SHELLY7

Midland Funding Suing In NY

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7 minutes ago, SHELLY7 said:

really? I'm such a novice? I thought it you didn't state affirmative defenses you couldn't use them later?

You won't be using court anyway. You are asking for arbitration.

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ok, I hear you. can it hurt if you mention those defenses? I guess I'm just going off of what I've seen other people on here do (obviously)

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1 hour ago, fisthardcheese said:

You won't be using court anyway. You are asking for arbitration.

ok I understand what you are saying. So am I correct in thinking that some of my affirmative defenses would thus contradict my motion to compel arbitration? If so which? my worry is if they did deny my motion (or some weird wonky thing happens who knows can't foresee) and I ended up in court, I don't want to have waived any of my defenses if I don't state them in my answer.

Hope I'm logically thinking this through correctly and SUPER beyond APPRECIATE everyone weighing in.  @fisthardcheese @usctrojanalum

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On 2/28/2019 at 7:48 AM, SHELLY7 said:

12.     Failure to state a claim upon which may be granted.

13.    Defendant denies the amounts claimed by the Plaintiff.  Defendant demands Plaintiff verifies a detailed accounting of all alleged charges and credits to alleged account.

14.  The plaintiff is not in control of the necessary documents or witnesses needed to prove the claims.

15..    Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

16..    Lack of standing.

17.    Failure of consideration.

You cannot just throw anything at the wall and hope it sticks.

12.  They DID state a claim:  breach of contract and account stated are their 2 favorites.

13.  The burden that the amount they seek is incorrect is on YOU if you state it is wrong not them to prove it is accurate.  NO court will demand an accounting of all charges and credits for the entire exisence of the account.

14. This is a matter of fact for trial and not an affirmative defense.

15.  Might work if they don't meet the requirements for NY law but don't pin your hopes on it.

16.  No NO NO.  There does not have to be consideration between you and PRA for their to be a valid contract and debt owed.  

You are better off seeking arbitration because you are barking up the wrong tree if you attempt to try this case pro-se based on this answer.

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Hey @clydesmom thanks ever so much for weighing in. Honestly though, I'm not trying to throw anything at the wall and make it stick. I was truly trying to do my best going off what other users have posted on this forum from their case (and NY specific) and follow suit to the best of my ability-which obviously isn't as wise and sage as yours.

I posted so people can weigh in and this help from this forum has been beyond what I could have ever have hoped for. There are also a lot of varying opinions, all people with good intentions trying to help a total stranger out and help them (in this case ME) make the best and informed decision and in this case, court answers as possible.

I really appreciate you stating I shouldn't put those answers in and will definitely research more tomorrow. It is also just very confusing, as educated as I might be in some areas, I don't know every last thing exactly what it means, so am really truly just trying my best and sometimes I OVERLY analyze things and confuse myself more.

Again, I appreciate you weighing in and you've been helpful from the very beginning, I can only imagine the time and patience it even takes to take hours out of your day to help people on this forum that you don't know. But, really don't for a second think I'm just "trying to throw anything at the wall and hope it sticks" the fact that I have six pages alone in an attempt to get things right and correct just for a court answer should be an indication to you that's the last thing I'm trying to do.

 

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so everyone here essentially thinks I should take out at least 13-17? For the affirmative defense?I know one must decide if they are going for arbitration or not, but I am concerned if I don't state these I wave them? Or perhaps I am COMPLETELY misreading NY law which is 100% possible  @usctrojanalum ?

GAH

THANK YOU TO EVERYONE FOR HELPING!

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16 minutes ago, SHELLY7 said:

I am concerned if I don't state these I wave them?

Yes, if you don't state them you waive them. But what you state should be based on some form of reality.  In a JDB lawsuit, at most you're looking at Lack of Standing, Statute of Limitations, and Accord and Satisfaction. None of the rest in that 12-17 list apply here. 

What you read here is a collection of things people have done over the last 15 or 20 years. It doesn't mean all (or even any) of it is correct. Even if it was correct at the time, times change. We've learned a lot about debt collection lawsuits, especially since the recession, and even more in terms of arbitration. At one time, people weren't even allowed to discuss arbitration here in an open forum. It was grounds for being banned. 

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9 minutes ago, Harry Seaward said:

Yes, if you don't state them you waive them. But what you state should be based on some form of reality.  In a JDB lawsuit, at most you're looking at Lack of Standing, Statute of Limitations, and Accord and Satisfaction. None of the rest in that 12-17 list apply here. 

What you read here is a collection of things people have done over the last 15 or 20 years. It doesn't mean all (or even any) of it is correct. Even if it was correct at the time, times change. We've learned a lot about debt collection lawsuits, especially since the recession, and even more in terms of arbitration. At one time, people weren't even allowed to discuss arbitration here in an open forum. It was grounds for being banned. 

Unless the consumer paid the debt, accord and satisfaction would not apply.

I agree that Lack of Standing and the SOL should remain.

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1 minute ago, BV80 said:

Unless the consumer paid the debt, accord and satisfaction would not apply.

Right. That's what I meant by "at most". If the JDB has the correct documents and the SOL has not expired, Standing and SOL wouldn't apply either. 

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wow ok thank you so much @Harry Seaward and @Brotherskeeper for adding in. I see what you are saying and I can only imagine how annoying I must be on some level making everyone explain to me.

So essentially I am only left with one affirmative defense?

11.      Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

 

 And l should remove 12-17 per everyone's instructions?

I so so genuinely appreciate everyone's opinion and their time.

Imagine what would happen to me if I didn't have this forum!

Still a bit confused and will have to double check everything for the 50th time but so appreciate everyone's time and undying patience.

Thank you so much and @Clydesmom and obviously the ever steadfast fellow New Yorker @usctrojanalum and og arbitrator @fisthardcheese

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18 hours ago, Clydesmom said:

12.  They DID state a claim:  breach of contract and account stated are their 2 favorites.

This is not what failure to state a claim means.

Essentially, either of these: (1) even if all the allegations contained in the complaint are true there is no cause of action because an element is not met or not recognizable at law (2) or after all the facts have been considered an element of a claim is missing.

So you can put the words "account stated" in your complaint but If the plaintiff does not have proof of mailing the invoices or the defendant offers proof of dispute plaintiff has failed to state a claim.

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@SHELLY7 

Drafting New York Civil-Litigation Documents: Part VIII - The Answer

'Mislabeling a defense an “affirmative defense” isn’t as fatal as never asserting the defense." 

"Be thorough when asserting your affirmative defenses. Raise all the affirmative defenses applicable to your client.32 But don’t use the kitchensink approach. Asserting frivolous affirmative defenses might subject the defendant and you, the attorney, to sanctions.33 Making false statements in your pleading might also result in treble damages.34"

 

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1 hour ago, Brotherskeeper said:

@SHELLY7 

Drafting New York Civil-Litigation Documents: Part VIII - The Answer

'Mislabeling a defense an “affirmative defense” isn’t as fatal as never asserting the defense." 

"Be thorough when asserting your affirmative defenses. Raise all the affirmative defenses applicable to your client.32 But don’t use the kitchensink approach. Asserting frivolous affirmative defenses might subject the defendant and you, the attorney, to sanctions.33 Making false statements in your pleading might also result in treble damages.34"

 

Thank you for this @Brotherskeeper makes sense and I'll try to edit and definitely not make anything seem frivolous.

According to the resident NY expert @usctrojanalum I should keep these and only these:

Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

Failure to state a claim upon which may be granted.

The Plaintiff is not in control of the necessary documents or witnesses needed to prove its claim

Lack of standing.

Am hoping this is a good middle ground, and of course will do some more research to make sure but in meantime beyond gratitude and appreciate to you and all those that have helped me in my quest.

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Thanks so much @usctrojanalum for your ever steadfast patience and support. Still have sometime before filing my answers if issues or thoughts come up, but so many thanks to you--especially given your HUGE knowledge of NY laws and what must be a crazy schedule considering you are a a student of the law;)

(I too am anxiously waiting your results 🤞 but I KNOW you will pass;)

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@usctrojanalum can you keep this one or should I not worry about it? am concerned I can't edit if I don't, but perhaps I am overthinking as per the usual?

 Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available.

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I think that is optional. There is nothing in the CPLR that permits it or prevents it. Either way, to add a defense later on you would have to make a motion under CPLR 3025.

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ok would you advise to just leave it out then? and stick to your original just 

Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

Failure to state a claim upon which relief may be granted.

The Plaintiff is not in control of the necessary documents or witnesses needed to prove its claim

Lack of standing.

thanks again everyone and @usctrojanalum

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hi guys, was wondering and maybe this is a per state thing so perhaps only for @usctrojanalum (New York) but does anyone know if your answer to summons and complaint must be notarized?

their summons wasn't "verified" (as in the summons and complaint contained no verification of debt) the only thing that was notarized was the affidavit of service... but just want to make sure I don't get tripped up with any of the little things when filing my answer 

thanks again everyone for helping me!

this is what the ny law states when I tried to look up, but kind of only confused me more? sorry for so many questions!

The answer is a pleading which must bear the certification required pursuant to Uniform Rule 130-1.1-a(b).  If the Complaint was verified, the answer must also be verified.  The verification language can be found in the Court forms at www.nycourts.gov  (See CPLR 3020(a)).  If the Complaint is not verified, the answer may still have to be verified if the case deals with certain matters (See CPLR 3020(b)).

 

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@SHELLY7 

New York Civil Practice Before Trial
By Michael H. Barr, Burton N. Lipshie, Sharon Stern Gerstman

See §§15:62-15:63

§15:63 Defenses Not Involving Merits

"A defense that does not involve the merits of the action must be verified. [CPLR 3020(c).] This provision appears to cover defenses such as lack of personal jurisdiction or subject matter jurisdiction, improper venue, other action pending, statute of limitations, lack of standing, and failure to join an indispensable party. The language of CPLR 3020(c) is not explicit and the statute is rarely enforced."

 

New York Consolidated Laws, Civil Practice Law and Rules - CVP § 3020. Verification

(b) When answer must be verified.  An answer shall be verified:

1. when the complaint charges the defendant with having confessed or suffered a judgment, executed a conveyance, assignment or other instrument, or transferred or delivered money or personal property with intent to hinder, delay or defraud his creditors, or with being a party or privy to such a transaction by another person with like intent towards the creditors of that person, or with any fraud whatever affecting a right or the property of another;  or

2. in an action against a corporation to recover damages for the non-payment of a promissory note or other evidence of debt for the absolute payment of money upon demand or at a particular time.

(c) Defense not involving the merits.  A defense which does not involve the merits of the action shall be verified.

 

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yes, I read this @Brotherskeeper it confused me lol

but just got word from @usctrojanalum that if their complaint isn't verified then I don't need to verify?

The answer does not have to be notarized. It's not an oath. 

Sometimes a verification page has to be notarized, but there is no need to do verification when initial pleading not verified!

but the lack of personal jurisdiction thing confuses? law wording confuses me full stop I suppose

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50 minutes ago, Brotherskeeper said:

This provision appears to cover defenses such as lack of personal jurisdiction or subject matter jurisdiction, improper venue, other action pending, statute of limitations, lack of standing, and failure to join an indispensable party. The language of CPLR 3020(c) is not explicit and the statute is rarely enforced."

IANAL. The quote above is from the "New York Civil Practice Before Trial" book. Your affirmative defenses in your draft answer included lack of subject matter jurisdiction and lack of standing, indicating in the opinion of the 3 attorney authors that a verified answer may be in order. They also state the CPLR 3020(c) language is not explicit in its description and that it is rarely enforced. Usctrojanalum is a newly minted NY attorney and told you your answer did not need to be verified. Is there a downside to verifying your answer anyway? I don't know. 

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@usctrojanalum when you have the time can you look at above and make sure I don't need to verify because of those answers?

Thank you a thousand times and then some!

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Better to be safe then sorry. While that statute is rarely enforced - do you want to be the rare exception where it is enforced? No of course not! The chance of it being enforced against you as someone who is unrepresented would be extremely slim too. The only thing that makes this kind of annoying is that once you verify a pleading, every pleading thereafter must be verified as well. So if you don't have easy access to a notary it presents an obstacle. 

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