First Pleading to Civil Summons for Davie District Court
Case File: 08 CVD 220
Plaintiff: Unifund CCR Partners
Plaintiff's Attorney: Pedro J. Zabala, II
Defendant: Charles Thomas Corriher
Summons Issued: 2/7/2008 by CFH
Defendant's Telephone: 336-XXX-XXXX
Plea: Motion For Dismissal
This plea is a MOTION FOR DISMISSAL based upon the PLAINTIFF's misrepresentations of facts, disregard for creditor statutes, and the DEFENDANT claims an ABSOLUTE DEFENSE based upon the 3 year STATUTE OF LIMITATIONS for OPEN END (credit card) ACCOUNT judgments in North Carolina.
These are FACTS respectfully submitted to the COURT and its AGENTS:
The PLAINTIFF's ATTORNEY misrepresented the relationship between the DEFENDANT and CITIBANK (ORIGINAL CREDITOR) by implying that a PROMISSORY NOTE existed between them, which allegedly grandfathered the PLAINTIFF a PROMISSORY NOTE from the DEFENDANT by way of the PLAINTIFF's purchase of the ACCOUNT. The alleged relationship between the DEFENDANT and PLAINTIFF could only be through an OPEN END ACCOUNT, in the event that the PLAINTIFF owns the CITIBANK debt as it claims. All credit card contracts are mandated to be OPEN END ACCOUNTS by the TRUTH IN LENDING ACT, and any attorney practicing debtor-creditor law will know this. The DEFENDANT believes this was an intentional effort by the PLAINTIFF's ATTORNEY to obscure the lines between the laws governing credit cards and the more creditor friendly laws governing PROMISSORY NOTES. This was no careless mistake made in ignorance, but an intentional deception, because the PLAINTIFF's ATTORNEY literally wrote the following book on the topic: "Collection Management And Judgment Enforcement: Innovative Strategies Applicable In All Jurisdictions in North Carolina", published by Lorman Education Services (2006).
The PLAINTIFF ATTORNEY's referral to a credit card contract as a WRITTEN CONTRACT and a PROMISSORY NOTE was a deceitful attempt to manipulate the COURT into extending the STATUTE OF LIMITATIONS. Under law, credit card contracts are neither WRITTEN CONTRACTS nor PROMISSORY NOTES, but are instead classified as OPEN END ACCOUNTS (OPEN/REVOLVING ACCOUNTS). OPEN END ACCOUNTS have the shorter STATUTE OF LIMITATIONS of 3 years in North Carolina. The STATUTE OF LIMITATIONS has expired for this credit dispute, so the PLAINTIFF's ATTORNEY is attempting to manipulate the DEFENDANT and the COURT into giving the PLAINTIFF the longer STATUTE OF LIMITATIONS provided by PROMISSORY NOTES. The DEFENDANT recommends that the COURT take appropriate sanctions against the PLAINTIFF's ATTORNEY, and the DEFENDANT will be lodging a complaint with the North Carolina Bar Association.
Reference the TRUTH IN LENDING ACT (TITLE 15, CHAPTER 41, SUB CHAPTER I)
§1602 -- Definitions and rules of construction(i) The term 'open end credit plan' means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.
§1637(b). The statement must include the account's outstanding balance at the end of the billing period,
§1637(b)(8), and "[t]he amount of any finance charge added to the account during the period, itemized to show the amounts, if any, due to the application of percentage rates and the amount, if any, imposed as a minimum or fixed charge.
§1640.1 -- When a creditor and a consumer enter into an open-end consumer credit plan, the creditor is required to provide to the consumer a statement for each billing cycle for which there is an outstanding balance due.
UNIFUND CCR PARTNERS claims to be the owner a debt formerly owned by CITIBANK. This ACCOUNT was a revolving credit card (OPEN END) ACCOUNT with the DEFENDANT. CITIBANK notified the DEFENDANT over three years ago that CITIBANK no longer wished to have a business relationship with him, would not provide him with further information, would no longer send invoices, and all future payment attempts by him would be refused.
The DEFENDANT disputes the PLAINTIFF's OWNERSHIP, AMOUNT, and INTEREST on this ACCOUNT and the exorbitant associated charges ($5,437.43). Therefore, the DEFENDANT petitions the court to impel the PLAINTIFF to disclose all original documents, including ORIGINAL INVOICES and STATEMENTS from all ACCOUNT owners, the SIGNED contract from the ORIGINAL CREDITOR, the PLAINTIFF's basis for charging interest (23.24%), and the full history of the OPEN ACCOUNT's ownership if this action is allowed to proceed.
The PLAINTIFF falsely asserted that a payment was made to the ORIGINAL CREDITOR (CITIBANK) on September 15th, 2005, to establish September 15th of 2008 as the date to adjust the STATUTE OF LIMITATIONS, for the last transaction date of the OPEN END ACCOUNT. This was an attempt to regain the six-month safety window which attorneys seek whenever filing civil suits. The information provided to the COURT by the PLAINTIFF to establish a date for the STATUTE OF LIMITATIONS is false. The DEFENDANT has verified with his bank and multiple credit agencies that no transactions occurred with either the ORIGINAL CREDITOR or any AGENTS thereof on, or around this date.
Reference the enclosed bank statement and credit reports.
The COURT and the PLAINTIFF's AGENTS are hereby given notice that the DEFENDANT will petition the COURT for a trial by jury if this action is continued, and may seek damages in that event.
The following documents are enclosed as evidence:
Bank Statement For September 2005
Equifax Credit Report
Trans Union Credit Report
Charles Thomas Corriher