First, I've gotten much useful info here, and found answers for nearly all questions.
Second, these are the facts. I apologize for length, but I want to make sure the situation is clear to all responding, so the answers will fit my specific situation. I also blame it Aspergers, as I have become somewhat perseverated over this, and I intend to be more, rather than less detailed (which helped immensely when I initially applied for SSDI, I won a favorable decision in about 6 weeks, which is practically unheard of). So, pardon the verbosity, but much is straight from the court summons. I checked and double-checked spelling, but my typing skills are not the best, and my hands don’t always co-operate with me.
I received a summons from that Cornerstone Equity Partners Inc. assignee of Chase, and represented by Protas, Spivok and Collins, is suing me for unpaid debt. It's a long story, but technically I owe the debt, but the debt is for charges I disputed with Chase, for which Chase refused to remove from my account. I have no income save Social Security Disability, and no assets save personal possessions, old beater car, and small life insurance policy. I am, from what I understand from my research, collection proof. I have multiple disabilities/health issues, which are unlikely to improve. I don't want Cornerstone to win by default, so have decided to file my "Notice of Intent to Defend" attached to my court documents , along with my “Answers” and “Sworn Declaration of Exempt Income & Assets” form. I may very well not prevail, but at least I'm going to try. The following is the Plaintiff's claims:
1. Plaintiff, through counsel sues the Defendant for $X,XXX.XX, being the balance due and owing by Defendant to Plaintiff for merchandise sold and delivered and/or services rendered and/or credit extended upon presentation by Defendant to Plaintiff of a MasterCard credit card, issued by Plaintiff to Defendant.
2. Despite demand, Defendant refuses and continues to refuse payment thereof.
Attached to the summons are the following:
1) Application and Affidavit In Support Of Judgment.
2) Request for Military Status (Note: I am not in military).
3) Account Statement which states the following;
a) Issuer
b) Statement Date
c) Account #
d) Amount due
e) It then states;
1) Past Due: Account in Default
2) Interest Rate: (left blank)
3) Date of last pay: 08/13/07
4) Open Date" undefined NaN, NaN *
f) Statement prepared by Cornerstone with info provided electronically by Chase.
g) Messages: Make check payable to "Cornerstone Equity Partnership
h) Remittance form attached.
4) Exhibit A Bill of Sale pg 1
"Chase Bank , for value received and pursuant to the terms and conditions of a Credit Card Account Purchase Agreement dated May 28, 2009 between seller and National Loan Exchange ("Purchaser"), its successors and assigns (" Credit Card Account Purchase Agreement"), hereby assigns effective as of the File Creation Date of June 2. 2009 all rights, title and interest of Seller in and to those certain receivables, judgments or evidence of debt described in Exhibit 1 attached hereto and made part hereof for all purposes.
a) Number of accounts: (blacked out)
b) Total unpaid balances: (blacked out)
c) Premium due seller: (left blank)
Amount due to seller by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received by Seller on June 8, 2009 (the "Closing Date") by 2:00 p.m. Seller's time as follows:
Chase Bank USA, N.A.
ABA # 021000032
Beneficiary Name: chase Bank USA, N.A.
Beneficiary Account: #304-25620
This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of or title or enforceability is expressed or implied.
Signed by Chase Bank Team Leader 6/3/09 and National Loan Exchange COO 6/4/09
Exhibit A Bill of Sale pg 2
National Loan Exchange, Inc. ("Seller"),for value received and pursuant to the terms and conditions of a Credit Card Account Purchase Agreement dated June 3, 2009 between Seller and Cornerstone Equity Partners LLC C/O Protas, Spivok and Collins Law Firm ("Purchaser"), its successors and assigns (" Credit Card Account Purchase Agreement"), hereby assigns effective all rights, title and interest of Seller in and to those certain receivables, judgments or evidence of debt described in Exhibit 1 attached hereto and made part hereof for all purposes.
This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of or title or enforceability is expressed or implied.
My questions:
1) Does that Bill of Sale satisfy the requirement showing I have some agreement with Plaintiff, as Chase transferred the account to them? *What the heck does “NaN” mean??
2) Which, if any, of the “AFFIRMATIVE DEFENSES” can I additionally use? Which should I discard? I want to be careful to choose only those which would apply to my particular situation. Strike out what you feel does not apply. I thank you in advance for your attention to this matter.
I am using a template for my answers, and picked these for the answers:
Now comes Defendant, Pro Se, who denies the following paragraphs of Plaintiff’s Complaint:
1. Defendant denies the allegations contained in Paragraph 1 as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.
Now comes Defendant, Pro Se, who admits the following paragraphs of Plaintiff’s Complaint
1. Defendant admits the allegations contained in Paragraph 2.
However, the template lists additional answers:
II. AFFIRMATIVE DEFENSES
Defendants other defenses are:
1. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.
2. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements that are required to be in writing. The purported contract alleged in the Complaint was not in writing and not signed by Defendant or by some another person authorized by Defendant and who was to answer to the alleged debt, default, or miscarriage of the other person.
3. Plaintiff is not the real party in interest and has failed to name all necessary parties.
4. Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called FDCPA, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by purported agreement.
5. Plaintiff's Complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Plaintiff's Complaint fails to allege whether the purported assignment was partial or complete and there is no evidence that the purported assignment wad bona fide.
6. Plaintiff's Complaint further fails to allege that the Assignor even has knowledge of this action or that the Assignor conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.
7. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the purported debt, or a portion of the purported debt, or that the Original Creditor received other compensation in the form of monies or credits from the Plaintiff. Note: Only applies in third-party creditor situations.
8. Plaintiff is not the real party in interest. Plaintiff voluntarily, with knowledge inherent, made an assumption of risk and is not entitled to judgment.
9. The Plaintiff has not proven that they are authorized and licensed to collect claims for others in the State of State, solicit the right to collect or receive payment of a claim of another.
10. The Complaint fails to allege or prove that the Plaintiff is licensed and has procured a bond in the State of State as required.
11. Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.
12. Plaintiff's damages are limited to real or actual damages only. Note: Cannot be used against an original creditor, only third-party.
