I have a real nasty problem. I just got a call from my parents telling me that on thursday somone put a summons in the mail box at their home in NY. I haven't lived in NY for 7.5 years but a debt that is still within limitations (and they have my Chicago address I am sure as it is on my credit report) is mine. I found out they can just serve you by putting the thing in the mailbox. The problem is I dont have it in front of me obviously and the index number that was given to me by my mother doesnt match anything the court records have or they can't find it by looking up my name. I really dont know what to do. This seems like a real back handed way to get a default judgement , one I hopefully can vacate by saying I don't live there and wasnt served. But what can be done about this. I don't know what my next step should be. It was dated May 26th and served on June 10th. I really dont know if this is a real summons or not but it has the county seal on it and was notified. But then why doesnt the court pull up my info with it? Also I guess in NY you don't have to file an answer with the court? You file it with the other lawyer? Should I have my mom send it back doesnt live here? Here in Illinois you file at the courthouse. Any advice would be appreciated, but I guess first I need to see this in front of me to truly see if it is an actual summons ( but I would guess if someone delivered it to the mailbox it is) Thanks.
Get the Summons and read the NY Rules of Civil Procedure. You need to make some fashion of appearance rather than ignore it. Motions to Vacate are rarely granted.
There is no date or time to appear on the summons. It just says I have 20-30 days to file an answer with the opposing lawyer? The court house in NY has no record of anything filed with my name or the index number on the "summons" Isnt that crazy? They know I live in Chicago yet they do this in NY.
Well, it may be a fake then. Still, I would file a responsive pleading with opposing counsel and the court of record nonetheless. First step is to get the Summons . . .
On the county website it says that only cases with an RJI or Request for Judicial Intervention will be shown. What in essence does that mean. Can a lawyer get a default judgment without a RJI? Is what I received something before an RJI. If I dont answer it does it default or does it move on to the next step where he will go after a default?? Thanks
I don't honestly know. I am not a licensed attorney in N.Y.. I would suggest you speak to one or maybe the clerk can give you an idea.
I had the summons scanned to me. The index number is written in and the court has no record of it. I will try to type this out. I need advice here. I have lived in Illinois for 7 years. This debt was last paid in 2004. That makes it within the SOL of Illinois. For NY I am not so sure. I seem to be between a rock and a hard place. If I acknowledge this summons and answer will that mean the case must move forward even though I am not in NY. If I dont answer it and there is a judgment against me then I can probably get it removed due to lack of service. But I dont know what the best strategy is, any insights. Ok since I dont know how to scan it on here I will type it out. Any advice is appreicated. Supreme Court of the State of NY Consumer Credit Transaction County Of Suffolk First Resolution Investment Corp , Plaintiff against Lou Orff, Defendant Filed (stamped ) May 23, 2008 Index No. written in Judith A Pascale Purchased 5/23/08 Clerk of Suffolk County The basis of the venue designated is : Defendants Residence To the above name Defendant You are hereby summoned to answer the complaint in this action and to serve a copy of your answer on the Plaintiff's Attorney within 20 days after the service of this summons, exclusive of the day of service ( or within 30 days after the service is complete if this summons is not personally delivered to you within the State of NY) In case of your failure to appear or answer, judgment may be taken against you by default for the relief demanded in the complaint. Dated April 9, 2008 Signed by xxx xxxxxxxxxs PC xxxxxxxxxxxxx PO Box 9 xxxxx NY Defendants Address Totally wrong as I dont live in NY 1. Plaintiff is a Nevada corp having its principal place of business in Reno 2. Upon information and belief, defendant is a consumer residing in the County of Suffolk AS AND FOR A FIRST CAUSE OF ACTION 3.Upon information and belief , Chase Bank opened a credit card acct for Defendant at his request 4. Plaintiff is the owner and holder of the acct by assignment 5. Plaintiff, on or about February 4, 2008 rendered to Defendant a full at true account of the indebtedness owing by the defendant to the plaintiff as result of Plaintiffs purchase and ownership of the credit account ***** I obviously received nothing. 6. The acct statement described above was delivered to and accepted without objection or reservation by the Defendant resulting in an acct stated between the parties hereto in the sum of xxx dollars with interest thereon as set forth in the statement dated Feb 4, 2008 at the rate of 22.9% from such date. 7. Defendant has failed to make payments due to Plaintif as set forth in the statement of account rendered to and accepted by Defendant herein 8. Therefore the Def now owes the Plaintiff the sum of xxx dollars, less payment, in the amount of 0 together with interest at the rate of 22.9 from Feb 4 2008 AS FOR A SECOND CAUSE OF ACTION 9. Plaintiff repeats and realleges each and every allegation contained in paragraps numbered 1-8 10. The acct statements described in paragraphs 5 and 6 above included an amount due for past due and accrued interest owed on the acct by the Defendant in the amount of xxx dollars. 11. There the Defendant now owes the Plaintiff the sum of xx dollars. Wherefore , Plaintiff demands judgment against Defendant on its first cause of action for the sum of xx dollars, less payments in the amount of 0 with interest at the rate of 22.9 from February 4 2008 and on its second cause of action for the sum of xxx dollars plus its court costs and disbursements. Dated April 9 2008 Your etc, xxxxxxxx ************* Then the third page is some bogus verification Mr lawyer, being duly sworn, deposes and says that deponent is the in house counsel of First Resolution Investment Corp , the plaintiff in the within action, that deponent has duly read the foregoing summons and complaint and knows the contents thereof, that the same is true to deponents own knowledge, except as to the matters therein stated to be alleged on information and belief. and that as to those matter deponent believes it to be true. This verification is made by deponent because plaintiff is a corp and deponent is an officer thereof. The grounds of deponents belief as to all matters not stated upon deponents knowledge are as follows , business records of plaintiff. Sworn to before me this date Notary Public So here it is. Again I live in Chicago what are my options. As obviously this JDB has nothing on me and is trying to get a sneaky judgement in NY. Do I answer and fight even though I dont live in NY . Is there a way to show the court I do not live in NY and this is a wrongfully sought lawsuit? Or do I let it laspe and let them get a judgment then get it thrown out by wrongful service. Advice wanted. Thanks.
Seems to me that you have 30 days to file an answer or dispositive motion with the Court. Serve upon opposing counsel seems to be a play on language in this jurisdiction/forum. You may consider a FDCPA counter if you can preponderate that they should have known you now reside in Illinois. Even if you can't mount that, getting this dismissed should be easy. Just attack the affidavit.
Whoa, hold on a minute. Am I understanding this correctly? 1) The collection agency sent you a summons with a case number written in, but 2) The clerk of court has no record of that case number or that summons? It sounds like maybe the collection agency is trying to scare you into paying by serving you with a fake summons. If that's the case, they've violated not only the FDCPA but a whole host of state laws. Consult an attorney.
It took forever to speak with someone but the index number is correct. So it is a viable lawsuit. I know need to answer this and attack it. Any suggestions on what I should say. It just sucks that I am in Chicago and have to fight it. I need someone else to mail it? I need to do an affidavit of service also. All this is new to me. But first I need to answer this. Any suggestions would be appreciated. My goal is to get this thrown out in the long run as I dont live there. Thanks.
Do you have a copy of the lawsuit? Somewhere in the suit that they filed, they should address why the New York court is the proper venue for the suit. It will probably claim that you are a resident of New York. Your answer to that claim should be sufficient to get the suit thrown out. Since you are not a resident of New York, that state's courts have no jurisdiction over you.
Yes on the summons it says. The basis of the venue designated is Defendant's Residence So that is false. Here is my answer. Any advice or recommendations would be appreciated. IN THE SUPREME COURT OF THE STATE OF NEW YORK SUFFOLK COUNTY First Resolution Investment Corporation Index no. Plaintiff, Answer -against- Lou Orff Defendant DEFENDANTâ??S ANSWER AND AFFIRMATIVE DEFENSES DEFENDANTâ??S ANSWER TO PLAINTIFFâ??S COMPLAINT 1. In response to Paragraph 1 the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. 2. In response to Paragraph 2 the Defendant DENIES he is a consumer living in the County of Suffolk 3. In response to Paragraph 3 under the cause of first action the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. 4. In response to Paragraph 4 the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. 5. In response to Paragraph 5 the Defendant DENIES receiving a full and true account of the indebtedness claimed owed by the Defendant by the Plaintiff as a result of Plaintiffâ??s purchase and ownership of the credit account 6. In response to Paragraph 6 the Defendant DENIES receiving the account statement described above on February 4,2008 or on any date since then. 7. In response to Paragraph 7 the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. 8. In response to Paragraph 8 the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. 9. In response to paragraph 9 under the cause of second action the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. 10. In response to Paragraph 10 the Defendant DENIES receiving any statement from the Plaintiff. 11. In response to Paragraph 11 the Defendant lacks information or knowledge sufficient to form a belief as to the truth or veracity of the statement and leaves the Plaintiff to provide proof. DEFENDANTS AFFIRMATIVE DEFENSES Affirmative Defense I: Plaintiffâ??s Complaint, and each cause of action herein: fails to state facts sufficient to constitute a cause of action against Defendant for which relief can be granted. Affirmative Defense II: Plaintiffâ??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 was not in writing and signed by the Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, miscarriage of another person. Affirmative Defense III: Defendant claims that this case should be dismissed due to lack of jurisdiction as said Defendant has lived in the State of Illinois, County of Cook for the past seven years and that proof is had that said Plaintiff or the assignee of the Plaintiff knows this as fact. Affirmative Defense IV: Defendant claims a Failure of Consideration, as there has never been any exchange of money or item of value between Plaintiff and Defendant. Affirmative Defense V: Defendant Claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff. Affirmative Defense VI: Plaintiffâ??s complaint fails to properly allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose information and it cannot be assumed without creating an unfair prejudice against said Defendant. Affirmative Defense VII: Defendant alleges that Plaintiffâ??s actions are precluded based on omissions and negligence, whereas the Plaintiff failed to follow required validation procedures as per FDCPA 809 (15 USC 1692g), procedures which included, but were not limited to, obtaining and providing verification of the debt to the Defendant. Affirmative Defense VIII: Defendant reserves the right to plead additional affirmative defenses that may become available to him later. WHEREFORE, Defendant prays that this Court dismiss the complaint of the plaintiff herein as this matter lacks proper jurisdiction and sufficient proof of said lawsuit has not been presented.
