[digem007]

First some background info: Account defaulted on, sent to 2 other CA prior to landing with current CA, I sent DV letter within 30 day frame, they responded with a 2 year old account stmt from OC addressed to my mom's house (as she was paying the bill and using the card...til she lost her job), haven't lived there in over 18 years, e lost her job), they also responded witha computer generated stmt that simply list the name of the company and the balance. NOW THE SUMMONS....how should I answer?


The plaintiff, complaining of the defendant, alleges and says as follows:

1. The plaintiff is a New York Partnership, with principal office and place of business in Hamilton County, Ohio.
2. The Defendant is resident of Jackoff County, North Carolina.
3. The defendant entered into a promissory note or other written credit agreement in favor of Citibank (South Dakota), N.A., pursuant to which Citibank extended credit to the defendant. Attached hereto is a true and accurate copy of that credit agreement. (A copy of A but not THE Citibank Card Agreement was attached)
4. Thereafter, this account was sold to and acquired by Unifund, the plaintiff herein, and the plaintiff is now the holder in due course of the account.
5. The defendant is in default under the terms of that note or credit agreement, in that said defendant has failed to make payments due thereunder.
6. Pursuant to the terms and provisions of the note or credit agreement, the defendant is lawfully indebted to the plaintiff in the principal sum of $3,800.00 together with interest thereon at the contract rate of 23.99% per annum. Said sum has been outstanding since May 1, 2006.
7. The written credit agreement between the parties contains provisions for the payment of attorneys fees in the event of default. The balance outstanding is currently $4,000.00, comprised of the principal, together with the interest to date of $200.00. Pursuant to the provisions of G.S. 6-21.2, the plaintiff hereby gives notice to the defendant that it intends to enforce those provisions of the credit agreement calling for the payment of attorneys fees. The plaintiff hereby further notifies the defendant that said defendant may avoid the imposition of attorneys fees by paying the current outstanding balance of $4,000.00 to the undersigned at the address shown below within five (5) days after the defendant has been served with a copy of this complaint and summons. If the defendant pays said sum to the undersigned within five (5) days after service, the plaintiff will neither seek to enforce those provisions, nor pursue further legal remedies against said defendant.
WHEREFORE, the plaintiff prays the Court as follows:
1. That plaintiff have and recover from the defendant the principal sum of $3,800.00.
2. That plaintiff further have and recover from said defendant interest on said sum at the contract rate of 23.99% per annum from May 1, 2006 to the date of judgment, and at the rate of 8% per annum thereafter until paid.
3. That the plaintiff further have and recover from said defendant its reasonable attorneys fees in the sum of $600.00 which sum is fifteen (15%) percent of $4,000.00, the current balance outstanding, pursuant to G.S. 6-21.2.
4. That the plaintiff further recover from said defendant all costs of this action.
5. For such other and further relief as the Court may deem just and proper.


Joe Blow
Attorney for Plaintiff
123 Nowhere Lane
P.O. 123
Civil, NC 27896

[hannah]

Unifund....scum suckers. When did you last make a payment on this account? When did your Mom last make a payment on this account? SOL in NC is 3 years.

[digem007]

Well on CR it says DOLA was 11/2003 but I question that. BUT I also just checked and found out that Unifund is no longer registered/licensed in NC (as of 11/2005). But the lawyer they are using is in NC. How do I use this to my advantage as well?

[hannah]

Call the OC and see if you can get the date of the last payment and also ask for the date of the first deficiency. Ask if the payment brought the account current at that time. This is crucial. As for Unifund not being licensed, you need to check to see if they have to be licensed. Call your state AG and ask if a debt buyer has to be licensed to collect. Also ask about SOL. I think it's 3 years, not absolutely sure.

[digem007]

Will call OC after lunch. You are correct...the SOL is 3 years. I also verified that the CA has to be licensed and bonded in this state...and they are not. Though you stated "debt buyer"...is Unifund not a collector?

[digem007]

Just updating this thread:
I called the OC and gave them the account number to ask questions about this account. They stated that there is no info regarding this account and all that pulled up was a # to the JDB that bought the account.

In the mean time I answered the complaint as follows:
UNIFUND CCR PARTNERS,
Plaintiff
vs.
ME,
Defendant


ANSWERS AND COUNTERCLAIM

Defendant ME, answering the Complaint of the plaintiff, asserts:
1. In response to paragraph #1, the Defendant has no knowledge of the factual basis of this allegation, and therefore denies the same and demands strict proof thereof.
2. In response to paragraph #2, the Defendant admits.
3. In response to paragraph #3, the Defendant denies.
4. In response to paragraph #4, the Defendant has no knowledge of the factual basis of this allegation, and therefore denies the same and demands strict proof thereof.
5. In response to paragraph #5, the Defendant denies.
6. In response to paragraph #6, the Defendant denies.
7. In response to paragraph #7, the Defendant denies.

AFFIRMATIVE DEFENSES
As and for a First Defense,
1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
As and for a Second Defense,
2. Defendant alleges that this action is time-barred under §1-52(a)(1) of the General Statutes of North Carolina.
As and for a Third Defense,
3. Plaintiff has unclean hands as Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.
As and for a Fourth Defense,
4. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
As and for a Fifth Defense,
5. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.
As and for a Sixth Defense,
6. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.
As and for a Seventh Defense,
7. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements.
As and for an Eighth Defense,
8. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.
As and for a Ninth Defense,
9. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.
As and for a Tenth Defense,
10. Defendant states that Plaintiff’s claim is precluded as Plaintiff failed to follow validation procedures as required by FDCPA 15 U.S.C § 1692g, which include, but are not limited to, obtaining and providing validation of the alleged debt from the original creditor.
As and for a Eleventh Defense
11. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

COUNTERCLAIM
Statement of Facts
1. Defendant received a letter from Attorney Suck M. Dry on behalf of Unifund CCR Partners on June 15th.
2. Defendant sent a letter to Attorney Suck M. Dry on July 11, 2006, by way of certified mail, disputing and requesting complete validation of alleged debt.
3. The letter was received by the attorney for the plaintiff on July 12, 2006 at 12:39 p.m.
4. A complaint and summons was filed and issued on July 12, 2006 at 3:44 p.m. with an attached complaint dated July 9, 2006.
5. Up until the date of this filing, no validation was received from Unifund or their attorney, yet through their attorney, continued to collect on alleged debt.
6. On July 18th Defendant was served with the summons and complaint.
Statement of Claim
7. In the course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act in the following respect:
(a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).
WHEREFORE the defendant prays the court as follows:
1. That the plaintiff have and recover nothing of it in this action and that
the plaintiff’s action be dismissed as to it;
2. That the Court grants injunctive relief enjoining plaintiff from selling, transferring, reporting or otherwise assigning the alleged account to any other collection agency, debt collector, debt buyer or credit reporting agency.
3. That the Court grants a judgment against plaintiff on the merit of the Counterclaim in the sum of two thousand dollars ($2,000.00).
4. That the Court grants have and recover all cost of defending against this suit and interposing Counterclaim, including but not limited to attorneys’ fees, filing fees, witness costs and postage.
4. That the Court grants to defendant such other and further relief as to the Court may seem just and proper.
This the 14th day of August, 2006.


ME
1234 Here Street
Triad, NC 27127
Telephone: (919) 747-2006

CERTIFICATE OF SERVICE

I certify that the foregoing Answer and Counterclaim was served on the plaintiff by depositing a copy thereof in a depository of the U.S. Postal Service, postage prepaid, addressed to the following:

Suck M. Dry
Attorney for Plaintiff
666 Hell Blvd
Hell, NC 21234

[digem007]

This is what the attorney fired back at me in response to my answer to their complaint:

Seems like I am now in over my head. I guess it is now sink or swim time. How do I fight this? What do I do next? Basically....HELP!!! I know that I messed up on the Counterclaim part but how can they strike my Answers AND Affirmative Defenses in their ENTIRETY??? What's the next step? Before they replied to my answer I received a Notice for Court Ordered Arbitration (this courts assigns to arbitration all civil cases involving claims for monetary relief not exceeding $15,000).


MOTION TO DISMISS (GS 1A-1, Rule 12(b)(6) N.C.R.C.P.)
The defendant’s counterclaim fails to state a claim against Plaintiff upon which relief might be granted. The Plaintiff therefore moves the Court to dismiss the Counterclaim, pursuant to the provision of G.S. 1A-1, North Carolina Rules of Civil Procedure 12(b)(6).

SECOND MOTION TO DISMISS (rule 9(g) N.C.R.C.P.)
The Defendant’s Counterclaim fails to aver any specific facts whatsoever to state a claim against the Plaintiff upon which damages may be awarded.

MOTION TO STRIKE (Rule 12(f) N.C.R.C.P.)
Plaintiff moves the Court to Strike Defendant’s Answer, Affirmative Defenses, and Counterclaim filed in this matter and shows to the Court as reason therefore:
1) Defendant filed an Answer, Affirmative Defenses, and Counterclaims in this case in which he recites every contract defense known under North Carolina law whether applicable or not. Further, the Defendant fails to support said defenses with any factual allegations whatsoever.
2) Defendant misinterprets and misstates North Carolina law and the Fair Debt Collection Practices Act.
3) Defendant’s Answer, Affirmative Defenses, and Counterclaims are factually insufficient, irrelevant, and immaterial to Plaintiff’s cause of action.

MOTION FOR SANCTIONS (N.C.R.C.P. 11)
The Defendant’s Counterclaim is utterly frivolous and without basis in fact or law, and has failed to present a justiciable issue. Further, the Defendant’s Counterclaim fails to allege any factual or legal basis to support his claim for $2,000.00. As Defendant’s Counterclaim is not well grounded in fact, has no good faith basis therein, is filed for the improper purpose of delay, and to increase the cost of litigation, the Plaintiff is entitled to recover its reasonable attorneys fees and costs incurred in defending the Counterclaim, pursuant to North Carolina Rules of Civil Procedure 11.

Wherefore, the Plaintiff prays the Court as follows:
1) That the Court DISMISS the Defendant’s Counterclaim and that Defendant have and recover nothing from Plaintiff.
2) That the Court STRIKE the Defendant’s Answer, Affirmative Defenses, and Counterclaim in its entirety.
3) That the Court grant the Plaintiff’s attorney fees for having to defend a frivolous Counterclaim.
4) That the Court Grant the Plaintiff’s prayers for relief as contained in the Plaintiff’s complaint.
5) For such other and further relief as the Court may deem just and proper.

REPLY
Responding to the factual allegations contained in the Defendant’s Counterclaim, the Plaintiff alleges and says the following:
1) It is admitted that the Plaintiff initiated collection activities by sending a latter to the Defendant; the remaining allegation in paragraph 1 is denied.
2) Admitted.
3) Admitted.
4) Admitted.
5) Denied.
6) Admitted.
7) Denied.

[roybean]

When did you file this answer?

[digem007]

Within 30 days after I received the Complaint.

[digem007]

Also, here is copy of my Discovery request to the Plaintiff:
Could you nit pick it for me and make sure Ithat I'm in the right ballpark?

Comes now ME (“Defendant”) and propounds the following interrogatories to Unifund CCR Partners (“Plaintiff”) pursuant to North Carolina Rules of Civil Procedure, and other applicable provisions of said Rules, and gives notice that each and every interrogatory or section thereof is to be answered separately, in writing, under oath of the aforesaid Plaintiff within the legal number of days of the date of service hereof, and further gives notice that these admissions, interrogatories and request for production of documents and things are deemed to be continuing, and that if different or additional information is received by Plaintiff after answers hereto are submitted and filed, same is to be provided to this Defendant in writing. Production request are also made pursuant to the rules of the State of North Carolina. Defendant requests that Production of documents be made on the same date as the date Answers to Interrogatories are due and shall be made to the Defendant at the following address:

Xxxxxx
Xxxxxxx
Xxxx, NC 12745

REQUEST FOR ADMISSIONS

1. Admit that Unifund CCR Partners is not licensed to do business in North Carolina by virtue of its failure in being registered with the Secretary of State of North Carolina and nominating an agent for service of process.

2. Admit that Unifund CCR Partners has no regular, systematic way of doing business in North Carolina, also known as “minimal contracts”.

3. Admit that Unifund CCR Partners charter does not authorize Unifund CCR Partners to engage in consumer lending or/and collections.

4. Admit that Unifund CCR Partners buys delinquent accounts at a discount and collects on them.

5. Admit that Unifund CCR Partners does not have personal knowledge of the validity of any signature on the alleged account agreement of the account in question.

6. Admit that Unifund CCR Partners does not have personal knowledge of all of the bookkeeping entries associated with the alleged account and credit card slips.

7. Admit that Unifund CCR Partners does not have personal knowledge of whether Citibank and/or Unifund CCR Partners furnished Defendant with periodic statements including the disclosures required by Regulation Z of the Federal Truth in Lending Act.

8. Admit that Unifund CCR Partners does not have personal knowledge of whether Unifund CCR Partners provided consideration for the alleged account agreement.

9. Admit that Unifund CCR Partners is not in possession of any original written agreement(s) bearing Defendant’s signature, where in Defendant agreed to any alleged terms and conditions.

10. Admit that Unifund CCR Partners is not in possession of any admissible evidence establishing any legal detriment, damage or injury in fact which Unifund CCR Partners suffered or will suffer as a result of the alleged unpaid debt.

11. Admit that Unifund CCR Partners does not have personal knowledge that Defendant ever used the alleged credit card.

12. Admit that the copy of the alleged credit agreement attached to the Complaint in which this action is based does not bear the signature of the Defendant and is not certified, or sworn to by a witness with personal knowledge of the authenticity of the document.

13. Admit that the Complaint of Unifund CCR Partners is based on complete hearsay and a substantive nullity.

14. Admit that Unifund CCR Partners does not have personal knowledge of whether Citibank extended credit to Defendant.

15. Admit that Unifund CCR Partners cannot demonstrate through admissible evidence that Citibank extended credit to Defendant.

16. Admit that Unifund CCR Partners and/or its attorney, Suck M. Dry, is in receipt of a letter, dated XXXXX, 2006, from by Defendant disputing the validity and requesting validation of the alleged debt subject to this action.

17. Admit that Unifund CCR Partners and/or its attorney, Suck M. Dry, did not provide Defendant with any documentation validating the alleged debt.

18. Admit that Unifund CCR Partners purchased the alleged debt referred to in the Complaint after it had entered into a defaulted status (charged-off).

19. Admit that Unifund CCR Partners purchases previously defaulted consumer debt, without recourse or warranties as to collectibilty, from the seller.

20. Admit that Unifund CCR Partners cannot state with certainty to the Defendant’s use of the alleged account.

21. Admit that Unifund CCR Partners voluntarily assumes all risk in its business dealings.

22. Admit that Unifund CCR Partners has not rendered, to the Defendant, an itemized financial history of the alleged account upon which this action is founded.

23. Admit that Unifund CCR Partners continued collection activity against Defendant while the alleged account subject to this action is disputed.

24. Admit that Unifund CCR Partners cannot state with certainty the balance of the alleged account on the date of last activity.

25. Admit that Unifund CCR Partners reported an open transactional relationship, between the parties to this action, to consumer credit reporting (credit bureaus) agencies.

26. Admit that Unifund CCR Partners knew or consciously avoided knowing, that the reported transactional information was inaccurate.


INTERROGATORIES

1. State the full name, official capacity, addresses and phone numbers of all persons involved in the answering of these interrogatories.

2. State the full name, position held with the Plaintiff and direct contact number of each individual who has first hand knowledge or claims to have first hand knowledge of any matter subject to Plaintiff’s Complaint.

3. For each person you may or intend to call to testify at trial in this cause, please state: the individual’s name, address, phone number, title and a synopsis of their testimony.

4. For each document or other item you shall offer as an exhibit at the trial of this case, please state: the title or name of the document, date of the document, location of the document and purpose for which it will be used as an exhibit.

5. What is the name of the company from which the Plaintiff purchased the alleged obligation of Defendant and the date of said purchase?

6. What was the status of the alleged obligation of the Defendant when it was allegedly purchased by Plaintiff?

7. What was the amount of the alleged obligation of the Defendant at the time of the alleged purchase?

8. What was the date that the alleged account was charged-off by the original creditor?

9. Has the Plaintiff produced, to the Defendant, an itemized statement of the alleged account?

10. Did the Defendant make known to the Plaintiff, prior to this case being filed, that this alleged debt is disputed?

11. State whether the Plaintiff notified any Credit Reporting Agency that this alleged debt was disputed by the Defendant and the date that this notification was made.

12. State what document(s) the Plaintiff is relying on to determine the exact date of last activity on the Defendant’s alleged account.

13. Please state the full name, phone number and capacity of the individual responsible for the maintaining and preserving records on or for the behalf of the Plaintiff.

14. Does the Plaintiff have company policies in effect pertaining to document handling and preservation?

15. If yes, please state the name and contact telephone number of all individuals that monitor or use such policies.

16. If no, please state the factual basis why such a policy does not exist and identify which company official(s) would be responsible for the decision not to institute such a policy.

17. Does the Plaintiff have company policies in effect pertaining to consumer debt collection activity and compliance with Federal and State statutes?

18. If yes, please state the name and contact telephone number of all individuals that monitor or use such policies.

19. If no, please state the factual basis why such a policy does not exist and identify which company official(s) would be responsible for the decision not to institute such a policy.

20. Please identify all cases in North Carolina to which Plaintiff is or was a defendant stemming from violations of state or federal statutes.

21. Has the Plaintiff been admitted to conduct business in North Carolina?

22. Are all licenses and bonds in place, if required?

23. State the names, residence addresses, business addresses, titles and telephone numbers of all persons in Plaintiff's employ who regularly engaged in Collection activities with regards to the alleged account of Defendant.

24. State the names, residence addresses, business addresses, titles and telephone numbers of all persons in Plaintiff's employ who regularly engaged in reporting to or receiving disputes from Credit Reporting Agencies with regards to the alleged account of Defendant.

25. Have you, as Defendant in this case, read the answers to each and every one of the above interrogatories and do you state that the answers thereto are true, complete, responsive and correct?

26. If, at any time between this date and the date of the trial of this case, you come into possession of information which, if such information were known to you, would properly have to be disclosed in the answers to there interrogatories, will you disclose such newly discovered information, if any, to Defendant within fifteen days after such information comes into your possession or prior to trial, whichever is first?


REQUEST FOR PRODUCTION OF DOCUMENTS

Defendant, pro se, pursuant to North Carolina Rules of Civil Procedure, submits the following Request for Production of Documents to Plaintiff to be answered under oath in accordance with the North Carolina Rules of Civil Procedure within thirty (30) days hereof.

1. Provide a Certificate of Good Standing issued by the appropriate Department of the Domicile State.

2. Provide a copy of the Bill of Sale, Bulk Transfer Affidavit and cancelled check evidencing plaintiff’s payment of the alleged obligation.

3. Provide copies of documentation that proves that the Plaintiff is licensed and bonded in the state of North Carolina as well as a Certificate of Good Standing from North Carolina

4. Provide a copy of the application for credit that the original creditor relied which was signed by the defendant indicating that defendant agreed to be bound by any credit agreement, and any amendments.

5. Provide a complete posting history of the account, showing all charges, debits, credits, returns, offsets and charge-backs from inception of the account to present date.

6. Provide a complete chain of ownership of the debt, as well as copies of the Bulk Sale Affidavits pertaining to each transfer of the alleged debt.

7. Provide a copy of the document(s) the Plaintiff is relying on to determine the exact date of last activity on the Defendant’s alleged account.

8. Provide all notes, memoranda, e-mails, computer records in written (non-magnetic) form and any and all other documents not protected by Attorney-Client privilege regarding to the Defendant's alleged account, including but not limited to contracts, charge slips and credit memos.

9. Provide any and all documents as relates to the alleged debt owed by the defendant that the Plaintiff intends to or may produce at trial as evidence.

10. Provide the name, address, title and telephone number of all witnesses Plaintiff may or intends to call at Trial, as well as a synopsis of their testimony and their capacity as custodian of the matters to which they may testify.

11. Provide accounting records and methods used to determine balances and delinquency of this alleged debt.

12. Provide all documents relating to the defendant's procedures to provide verification of the alleged debt.

13. Provide any and all credit reports the defendant obtained from any credit reporting agency concerning the Plaintiff.

[roybean]

Give me a couple of minutes and I'll be right back and look at this.

[roybean]

Actually this looks pretty good, but you are in state court, correct?

We may need Centex to holler back at us here because I don't do state court.
In federal you can't send out discovery until after the 26(f) meeting.

[digem007]

Thanks for looking at my Discovery. Yes, this is state.

What do I do about the Motions that they filed in reply to my answer?

[jlynn]

You are going to have to file an opposition. No lawyer here, but it sounds like they may be trying to scare the pro se defendant.

[digem007]

Where can I find a sample of an Oppostition to a Motion?

[jlynn]

This is a state complaint? Are your state's