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Sued by Original Creditor in New York


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1. Who is the named plaintiff in the suit? Original creditor

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) A fairly local attorney office

3. How much are you being sued for? $6000

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

5. How do you know you are being sued? (You were served, right?) Served and yes

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?

9. What state and county do you live in? New York State

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Earlier this year 2023

11. When did you open the account (looking to establish what card agreement may be applicable)? 2021

12. What is the SOL on the debt? To find out: It was still current until earlier this year

13. 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).

Consumer Credit transaction court summons in the process of answering

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No 

16. How long do you have to respond to the suit? (This should be in your paperwork). 10 days from Dec.27

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

The complaint alleges that the defendant stopped making payments and made a breach of contract.

A copy of a statement with the defendants name and address, part of the agreement and a vague itemized statement

18.  How did you find out about this site? Online search

 

Hello to all, apologies if this post is in the wrong section. I saw a section for  collections and a post-judgement one, but I didnt see one in the mid-process. 

I just got served on December 27th, the summons states I have 10 days after received to answer. 

My CC account was current until earlier this year then I started experiencing health concerns as well as some financial hardships. (Work hours were reduced.)

I called the company and ask for a reduction to the monthly payments for a set time until I get back on my feet. they denied the request. It was $100 minimum monthly payment.

I had already accumulated about $350 of missed payments and fees. 

The only thing the could offer me was no late fees for 3 months while I catch up on the missed payments.

Out of desperation, I took the plan. Unknowingly, the person that took the information messed up and my first payment never went through. 

When I noticed almost a month later, I contacted them and they mentioned that they had been missing information, I was also further behind. 

I thought I could go to court and explain the situation to the judge, eventually the balance was charged off.

So I was served last week about 8 months in which they said I made the last payment.

I am in the process of giving an answer to the court. I was expecting to go to court and explain my side and set up a payment plan of about $40 a month, since its what I can afford now. 

But I learned that the plaintiff, as it states is the Original creditor and from research they are known for not selling their charge off accounts and are aggressive when going after the stated balance. 

And financial hardship is not a defense. 

I also reasearch about forcing the case into arbitration, but Ive read that this CC company is well versed in arbitration and alot of rulings in their favor. 

I dont want to set myself up for a disaster.

The most reasonable course Ive come up with is to answer the summons and complaint, by denying all allegations. To buy time to negotiate with them. 

I dont have money saved up and saving money is tough because Im still trying to catch up from my situation as well as take care of a family. So I cant use a settlement strategy. 

So my questions are: 

1) Do I contact the Original Creditor first?  or the law office?

Ive read that sometimes the OC will set up a better payment plan than the law office (Maybe saving money on l, Ive also read it the other way around too. 

2) During negotiations, how can make them aware that Im only able to pay $40 a month? I feel like if I go lower they lower they wont take me serious and if I start at $40 then Id be setting myself up to fail. 

Or 

3) Do I just wait to the court date and have the judge intervene? But its my understanding that if we dont come to an agreement or If I lose the case that the judgement will go through with the judgement. 

Im asking these questions because in every little bit of the process Im giving away more of information and they can use any and all of it against me in court to push for the judgement. 

 

 

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7 hours ago, Alwaysthriving said:

1) Do I contact the Original Creditor first?  or the law office?

Now that you have been sued and served all communication must be with the law firm.

7 hours ago, Alwaysthriving said:

2) During negotiations, how can make them aware that Im only able to pay $40 a month? I feel like if I go lower they lower they wont take me serious and if I start at $40 then Id be setting myself up to fail. 

What you are able to pay may not sway them one bit knowing they can get a judgment and garnish wages in NY.   With a garnishment they can seize up to 20% of your paycheck after standard deductions.  It doesn't matter if you can afford it or not.  They are not going to just agree to another payment plan without a consent judgment  That means you sign an agreement to make a specified amount of payments over a set period of time.  However, you cannot be late or miss even one payment.  If you do they no longer have to sue you the entire balance remaining is an automatic judgment filed with the court.  You legally cannot block it.  DO NOT agree to this if you do not think you can fulfill the entire deal.  

The next problem is that NY allows for 2% post judgment interest annually on consumer debt.  The amount of $40 you can afford isn't going to make the slightest dent in the balance of $6k and the post judgment interest.  It is very very doubtful an aggressive creditor like Discover will agree to a payment amount that low.

7 hours ago, Alwaysthriving said:

3) Do I just wait to the court date and have the judge intervene?

The judge can't intervene. He cannot force Discover to accept your $40 payment offer.  Their only job is to decide who proved their case.  Discovery is the OC and can use their own records without expert witness testimony to back them up under business records law as they are the creditor.  This is as simple as presenting your account statements.  The court can then verify that is you listed as the consumer and your address as being correct.  The only 2 defenses to an OC lawsuit are identity theft and the statute of limitations and neither apply to your situation.  Your circumstances are unfortunate but as you already said they are not a defense to this lawsuit.  OC lawsuits are very difficult if not impossible to win.

7 hours ago, Alwaysthriving said:

Im asking these questions because in every little bit of the process Im giving away more of information and they can use any and all of it against me in court to push for the judgement. 

They already have everything they need to get a judgment.  There really isn't anything you can say or do here that will stop that.  Given your situation a consult with 2 or 3 bankruptcy attorneys might be a better option to wipe all this out and just start over if you qualify.

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8 hours ago, Alwaysthriving said:

@BackFromTheDebt thanks for responding

Its Discover

The thing about Discover 

 

On one hand, they have an arbitration agreement. 
 

OTOH, they almost always follow through to the bitter end. 
 

In SOME cases (not all) arbitration has been used to pressure Discover to take a more favorable settlement.  
 

But if $40 a month is truly all you can afford, you probably won’t be able to get a decent settlement.  
 

BK may be the answer. Unless you can come up with a few thousand dollars in the next few months. 

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