or can you? thanks

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@zdrd2000

 

I would check my records but I have no record at all of this account.

 

 

If this isn't a mistake by the plaintiff, perhaps the card was a store or gas card that was issued by Citibank. 

 

Check your bank records on the date given as the date of last payment, and see if you made any credit card payments on the date provided.  If an amount of the payment is stated in the affidavit, look for that amount in your records.

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  • 2 weeks later...

I just wanted to update you guys. I have not heard back from the court about my motion to dismiss as my response from when I was originally served. In the meantime the plaintiffs lawyer contacted me with the following off a couple of weeks ago:

 

 

Pursuant to our conversation today, we are able to offer you the following 2 Settlement Offers, which will be valid until close of business on Wednesday March 5, 2014.

 

P             $6203.46

I               $1,099.54  (4.75% -FL Stat Rate from LPD-6/7/10)

C             $373.00

_____________________

TOTAL   $7,676.00

 

 

OPTION 1:

Reduced lump sum amount of $5,373 within 30 days. (a savings in excess of $2k)

 

OPTION 2:

Monthly payments of $300.00 on TOTAL balance, w/ no interest to accrue from this point forward as long as payments are made in a timely manner.  This is an interest free loan in excess of 2 years.

 

 

I told them I would have to talk with my attorney (have not yet hired one) and never responded to them. Today I received a letter from the plaintiff's lawyer. It is a "Request for Admissions". It asks very specific questions about the account. How should I respond to this request for admissions? I believe that I have 30 days to respond and if I don't it will go against me in court?

 

Thanks

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