Citibank lawsuit, Zakheim & Assoc/Attorney & Debt Collector

[OHBOY]

REALLY NEED INPUT & SUGGESTIONS ON HOW TO GIVE AFFIRMATIVE ANSWER & STATING DEFENSES.

Recieved Summons on a debt I have on a credit card account with Citibank. Have 20 days to answer (10 left..) and bring answer down to courthouse & mail copy to plaintiffs attorney. Summons IS recorded at courthouse...

As I consider myself collection proof initially I was not going to answer. However... I am now thinking that perhaps might get all of this over with by filing bk sometime after May, and it would be nice to at least stall this lawsuit.

I spent considerable time at the courthouse (2 days) looking up cases (where Zakheim is the attorney) to be able to formulate an AFFIRMATIVE DEFENSE, however though I ended up concentrating on 3 cases, I am still on the 'fence' and CONFUSED (!) as how to give an answer.
I AM ESPECIALLY TROUBLED BY THE FACT THAT ATTORNEY FOR PLAINTIFF IS STATING TO BE A DEBT COLLECTOR (last sentence on Complaint !)

The comparable Defense answers that were given by other Defendants included answers i.e.:
* 'Plaintiff Lacks Standing to Bring this Action',
* 'Failure to State a Cause of Action for Open Account',
* 'Failure to State a Cause of Action for Money Lent'
* 'Failure to State a Cause of Action for Account Stated',
* 'Plaintiff cannot File Actions in Florida without Posting a Bond',
* 'Plaintiff failed to comply with the notice requirement of the Fir Debt Collections
Practices Act, 15 U.S.C # 1692 et.seq. as amended'


Here is the Complaint (STANDARD for Zakheim)
__________________________________________________ ________________________
CITIBANK (SOUTH DAKOTA), N.A. name of court in Fl
(address given) Case number.....
Plaintiff,
vs.

My name and address
Defendant

COMPLAINT

The Plaintiff sues the Defendant and alleges:

COUNT I - OPEN ACCOUNT
1. This is an action for damages which exceed $5000 but do not exceed $15,000
2. The Defendant made purchase of various and diverse consumer goods and/ or elected cash advances through the use of his CIT MASTERCARD credit account obtained from the Plaintfiff on account number **********
3. Def has failed to pay the balance due on the account
4. Defendant owes the Plaintiff $****.** that is due with interest according to the attached account (Exhibit A).
WHEREFORE, Plaintiff demands judgement against the Defendant for damages $****.** and any further relief this court deems just and proper.

COUNT II- ACCOUNT STATED
5. Plaintiff repeats and relleges the allegations of paragraph 1 and 2 as if fully set forth herein.
6. Before the institution of this action Plaintiff and Defendant had buisness transactions between them on a CIT MASTERCARD credit account and they agreed to the resulting balance.
7. Plaintiff rendered a statement of account to Defendant and Defendant did not object to the statement.
8. Defendant(s) owe(s) the Plaintiff $****.** that is due with interest according to the attached account (exhibit A).
WHEREFORE, Plaintiff demands judgement against the Defendant(s) for damages of $****.** and any further relief this court deems just and proper.


Zakheim & Associates, PA
(address & phone #)
THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR.
__________________________________________________ ________________________

ANY INPUT & SUGGESTIONS ON HOW YOU WOULD ANSWER THIS WOULD BE GREATLY APPRECIATED !!!!!!!!!!!!!!!!!!!!!!!

[Freddy03]

Wow just change the creditor and this looks exactly like my summons.

From my research when someone is sued for Open Account and Account Stated thats their way of getting around producing a signed contract. All they have to do is prove you made payments on the account and that statements were mailed to the home address and they win (at least this was my outcome).

I would def answer the summons & request documents, then wait. They will try to call and settle with you before trial.

I was served in March didn't go to trial until August. So you have some time.

[OHBOY]

Freddy03:
Thanks for letting me know about your experience pertaining to a time table.

Along with being dumbfounded as to how to come up with some sort of 'intelligent' Answer & Defense, I am stumbling big time over this sentence on the bottom of complaint: "THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR."
Makes me wonder if Citibank even knows anything about 'them'/Zakheim filing this lawsuit ??? Would Citibank not have to sign this somewheres ? ..or would 'somebody' (Plaintiff or Attorney) not at least have to furnish some sort of statement that shows that Zakheim is indeed hired by Citibank to initiate this lawsuit ?

[treehugger1]

Regardless of whether or not they are a legal firm, they are still third party to the debt in most states; hence, the note at the bottom of thier summons/letter.

[OHBOY]

Regardless of whether or not they are a legal firm, they are still third party to the debt in most states; hence, the note at the bottom of thier summons/letter.

Ok.....please forgive me, this is pretty much all greek to me... what significance does it have that they are a 3rd party ? Do they (Zakheim) have to prove that they have an agreement with Citibank that allows them to be the legal representative ? Should there be some sort of signature by the Plaintiff (Citibank)?........Sorry, have never encountered a law suit before....
THANKS for your input !

[frogger]

Freddy03:
"THIS IS AN ATTEMPT TO COLLECT A DEBT AND ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE. THIS COMMUNICATION IS FROM A DEBT COLLECTOR."

That's the Mini-Miranda. Everyone involved in debt collections (except first party) should be using this or some version of it.

[flyinbroke]

They are the lawyer suing on behalf of Citi. SO no, Citi does not have to be on there since they hired the law firm to do it.

Yes, Citi is pulling the strings here. The CA law firm will not be filing suit without their okay.

[catleg]

Were any of the cases you've reviewed filed by attorneys or were they pro se's?
I would find something filed by an attorney and copy that. How did the cases you reviewed end up for the debtor?

[OHBOY]

They are the lawyer suing on behalf of Citi. SO no, Citi does not have to be on there since they hired the law firm to do it.

Yes, Citi is pulling the strings here. The CA law firm will not be filing suit without their okay.

__________________________________________________ __________________________________________________ _____

'flyinbroke':
Yes, you are right. I am learning as I go along.
Have gone back to the courthouse this afternoon (becoming a 'regular' there...) and I stumbled across some 'PROOF OF CLAIM AFFIDAVIT (s) that were filed prior to Plaintiff getting a judgement via Zakheim. Those forms are in itself kinda funny to read...
i.e.: ' where 'Mary E Crum' was stating that she is the 'Custodian of Records for Citibank, That she has reviewed Defendant's account and has personal knowledge (ha,ha) of the facts stated below. Thereafter listing the account number, and stating the default and amount owed....

What I find especially interesting was the fact that the whole thing is notarized, giving date , and stating that 'Mary E Crum is 'personally known to me, or who did produce (LEFT BLANK)........... as indentification and who did take an oath'. Notarized in Missouri...
Yah...right, the Notary (Delores Wageman) knows 'Mary E Cum' personally and does not have to see indentification....

Have to go back one more time to courthouse (Tuesday) as 2 of the files I REALLY wanted to see were up in judges chambers (both from 2009....good, I like to see cases that have s-t-r-e-t-c-h-e-d out)... Hope that I can thereafter formulate & file an answer & defense....

[OHBOY]

Were any of the cases you've reviewed filed by attorneys or were they pro se's?
I would find something filed by an attorney and copy that. How did the cases you reviewed end up for the debtor?

__________________________________________________ __________________________________________________ _____

Were any of the cases you've reviewed filed by attorneys or were they pro se's?
I would find something filed by an attorney and copy that. How did the cases you reviewed end up for the debtor?

__________________________________________________ __________________________________________________ ______

MOST of the cases with answers were what you could call 'pro se'. Some/actually MOST answers were sad. Often just handwritten statements describing job loss, divorce, illness incl. cancer. Many of those, despite of obvious misery & financial distress still offered to make some minimal payments. Of course those were the cases that most likely went to DEFAULT JUDGEMENT or eventually a 'Suggestion of Bankruptcy' was noted....no mercy for the vurnable & desperate.......

There were a couple of 'pro se'ers' that formulated answers & defenses and on the bottom of the pages it stated: "Prepared with assistance of counsel from Community Legal Services of Mid Florida, Inc.".

Those cases seemed to buy more time, with one case having done the job well enough job that the Plaintiff had to submit a lenghty 'AMENDED COMPLAINT' (Problem with that was that I would not be able to use most of the answers given in that case.

Some cases (out of all I viewed) ended up with a payment plan, with a number of them defaulting and the cases being reopened after a period of time.

Ran into just one case (also Zakheim) were Defendant had an attorney (hallalujah), and I will be using a number of their answers.

I am trying to set it up so that I don't have to repeat spending all of this time on the next lawsuit....(there could be 11 more coming in anytime.....outch), and that I could 'whip out' an answer, but in order to do so I would like to at least learn to understand (feel at ease) with what the heck I am 'spewing out'.
At $ 1 a page getting a copy per page from the courthouse can be expensive, but, I view it as a positive process..... I feel as though I am paying to go to class in order to learn.....lol

[flyinbroke]

Interesting....DElores used to be the one signing affidavits as a Citi expert...now she is notarizing.

Allison B Moon ring a bell?

[OHBOY]

Interesting....DElores used to be the one signing affidavits as a Citi expert...now she is notarizing.

Allison B Moon ring a bell?

__________________________________________________ ________________________________________

No, don't have a clue.......just have a feeling you are pulling my leg ?

[flyinbroke]

Allison B Moon was sort of a joke...she was a nonexistent person with either Midland or LVNV who was signing off on affidavits.

If you look up Delores Wageman, you will find she signed a ton of affidavits a year or two ago as either a litigation specialist for Citi or an account expert for Citi. Now she is notarizing them?

[OHBOY]

Allison B Moon was sort of a joke...she was a nonexistent person with either Midland or LVNV who was signing off on affidavits.

If you look up Delores Wageman, you will find she signed a ton of affidavits a year or two ago as either a litigation specialist for Citi or an account expert for Citi. Now she is notarizing them?

__________________________________________________ ________________________________________


I have a vague recollection of some stink, about a year ago, because affidavits were written in which credit card reps proclaimed that they had reviewed Defendant's account and has 'personal knowledge' of 'the facts stated'.... so what I stumbled upon at the courthouse must of been one of 'those affidavits'.....
Come to think about it, those cases that I looked at were started in 2009 ( though some are still open now...). Have not stumbled upon any cases in 2010 that showed the affidavits, but then again I didn't go through everyone.......

Just wonder how exactly Citbank words their affidavits nowadays, or if they are issuing any at all....?

[CCsSuck]

Some cases (out of all I viewed) ended up with a payment plan, with a number of them defaulting and the cases being reopened after a period of time.

Something I've wondered about the payment plans prior to or as a result of the trial -- I'd assume they are heavily in the plaintiff's favor, not the debtors for obvious reasons. But, do they make you sign something reaffirming the debt and therefore at least making it more challenging to discharge in any potential bk down the road?