[kccustom]

Just wanted to get some feedback on what folks think is my best course of action on this case. I am in the state of NC. I feel as though I would like to take this one to court and see it through. I have spoken to a couple of attorney's and one thought he might be able to fight it and the other said just give up and try to settle. Both attorneys said it was odd though that the even though the JDB and their attorney are coming after me for around 22k that they filed in District court (10k limit in NC) instead of Superior. I can't find any record of this account and it's not on my CR as charged off, late, etc. I have called the OC and they have no record of the account either. They also have no record indicating that the account was late/charged off. I spoke to 2 different reps and got the same answer each time and made recordings of both conversations. I am now going to write the supposed OC and ask for a notice in writing. I'll try to be brief but this one is complex.

In December of 2007 I was served a summons and I filed my my answer within 30 days. I filed my answer with the clerk of courts and sent copies of everything certified mail to JDB's attorney. They originally filed their complaint earlier in the year but they were unable to serve me because they had a bad address. The attorney's I spoke to said my answer and enclosed letter were acceptable. In the letter I sent I basically told them to verify the debt. In their complaint they only had a photocopy of a card agreement but no signature from me. In my letter I stated I must get a response in 30 days or else I would require they drop their suit.

Fast forward to July 2008 (+ 150 days from my letter). I received a letter (Non certified mail) from the JDB's attorney stating that they had enclosed copies of the Plaintiff's First Request for Admissions and First Interrogatories. They state that I have 30 days to provide responses to both items.

The request for admissions seems pretty straight ahead either answer with Admit, Deny, or Without Knowledge. Within the Request for Admissions they present their evidence as to why they say I owe the JDB.
Exhibit 1 - Is a letter from the plaintiff's attorney dated in Jan 2007 saying I owed 20k. I never received this letter and they have an old address.
Exhibit 2 - Barely legible photocopy of a card agreement with no signature from me.
Exhibit 3 - Bill of Sale, Assignment and Assumption Agreement between the JDB and an Credit Card company. The document is generic and makes no mention of the accounts that are included in the sale.
Exhibit 4 - A photocopy of what appears to be an account statement. The statement does not have my name in it but it appears as though they merged this with another document and entered my name. There is no indication of charges made by me or payments made by me. I really believe this document to be fraudulent.

The last thing they claim is a Certificate of service - that pursuant to NC Rules of Civil procedure the Request For Admissions was served upon me. I believe this is valid in NC.

From the research I have been doing over the past couple months I think I can dispute their claims.

First off in the letter I sent to them them along with my answer to their complaint I asked them send proof that the debt is mine within 30 days. They never did anything until now. Is there any action I can take since I stated they must respond in 30 days or else drop the case and they took almost 150? Is there a FDCPA violation? I don't think it is.

(Much of the information below I gleaned from Defense a Collection of cases from EDELMAN, COMBS, LATTURNER & GOODWIN, LLC.)

However can I use Supreme Court Rule 222 at the trial (or in my answers to their Interrogatories) since they did not send me anything until 150 days since my letter? According to RULE 222.
The rule requires both parties to provide a list of case-related information to the opposing party, such as names and addresses of witnesses, factual basis of the claim, the legal theory of each claim or defense, etc., automatically, without request.
D. The disclosures must be made within 120 days of the filing of the responsive pleading to the Complaint.
E. Rule 222(g), which states that “the court shall exclude at trial any evidence offered by a party that was not timely disclosed
as required by this rule, except by leave of court for good cause shown. If a defendant moves, on the day of trial, to exclude all evidence given the plaintiff’s failure to file a Rule 222 disclosure statement, a court is likely to grant the request, dooming the plaintiff’s action.


Next can I have Exhibit 1 thrown out since I never received it. In my research it seems that the opinion is that if they mailed it then it is admissible. Not sure what it does for them to submit it. Not sure how to fight this one.

Exhibits 2, 3 and 4 (the copy of the card agreement and bill of sale, and account statement)

For Exhibit 2 I planned to cite - Palisades Collection LLC v. Haque, New York Law Journal, April 13, 2006, p. 20, col. 3 (Civ. Ct. Queens Co.) (Pineda-Kirwin, J.), where a debt buyer’s case was thrown out even though it had local offices and was able to call a witness, because (a) it could not prove title to the debt, (b) it could not authenticate the contract, (c) it could not show the debtor had failed to pay. In this case he Haque court held insufficient the offer of “generic” contracts which could not be linked to the defendant’s account.

For Exhibits 3 and 4 - I was going to cite Rushmore Recoveries X, LLC v. Skolnick, 21161/05, 2007 NY Slip Op 51041U; 2007 N.Y. Misc. LEXIS 3731 (Nassau Co. Dist. Ct., May24, 2007): Finally, “The Plaintiff has also failed to submit any competent proof of an agreement between Citibank and the Defendant.” It goes on to say - the account statements upon which the
Plaintiff relies do not show any usage of the credit card in question by the Defendant. The four (4) statements submitted show only an alleged open balance, with the accrual of fees and finance charges thereon. The Plaintiff also fails to submit any proof that a copy of the retail installment credit agreement or the statements upon which it relies were ever mailed to the Defendant.

I also plan to use in MBNA America Bank, N.A. v.
Nelson, 13777/06, 2007 NY Slip Op 51200U; 2007 N.Y. Misc. LEXIS 4317(N.Y.Civ. Ct. May 24, 2007). The court first required proof that the plaintiff was the owner of the particular debt. It is imperative that an assignee establish its standing before a court,
since "lack of standing renders the litigation a nullity." 20 It is the "assignee's burden to prove the assignment" and "an assignee must tender proof of assignment of a particular account or, if there were an oral assignment, evidence of consideration paid and delivery of the assignment." Such assignment must clearly establish that Respondent's account was included in the assignment. A general assignment of accounts will not satisfy this standard and the full chain
of valid assignments must be provided, beginning with the assignor. where the debt originated and concluding with the Petitioner.

I will also use - Unifund CCR Partners v. Harrell, 2005 Conn. Super. LEXIS 2037 (Aug. 3, 2005): Failure to produce signed agreement or affidavit authenticating purported agreement as that entered into with defendant results in denial of
summary judgment. Affidavit of “plaintiff’s legal coordinator” that “she has access to the records of Unifund CCR Partners and therefore has personal knowledge of the facts” not sufficient.

I was also wondering if I can get them on a FDCPA for Misrepresentation of components of debts since they failed to show how they amount they say I owe was calculated. I have read some of how they need to demonstrate how the debt they claim was calculated and they I used the account but not sure exactly how to fight that.

I think that all of my evidence above as to why I refuse to answer Admit on any of their First Request for Admissions statements should be used when I answer their First Interrogatories. Let me know if I am way off on that. If not how do I fight their interrogatories? I can post their questions if anyone would like to see them.

Thanks in advance to everyone who is willing to help. I really appreciate all the folks who have been willing to help so far. Also if I am just out of my head please don't hesitate to tell me. I am open to criticism.

[Lucy]

By any chance, do you have any old cr's, as in old being 5-7 years? I just wonder if they are suing on a debt that is out of the sol?

[kccustom]

I thought about that but I don't have any CR reports that are old. The oldest one I have is from Jan 2007. The account that the JDB is trying reference from an OC is not on the. The only tradeline is from the JDB's claim.

Also if I claim that it is outside of the SOL (3 years in NC) then I wouldn't I have to admit that the account is mine? I don't show that it is so not sure I want to go there. I do have other accounts that I did have to stop paying back in May 2003 but those are on my current CR's and I have dealt with them when needed. I do have some charge off's that are still on my CR but they are all outside SOL so I am in the clear on those.

[Pale Rider]

Yeah, what was the charge off date? NC appears to have a short limitations period for open accounts and written contracts, so you might want to check that first.

Can you find any cases in NC that compare to the ones you posted? The court may not give a lot of weight to decisions from other states if NC statutes differ considerably.

[Pale Rider]

Originally Posted by kccustom

Also if I claim that it is outside of the SOL (3 years in NC) then I wouldn't I have to admit that the account is mine?

No, and if you can show it is outside SOL it wouldn't matter anyway.

Originally Posted by kccustom

I don't show that it is so not sure I want to go there.

That it is yours, or that it is outside SOL?

[kccustom]

Palerider that is one of the problems I have been having is trying to find a way to figure out whether this account is really mine or not. I can't find any record of it. I have called the supposed OC and they said they have no record of of the account. Also there is no Tradeline from the OC on my CR's which I find odd being the amount is large. There are other accounts from this particular OC but they are for accounts I closed in good standing.

If it was one of mine that was charged off I really need to find a way to confirm that. If I could prove that it is outside of SOL that would be the end of it.

Palerider it sounds like you saying based on your responses that that I can assert that this is outside of the SOL without admitting that the account is mine? I guess I was thinking that if I claimed that this was outside of the SOL that I would be indirectly saying "Yes" the account is mine. I guess if I say this though it basically means they have to show evidence that it is not outside of SOL. So at this point would I have to file a motion to dismiss based on this or would I weave that into my First Interrogatories?

As for case law I wasn't quite sure how to find it for NC. I was guessing that was what I would need to do. I was thinking about getting an account with "Fastcase". Any other suggestions?

[Pale Rider]

My opinion is that you would not have to admit the debt is yours if you use SOL defense. It would not matter if it is yours or not if SOL has expired. I would think most people would remember a 20K+ debt, so it would be reasonable to most people that you would not admit the debt.

Do you have a commnon name? Sometimes these collectors are lazy and send out notices to anyone in the area with the same name. Some have gone as far as filing suit hoping that you don't fight it and they get a default judgment. Possibly the case here.

Keep collecting items for your defense and try to find out what account they claim this is for through discovery.

[jlynn]

Originally Posted by kccustom

However can I use Supreme Court Rule 222 at the trial

If you are referring to this: Illinois Supreme Court Rule 222 & Arbitration

That is an Illinois State Supreme Court rule and does not apply to you in North Carolina.

Are you near a University, where you might have access to a law library? Edelman and Combs is located in Illinois, so most of their rulings will not apply to you. You really need to find case law, procedures, etc., that apply to your particular state, I would hate to see you owe 20K on a procedural error because you have relied on NY, IL, or any other state's law.

[Enigma]

Why don't you Motion to Dismiss for Improper Venue?

[Pale Rider]

Actually the venue is in OP's favor. If they somehow do get a judgment, the best they can do is $10K, not the full amount. It could also be in OP's favor if SOL is an issue, and is not tolled by filing in wrong venue. But if SOL is known to be past, that would be a good defense to add to the list.

[Enigma]

Originally Posted by Pale Rider

Actually the venue is in OP's favor. If they somehow do get a judgment, the best they can do is $10K, not the full amount. It could also be in OP's favor if SOL is an issue, and is not tolled by filing in wrong venue. But if SOL is known to be past, that would be a good defense to add to the list.

Not so.

In NC in matters of $10,000 or greater, must be heard in Superior Court. According to Rule 1.75 et seq, if the defendant fails to raise an objection PRIOR to filing his answer, the presiding judge has the authority to issue a verdict in the case.

By filing a MTD causes the Plaintiff to refile, re-serve, etc. The Plaintiff has to expend additional sums and incurs greater costs by having to file in Superior Court.

[Enigma]

Originally Posted by Pale Rider

Actually the venue is in OP's favor. If they somehow do get a judgment, the best they can do is $10K, not the full amount. It could also be in OP's favor if SOL is an issue, and is not tolled by filing in wrong venue. But if SOL is known to be past, that would be a good defense to add to the list.

Yes it is, see Whitcomb v Whiting, 1 Doug 652. It's a case from 1781 and it has not been repealed.

See also Rule 1A-59 and 1-567.82

[kccustom]

Enigma I thought about filing the MTD based on improper venue but I was thinking along the same lines with what Pale Rider said that getting hit for 10k was better than possibly 22k. One of the attorney's I spoke with back when I got the original summons (Dec 2007) said that was an option to do MTD based on Improper Venue. He said that in district court the judge could either rule and I could get hit for 10k or the judge may kick it out since they filed incorrectly.

Enigma you had said this motion must be filed before I file my answer. I have already sent an answer to their original complaint. They are now asking for responses to Request for Admissions and First Interrogatories. So is it too late for the MTD?

My fear on this is the amount the JDB has on my CR as owed to them is now up to like 34k. If they have to refile I am guessing they are going to be asking for that amount and that seems very scary.

Thanks Jlynn for the heads up on the case law I was looking at. I thought I was probably confused on that. I am going to start looking at NC case law today.

[Enigma]

Then it is too late for your MTD. Have you served them with Discovery?

Post the info they sent you and we can guide you on possible answers.