sidthekid44

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About sidthekid44

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  1. Reading CPLR 321 I see the new attorney needs to file, with the clerk, a consent signed by the previous attorney and signed by Cavalry. That has not yet been filed per the court's website. I will request validation again from the new attorney, noting that I previously had and continue to elect arbitration. When they validate and file the appropriate consent for a change of attorney I will move forward with my motion.
  2. Thank you. I will make sure I read up on that.
  3. Thank you! If that's the case would they need to start a new case or just pick up where the other attorneys left off? I would guess start over because I can again request debt validation and the new firm does not have the previous communication between myself and the "current" firm...but I'm not sure.
  4. Hey guys I am back with an update and some more questions. My case is still showing on the court's website as Pre RJI as nothing has happened. I had intended to file a motion to compel arbitration in the summer...however, I had a family issue come up that took the majority of my attention. I did continue to check the court website for any updates just in case. I literally just started working on my motion a couple of days ago with the intentions of filing it in a couple weeks. Today I received a letter from Mandarich Law Group LLP in reference to this same debt. The letter states: We are contacting you regarding the above referenced account. As you are likely aware, your account was previously placed for collection with another law firm and litigation was commenced, The Current Creditor listed above has now reassigned your account to our office. The Current Balance stated above is the amount placed for collection by the creditor with our office as of the date of this letter. The next paragraph references the typical debt validation language. The letter then states: Please note that the litigation does not alter the rights explained in the prior paragraph, If you request proof of the debt or the name and address of the original creditor within the thirty-day period that begins with your receipt of this letter , the law requires us to suspend our efforts (through litigation or otherwise) to collect the debt until we mail the requested information to you. As of today (per the court's website) my case with Cavalry (Grossman & Karaszewski) is still active/open. What is the legality of another law firm contacting me regarding the same account that there is an open case with another law frim? What should I expect? Will GK end the current lawsuit or just let it eventually expire due to no action? Can Mandarich sue me while this current case is open? I have no issue starting the process over again with a new law firm. I just want to know where/how to focus my attention. I definitely do not want to pay for an RJI and motion if the current case is going away. As always, thank you for the help!
  5. I would definitely make your own post. Start by answering the same set of questions in the first post of this thread. People from Indiana will help you...especially with the rules/procedures for your state. My understanding of law/procedure isn't that advanced either. I have learned a lot from reading through different threads on this board. Do not just roll over and let them get a judgment against you. At the very least you can put yourself in a position to receive a better settlement. Good luck!
  6. There has been no movement by either party in my case and I have begun working on my MTC Arbitration. I am just trying to put together a quick checklist of what I have to do to accomplish this. 1) RJI ($95) 2) Notice of Motion I see that I need to pick a date/time for the motion to be heard and enter it on this form. I cannot locate online a schedule or typical dates motions are heard for Monroe County Supreme Court. Can I just call the clerk and ask for this information? My assumption is motions are typically heard only certain days/times. Is there any advantage/disadvantage to selecting a date sooner or later? 3) My Motion and Affidavit/Copy of Credit Card Agreement ($45) Am I missing anything? Just to clarify, am I correct that I do not need to physically mail these forms to the Plaintiff/attorney and complete an affidavit of service? I see reference to that, however, as we discussed previously, I believe that electronic filing counts as service for all documents. Thank you!
  7. Today is day 21 and there is still no Affirmation/Affidavit of Service on file for my case. The three documents are 1) Summons/Complaint 2) Statement of Authorization for Electronic Filing 3) Answer (did I screw myself by answering before they filed the Affidavit of Service). Substituted service was completed to my father on May 11th...so the 12th through the 31st of May would be 20 full days. I have done some research, but I am still not sure what my options are. Motion to dismiss? Traverse hearing? A lot of the previous cases I have found deal with default judgments being vacated due to improper service. There was not much of anything about a Affirmation/Affidavit of Service not being filed. I do see that they have twenty days to file the document, but it also looks like it can be corrected or they will just sue again (and I am still about 13 months from hitting the SOL) I would love to make their job more difficult if it doesn't end up being too costly for me or put me into a bad position to later motion for arbitration. Any advice and recommendations are greatly appreciate. There are time constraints and obligations put on me...they should need to meet theirs as well. Thanks!
  8. Minor update: I officially filed my Answer electronically with the court today. I think I will hold tight for a couple of weeks while I work on my MTC arbitration...then most likely file that and RJI (if needed) in the third/fourth week of June (unless the Plaintiff takes some action first). I have been tracking a few other cases similar to mine and have not noticed anything filed with the court for over a month after the defendant's answer. One odd thing I have noticed is there is still no Affirmation/Affidavit of Service filed in my case. It is typically filed 7-10 days after service in most of the cases I have looked at. My father was served my documents 18 days ago. Thanks again to everyone who has offered and given me assistance with this process. I will keep the updates coming. Maybe my experience will help someone else down the line.
  9. @fisthardcheese Thank you for your response. I was afraid that would be the case/your opinion. The complaint was efiled on 04/21/18, obviously after they verified. I cannot be sure what happened between 04/05/18 and 04/21/18. The lawyer's office uses a third party to upload their documents. I imagine there is some delay from filing and having documents uploaded. That probably still would give them an out to fight that claim if it gets that far in arbitration. My hope is we do not get to that point and agree to a mutual dismissal...but I'm getting way ahead of things. My last question...if I need to list specifics in arbitration can I get myself into trouble including that? Would it just be up the arbitrator to disagree that signing the complaint before the debt is validated constitutes them trying to collect the debt while it is in dispute? I obviously am not an attorney either and not as well versed in the FDCPA as you, but I do think an argument can be made they are taking steps to collect before validation...i.e. I'm not acting in bad faith/making up unfounded claims. I did notice the small claims court "issue" in the card agreement. My case was filed in County Supreme Court so I believe I should be ok there. USCTrojanAlum also told me previously, "Monroe County Supreme is a general trial court of original jurisdiction. It is not a small claims court" Thank you again!
  10. @fisthardcheeseI was wondering if I could get your opinion on a possible upcoming arbitration I may have with Cavalry. The quick background Cavalry bought my charged off debt from Citibank sometime in the summer of 2017. They sent me a letter and I sent a DV letter (asked them to only contact me via USPS) and they validated the debt. I did receive a few more calls from Cavalry, but I unfortunately did not document them. Fast forward to this Spring, I received a letter from an attorney representing Cavalry. I again sent the DV letter within 30 days (asking to only be contacted via USPS) and they eventually sent the validation. They have now sued me and I have prepped an answer which I will file shortly. So here are my questions My DV letter to the attorney was signed for on 04/04/18. They signed my complaint for the lawsuit on 04/05/18...obviously before they validated the debt. The attorney's office also called me twice on 04/06/18 and left me a voicemail after the second call. Are these FDPCA violations? The attorney's office is representing Cavalry, but they were/are also acting as a debt collector. They did eventually send me verification which I received 04/16/18 (their letter was dated 04/11/18). So they signed the complaint to sue me a few days prior to even sending out the verification. They also attempted to contact via my cellphone which I specifically asked them not to. My hope is because Cavalry previously verified the same debt that this does not get the lawyer's office off of the hook. The reason I have these questions is because my plan is to file a MTC arbitration. I know my original statement to JAMS does not need to be specific, but if I arrive at the point I need more specifics I have backup against the lawyer's office. Sorry if this is all confusing. I just value your opinion from all I have read on this board from you. Thank you for your time and help!
  11. @usctrojanalum I have looked at a few cases online and noticed, as you said, that process in County Supreme Court does appear to be a slow one. For that reason I was thinking about delaying the filing of my MTC arbitration (as you also said). I will file my answer next week. What is the most likely step the attorney for the Plaintiff will take next? If they file a motion themselves or request discovery or whatever I can still file my MTC at that point, correct? It should be heard before the case moves forward? The optimal goal still being to not participate in the case any further than my answer, but still being able to file my MTC. Thanks as always!
  12. I have made a few minor changes. Again, any comments from anyone are welcome and appreciated. I am also doing this as a way to track things as I research/others help me. @usctrojanalum am I correct that I can just efile this? It does not have to be verified (notarized) and/or sent to their attorney? I have reread your previous comments and where Stark is used, but I just want to double check that nothing in my answer accepts the court as the proper venue/will hurt my MTC for arbitration. Thanks! EDIT: I see you previously answered the Efile question. I apologize for the duplicate question. STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE Cavalry SPV I, LLC Plaintiff, -vs- ME Defendant. Index No: XXXXXXXXXX DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT ON ACCOUNT DEFENDANT, MY NAME, answering Pro Se, without waiving any affirmative defense, as and for an Answer to Plaintiff's Complaint, state the following upon information and belief: 1. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 1 of Plaintiff's Complaint. 2. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 2 of Plaintiff's Complaint. 3. Defendant admits the allegations set forth in Paragraph 3 of Plaintiff's Complaint. AS FOR FIRST CAUSE OF ACTION 4. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 4 of Plaintiff's Complaint. 5. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 5 of Plaintiff's Complaint. 6. Defendant denies the allegations set forth in Paragraph 6 of Plaintiff's Complaint and demands strict proof thereof. 7. Defendant denies the allegations set forth in Paragraph 7 of Plaintiff's Complaint and demands strict proof thereof. 8. Defendant denies the allegations set forth in Paragraph 8 of Plaintiff's Complaint and demands strict proof thereof. 9. Defendant denies the allegations set forth in Paragraph 9 of Plaintiff's Complaint and demands strict proof thereof. AFFIRMATIVE DEFENSES 1. Lack of subject matter jurisdiction. The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction. 2. Failure to state a claim upon which relief may be granted. 3. Defendant denies the amounts claimed by the Plaintiff. Defendant demands Plaintiff verifies a detailed accounting of all alleged purchases, charges, and credits to the alleged account. 4. Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 5. Lack of standing. 6. Failure of consideration. 7. Plaintiff is barred under the Fair Debt Collection Practices Act, and other relevant federal and state statutes, from collecting any interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law. Plaintiff has failed to attach proper documentation to verify such interest is permitted. 8 Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available. PRAYER FOR RELIEF WHEREFORE, the defendant's pray for relief from this honorable court as follows: A. That the Plaintiff takes nothing by way of this Complaint, B. To dismiss the Complaint with prejudice based upon the admissions, denials, and defenses alleged herein, C. To award the Defendants' costs, and D. To award the Defendant such other and further relief as this Court deems just and equitable Respectfully submitted _____________________ ME Dated: May XX, 2018
  13. First attempt. I just want to make sure I answer the summons/complaint in an intelligent way and do not somehow get tripped up on some technicality that will take away my right to file for arbitration. I am not really pleased with my affirmative defenses...other than lack of subject matter jurisdiction. The others I included primarily because in their complaint they have not proven they purchased the debt from Citibank. I believe they can easily do this, but hopefully this will move to arbitration before that occurs. Does the format of my answer matter at all? I have seen many of them so I know the basic outline. Feel free to pick this apart. Thanks as always to everyone who offers assistance! STATE OF NEW YORK SUPREME COURT COUNTY OF MONROE Cavalry SPV I, LLC Plaintiff, -vs- ME Defendant. Index No: XXXXXXXXXX DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT ON ACCOUNT Comes now, the DEFENDANT, Pro Se, and submits the following answers to the Plaintiff's Complaint: 1. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 1 of Plaintiff's Complaint. 2. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 2 of Plaintiff's Complaint. 3. Defendant admits the allegations set forth in Paragraph 3 of Plaintiff's Complaint. AS FOR FIRST CAUSE OF ACTION 4. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 4 of Plaintiff's Complaint. 5. Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 5 of Plaintiff's Complaint. 6. Defendant denies the allegations set forth in Paragraph 6 of Plaintiff's Complaint and demands strict proof thereof. 7. Defendant denies the allegations set forth in Paragraph 7 of Plaintiff's Complaint and demands strict proof thereof. 8. Defendant denies the allegations set forth in Paragraph 8 of Plaintiff's Complaint and demands strict proof thereof. 9. Defendant denies the allegations set forth in Paragraph 9 of Plaintiff's Complaint and demands strict proof thereof. AFFIRMATIVE DEFENSES 1. Lack of subject matter jurisdiction. The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction. 2. Failure to state a claim upon which relief may be granted. 3. Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 4. Lack of standing. 5. Failure of consideration. 6. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision. Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available. WHEREFORE, having fully answered Plaintiff's complaint, the Defendant prays that Plaintiff's complaint be dismissed at its costs and that this answering Defendant recovers costs, expenses, and any other relief as determined by the court. Dated: May XX, 2018
  14. I (my father) was officially served on May 11th. The same gentleman returned and told my father he had received permission to leave the summons/complaint with him. I believe I now have 30 days (because the summons was not personally delivered to me) to answer. My plan is still to answer the summons and also file a MTC arbitration. Due to the cost ($140) to file the motion/RJI I am going to file the answer in the next couple of weeks and then the MTC/RJI the first week of June...unless someone believes that is a bad idea. Given the apparent slow process of cases in Monroe County Supreme Court I assume the Plaintiff will not take any action in the short time between my answer and MTC. I am including the summons/complaint below. I will include my answer in a follow up post in the next couple of days. I would appreciate any feedback anyone is willing to give on that. Thank you! Consumer Credit Transaction Supreme Court of the County of Monroe State of New York: County of Monroe Calvary SPV I, LLC VS Me Plaintiff, Calvary SPV I, LLC, by its attorneys GROSSMAN & KARASZEWSKI, PLCC, complaining of the Defendant, ME, alleges the following: 1. Plaintiff is a foreign limited liability company organized and existing by virtue of the laws of Delaware, with a principal place of business located at 500 Summit Lake Drive, Suite 400, Valhalla, New York 10595. 2. Plaintiff is the assignee or purchaser of all the rights and privileges of certain accounts, including this account, which originated with Citibank, NA (hereinafter the "Original Creditor", which issued a consumer credit account to the Defendant (original account number ending in XXXX), which is the subject of this action. 3. That upon information and belief, Defendant ME, was and is a natural person residing at MY ADDRESS. AS FOR FIRST CAUSE OF ACTION 4. On or about 06/23/2017, Plaintiff purchased certain accounts that originated with Original Creditor. Defendant is obligated on one of those accounts, as more specifically described below. 5. The Defendant and Original Creditor entered into an agreement wherein the Defendant received cash, merchandise, and/or credit of the consumer on the consumer credit account issued by the Original Creditor. SEE SCHEDULE A (one of my old credit card statements). 6. Defendant agreed to make payments for goods and services charged and/or cash advances made upon said consumer credit card account. 7. Defendant failed to make payments due pursuant to the agreement and $XXXX.XX (just under 5k) is now due and owing from the Plaintiff to the Defendant. 8. Payment of the defaulted balance has been duly demanded and remains unpaid. 9. Plaintiff has suffered damages in the amount of $XXXX.XX (same as line 7), together with the costs and disbursements herein. WHEREFORE, Plaintiff, Calvary SPV I, LLC, respectfully requests judgment against the DEFENDANT, ME, as follows: a. On its first cause of action, the sum of $XXXX.XX (same as lines 7/9), together with interest from the date of any judgment granted or ordered; and b. All costs and disbursements of this action; and c. For such other and further relief as this Court deems just and prosper.
  15. UPDATE (or lack thereof) and another question I still have not been served. My father has told me someone came to their home (which I use as a mailing address) last week asking for me. He told the gentleman I no longer lived there and asked if he had anything he needed him to give me. The gentleman responded no and thanked him. My assumption is he was not able to give the summons/complaint to my father because (I think) service can only be left with an adult at your actual residence. I also received my green card back (from my intent to arbitrate letter) from the postal service. It was received/signed for on 04/23/18. In doing more research I came upon Article 75 of the New York Civil Practice Law and Rules. To the best of my knowledge it states that after 20 days of being notified of an intent to arbitrate if no objection is raised they cannot later object that a valid agreement to arbitrate was not reached. Where I run into an issue is I did not include that in the letter I sent to the attorney. Should I resend my letter with that now included so I can use it to my advantage going forward? I initially asked for information in order to fill out JAMS forms (please see the body of my letter copied and pasted below). I could very well be served in the next twenty days. If I do send an updated letter and I am served would this still apply if they do not object? As always, thank you for your time and assistance. It is greatly appreciated. This letter is in response to your letter dated April 11, 2018. This matter remains in dispute and my election for arbitration stands. Regarding the collection of the account referenced above, the agreement states, “Arbitration replaces the right to go to court, including the right to a jury and the right to participate in a class action suit or similar proceeding.” The agreement also states, “Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us.” Pursuant to the cardholder agreement, I ELECT arbitration via JAMS to resolve our disputes. In filling out the JAMS Demand for Arbitration Form, I will need some information. Please forward an email address and fax number for your office and Calvary SPV I, LLC to my address listed above. All phone calls are inconvenient, so all communication needs to be by mail.