Can communicating with bank (defendant) hurt my case.

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pctechtv

New Member
Jurisdiction
New York
I have a case I have filled against a bank in Small Claims Court of NYC. This case relates to fraud committed on my debit MasterCard. After I field the case with the city of New York and not related to them being aware I did that. The bank called me for quality assurance. When I explained to the agent what happened they called the merchant with me. The merchant and the bank both noted that I am not responsible for the charge. However, they went back passing the blame of who is responsible to return the funds to me.

Again, at the time of talking to the merchant with them the bank did not know I had a case filled. The bank agent tried to help. I filled the case before this time because the bank seemed to be very incompetent and dismissive with evidence provided by the merchant. To be clear they claimed they never received it. However, when they did, they quickly closed the case again. This is when I filed the NYC Small Claims Case.

It seems like once the agent realized that I have a case filled they ended communication with me. I understand why.

Of course, I would like to get this worked out before my court case. Can I communicate that to them without hurting my case in court? Can I send them things like affidavits?
 
pctechtv said:
Can I communicate that to them without hurting my case in court? Can I send them things like affidavits?
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Sure. Why not? Once the bank is served you'll have to communicate with them anyway. Might as well see if you can get it settled.

I suggest you read your debit card holder's agreement very carefully. Debit cards don't have the level of protection that credit cards have. If the bank is not contractually obligated to reimburse you for fraudulent charges, you would lose the lawsuit.
 
adjusterjack said:
Sure. Why not?
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Hi, thanks for the reply. That is good information to know. This is a transaction via my checking accounts debit Mastercard. Is that not covered via Mastercard 0 liability for fraud? I am trying to find a specific agreement for that and cannot.

Is there anyway to ask Mastercard to step in here?
 
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Also I have a couple of phone recordings stating I am not responsible for the transactions, and other things. Can/Should I share this with the legal team before the case.
 
pctechtv said:
This is a transaction via my checking accounts debit Mastercard. Is that not covered via Mastercard 0 liability for fraud?
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Your checking account and debit/ATM card is a separate agreement from your credit card.

pctechtv said:
I am trying to find a specific agreement for that and cannot.
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If you didn't keep the agreement that came with the card, you should be able to download one from the bank's website or get a paper copy at the branch. You can ask the bank's agent for a copy. You can call customer service and get a copy mailed to you. There's a lot of ways to get one.

pctechtv said:
I have a couple of phone recordings stating I am not responsible for the transactions, and other things.
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Which is not saying that the bank is responsible, just that you're not.

pctechtv said:
Can/Should I share this with the legal team before the case.
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Probably won't do you any good.

You really need to read your account agreement before doing anything else, to make sure you have followed all the requirements for making a claim.

pctechtv said:
Is there anyway to ask Mastercard to step in here?
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No. Your contract is with the bank.
 
Thanks adjusterjack, great information. I have been saying I could be thinking of stuff that does not matter.

I take it that the other (ignored) fraud attempts on my account around the same time mean nothing to as them being responsible also, correct?
 
What MIGHT assist in resolving the dispute in your favor would be the camera images or video footage taken by the merchant, assuming the miscreant committed the alleged thefts in person, rather than via telephone or online order.

If the scammer displayed a drivers license, provided an address, a telephone contact number; all the better helping you identify the perp.

If you were able to recognize the alleged perpetrator's image or voice, all the better for you, as well as law enforcement.
 
pctechtv said:
I take it that the other (ignored) fraud attempts on my account around the same time mean nothing to as them being responsible also, correct?
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Attempts that fail aren't anybody's responsibility

I think it's time you provided details about who's been doing what to you.

I'm hoping you have taken appropriate precautions like cancelling the card and getting a new one with a different account number and changing passwords.
 
adjusterjack said:
Sure. Why not? Once the bank is served you'll have to communicate with them anyway. Might as well see if you can get it settled
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Can you explain how this communication should/will go. It seems like since the time when they got served they stopped talking. Thanks for any help
 
You have a hearing date scheduled, right?

The defendant has no obligation to "communicate" with you prior to that hearing. My guess is that they prefer to wait until the hearing to present any defenses against any allegations you make.

If you want to "communicate" before the hearing, how and what you "communicate" is up to you.

Call them on the phone if you like.
 
I was advised by someone who knows about the law that I should subpoena one of the bankers who discussed my situation with me on the telephone. Is this possible in a Small Claims case? The person is not even residing in NY. How would this work?
 
pctechtv said:
I was advised by someone who knows about the law that I should subpoena one of the bankers who discussed my situation with me on the telephone. Is this possible in a Small Claims case? The person is not even residing in NY. How would this work?
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I doubt a New York small claims court would have jurisdiction to subpoena an out of state witness, if they chose to voluntarily come in response to the subpoena, then that issue is moot.
 
adjusterjack said:
You really need to read your account agreement before doing anything else, to make sure you have followed all the requirements for making a claim.
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I found it. It is actually the same one I once found online. It was in the original folder Santander gave me when I opened the account.
 

Attachments

  • PDAA.pdf
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doucar said:
I doubt a New York small claims court would have jurisdiction to subpoena an out-of-state witness if they chose to voluntarily come in response to the subpoena, then that issue is moot.
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What you said totally made sense. However, I was at the court today and asked at the information window, and they said yes, absolutely, the person (even though out of state) can be subpoenaed. My only goal here is to turn up the heat on them. I don't think they will show. Someone else I spoke to suggested that I should. They said if they don't show it will weigh negative against them. Thanks
 
pctechtv said:
What you said totally made sense. However, I was at the court today and asked at the information window, and they said yes, absolutely, the person (even though out of state) can be subpoenaed. My only goal here is to turn up the heat on them. I don't think they will show. Someone else I spoke to suggested that I should. They said if they don't show it will weigh negative against them. Thanks
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https://nycourts.gov/courts/nyc/smallclaims/forms/instructionsservicesubpoena.pdf

A subpoena from the Civil Court of the City of New York may be served only within the City of New York or in Nassau County or Westchester County, Service anywhere else may only be done if permitted by a Judge.
 
adjusterjack said:
I think it's time you provided details about who's been doing what to you.
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You still haven't explained what happened.
What merchant?
What transaction?
How much money is involved?
Who has your money?

Why are you suing the bank? In other words what did you write on the complaint form:

CIV-SC-50.pdf (nycourts.gov)

In the space where it says "Primary Reason for Claim" or in the space marked "Other"?

pctechtv said:
the person (even though out of state) can be subpoenaed.
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Yes, but the defendant can file a Motion to Quash the Subpoena and state a variety of reasons to quash. Then you will have to respond explaining your grounds for issuing the subpoena.

What, exactly, do you want to accomplish by issuing the subpoena? Apparently you want that person to come to court and testify about something. What do you want him to testify about?

pctechtv said:
I found it. It is actually the same one I once found online. It was in the original folder Santander gave me when I opened the account.
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From Page 21, paragraph (d) Your Liability for Unauthorized Transfers. Did you comply with any of those provisions?

(d) Your Liability for Unauthorized Transfers Contact us immediately at the phone number shown below if you believe your Card or personal identification number ("PIN") has been lost or stolen or any of your Electronic Banking services has been used or may be used without your permission. The best way to keep your losses at a minimum is to telephone us at the phone number shown below. You could lose all the money in your Account if you do not notify us of the loss of your Card or PIN or the unauthorized use of your Electronic Banking service. Your liability will be determined as follows:

• If you contact us within two (2) Business Days of your discovery of the loss, you can lose no more than $50 if someone used your Card and PIN without your permission.
• If you do not contact us within two (2) Business Days of your discovery of the loss when someone used your Card and PIN without your permission, you could lose as much as $500 if we can prove that we could have prevented the loss if you had contacted us.
• If your monthly statement shows transactions that you did not make and you do not contact us within sixty (60) days after the statement was mailed to you, you may not get back any money lost after the sixty (60) days if we can prove that your contacting us would have prevented those losses. If a good reason (such as a long trip or a hospital stay) kept you from telling us, we will extend the time periods.
• If your Debit Card was used to make unauthorized purchases for which no PIN was required, you cannot lose any money if you report the unauthorized purchase within sixty (60) days of the date of the first statement showing the unauthorized purchases.

If you give your Card or PIN to anyone at any time, you will be liable for any transaction made by that person using your Card or PIN until you tell us that that person is no longer authorized to use your Card or PIN.
Also, the state law applicable to your Account may give you more time to report an unauthorized transaction or may give you more protection.

 
pctechtv said:
This explains what happened.
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That response may have been unwise.

In fact, it more than likely angered the monster.

I suggest you interview two or three business law attorneys ASAP.

This type of incident left uncorrected will fester and become more complicated.
 

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