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Q: I'm being sued for an old, and yet-to-be-validated credit card debt ( Answered,   5 Comments )
Question  
Subject: I'm being sued for an old, and yet-to-be-validated credit card debt
Category: Business and Money > Finance
Asked by: gordonf238-ga
List Price: $30.00
Posted: 26 Jun 2006 08:55 PDT
Expires: 26 Jul 2006 08:55 PDT
Question ID: 741131
When I was 17 years old, still in high school, a bank from Texas
offered me a credit card with a $500 spending limit. So, being the
immature and inexperienced kid that I was, I maxed it out. A year
later, when I lost my part-time job, I began to lag behind in
payments, and soon failed to make any payments at all. The debt
accumulated to around $700 in late fees and over-the-limit fees, and
was then sold to a collection agency Credigy Receivables. They tried
to collect for a few years but failed (I was in school and had limited
funds).

Now, in March of 2006, I received a letter from a law firm in Long
Island, NY (I live in Brooklyn, NY) claiming that I owe them $1,700
(and some change). They didn't state what the money was for (other
than "Re: Credigy Receivables/APO Associates", and said that I have to
pay up.

I consulted the Fair Debt Collection Practices Act and other resources
on the internet, and sent them a letter back, asking them to validate
the debt by providing me with the name and address of the original
creditor, show me that this debt was sold to them, and how they
calculated the amount I owe them.

They replied to my request stating that they are in receipt of my
request for validation, and provided me only with the last 4 digits of
my social security number, and the date the original account was
opened (Sept. 29, 1999). They didn't even include the address of the
original creditor, nor how they calculated the $1700 balance.

According to the resources on the internet which I've consulted, this
type of a reply does not validate anything. So I have sent them
another letter, reminding them to supply me with a complete payment
history, a letter of agreement that bears my signature, and a letter
of sale or assignment from the original creditor to their company, or
else I will file a lawsuit.

They didn't reply this time, but instead I was served a summons to
appear in court. The summons is dated April 27, 2006, but I didn't
received it in my mailbox until June 8th, 2006 (no envelope, it was
just dropped off I figure). So at this point I have to answer this
quickly.

At this point I am thinking that for a debt as small as this, they are
not in posession of any of those required documents which are needed
to validate this debt; Especially given the fact that this debt was
originally sold to a collections agency, and THEN to them.

MY QUESTION IS:
Can I answer this summons myself, and give the court clerk some sort
of a reply that would get me off the hook?  Or is this something that
I need an attorney for? I have copies of all the letters.

If I can answer this summons myself, can someone please advise me as
to what to do?  The summons was served in Kings County (Brooklyn, New
York). I have never been to court, and I am unfamiliar with these
types of proceedings.

If on the other hand, I do need an attorney for this, can someone
recommend where I can find affordable consumer-debt attorneys?  Sites
like lawyers.com only list expensive law firms, which charge upwards
of $500 for consultation alone, and if I am going to be spending over
a thousand dollars on a lawyer, I might as well try to settle with
them alone.

What I am ultimately looking for is a quick and affordable resolution
to this. Thanks!

Clarification of Question by gordonf238-ga on 26 Jun 2006 09:05 PDT
I'm not sure wheter this has much relevance to my case, but one
particular web site cites the following:

---------------------------------------------------------------------

http://www.creditinfocenter.com/rebuild/debt_validation.shtml

<i><b>When a collection agency responds to your request for validation
with a summons to appear (meaning they are trying to get a judgment
against you)</b>

These sneaky collection agencies are starting to catch on to the debt
validation concept. (No doubt there is some kind of collection agency
newsletter going around telling these folks about the whole process.)
I've heard from my readers that some collection agencies are starting
to respond to validation requests with summons to appear in court.
There is precedent which says that a collection agency cannot even
file suit against you if they haven't validated the debt within the
initial 30 day period. If this happens to you, you may cite the case:

Spears vs. Brennan
http://www.state.in.us/judiciary/opinions/archive/03260101.ewn.html

The appeals court determined:

"Brennan (plaintiff collection agency attorney) violated 15 U.S.C. 
1692g(b) when he obtained a default judgment against Spears
(defendant) after Spears had notified Brennan in writing that the debt
was being disputed and before Brennan had mailed verification of the
debt to Spears."

This means that you have an absolute defense in court to deny them
judgment if they still have not validated the debt. Once you get your
FDCPA dispute letter in, the collector cannot even get a judgment
until they satisfy the FDCPA law. The appeals court overturned the
default summary judgment in part because the collection agency lawyer
did not meet the rules of the FDCPA.

This could be grounds for getting a default judgment vacated. It's
also another violation of the FDCPA and you can collect $1,000 from
them.</i>

---------------------------------------------------------------------

If this was to be part of my reply to the county court clerk, how
would I phrase this?  Should I just print the case and hand it to
them?

Request for Question Clarification by hagan-ga on 26 Jun 2006 09:49 PDT
Hello, Gordon.  I'm not sure I can actually give you an answer, but I
may be able to at least provide some helpful comments.  Before I do,
though, could you tell me if the summons is for a "small claims"
action?  What court issued the summons?

Clarification of Question by gordonf238-ga on 26 Jun 2006 10:58 PDT
The summons was issued by the Civil Court of the City of New York. The
allegation reads:

-------------------------------------

-Plaintiff is a company authorized to do business in New York.

-On information and belief the defendant in person or through an agent
made credit card purchases and/or took money advances under a credit
card and/or line of credit account- a copy of which was furnished to
defendant. Plaintiff purchased this account for value and the
defendant was notified of same.

-There remains an agreed balance on said account of $1,707.55, due and
owing on plaintiff's cause of action. No part of said sum has been
paid although duly demanded.

-Defendant(s) is in default and demand for payment has been made

-Plaintiff, as owner, is authorized to proceed with this action.
Interest is at the contract rate of: .0900

3rd cause/action: Plaintiff stated an account to defendant without
objection that there is now due plaintiff from defendant(s) the amount
set forth in the complaint. No part of which has been paid, although
duly demanded.

-------------------------------------

Request for Question Clarification by hagan-ga on 26 Jun 2006 12:08 PDT
Hi again.  The Civil Court of the City of New York has a website:
http://www.courts.state.ny.us/courts/nyc/civil/civil.shtml

(although, if your case is under Small Claims, the website is
http://www.courts.state.ny.us/courts/nyc/smallclaims/index.shtml
I'm assuming that it is NOT under the Small Claims part)

There is a link at the Civil Court website called, "Answering a case"
http://www.courts.state.ny.us/courts/nyc/civil/answeringcase.shtml#answer

There is a useful link called "Legal and Procedural Information"
http://www.courts.state.ny.us/courts/nyc/civil/procedural.shtml
that includes such information as "In General," "Representing
Yourself," "During the Case/Before Trial," and "Frequently Asked
Questions."

Unfortunately, no matter how strong your defense may be, the court
clerk will not have the authority to dismiss the case against you. 
You MUST file an answer, and you will more than likely have to appear
in court to establish your defense.

Does all of that suffice as an answer to your question?

Clarification of Question by gordonf238-ga on 26 Jun 2006 12:30 PDT
If you think that regardless of how strong my defence maybe, I will
still have to appear in court before a judge, can you recommend some
resources where I may find an affordable attorney to represent me?

I have already sent an e-mail to three lawfirms regarding this matter,
but I feel many consumer-debt lawyers aren't going to bother with me
since it's a mere $1,700 debt.

Request for Question Clarification by hagan-ga on 26 Jun 2006 12:52 PDT
Gordon, it is theoretically possible to have the judge dismiss the
case before trial, but it requires that you make a fairly complicated
motion and have supporting law behind you.  In such a small matter,
you're probably better off appearing before the judge and laying out
your case, complete with documentary proof that you've demanded
validation without result.  Remember, it is the law firm's burden to
prove that you owe the money -- NOT your burden to prove that you
don't.
I can't recommend lawyers in the area, because I don't know any -- my
practice was exclusively in California.  But here are a few attorneys
who claim to represent consumers:
http://www.consumeratty.net/practice_areas.php
http://www.consumerprotectionlawfirms.com/

And here is a publication by the Legal Aid Society of New York
specifically for consumers:
http://www.legal-aid.org/SupportDocumentIndex.htm?docid=132&catid=43
It includes: "When the Creditor Sues, What Are My Rights?"
http://www.legal-aid.org/Uploads/CreditorSues9_29_04.pdf
(wow.  having read the "When the Creditor Sues, What Are My Rights"
pamphlet, I STRONGLY encourage you to read the whole thing.  It's
EXTREMELY helpful.)

Please let me know if this information suffices as an answer to your
question, or if I can provide anything further.

Clarification of Question by gordonf238-ga on 26 Jun 2006 13:59 PDT
Hi,
I think I'll file the answer myself, and appear in court alone. I
could definitely use a hand in filing my answer however. If you could,
lastly, provide me with some legal counseling agencies in NY that
could help me file my answer; I know there's that legal lingo, and
something could backfire if I don't phrase things properly.

Again, thanks!
Answer  
Subject: Re: I'm being sued for an old, and yet-to-be-validated credit card debt
Answered By: hagan-ga on 27 Jun 2006 04:52 PDT
 
Hi, Gordon.  I'm happy to have been able to help.

To recap:  
The Civil Court of the City of New York has a website:
http://www.courts.state.ny.us/courts/nyc/civil/civil.shtml

(although, if your case is under Small Claims, the website is
http://www.courts.state.ny.us/courts/nyc/smallclaims/index.shtml
I'm assuming that it is NOT under the Small Claims part)

There is a link at the Civil Court website called, "Answering a case"
http://www.courts.state.ny.us/courts/nyc/civil/answeringcase.shtml#answer

There is a useful link called "Legal and Procedural Information"
http://www.courts.state.ny.us/courts/nyc/civil/procedural.shtml
that includes such information as "In General," "Representing
Yourself," "During the Case/Before Trial," and "Frequently Asked
Questions."

Unfortunately, no matter how strong your defense may be, the court
clerk will not have the authority to dismiss the case against you. 
You MUST file an answer, and you will more than likely have to appear
in court to establish your defense.

Here are a few attorneys who claim to represent consumers:
http://www.consumeratty.net/practice_areas.php
http://www.consumerprotectionlawfirms.com/

And here is a publication by the Legal Aid Society of New York
specifically for consumers:
http://www.legal-aid.org/SupportDocumentIndex.htm?docid=132&catid=43
It includes: "When the Creditor Sues, What Are My Rights?"
http://www.legal-aid.org/Uploads/CreditorSues9_29_04.pdf
(wow.  having read the "When the Creditor Sues, What Are My Rights"
pamphlet, I STRONGLY encourage you to read the whole thing.  It's
EXTREMELY helpful.)

When you file your answer, MAKE SURE that one of the defenses you
claim is the STATUTE OF LIMITATIONS.  There are very few debts that
are still enforceable after seven years.

Also claim that you were improperly served with the papers.  They are
not allowed to just leave them in your mailbox.

Include a claim that they have violated their obligation to validate the debt.

After you answer, you should serve the plaintiff's attorney with a
"Request for Bill of Particulars."  There is a form for this, that you
can get at most stationery stores.  This is your chance to require
them to give you all the details about the alleged debt.  They are
required to respond to this.

At the end of the pamphlet, the Legal Aid Society invites you to
contact them to find a lawyer:

"To find a lawyer, contact:
The Legal Aid Society
Queens Neighborhood Office
1-718-286-2450 or 1-212-577-3300
www.legal-aid.org"

They also provide other resources to find counsel:

"The Association of the Bar of the City of New York
1-212-626-7373 (English) or 1-212-626-7374 (Spanish)
www.abcny.org (click on ?Consumer Resources?)
The National Association of Consumer Advocates (NACA)
maintains a list of attorneys specializing in consumer law:
NACA
1730 Rhode Island, NW, Suite 805
Washington D.C. 20036.
http://www.naca.net
Lawhelp.org/ny can help you find a lawyer and learn more about
your rights in New York State."

Here is the NACA search page:
http://www.naca.net/db.php3

I did a search including New York City, New York State, and Area of
Practice:  Debt Collection, and found about ten lawyers. 
Unfortunately, it doesn't save the search results page as a link.

The lawhelp.org page is here:
http://www.lawhelp.org/ny/
and states its mission as follows:
"This website helps low and moderate-income New Yorkers find legal
help and information.  LawHelp has four areas of information:
Find a Lawyer  
Find free legal services offices in your community. 

Know Your Rights  
Learn about the law and your legal rights. 

Going to Court  
Get information about using the court system. 

Finding Other Help  
Find other organizations that may be able to help."

Here is the direct link to the page about New York City Debt Collection help:
http://www.lawhelp.org/NY/StateChannelResults.cfm/County/NYC/City/%20/demoMode/%3D%201/Language/1/State/NY/TextOnly/N/ZipCode/%20/LoggedIn/0/iSubTopicID/1/iProblemCodeID/1020100/sTopicImage/consumer%2Egif/iTopicID/275/ichannelid/2/bAllState/0

There is a large number of organizations offering free legal help to
New Yorkers at certain income levels.

In addition, the New York City Department of Consumer Affairs is
responsible for enforcing consumer protection laws, including debt
collection laws.
http://www.nyc.gov/html/dca/html/home/home.shtml
They have a Debt Collection Guide in .pdf form available at their website.

In addition, New York City has laws regulating debt collection, IN
ADDITION to the Federal Fair Debt Collection Practices Act.  Go to
http://www.nyc.gov/html/dca/html/resources/law.shtml
and scroll nearly all the way down to the bottom.  Debt collectors are
required to respond in writing to a dispute about the validity of the
debt, and all collection actions must cease in the meantime.  Debt
collectors are also required to be licensed in the City of New York.

Include violation of this law in your Answer.

I know this is a lot to digest, and I hope it's been helpful.  Let me
know if you need any clarification, and I'll do whatever I can.  Best
of luck.

Request for Answer Clarification by gordonf238-ga on 27 Jun 2006 09:25 PDT
Thank you so much for your time and effort.

I've begun writing my answer, but the Court form has little space on
it to write an answer. Is it okay for me to write a separate document
and call it ANSWER SUPPLEMENT?  Below is what I've written so far, but
I do plan to go through your suggestions and add them on.

-----------------------------------------------------------------------

Civil Court of the City of New York					
Index No. XXXXXXXXX
County of Kings	
___________________________________________________________________
XXXXXXXXXXXXXXX, Inc.
					XXXXXXXXXXXXXXX
Plaintiff(s),				(Attorney for the Plaintiff)
-against-	

XXXXXXXXXXXX
			Defendant(s),



A N S W E R   S U P P L E M E N T

*     *     *

In a letter dated March 2, 2006 (copy of which is attached, marked as
?L1?) sent to the Defendant by the attorney for the Plaintiff, the
Plaintiff alleges that a debt of $1,717.21 exists in the name of the
Defendant, and is now due. In response to this allegation, the
Defendant has mailed a letter to the attorney for the Plaintiff, dated
March 30, 2006 (copy of which is attached, marked as ?L2?) disputing
this alleged debt, and requesting its validation. Citing first
paragraph of this letter:

	This letter is being sent to you in response to a notice sent to 
	me on March 2, 2006. Be advised that this is not a refusal to
        pay, but a notice sent pursuant to the Fair Debt Collection 
Practices
        Act, 15 USC 1692g Sec. 809 (b) that your claim is disputed and 
        validation is requested.



Under the FDCPA Section 809. Validation of debts [15 USC 1692g]:

(b) If the consumer notifies the debt collector in writing within the
thirty-day period described in subsection (a) that the debt, or any
portion thereof, is disputed, or that the consumer requests the name
and address of the original creditor, the debt collector shall cease
collection of the debt, or any disputed portion thereof, until the
debt collector obtains verification of the debt or any copy of a
judgment, or the name and address of the original creditor, and a copy
of such verification or judgment, or name and address of the original
creditor, is mailed to the consumer by the debt collector.

The Plaintiff has NOT addressed this request for validation, as the
Plaintiff has failed to provide the Defendant with the name and
address of the original creditor- as described in the above FDCPA
Section 809.

This claim is disputed, and has been disputed in a notice sent to the
attorney for the Plaintiff dated March 30, 2006. The Defendant
requests validation of this debt.

-----------------------------------------------------------------------

Clarification of Answer by hagan-ga on 27 Jun 2006 10:11 PDT
DEFINITELY provide the additional information on a separate sheet, or
sheets.  Include a reference to the additional sheets on the first
page, such as "See Answer Supplement attached hereto."
Include page numbers on the Answer Supplement, and number them
consecutively including the first page, so that the first page is "1
of XX", the first page of the Supplement is "Page 2 of XX," so it's
clear from every page that there are XX pages in the whole document. 
Remember that court clerks are human beings, judges are human beings,
and pages can get detached and shuffled by accident.
It's also helpful to NUMBER YOUR PARAGRAPHS, for ease of reference later on.
DON'T FORGET to include a specific defense that the statute of
limitations has run out on the complaint against you.  Maybe it has,
maybe it hasn't, but if you don't make the claim, you waive it.

Best of luck!!!

Request for Answer Clarification by gordonf238-ga on 27 Jun 2006 11:31 PDT
Again, this is great advice. Thank you. I will file all of this with
the county clerk tomorrow. I'm not even sure what to expect when I get
there, as I have never been to court.  Will the next step be an
appearance in court, or does the plaintiff need to address every item
requested in the bill of particulars?

Clarification of Answer by hagan-ga on 27 Jun 2006 12:05 PDT
I am not familiar with New York practice, but I can give you some
general parameters based on my experience and on my reading.
What usually happens is that you file your answer with the court, and
you "serve" it (usually by mailing it) on counsel for the plaintiff,
which in this case is likely the very law firm that's suing you.  But
make sure of that.
After you file your answer, do not hesitate.  Do not wait.  Let no
grass grow under your feet.  Serve your demand for a bill of
particulars WITHOUT DELAY.  There is usually a time limit for the
plaintiff to respond to such a thing.

Here is the link to information from the New York Civil Court about
Bill of Particulars:
http://www.nycourts.gov/courts/nyc/civil/billofparticulars.shtml
READ THE WHOLE THING.  Honestly, I'm astonished at the amount of
information that the New York courts have put out there for the
assistance of people appearing in court.  Usually you have to dig for
this stuff, but New York is being VERY user-friendly.

Here is a link about "Representing Yourself"
http://www.nycourts.gov/courts/nyc/civil/represent.shtml
And here's a link to a "Resource Center"
http://www.nycourts.gov/courts/nyc/civil/pdfs/resource.pdf
Wow!  "The Civil Court Resource Centers provide services at no cost to
self-represented litigants who have cases pending in the Civil Courts
of the City of New York....The Civil Court employs Resource Center
Court Attorneys (also known as Pro Se Attorneys), who provide free
legal and procedural information to self- represented litigants."
I would DEFINITELY take advantage of this service.
And here's a "Guide for Pro Se's"
http://www.nycourts.gov/publications/GuideforProSes.pdf
This is great, useful stuff.

Anyway, what to expect when you get to the clerk's office:
There will likely be a fee for filing your Answer.  From this link:
http://www.nycourts.gov/courts/nyc/civil/fees.shtml
it appears to be $45 (filing a first paper).

Make sure your mailing address appears on your answer, because the
clerk will need to send you information later about hearing dates and
so on.  Also make sure you serve the Answer on your opponent.

You will not see the judge tomorrow.  You will not appear in court
right away.  The next thing will be the "discovery" process, in which
you find out whatever you can about the claim against you.

You can also file a motion to have the case dismissed based on
improper service.  There is a discussion of this in the "Guide for Pro
Se's"
http://www.nycourts.gov/publications/GuideforProSes.pdf

In addition to the Bill of Particulars, you can demand to see all the
documents that the alleged debt is based on.
Again, from the "Guide for Pro Se's:"
"A Demand for Discovery and Inspection is a request to a party to
produce anything relevant to the case, such as documents, photographs
or relevant objects so that it can be inspected, tested or copied. The
Demand must state the name of the case, the index number and the
item(s) the party wishes to inspect, test or copy. The party receiving
such a request has 20 days to respond if the Demand came by mail."

You will receive notification of the court date from the court.  If
you want a jury trial, you have to specifically request it, and pay
the jury fees.  In addition, "In New York County when a lawsuit seeks
damages of $10,000.00 or
less, the parties must go to mandatory arbitration before a trial is held."
(Also from the Guide for Pro Se's -- see page 12 of the Guide for more
information about arbitration.)

Above all -- DON'T PANIC.  Court isn't scary.  It's just a place where
disputes get resolved.  As long as you're reasonably diligent, inform
yourself with all the free information that's out there (there really
is a LOT) and treat this seriously, you'll be fine.

By all means let me know if there's anything else I can provide.  Best of luck!!
Comments  
Subject: Re: I'm being sued for an old, and yet-to-be-validated credit card debt
From: aussietpp-ga on 26 Jun 2006 10:55 PDT
 
You should also check out if it was legal for the bank from Texas to
offer/issue a credit card when you were only 17 years old.

I would have thought you would have to be 18 years of age (or over) to
get a credit card and/or sign a legal document.
Subject: Re: I'm being sued for an old, and yet-to-be-validated credit card debt
From: gordonf238-ga on 26 Jun 2006 11:10 PDT
 
Pardon my math, but I was in fact 18 years old in 1999, not 17.
Subject: Re: I'm being sued for an old, and yet-to-be-validated credit card debt
From: markvmd-ga on 26 Jun 2006 11:38 PDT
 
The wording "there remains an agreed balance" and "plaintiff stated an
account to defendant without objection" need to be addressed
immediately. Failure to state clearly that the balance is NOT agreed
and that that you DO object could be taken as acceptance of their
claim against you by certain courts. I'll bet they operate in New York
because this is a venue where they can get away with a lot of stuff.
Tread carefully.

Of course you do owe SOMEONE money, you know, plus interest and costs
for collecting, etc. That $700 at a reasonable return over 7 years
could conceivably become $1700.

I just wish I could get that sort of return on MY money someplace!
Subject: Re: I'm being sued for an old, and yet-to-be-validated credit card debt
From: gordonf238-ga on 26 Jun 2006 12:33 PDT
 
I wish to deny all of this. I requested that they validate the debt,
which they have not. Do you advise that I hire an attorney at this
time, or answer the summons myself?

http://www.courts.state.ny.us/courts/nyc/civil/forms/Answerform.pdf

I was out of town for the past 10 days, and didn't find the summons in
my mailbox until last night; Although the other tenant from another
floor (with whom I share the mailbox) said it's been there since
around the 8th of June, which gives me 20 days to answer.
Subject: Re: I'm being sued for an old, and yet-to-be-validated credit card debt
From: plee_nv-ga on 27 Jun 2006 19:16 PDT
 
I agree with markvmd, don't overlook it! 
 
review your earlier post with the original summons; containing KEY
WORDS that could easily be overlooked and apparently are FALSE
statements, at least they are false only if you challenge them,
otherwise to the court, they assume that you agree they are TRUE.

quote:
-------------------------------------
The summons was issued by the Civil Court of the City of New York. The
allegation reads:

-------------------------------------

-Plaintiff is a company authorized to do business in New York.

-On information and belief the defendant in person or through an agent
made credit card purchases and/or took money advances under a credit
card and/or line of credit account- >>>a copy of which was furnished to  <---
defendant. <<<(DID YOU GET A COPY?) Plaintiff purchased this account 
for value and the defendant was notified of same.

-There remains an >>>agreed balance on said account of $1,707.55, due and<---
owing on plaintiff's cause of action.<<< (DID YOU EVER AGREE? NO, YOU    <---
STILL HAVE NOT BEEN FURNISHED THE REQUESTED INFO) No part of said sum has<---
been paid although duly demanded.

-Defendant(s) is in default and demand for payment has been made

-Plaintiff, as owner, is authorized to proceed with this action.
Interest is at the contract rate of: .0900

3rd cause/action: >>>Plaintiff stated an account to defendant without  <---
objection<<< (WHAT? WHICH ACCOUNT? YOUR OBJECTION GOT YOU A SUMMONS!   <---
YOU MUST OBJECT! LOOK FOR THE SNEAKY WORDING, MY FRIEND, THESE GUYS    <---
ARE PRO WORD MANIPULATORS)                                             <---
that there is now due plaintiff from defendant(s) the amount
set forth in the complaint. No part of which has been paid, although
duly demanded.

-------------------------------------
endquote:

that's my 2 cents worth at least.... don't let their legal writing 
be an addmission of acceptance of FALSE STATEMENTS, let it be your
guide for defense also.

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