Expert: Jason Shear, Esq. - 7/8/2009

Question
QUESTION: Hi:

I was served a debt collection lawsuit by a NYC collection law firm a couple of months ago.  I filed an answer.  It pertains to an old credit card I had years ago.  

Yesterday, I received in the mail from the collection agency's lawyer a "notice to admit".  It states in it if I do not answer within twenty days of receipt the questions are deemed admitted.  It asks if I had the account with the credit card company and if I applied for credit with the original credit card company.  What do I do?  Thank you for your help.

ANSWER: John:

Good question.  Debt buyers in particular may have little evidence to establish their case, and little interest in obtaining the evidence.  Instead, they may try to win their case using your own admissions.  Shortly after a consumer files an Answer, the collector will send the consumer/defendant a lengthy list of statements, asking you to admit to them, hoping you will not respond in a timely manner.  

Failure to respond is treated as an admission of all the requested statements.  The debt buyer's attorney then appends those statements to a summary judgment motion and seeks to prevail in the third party debt collection case although presenting little or none of its own evidence.  By serving a Notice to Admit collectors prey on unrepresented New York consumers' lack of legal knowledge, attempting to prove their case by sleight of hand when they can not do so by evidence in the NY Courts.

The Notice To Admit sent to you by this debt collection law firm is improper.  A Notice to Admit in New York is restricted to several narrow limits including those items as to which the party requesting the admission reasonably believes there can be no substantial dispute at trial and which are within the knowledge of such other party or can be ascertained by him or her upon reasonable inquiry.  A notice to admit can not be used as a substitute for existing discovery devices or a subterfuge for obtaining further discovery.  In addition, a notice to admit can not be used to ask questions pertaining to the heart of the dispute.

If you owe this debt and applied for credit with the alleged original creditor is the heart of the dispute.  As such, Plaintiff's notice to admit is improper.

What you need to do is file a Motion pursuant to New York CPLR 3103 to strike the Plaintiff's (the debt buyer's) notice to admit on the grounds that the requests for admission were improper under CPLR 3123.

Hope this answers your question.  If you have any other questions, please to not hesitate to call.

Jason Shear, Esq.
Admitted in NY & NJ
(716) 566-8988



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---------- FOLLOW-UP ----------

QUESTION: Thank you for that informative response.  Is there a fee to make the motion?  The case was brought in the City Court where I live.  Thanks, John from NY.

Answer
John:

No, there are no fees to bring Motions in the City Courts within New York State.  If you have any other questions please do not hesitate to ask.

Jason Shear, Esq.
Admitted in NY & NJ
(716) 566-8988




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