Squibber

HELP W/ Citi Please

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Hello All, I am soliciting the expert advice in this forum for a bit of help with a recent Complaint with Citi

 

A bit of background, They filed a similar suit over a year ago, which resulted in a summary judgment, that never got filed, and with a bit of luck was dismissed for lack of prosecution.  My attorney botched this up, didn't file responses in time, and lost to SJ.  They tried to reopen, but was disallowed.  They have attempted to pick up where they left off, and have filed a new complaint for Debt and Money Due.  Thanks to all!

 

1.  Who is the named plaintiff in the suit?  CITIBANK, NA

 

2.  Name of the firm handling suit?  The Moore Law Group, APC

 

3.  How much is the suit for?  <15k

 

4.  Original Creditor?  CITI

 

5.  How do you know you are being sued?  Summons

 

6.  How was I served?  In person

 

7.  Was the service legal?  Yes

 

8.  What was your correspondence before being sued?  (see my opening statement)

 

9.  What State and County?  New Mexico, Bernalillo  DISTRICT COURT

 

10.  When was the last time you paid on this account?  I am unsure, however it is either very close, or past 4 years.  

 

11.  What is the SOL on the debt?  In NM, written contracts is 6 years.  Open accounts is 4 years.   (if they have the original signed contract, it is considered written)

 

12.  what is the status of the case?  Was served a little over a week ago.  No answer or motion in response filed yet

 

13.  Have you disputed the debts on the CB's?  No

 

14.  Did you request Debt Validation?  No

 

15.  How long to respond to suit?  I believe 20 days for MTD, and 30 days for Answer

 

 

 

 

 

Rediacted Complaint scan.pdf

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From the little info here, I think the best way to fight an original creditor is to have some sort of leverage.  If it is past 4 years since you have paid on the account, I would try for the 4 year sol.  In your answer assert that defense, and include a counter suit for suing on a time barred debt.  That will give you a little leverage.  You will need to learn your rules of civil procedure, and argue the 4 year sol I the suit.

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If it was previously dismissed for lack of prosecution, look into mentioning that to the judge referencing the previous case number (are they the same or different?) in a Motion To Dismiss. Res judicata sounds like it would apply. Also, look into getting your court costs back if New Mexico allows for that due to the failure to prosecute.

 

Have you checked with your old attorney since it sounds like he was a bit slow in the past to see if he'll take care of this? If that's a dead end, you could also look for NACA attorneys here http://www.consumeradvocates.org/find-attorney

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Thanks, both of you.  I'll be reading up on the rules and procedures over the next few days.  They've attached nothing to this complaint, no dates, no statements, no contract or application.  Recommendations on a MTD or Answer and deny? Is  Res judica in play because they're basing this claim on the same transaction(s) as the first claim?  

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@Squibber

 

http://www.nationallist.com/image/cache/White_Paper_New_Mexico_Debt_Collection.pdf

 

 

from above:

 

 

a. Statute of Limitations NMSA 1978 §37-1-1 et seq. governs New Mexico’s statute of limitations for the collection of open accounts, written contracts, and judgments entered by the Court. In New Mexico, the statute of limitations for open accounts is four years, while the statute of limitations for written contracts is six years. In New Mexico, if a creditor can provide a signed credit card agreement, the six year statute of limitations applies. The cause of action accrues “on the last item therein,” which can either be the last payment made on the account or the last statement sent to the debtor. Once entered, a judgment is enforceable in New Mexico for fourteen years and cannot be renewed.

 

 

b. Consumer Collections Collection of consumer accounts is governed under the New Mexico Collection Agency Regulatory Act, NMSA 1978 §61-18A-1 et seq, hereinafter “CARA.” A debtor under this chapter is defined as “any natural person obligated or allegedly obligated to pay any debt.” Debt is defined as “any obligation or alleged obligation of a debtor to pay money arising out of a transaction in which the money, property, insurance or services that are the subject of the transaction are primarily for personal, family or household purposes,” specifically excluding commercial transaction from CARA. CARA does not provide any additional requirements to collect consumer debt. Of course, the FDCPA applies in New Mexico. The District Courts require documentation in the form of an affidavit of the amount owed and proof of ownership of the debt. For debts less than $25,000, non-binding arbitration before an attorney appointed by the court is mandatory. In the Metropolitan and Magistrate Courts, a complaint can be filed without any documentation.

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Squibber, yeah, it seems like this was already tried and when they went to collect they were turned down over a year ago. Especially if you only had one account you can think of with Citi. I'm not an attorney, that's why I think you should check with the slowpoke again and run it past him. Check the case info online https://caselookup.nmcourts.gov/caselookup/app if you want to verify the status of the old case. Do the $ amounts match?

 

Check New Mexico rules. You may be able to make an appearance in court, state the issue to the judge and if that doesn't stop it the judge should give you a later date to file an answer or motion by. If you have a date set to see an attorney by then, let the judge know. The key is to show up.

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Thanks DZ, from your post, it appears (since they've filed in District Court) they should have filed this with affidavit and proof of ownership of the debt.  Without any documentation, I believe t his will fall under "open accounts" where the SOL is 4 years.  I've got a lot of work to do.  

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Res judica does not apply. It would only apply if you 1. Won the case on its merits, or 2. It was dismissed with prejudice. When they dismiss without prejudice they get one more bite at the apple.

However, if you did not get your filing fees back after the first case, you may be able to request they pay your filing fees. Search your rules, they should tell you.

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Worth squibber to check those New Mexico rules. I know Illinois is one year for one more bite if dismissed without prejudice. If the case is decided, it seems like it's decided at this point. No going back for seconds this late plus the plaintiff has already been denied in court over a year back.

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NMRA

Rules of Civil Procedure for the District Courts

ARTICLE 3
Pleadings and Motions

1-009. Pleading special matters.

I.   Copy to be served.  When any instrument of writing upon which the action or defense is founded is referred to in the pleadings, the original or a copy thereof shall be served with the pleading, if within the power or control of the party wishing to use the same. A copy of such instrument of writing need not be filed with the district court.   

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I received nothing other than the complaint and the Mandatory Referral to Arbitration...It's a different law firm this time.  The former firm was Ferill and Seldin, (spelling?) but if I recall, Citi dropped them a while back, which was during the time that the default judgment did not get filed.  Maybe all the documentation is still with the former firm.  

 

 

I have nothing to go on until I go pull the other case.

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Not knowing if this has two different case numbers, I'd consider it a brand new case since the complaint doesn't state amended. They'd have to follow the rules and attach the required documentation even if that was done in the previous case. Motion To Dismiss based on that and all the other detail in your favor.

 

Good luck, let us know how this goes.

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@Squibber

 

First, you need to check your bank records in order to find out when you made the last payment on the account.  If the last payment was made more than 4 years ago, you'd have a valid SOL defense if the cause of action is not based on a written agreement.

 

You can try a motion to dismiss based upon Rule 1-009, but the complaint did not state whether the cause of action is based upon a written agreement or an account stated.  If the plaintiff is suing based upon a written instrument, the judge could grant a dismissal or he may just allow the plaintiff to correct the pleading and provide a cardmember agreement.  But, if they're suing on an account stated, they may not need to attach a copy.

 

Personally, I think you should contact a consumer attorney and ask some questions.  Contact your state bar association and ask for the lawyer referral service.  That service will recommend an attorney in your area based upon your circumstances.   Some attorneys will provide a consultation at a reduced rate.   It would be worth the money to get some questions answered.

 

A judgment was awarded to the plaintiff, but it failed to submit the judgment as required by the court rules, and the court dismissed the lawsuit without prejudice for lack of prosecution.  If I were in your shoes, some questions I would ask would be:

 

1.  Could the plaintiff file again at any time, or did they have a time limit based upon the details and the reason for the court's dismissal?

 

2.  If there was a time limit to file again, did they do so within that amount of time?

 

3.  Does the complaint state a cause of action?

 

4.  Was documentation required to be attached to the complaint?  If it was, would it be worth it to file a motion to dismiss based upon the previously cited rule?

 

No matter what you do, find out when you made the last payment.

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I'm not sure of New Mexico cases for account stated (check Google Scholar) but there are plenty for Illinois. An account stated does not create a liability where none previously existed, so just attaching statements wouldn't cut it. If they state it's an implied contract, Truth in Lending Act would make it clear it's an express contract or not legal. Application, offer, if they include generic terms and conditions or a cardmember agreement, how are they verifying it's the correct one or the only one for the account? During the time the account was active, when did they send these to you? Answers for them to provide.

 

This New Mexico case would cover the express contract part.

"Plaintiff sought recovery solely on the theories of open account, account stated, and breach of contract—all express contract theories."

Credit Institute v. VETERINARY NUTRITION, 62 P.3d 339, 133 N.M. 248, 2003 N.M.C.A. 10 (Ct. App. 2002).
 
Then you've got the whole statute of limitations area.

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OK, back from the courthouse.  It is the same alleged account.  The previous case was dismissed for lack of prosecution (without prejudice).  Citi motioned for reinstatement, but was denied, as they waited too long.  DebtZapper's link confirms that they can re-file the case, and SOL not affected.  

 

"In sum, in the present case, the dismissal without prejudice under Rule 1-041(E)(2) simply left the action as though it was never filed and thus immune from a later determination that the same dismissal was, instead, with prejudice and with res judicata effect. The denial of reinstatement could not, and did not, transform the dismissal without prejudice into a dismissal with prejudice. Nothing, including a failure to appeal, prevented Plaintiff from filing a second action, although the second action was subject to any applicable statute of limitations. "

 

The previous case included an affidavit, and a statement from 11/23/2011 to 12/23/2011.  It has obviously been longer than the 4 years SOL for an open account.  If Citi provides a contract, the SOL is 6 years.  There was no signed application or contract attached to the previous complaint.  

 

Advice?  

 

I am making a list of attorneys to call if this gets too complicated...  

 

Thanks

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The previous case included an affidavit, and a statement from 11/23/2011 to 12/23/2011.  It has obviously been longer than the 4 years SOL for an open account.  

 

 

Wouldn't four years from November 2011 be November 2015? 

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Since they started a new case, it sounds like you're covered with the statute of limitations according to that PDF {paragraph 7}.

If they went the route of restatement, the statute of limitations would have not been in your favor.

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Also they will argue it is a written contract. Utah and other states do this. You need to find some case law in your state that supports credit cards being an open account.

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From post #6, "The cause of action accrues “on the last item therein,” which can either be the last payment made on the account or the last statement sent to the debtor."

 

Sounds like you're okay if based on last payment (Aug 2010) but not if based on last statement date (12/2011). That would be worth some research or a check with an attorney on the ability to chose which one applies.

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hI feel good about the SOL.  From Shellieh98's post....  I'll be looking for cases on that today...wouldn't they have to actually provide a signed contract to claim it's written?  

 

Would a general denial (there isn't enough information in the pleadings) and affirmative defense of SOL be my best avenue at this point?  

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