Your Name
Your Address
City State Zip
Phone

New Century Financial Services, Inc.		| Superior Court of New Jersey
Plaintiff					| Special Civil Part
						| Law Division - YOUR COUNTY
v.						|
						| Docket No.: 	DC-XXXXXXX-XX
Your Name					| 
Defendant					| Civil Action
						| Notice of  Motion
						| 

TO: Gerard J. Felt
Pressler & Pressler
16 Wing Dr.
Cedar Knolls, NJ 07927

PLEASE TAKE NOTICE that at a time and date determined by the court, the undersigned defendant shall cross move the above named Court at Special Civil Case Management Office PUT IN ADDRESS OF COURT in the above entitled matter for an Order compelling the defendant to produce proofs supporting its default judgment and to show standing to sue.
		
The order sought will be entered in the discretion of the court unless the attorney or pro se party upon whom it has been served notifies the clerk of the court and the attorney for the moving party or the pro se party in writing within ten days after the date of service of the motion that the responding party objects to the entry of the order.

NOTICE. IF YOU WANT TO RESPOND TO THIS MOTION YOU MUST DO SO IN WRITING. Your written response must be in the form of a certification or affidavit. That means that the person signing it swears to the truth of the statements in the certification or affidavit and is aware that the court can punish him or her if the statements are knowingly false. You may ask for oral argument, which means you can ask to appear before the court to explain your position.  If the court grants oral argument, you will be notified of the date, time and place. Your response, if any, must be in writing even if you request oral argument, Any papers you send to the court must also be sent to the opposing party  if they are not represented by a lawyer.

The attached brief and affidavit are relied upon. A proposed form of Order is attached.

Dated: XXXXXXXXXX

Respectfully submitted,

Your Signature

Your name Printed

Your Name
Your Address
City State Zip
Phone

New Century Financial Services.		| Superior Court of New Jersey
Plaintiff					| Special Civil Part
						| Law Division - YOUR COUNTY
v.						|
						| Docket No.: 	DC-XXXXXXX-XX
Your Name					| 					
Defendant					| Civil Action
						| Defendants Brief

Please accept this letter brief in lieu of a more formal brief.

Introduction:

This is a motion to compel plaintiff to provide the necessary proofs supporting its default judgment and otherwise show standing to sue. 

Facts: 

Plaintiff initiated action against defendant asserting that it is the now current owner of a debt allegedly owed by this  defendant. 

Apparently, having no evidence of proof of service of process and no evidence of any nexus between this defendant and any other party, plaintiff obtained judgment by default.

Argument:

Upon defendant’s learning of the action, and seeking from the clerks office a copy of the file and its’ proofs of claim,  it was learned the no such items were submitted in support of the default judgment.

Pressler and Pressler, having control of the litigation, failed to produce any evidence of its claim that the undersigned is indebted to the plaintiff. See Rule 6:6-3(a). 

.To support its application for he entry of default judgment, plaintiff was required by Rule  6:6-3(a) to summit the documents enumerated in said Rule.

Contracts supporting the allegations of the complaint which also includes the terms and conditions specifically applicable to defendants alleged account are not attached to the affidavit of proof.

The 16 U.S.C. 1637(b) / 12 C.F.R. 226.7 statement is not attached to the affidavit of proof.

The required contract of assignment is not to be found.

There is no basis for the assertion of the affidavit of non military service.

This case appears to mimic the fraud elucidated by the Honorable Judge Miniman on April 12, 2002 in the unpublished case of New Century v Sanchez Morris County Special Civil Docket DC-2747-98

Where knowledge of facts is derived from documents, the documents themselves are the best evidence of the facts and parole evidence is inadmissible to prove the facts.  Weisbond v. Schultz 2 N.J. Misc. 1132, 1134. (Sup. Ct. 1940).

It is well settled that to be enforceable a contract must be supported by valuable consideration. Coast National Bank v. Bloom, 113 N.J.L. 597 (E. & A. 1934); Fryns v. Fair Lawn Fur Dressing Co. , 114 N.J. Eq. 462 (Ch. 1933); Levine v. Blumenthal , 117 N.J.L. 426 (Sup. Ct. 1936). Consideration involves a detriment incurred by the promisee or a benefit received by the promisor, at the promisor's request. In the credit card relationship, neither status is created. The holder of the card (promisee) is free to cancel or not use it, and has gratuitously received an opportunity to purchase without incurring any detriment. Additionally, there does not appear to be any benefit bargained for or received by the issuing company (promisor). Lacking consideration, the credit card account is, as stated in City Stores , a continuing offer to purchase which may be withdrawn by either party at any time. Novack v. Cities Service Oil Co., 374 A.2d 89, 149 N.J.Super. 542 (N.J.Super. Law Div. 04/07/1977)

Further, in the Novack case, the court, in footnote 3, indicated “The agreement of the parties respecting the purchase and obligation of payment is founded upon the terms of the charge slip signed by the purchaser which states: "Customer acknowledges the credit card used in this purchase is unrevoked and agrees to pay for this purchase upon receipt of statement in accordance with the terms and conditions of the agreement governing the use of such card."” (emphasis added)

An application for a credit card is not a contract creating an obligation on behalf of this defendant. The Novack case specifically defines the document creating any obligation on behalf of the undersigned.

The undersigned has never had an opened ended credit plan with the plaintiff, yet plaintiff asserts that the R. 6-6:3-(a) required copy of the 15 U.S.C. 1637(b) statement submitted to support the judgment is a copy of defendants opened ended credit plan statement.

Plaintiff has produced no such documents.

Further plaintiff alleges that the alleged debt of this defendant is the result of an opened ended  credit agreement.

In Cooper and Cooper v. Mullin 2 N.J.L 98 (1806) the court ruled that even after default, the plaintiff must proceed to prove his demand.
It is long "settled that, where the suit is brought by the assignee in his own name, he must aver and prove that the cause of action was in fact assigned to him." Sullivan v. Visconti, 68 N.J.L., 543, 550 (Sup. Ct. 1902); Cullen v. Woolverton, 63 N.J.L. 644, 646 (E. & A. 1899) (holding that the document of assignment was a writing upon which the action of the plaintiff was founded and without which he could have had no standing in court to prosecute his claim.) In addition, "[i]n order to effect a valid assignment it is fundamental that there must -be evidence of an intent to assign or transfer the specific thing or debt and the subject matter of the assignment must be described sufficiently to make it capable of being readily identified." Transcon Lines v. Lipo  Chemical, Inc., 193 N.J. Super. 456, 467 (Law Div. 1983).

Again in the case of T & S Painting v. Baker Residential, 333 N.J. Super. 189, 193 (App. Div. 2000) the court again ruled  with respect to default and Rule 6:6-3(a), “The rule requires a "particular statement of the items of the claim," and a copy of the relevant contract or books of account, particularly important where, as here, the dispute concerns lack of payment for contractual work said to have been completed.“

In a Texas case, PRESTON STATE BANK v. LARRY M. JORDAN 692 S.W.2d 740 (1985), the court stated “Quite simply put, appellant failed to produce any evidence of a  contract agreement under which appellee was allegedly liable to it. The  fact that appellee failed to deny under oath under TEX. R. CIV. P. 93 (7)  that he had executed the contract, does not excuse appellant from having  to prove the terms of the contract. See Thompson v. Republic Acceptance Corporation, 388 S.W.2d 404, 405 (1965).”

STATEMENTS OF COUNSEL IN BRIEF OR IN ARGUMENT ARE NOT FACTS BEFORE THE COURT. See UNITED STATES v. LOVASCO (06/09/77)  431 U.S. 783, 97 S. Ct. 2044, 52 

L. Ed. 2d 752, GONZALES v. BUIST. (04/01/12) 224 U.S. 126, 56 L. Ed. 693, 32 S. Ct. 463, HOLT v. UNITED STATES. (10/31/10) 218 U.S. 245, 54 L. Ed. 1021, 31 S. Ct. 2,

The burden of proof is on the plaintiff to support its claim.

Conclusion:

As can be seen, the plaintiff has shown no set of facts supporting its claim. For the reasons set forth herein, the defendants motion for proof of claim must be granted.

Respectfully submitted,

Your Signature

Your name typed
Dated XXXXXXXXX

Your Name
Your Address
City, State Zip
Phone

New Century Financial Services, Inc.		| Superior Court of New Jersey
Plaintiff					| Special Civil Part
						| Law Division - XXXXXX County
v.						|
						| Docket No.: 	DC-XXXXXXX-XX
Your Name					| 
Defendant					| Civil Action
						| Affidavit of Defendant
						| (Motion for Proof)

I, Your Name, am the defendant in the above captioned action, and being competent to testify,

certify as follows:

1. I have entered into no agreement with the plaintiff.

2. I am not in receipt of any contract making me liable to any other party.

3. I am not in receipt of any contract making me liable for the debt of another person.

4. I am not in receipt of any contract making any other party or person liable for any potential or 

alleged debt of my own.

5. I am not aware of any novation nor have I agreed a novation of any description.

6: On or about XXX DATE, I became aware of the above entitled action.

7. In order to determine the cause of action, on or about XXX DATE, I visited the office of the 
clerk and reviewed the file in this matter.

8. I obtained the only relevant documents in the matter, being THE COMPLAINT AND THE AFFIDAVIT OF PROOF and specify what else you think is appropriate here.

9. There was NO OTHER DOCUMENT SUBSTANTIATING THE CLAIM IN  THE FOLDER.

I certify that the foregoing statements made by me are true. I am aware that if any of the 

foregoing statements made by me are willfully false, I am subject to punishment.

Executed on XXX DATE XXX

Signature

Your name typed

Your Name
Your Address
City, State Zip
Phone

New Century Financial Services, Inc.		| Superior Court of New Jersey
Plaintiff					| Special Civil Part
						| Law Division - XXXXXX County
v.						|
						| Docket No.: 	DC-XXXXXXX-XX
Your Name					| 
Defendant					| Civil Action
						| Order 
						| 

The matter being opened to the court by the defendant and having been (opposed) (unopposed) 

and the court considered the arguments and papers, and for good cause shown, it is on this 

______ day of ___________, 2006 ORDERED that the plaintiff shall file and serve the 

following proofs :

A: The contract of assignment subject to the Rules of Evidence

B: The contract entered into by the defendant which shall also include the terms and conditions subject to the Rules of Evidence.

C: The original creditors last periodic statement per 15 U.S.C. 1637 and 12 C.F.R. 266 in full compliance with the Rules of Evidence.

within 10___ days of the date hereof.

_____________________________________JSC