[IC Anonymous]

Originally Posted by centex

Inasmuch as the counsel of record is not named

Goldman & Warshaw

[centex]

Originally Posted by IC Anonymous

Goldman & Warshaw

Based upon the Mrtindale-Hubbell information, I would say you are dealing with a law firm hired directly by the OC for the express purpose of litigation. This does not appear to be a rent-a-shingle third-party.

You need to shift gears and get your court hat on. If you ever made a charge on the account, you will be boxed into the perjury corner very quickly if you want to continue to maintain a 'not mine' defense....

Firm Profile: Goldman & Warshaw, P.C. was founded in 1970 by Stanley D. Goldman. The practice has specialized is collections since its inception.

Year Established: 1970

Firm Size: 5

Representative Clients:American Express; Bank of America; Capital One; CBS Television; Discover Card; Dun & Bradstreet; State of New Jersey; State of New York; Wachovia Bank.


Between the fact that it is a small firm and they have major clients, you won't be able to get them to back down real easy without having some heavy ammunition on your side. This does not appear to be the usual nonsense people report with credit litigation as a defendant...

[centex]

Originally Posted by hannah

Come on guys...you know we try to help everyone. He probably went on another site and was told to just pay it.

or he went to one of the sites that touts a lot of garbage and will get him slapped with sanctions...OP needs to realize that good advice is not always the rah-rah, pat 'em on the back sort of thing.

[IC Anonymous]

Originally Posted by centex

or he went to one of the sites that touts a lot of garbage and will get him slapped with sanctions...OP needs to realize that good advice is not always the rah-rah, pat 'em on the back sort of thing.

OP does realize that. I'm just not interested in the snide comments that are generally associated with the pro-ca ilk.

I am looking for the best defense possible. I was asked if I wanted yes men and I answered I want to win. If that is interpreted as "attitude" then so be it.

I think my first stop should be striking the testimony contained in the affidavit of fact, submitted by the agent for OC.

I am also trying to figure out if there is an issue with being sewer served?
The more things to attack, the better. No?

No photocopies of statements were attached in the summons and complaint. I'm sure they will be presented during the case - if it's allowed to go that far.

The only items included with the summons and complaint that seem to be of issue are the affidavit of fact and the affidavit of service.

Given these items listed, when I go to the law library, where do I start in getting together the information needed to craft the motion to strike.

Also, there is a motion to dismiss and a motion for summary judgment - which one of these would I want to file? What are the differences?

Thanks again to all who are wanting to help educate me.

[centex]

Here's a clue for you- just because someone does not go rah-rah does not mean they are "pro CA" as you would try to claim. Part of a good defense is recognizing both your opponent and the potential strengths of your case.

The reality of litigation is that there are times where going to the mat is not in the client's best interest, and this will hold true in the civil realm just as it does in the criminal realm.

As far as I am concerned, you are now on your own. Just as you managed to piss off jlynn yesterday, so to have you done to me.

[IC Anonymous]

Originally Posted by centex

Here's a clue for you- just because someone does not go rah-rah does not mean they are "pro CA" as you would try to claim. Part of a good defense is recognizing both your opponent and the potential strengths of your case.

The reality of litigation is that there are times where going to the mat is not in the client's best interest, and this will hold true in the civil realm just as it does in the criminal realm.

As far as I am concerned, you are now on your own. Just as you managed to piss off jlynn yesterday, so to have you done to me.

I guess this is the problem with this type of format. Tone and intent are never easily clarified.

I did not intend to appear as if I was associating "non-rah rah" information as pro-ca. My answer to jlynn was I want to win. I am not looking for yes men, but I have found that these forums tend to have drive-by comments by pro-ca types, containing misinformation, snide comments, and distracting non-topical comments that shift the conversation.

I was merely trying to start the thread off in a way that would simply ward off pro-ca types.

I apologize for not having the ability to project my thoughts properly.

Thanks for the input you have offered thus far. I hope you and jlynn will accept my apology, regardless of how you wish to engage in this thread.

[dabster]

Originally Posted by centex

you managed to piss off jlynn yesterday, so to have you done to me.

Um, FYI: Not a good decision, OP.

[rubyruby27]

Op stop biting the hands that are trying to feed you or you will starve to death. This site has more people on it with real legal knowledge then any, other than the defunk AOC. You need to tone down the snotty remarks-

While I don't know the answer from my understanding in Florida a Motion to Dismiss is filed prior to any other response. MSJ is usually filed after discovery but can be filed anytime after 20 days.--This is in the RCP's for your area, I would think they would be online. But I don't know.

You need to start your discovery questions now and get them off asap. If they don't answer them it could be your way out of this. If they do answer them then you will know how to fight them or settle.

Get over them not have a contract, you will need to fight them on the RCP's and caselaw. If your statutes says they must attach whatever and they didn't you would use that in your MTD or MSJ.

You have to take ever COA in the complaint and attack each and everyone with caselaw and the RCP's. If all they have is account stated you need to really research this area and see if you can attack it.

Look at the first post from the NY Judge, I beleive she was specific if what is required.

[IC Anonymous]

Originally Posted by rubyruby27

Op stop biting the hands that are trying to feed you or you will starve to death. This site has more people on it with real legal knowledge then any, other than the defunk AOC. You need to tone down the snotty remarks-

How detailed and specific do I need to be, to file a proper apology on this board?

As I stated previously, my intent and tone is being totally misread.

I'm sitting here, without any snot, vitriol, ingratitude, etc. In fact, I started out the post thanking the board for it's existence.

I am here to learn and I know this is the place to do it.

I'm sorry people are misreading my comments as having a snotty tone. I don't have that in me, and maybe my lack of posting etiquette is getting the best of me.

I find it ironic that I put a caveat at the beginning of the post, as an attempt to quell any side discussions, and the opposite has evidently occurred. And it's with the people I wanted to hear from!

Anyway, sorry again for any misunderstanding and thanks again for the help.

[spinn]

OP there are too many emotions in this thread...on both sides. Most here really do want to help but just dont think you will have a lot of luck if the statements are legitimate. We can, however help you navigate the RCPs and possibly mitigate things or maybe get the whole thing thrown out in a different way.

Actually.......check that I think the OP is...............DRIVEL setting a trap for Jlynn and Centex and it worked!!!!

Ok...joking but loosen up people its just text on a screen and opinion.

[IC Anonymous]

Originally Posted by spinn

OP there are too many emotions in this thread...on both sides. Most here really do want to help but just dont think you will have a lot of luck if the statements are legitimate. We can, however help you navigate the RCPs and possibly mitigate things or maybe get the whole thing thrown out in a different way.

Actually.......check that I think the OP is...............DRIVEL setting a trap for Jlynn and Centex and it worked!!!!

Ok...joking but loosen up people its just text on a screen and opinion.

Thanks spinn.

I'll be going to the law library tomorrow.

If the strategy is to attack procedurally, I need to look up the rules of civil procedure.

Is there a special book that has information on Account Stated claims? Is that included in the RCP?

There seem to be several publications for sample motion documents - is there one that is preferable?

Anything else I should be looking up whilst there?

[hannah]

Originally Posted by IC Anonymous

Thanks spinn.

I'll be going to the law library tomorrow.

If the strategy is to attack procedurally, I need to look up the rules of civil procedure.

Is there a special book that has information on Account Stated claims? Is that included in the RCP?

There seem to be several publications for sample motion documents - is there one that is preferable?

Anything else I should be looking up whilst there?

Just got in from legal aid. Will try to look up some stuff for you tomorrow as I was tied up today and am now tired. I have a Motion to Strike example but need to check if it meets NY format.

Account stated will be in the code and in caselaw.

I do want to say one thing, if you are going up against an OC, you are going to need learn a lot in a short time.

[Lucy]

Originally Posted by IC Anonymous

Thanks spinn.

I'll be going to the law library tomorrow.

If the strategy is to attack procedurally, I need to look up the rules of civil procedure.

Is there a special book that has information on Account Stated claims? Is that included in the RCP?

There seem to be several publications for sample motion documents - is there one that is preferable?

Anything else I should be looking up whilst there?

I believe there is a thread in the AOC archives that explains account stated. You can also look to your state's laws regarding account stated. The rules of civil procedure will guide you as to what you should do and shouldn't, you will need several hours to read so get comfortable. The rcp also give examples of motions that you use. If you are lucky, your state rcp could be found online. If not, find a university library or go to your courthouse and you will find the books there.

[drivel]

There's specific rules in New York regarding pleading an account stated and many law firms don't state their causes of action correctly. You need to know some basic contract law in order to really trip these guys up. Also it would behoove you to learn about Affidavits of Fact. Unless you are familiar with NY, no one here would know what you're dealing with.

I'd tell you more but I'm being censored by management so I'll let you have the fun of finding the info you need.

[jlynn]

Let me just say this - I would PM the OP, but obviously, that isn't possible -

I took great offense to you dictating who could post in this thread, and who couldn't. I could have let that go - until you started pointing fingers at another poster for being "quasi pro CA".

There is alot of combined knowledge on this board - and simply put, sometimes a poster needs to know when to fold them. I'm not saying this is what you need to do, but if you choose to define who can answer, and whom should close down their browser, then you are selling yourself way short, because what you define as pro CA may actually be a Devil's Advocate. Its hard to help someone, that appears to want to hear only the positives. Many posters spend alot of their personal time researching for others, but it truly can be a waste of their time if the receiver of the information has blinders on.

Its obvious, that you have a lack of experience (as do most of us), in these matters, as you originally indicated this was a contract dispute, when in reality, they are suing on an Account Stated - a whole different animal. Its also obvious, to alot of the experienced here, that you do not understand the reality of a what a creditor needs to prevail in court.

Finally, it was pretty obvious that you had not spent alot of your own time researching here, as you would have realized we don't have but one pro-CA'er. He's easily identifiable, but yet, he also will give consumers a good dose of Reality when needed, and not necessarily because he is a collector.

If you are going to take on the burden of defending yourself in court - without benefit of years of training - first and foremost you need to expect to be kicked around a bit here, for your own benefit, to make you stronger for your Day in Court.

Good luck...

[cajunbulldog]

Originally Posted by jlynn

Let me just say this - I would PM the OP, but obviously, that isn't possible -

I took great offense to you dictating who could post in this thread, and who couldn't. I could have let that go - until you started pointing fingers at another poster for being "quasi pro CA".

There is alot of combined knowledge on this board - and simply put, sometimes a poster needs to know when to fold them. I'm not saying this is what you need to do, but if you choose to define who can answer, and whom should close down their browser, then you are selling yourself way short, because what you define as pro CA may actually be a Devil's Advocate. Its hard to help someone, that appears to want to hear only the positives. Many posters spend alot of their personal time researching for others, but it truly can be a waste of their time if the receiver of the information has blinders on.

Its obvious, that you have a lack of experience (as do most of us), in these matters, as you originally indicated this was a contract dispute, when in reality, they are suing on an Account Stated - a whole different animal. Its also obvious, to alot of the experienced here, that you do not understand the reality of a what a creditor needs to prevail in court.

Finally, it was pretty obvious that you had not spent alot of your own time researching here, as you would have realized we don't have but one pro-CA'er. He's easily identifiable, but yet, he also will give consumers a good dose of Reality when needed, and not necessarily because he is a collector.

If you are going to take on the burden of defending yourself in court - without benefit of years of training - first and foremost you need to expect to be kicked around a bit here, for your own benefit, to make you stronger for your Day in Court.

Good luck...

I agree with this and some of the others here.This site has members with immense legal knowledge and some of the knowledge put in this thread came from licensed attorneys before they got upset and left you to your own means.You are in a very hard spot taking on a oc . Good luck and search thru this board as some of the members here have went against oc's.

[hannah]

You need to go to a law library and look up CIVIL PRACTICE LAW AND RULES ARTICLE 30. REMEDIES AND PLEADING. Find the annotated version which you can find on Lexis Nexis and in Matthew Bender's New York Civil Practice, CPLR Manual. Remember though that there are other guides as well so ask the law librarian there.

This will tell you why the affidavit of fact was attached and was correct procedure and how to amend your answer as well as how to plead responsively to the complaint.

In addition, you want to read GENERAL OBLIGATIONS LAW, ARTICLE 5. This will tell you about contractual obligations.

I will look up caselaw later. Attached are several statutes you need to read but this is not all. The statutes are huge compared to WV law and more intricate and complicated. What was NY thinking?!

More files in next post.