[herbalmuse]

NY here (state, not NYC)

I'm being sued by a bottom feeding pond dweller for a credit card debt that reached SOL more than a year ago, which I can validate since I kept my old statements from the original creditor that clearly show when the account became delinquent and that no payments were made beyond that time. The bottom feeder is a law firm (also a debt collector) that represents another bottom feeder who purchased the account from the original creditor.

I responded to the Summons and Complaint by filing an Answer with Counterclaims with the court and serving the Plaintiff via certified mail. The number 1 defense in my Answer was the SOL and I included the original creditor's statements as proof. Now it seems the attorney/debt collector is trying to pull a fast one. First, they responded to my Answer last week with a Verified Reply that asserts that my claim is 'barred by the doctrine of unclean hands.' LOL! Then, yesterday, I received a Notice to Admit Truth of Facts via regular mail from this law firm. I'm a little suspicious of this document to begin with since my copy contains a backer (not a copy) and an original signature, which makes me wonder if this document was even filed with the court and may simply be an attempt to get an admission of the debt to use against me (or roll over and play dead). They even included a paper for me to write my answers on and an SASE. Wasn't that considerate?

I plan to respond to the Notice accordingly since I'm required to (Hi there...this action is time-barred, remember?). However, I'm wondering how to put this puppy to bed once and for all at this point. I don't care to waste the court's time or any more of mine with cross-filing frivolous papers, even though I'm entitled to ask the court for a protection order from further interrogations for discovery. So, here comes my question...

Should I file a response to the Notice *and* a Motion to Dismiss at the same time? I find it rather annoying that I've received nothing from the court whatsoever. I expected to be notified of a hearing date after I filed my Answer to the Summons, but nuttin'. Now I've got more paperwork and filing to do and 20 (now 19) days to do it in.

Thoughts anyone?

P.S. On a side note, I successfully had this item deleted from my credit report just yesterday. That has no bearing on this litigation, but hey...High Five to me. It incidates that either these people couldn't validate the debt or didn't respond in time. ;-)

[Mr. Knowitall]

I've seen firms make the error of submitting original documents to a party instead of the court, sending a copy to the court. If you want to check on what was filed with the court, you can inspect the file at the courthouse, and you may even be able to check online (a growing number of courts have online case lookup features).

There's no reason I can think of not to file a motion to dismiss on a potentially dispositive ground, such as the statute of limitations.

[herbalmuse]

Thanks for your response!

I'll try giving the court clerk a phone call first to see if the Notice to Admit was filed with the court. I live about 26 miles from the court house which, unfortunately, does not have any searchable online database. There are some civil cases for my county to be found via e-courts, but it's not updated often enough and existing info is often incomplete.

If the Notice isn't filed, I don't think I'm obligated to answer it. But I'll ask the clerk to make sure (if the clerk will even tell me--they're often skittish about giving info that may be construed as legal advice). I'm not even entirely sure it was appropriate for the other side to ask for discovery. There's not a lot of info about this Notice online but, from what I have read about it, it seems that its use is restricted to asking questions about things that are not already in dispute. I've already denied knowledge or acceptance of these same issues in my Answer. Of course, the debt being SOL kinda makes the whole thing moot anyway, at least in my mind.

About the Motion to Dismiss...do you know if it's also necessary to file a Notice of Motion to Dismiss? NY State seems to be really big on notices for everything (read that as We Love Filing Fees). I haven't been able to locate a clear answer to this.

[aaron]

Generally speaking, you have to file a notice of hearing and possibly also a praecipe (a document used by the court for internal scheduling) with any motion you file. Some courts use a combined notice of hearing and praecipe. Ask the clerk of the court, as they may have a standard form for both purposes.

[herbalmuse]

Will do. Thanks, Aaron! ;-)

[herbalmuse]

Guess what, my friend? I've just discovered that the Plaintiff in this action, Midland Funding LLC, is not qualified to do business in or to bring legal action in the courts of New York State perusant to NYS Banking Law Section 1312. I got a little curious about the mention of the Plaintiff being a foreign corporation in the Complaint, so I looked it up. Turns out the LLC was formed in Delaware. Then I did a search on the NY Dept of State online database to see if they've filed an 'application of authority,' which they're required to do in order to 'do business' in NY. They have not. A followup phone call to the State Department confirmed that fact. This means not only do they not have jurisdiction in NY courts, but they can also be subjected to fines and penalties, possibly including tax liabilities. This also means that I can use this fact as a grounds for dismissal in this case--AND make a Motion to Vacate a previously entered default judgment recently taken against me. (I'm currently juggling 3 open cases with these JDBs.)

Incidentally, MRC Receivables Corporation is another subsidy of the Encore group, which includes Midland Credit Management Corp and others. Like Midland Funding LLC, MRC also lacks authority in NY.

This is important information for everyone using this forum. MRC, Midland, etc., are some of the biggest and most relentless debt buyers going. Armed with this info, much grief can be spared!

[aaron]

Consider also reporting what you found to your state's attorney general.

[herbalmuse]

Consider also reporting what you found to your state's attorney general.

Oh, you bet! As well as the FTC.

I'm so elated right now it's not funny. lol!