OC Plaintiff omitting "business records" during pre-trial discovery

[Zigner]

I get it - Zinger is playing devils advocate...and that's cool.

While I do frequently do this, I am not doing so in your case.

 

[lulew]

A) All they need to do is notice pleading.
B) HOw would Plaintiff be recieving more money than they are entitled to receive -- in addition to the debt, there is interest, court costs, attorney fees and various other costs that can be added to the amount. NOne of which is unjust.

Unless there is something I missed the burden of proof is on the Plaintiff???? Should I have included lack of standing as my affirmative defense???? In any event the Plaintiff has not yet responded with a MSJ. We have a Pre-Trial Conference in a few days where the judge can order discovery. From my understanding when this happens the burden of proof would still be on the Plaintiff.

 

[lulew]

I have a little experience in these matters. Not as a collections attorney and not as a consumer attorney, but as a collections manager and agency executive. I can tell you the unjust enrichment argument is a no go. That was a waste of printer ink.

As for the failure to state a claim, it is possible that the plaintiff's attorney really screwed up their filing. But it is unlikely.

That said, I have nothing further for you because of this:


Good luck. You are on track to lose handily.

DC

I don't recall signing an agreement or even paying the OC so why should I sit up here and let Zinger call me names. That's disrespectful and unacceptable in this forum. Furthermore, who needs the extra aggravation when they come here for "advice", REALLY!!!

 

[Zigner]

It's not calling "names" - it's calling it as it is:

http://www.merriam-webster.com/dictionary/deadbeat

 

[You Are Guilty]

Here's one that got the "inactive" attorney acting pro se past the first summary judgment. [http://documents.jdsupra.com/f8dbf8e5-fea5-4968-ac02-ba1517a921f4.pdf ] Maybe YAG can read the eCourts file better than I, but it seems this guy won arguing against the summary judgment motion by the plaintiff. Then, a later Motion In Limine by the defendant (I assume it was to exclude the account statements.) was withdrawn and the trial then withdrawn and seems "disposed". I suspect either the lawyers for the card company got scared over litigation (maybe to sell the debt to another before result), or some deal was made at the last moment.

I suspect the later, but don't know.

Nope, your Google-fu is very strong, grasshoppa. (And I agree the "disposed" is almost certainly the result of some sort of agreement reached by the parties that day). What is interesting is the case being filed in Supreme Court, suggesting an (alleged) debt of over $25,000. The vast, vast majority of collection lawsuits are filed in the lower courts though.

I think the bigger issue here that people are alluding to, but not stating outright, is that our OP is conflating several issues and treating them all the same (on top of not using proper procedure). I don't have time now to point them all out, but concern number one (for me) is CPLR 3018 http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$CVP3018$$@TXCVP03018+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=22720016+&TARGET=VIEW. Combine that with "avoiding summary judgement is not equivalent to getting the case dismissed", and the problems with subsequent evidence (if any - this is where failing to follow proper procedure will hang you) become academic.


OP, you didn't say what county you are in, but these are the kinds of programs you should be looking for - it will minimize the hurt down the road: http://www.nycourts.gov/COURTS/nyc/civil/vlpselfrep.shtml. If you don't have a local one, as an alternative, I'd start here: http://www.nycourts.gov/courts/nyc/civil/consumercredit.shtml. You have a lot of work to do in preparation for your next court conference.

 

[lulew]

Nope, your Google-fu is very strong, grasshoppa. (And I agree the "disposed" is almost certainly the result of some sort of agreement reached by the parties that day). What is interesting is the case being filed in Supreme Court, suggesting an (alleged) debt of over $25,000. The vast, vast majority of collection lawsuits are filed in the lower courts though.

I think the bigger issue here that people are alluding to, but not stating outright, is that our OP is conflating several issues and treating them all the same (on top of not using proper procedure). I don't have time now to point them all out, but concern number one (for me) is CPLR 3018 http://public.leginfo.state.ny.us/LAWSSEAF.cgi?QUERYTYPE=LAWS+&QUERYDATA=$$CVP3018$$@TXCVP03018+&LIST=LAW+&BROWSER=BROWSER+&TOKEN=22720016+&TARGET=VIEW. Combine that with "avoiding summary judgement is not equivalent to getting the case dismissed", and the problems with subsequent evidence (if any - this is where failing to follow proper procedure will hang you) become academic.


OP, you didn't say what county you are in, but these are the kinds of programs you should be looking for - it will minimize the hurt down the road: http://www.nycourts.gov/COURTS/nyc/civil/vlpselfrep.shtml. If you don't have a local one, as an alternative, I'd start here: http://www.nycourts.gov/courts/nyc/civil/consumercredit.shtml. You have a lot of work to do in preparation for your next court conference.

You are right about me conflating several issues. That is because i've been plagued with having "tooooo much information"..... this is why I finally came here to sort it all out before I proceed any further. This is my first pro se case and I admit that I am not familiar with all court procedures but I'm learning....Zinger was right about one thing - I did throw everything I could in that Answer including discovery demands. Thus far the Plaintiff has not MSJ but I'm sure that if I file a motion to dismiss with prejudice they may or may not try to oppose given that pre-trial discovery is already in play. I'm not sure if I should take any action before the pre-trial conference or file the motion to dismiss prior to the date.

I do regret not adding in lack of standing.... will amend answer if need be.

I'm in nassau county. Thank you for this info.

 

[Ohiogal]

You are right about me conflating several issues. That is because i've been plagued with having "tooooo much information"..... this is why I finally came here to sort it all out before I proceed any further. This is my first pro se case and I admit that I am not familiar with all court procedures but I'm learning....Zinger was right about one thing - I did throw everything I could in that Answer including discovery demands. Thus far the Plaintiff has not MSJ but I'm sure that if I file a motion to dismiss with prejudice they may or may not try to oppose given that pre-trial discovery is already in play. I'm not sure if I should take any action before the pre-trial conference or file the motion to dismiss prior to the date.

I do regret not adding in lack of standing.... will amend answer if need be.

I'm in nassau county. Thank you for this info.

For what are you going to file a motion to dismiss? The trial is where the Plaintiff has the burden to prove the case. Before they don't have to prove the case. Why you think they do is beyond me.

 

[You Are Guilty]

Yeah, rule number one - each document has to have only one purpose. You can serve discovery demands (almost) any time so break them out from your original answer, update and re serve them properly. Answers can be amended "as of right" within 20 days of the prior one being served. If you are beyond 20 days, you usually need to file a motion to get permission from the judge.

Oh, and Nassau County, District or Supreme court? (Although your use of "pretrial conference" suggests its not Supreme). Start here anyway: http://www.nycourts.gov/COURTS/10JD/nassau/cicgeneralforms.shtml#complaint.

 

[lulew]

Yeah, rule number one - each document has to have only one purpose. You can serve discovery demands (almost) any time so break them out from your original answer, update and re serve them properly. Answers can be amended "as of right" within 20 days of the prior one being served. If you are beyond 20 days, you usually need to file a motion to get permission from the judge.

Oh, and Nassau County, District or Supreme court? (Although your use of "pretrial conference" suggests its not Supreme). Start here anyway: http://www.nycourts.gov/COURTS/10JD/nassau/cicgeneralforms.shtml#complaint.

Well I'm past the 20 days, so I'll ask in front of the judge.... you're right - I should have filed my answer first separate from discovery.

 

[lulew]

For what are you going to file a motion to dismiss? The trial is where the Plaintiff has the burden to prove the case. Before they don't have to prove the case. Why you think they do is beyond me.

I was going to file a motion to dismiss because apparently the Plaintiff has no proof. I also didn't want this thing to drag out for months on end. But I get what your saying, let it play out.

 

[tranquility]

I was going to file a motion to dismiss because apparently the Plaintiff has no proof. I also didn't want this thing to drag out for months on end. But I get what your saying, let it play out.

Well, of course, except for:

1 year of credit card statements, an unsigned cardholder agreement

Which is exactly what one needs (along with some business record exception or employee testimony verifying what the statements are) for an accounts stated lawsuit. From the first link I provided:

As a general rule where an account is made up and rendered, he who receives it is
bound to examine the same or to procure someone to examine it for him. If he
admits it to be correct it becomes a stated account and is binding on both parties.
If instead of an express admission of the correctness of the account, the party
receiving it keeps the same by him and makes no objection within a reasonable
time, his silence will be construed into an acquiescence in its justness, and he will
be bound by it as if it were a stated account. An account stated is conclusive upon
the parties unless fraud, mistake, or other equitable considerations are shown
which make it improper to be enforced.

It is well settled that a claim for an account stated is independent of the original
obligation. By its submission of unrefuted evidence of having mailed statements
of account to defendant, which statements were retained without objection for a
reasonable period of time, plaintiff established its entitlement to summary
judgment on its claim for an account stated.9

Causes of action based upon accounts stated may be entered as default judgments in the
Civil Court of the City of New York so long as they satisfy the following:
40
A summons and complaint which qualifies for entry following CPLR § 3215,
where the cause of action is for an account stated, may be entered by the clerk
under the following conditions:
1.
The affidavit of facts or verified complaint includes a statement indicating
that an accounting was delivered or mailed to the creditor and the date of
the delivery or mailing.
2.
The affidavit of facts or verified complaint also includes a statement that
the accounting has been retained and that no objection to it has been made.
In cases in which the defendant opposed a motion for summary judgment by alleging in a
conclusory fashion that payments were not properly credited or that he questioned certain charges, plaintiffs’ applications were granted.
The evidence, fairly interpreted, supports plaintiff's recovery of the credit card
debt under the theory of account stated, since defendant did not object within a
reasonable time to the itemized credit card statements. (internal citations omitted) Defendant's argument that plaintiff was required to submit a signed
credit card application in order to establish its claim based on an account stated is
without merit.
41
"Defendant's opposition merely asserts he questioned several charges without giving
details. His silence is an admission."
42
If the consumer fails to object within a reasonable time
do so, an account stated may be found.
43