mercuriisworld

Need help on suit with Citibank

Recommended Posts

Received a petition in April from Zakenheim & Lavrar RE: Universal AT&T and the plaintiff is Citibank. I answered within 20 days with interrogatories, production of documents, answer to the complaint, admissions etc.  They filed for an enlargement of time and filed their responses to all of the above....I thought I was supposed to wait for hearing after that but now I'm beginning to think I should have filed an answer or motions to their response and if there was a deadline, i may have missed it.. I called the clerk for information on my next steps and they just totally wouldn't give me a time frame or anything and it's not on any of the documents I've been served. I looked at the Florida Rules of Civil Procedure and the times there are not really clear. 

 

Does someone have this information?  Can someone give me suggestions as to what I should do next concerning the following pleadings?

 

For each document listed below that was delivered to the Defendant, please produce all documents indicating the date the document was delivered and the manner in which it was delivered, including, if the document was delivered by the Postal Service or other courier, the location to which it was addressed and whether the document was returned undelivered:

  1. The original account agreement for the account

Plaintiff: Plaintiff objects to this request as it is overly broad, irrelevant, and contains undefined terms, specifically “original account agreement” Subject to and without waiving said objection, please see the produced exemplar card agreement.

 

  1. A copy of the Original offer and contract for the account.

Plaintiff: Plaintiff objects to this request as it is overly broad, vague, not limited in time or scope, irrelevant, and contains undefined terms, specifically “original offer”.

 

  1. Documents provided to the Defendant at the time of application for the account.

Plaintiff:  Objection. The request is overly broad, irrelevant, not limited in time or scope, and is not reasonably calculated to lead to discovery of admissible evidence. 

  1. Any amendment to the agreement for the account during the entire life of the account.

Plaintiff:  Plaintiff objects to this request as it is overly broad, vague, irrelevant, and contains undefined terms, specifically “agreement”. Subject to and with waiving said objection, please see the produced exemplar card agreement and available monthly billing statements.

 

  1. Any notice of a change in any term of the account, including but not limited to a change in the rate of interest of amount of any fee applicable to the account.

Plaintiff: Please see the produced available itemized monthly billing statements 

  1. Any schedule of interest rates or fees applicable to the account

Plaintiff:  Please see the produced available itemized monthly billing statements

 

  1.  Any credit card issued in connection with the account.

Plaintiff: Objection. It is unclear what documentation defendant is seeking. If the defendant is referring to the actual credit card issued for the account, Plaintiff does not have the card in their possession. The physical card for the account was provided to Defendant.

  1. Any statement of payments, charges, fees or interest for the account.

Plaintiff:  Please see the produced available itemized monthly billing statements.

 

  1. Copies of all purchase receipts held by the Plaintiff.

Plaintiff: Objection. The request is overly broad, unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objection, after reasonable investigation, Plaintiff has determined that is has no document responsive to the specific request for receipts. The point of payment documents were not provided to Plaintiff by the merchants involved. Information regarding the transactions are electronically transferred. Plaintiff cannot be compelled to produce documents to which it does not have a superior right of control.  Plaintiff will supplement this response and produce the available monthly, itemized account statements which show charges and payments made. 

Defendants Request for Admissions

  1.  Admit or deny that there is no written agreement between the Defendant and Plaintiff regarding this debt.

 

Plaintiff:  Plaintiff objects to this request on the grounds that it is overbroad and vague and ambiguous. Without waiving such objection, and referring to the subject account, the agreement is a written agreement, although it is not signed by defendant. Defendant became bound by the agreement by his use of the credit card account Therefore, Plaintiff denies

 

  1. Admit or deny that you are unable to provide a complete accounting for the amount Plaintiff is claiming.

Plaintiff: Denied

  1. Admit or deny that you have no written agreement, signed by Defendant, incorporating the terms and conditions of any agreement you allege exists in this case.

Plaintiff:  Plaintiff admits as qualified: that a card member agreement was not signed by any party.  Instead, Defendant became bound by his use of the credit card account. Relevant documents regarding the credit card account are maintained the usual course of business by the Plaintiff. The Plaintiff extended credit to defendant so that defendant could purchase goods, purchase services, and/or obtain cash advances on the credit card account.

  1.  Admit or deny that you have not provided Defendant with proof of assignment.

Plaintiff:  Admit as qualified: Plaintiff is the original creditor so there is no assignment.

  1. Admit or deny that there is no written agreement between Plaintiff and Defendant.

Plaintiff: objects to this request as it is redundant. Please see response to number one above.

  1. Admit of deny the Defendant has no financial obligation to Plaintiff.

Plaintiff:  Denied

  1. Admit or deny that as of the date you drafted your Complaint, you had no evidence admissible that proves Defendant owes the Debt

Plaintiff:  Denied

  1. Admit or deny Plaintiff has no employee with first hand personal knowledge of the alleged account

Plaintiff:  Authorized agents of the Plaintiff have personal knowledge based upon a review of the account records. Therefore, Denied.

  1. Admit or deny Plaintiff lacks standing in this case.

Plaintiff:  Denied

  1.  Admit of deny Plaintiff has privity in this case.

Plaintiff:  Objection. The request is vague, unclear, and overly broad

Defendants Request for Admissions

  1.  Admit or deny that there is no written agreement between the Defendant and Plaintiff regarding this debt.

 

Plaintiff:  Plaintiff objects to this request on the grounds that it is overbroad and vague and ambiguous. Without waiving such objection, and referring to the subject account, the agreement is a written agreement, although it is not signed by defendant. Defendant became bound by the agreement by his use of the credit card account Therefore, Plaintiff denies

 

  1. Admit or deny that you are unable to provide a complete accounting for the amount Plaintiff is claiming.

Plaintiff: Denied

  1. Admit or deny that you have no written agreement, signed by Defendant, incorporating the terms and conditions of any agreement you allege exists in this case.

Plaintiff:  Plaintiff admits as qualified: that a card member agreement was not signed by any party.  Instead, Defendant became bound by his use of the credit card account. Relevant documents regarding the credit card account are maintained the usual course of business by the Plaintiff. The Plaintiff extended credit to defendant so that defendant could purchase goods, purchase services, and/or obtain cash advances on the credit card account.

  1.  Admit or deny that you have not provided Defendant with proof of assignment.

Plaintiff:  Admit as qualified: Plaintiff is the original creditor so there is no assignment.

  1. Admit or deny that there is no written agreement between Plaintiff and Defendant.

Plaintiff: objects to this request as it is redundant. Please see response to number one above.

  1. Admit of deny the Defendant has no financial obligation to Plaintiff.

Plaintiff:  Denied

  1. Admit or deny that as of the date you drafted your Complaint, you had no evidence admissible that proves Defendant owes the Debt

Plaintiff:  Denied

  1. Admit or deny Plaintiff has no employee with first hand personal knowledge of the alleged account

Plaintiff:  Authorized agents of the Plaintiff have personal knowledge based upon a review of the account records. Therefore, Denied.

  1. Admit or deny Plaintiff lacks standing in this case.

Plaintiff:  Denied

  1.  Admit of deny Plaintiff has privity in this case.

Plaintiff:  Objection. The request is vague, unclear, and overly broad

 

Request to Answers to Interrogatories

  1. Identify the person(s) who have answered these interrogatories

Plaintiff:  Responses have been prepared by Plaintiff’s attorneys with information from Plaintiff’s designated agents including the person signing the verification for these responses, Pam Cline. All CITIBANK personnel should be contacted through undersigned legal counsel.

 

  1. What is the opening date of the alleged account?

Plaintiff: The account was opened on or about 10/29/1998

 

  1. What is the date of charge off of the alleged account?

Plaintiff:  The account was charged off in accordance with the Federal Financial Institutions Examination Council’s Uniform Retail Credit Classification and Account Management Policy on 8/9/2011.  Charge off is a classification required by the Federal Financial Institution Examination Council (FFIEC) and has no bearing on whether the debt is still owed by the defendant.

 

  1. Does the Plaintiff have any employee who has personal first hand knowledge of the alleged account since its inception?

Plaintiff: Objection. The request is overly broad, unduly burdensome, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.  It would be unreasonable to compile a list of every employee and agent of Plaintiff who may have gained personal knowledge of Defendant’s account in their normal course of employment. Any number of these aforementioned employees, both current and former, may have had access to and reviewed Defendant’s credit card account in order to carry on tasks relative to their various job duties over the years, including tasks as simple as reviewing an account statement prior to mailing it to Defendant of Plaintiff’s counsel, photocopying it, or performing some other similar task which does not have any probative value as to any of Plaintiff’s claims or Defendant’s defenses.

 

  1. Under the Fair Debt Collection Practices Act, identify the current owner of the alleged debt, their name, address, and telephone number.

Plaintiff:  Plaintiff  objects to the extent the the request seeks information “under the fair debt collection practices act”, as this is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence. Subject to and without waiving said objection, Plaintiff is the owner of the account at issue in this case and is the party legally entitled to collect on the debt.

 

  1. Has there been any misrepresentation of the actual owner of the alleged account at the time of the filing of the complaint?

Plaintiff:  None

  1. Does the Plaintiff maintain recordings of all customer service and collections calls?

Plaintiff:  Plaintiff objects to the request. The request is overly broad, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

 

  1. Does the Plaintiff maintain written records of all customer service and collections activities to include phone calls and correspondence, and collectors notes and impressions?

Plaintiff:  Plaintiff objects to the request. The request is overly broad, not limited in time or scope, irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

 

  1. State how this account came into possession of the Plaintiff. If the Plaintiff purchased this account, provide information regarding the sale including:
  1. The previous owner or owners of this account;
  2. The acquisition price of this account;
  3. The identity of any brokers that assisted in the transaction, including their address and the amount of consideration they received with respect to the sale.

Plaintiff:  Plaintiff is the original creditor

 

  1. If the account came into possession of the Plaintiff through assignment, then provide the following information regarding the assignment:
  1. The identity of the assignor and their address
  2. The identity of the individual making this assignment and any materials authorizing them to do so (ex. Job description, corporate resolution, etc)

Plaintiff:  Not applicable

 

  1. If consideration was exchanged between the assignor and Plaintiff, then provide the amount of consideration. Was consideration to be a flat fee, or to be on a percentage basis?

Plaintiff:  Not applicable

 

  1. Provide the date that this account went into default.

Plaintiff:  Objection. The request is overly broad, not limited in time or scope, vague, and contains undefined terms, specifically “default”. Subject to and without waiving said objection, the account was charged off in accordance with the Federal Financial Institutions examination Council’s Uniform Retail Credit Classification and Account Management Policy on 8/9/2011. Charge off is a classification required by the Federal Financial Institution examination Council (FFIEC) and has no bearing on whether the debt is still owed by the defendant.

 

 

  1. Identify all assigness of this account in and since the default on this account.

Plaintiff: None

 

  1. Provide a complete accounting of the amount claimed due from the Defendant, including principal, interest, collection charges and any other components that contribute to the balance.

Plaintiff: This request is best answered by production of documents. Please see the available billing statements provided in response to Defendant’s Request for Production

 

  1. Provide any communication between Plaintiff and Defendant regarding this account since date of default, where by voice recording, mail, or collector’s notes.

Plaintiff:  Objection. The request is overly broad, unduly burdensome, vague, not limited in time or scope, is irrelevant, and is not reasonably calculated to admissible evidence.

 

  1. Identify the individual or individuals who authorized suit on this account. State whether they are employed by the Plaintiff, or some other entity.

Plaintiff: Objection. The request is irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.

 

Link to post
Share on other sites

Filing a response to their answers wouldn't do much good, they answered. While the questions and admits you asked may be good ones for a JDB suing you, you are being sued by the original creditor, so their answers are correct. The items you put in red I am assuming you don't like those answers, and think there is something you can compel?

They again answered correctly, there is no signed contract, acceptance and use of the card IS the contract. If they can show a charge on any of the billing statements, they show you accepted and used the card.

So what gave they sent you in the way of evidence? Original creditors are tougher to beat because they don't need to prove standing. So your best option to fighting them is to dispute the amount, and subpoena the witness. Did they send you an affidavit from someone from citi saying your account is correct? Did they describe how their records were kept and maintained, and how entries were made at or near the time of event? That's what they need, and the person who wrote it is who you would need to subpoena.

Link to post
Share on other sites

You are being sued by an original creditor.  Those cases are WAY more difficult to win and you cannot use RFAs, ROGs or production of documents the way you would for a JDB lawsuit.  This Plaintiff is well prepared and you have an uphill battle on this one.

Link to post
Share on other sites

Hello,

 

I would suggest since you are up against an OC to google the case American Express vs Vinhee. The defendant won his case without being present. This was a very interesting case. If you can find this please read it.

 

Hope this helps

Link to post
Share on other sites

@helpme

 

In re Vinhnee was a bk case that was filed in a CA federal court.   The OP is in a FL state court.  While Vinhnee might be helpful in CA, I'm not sure how persuasive it would be on a FL state judge.  That being said it might give the OP some ideas about what to research.

Link to post
Share on other sites

Sounds like your being being sued on Account Stated, which is difficult to defeat in FL because they set the bar so low. Would be great if you had any FDCPA violatins in the letteres or phone calls they made to you, Farley v Chase is the leading case.

 

http://scholar.google.com/scholar_case?case=1033531272883273502&q=farley+account+stated&hl=en&as_sdt=4,10

Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.