pookie

Members
  • Content Count

    24
  • Joined

  • Last visited

Community Reputation

10 Good

About pookie

  • Rank
    Newbie

Profile Fields

  • Location
    Georgia
  1. Yeah, you better!! Cavalry won't have your documentation... I'm almost positive of that. If you can bust them on FDCPA violations, they will not want to go to court. Best of luck to you! If I can do it, anyone can!
  2. So sorry! I edited my original post to include the update but I'll post it here: Cavalry and I settled out of court! When I countersued, they knew that I had them busted... First they said that they would settle if I paid half of what was owed, which they said was about $1700. I said no, that they never verified that the debt was actually mine, and I said that I would like $1000 from them and to remove their tradeline from all my credit reports for violating the FDCPA. Then they tried to come back and say that "well, you were supposed to request validation of your debt within 30 days of receiving your first letter...", which is CRAP! As far as I know, you can request validation at anytime... so I told her that I wasn't buying it and I still wanted my $1000. She put me on hold, came back a little later, and offered me $500 and removal of their tradeline from my credit reports. And of course I jumped on that! It was pretty quick and simple. Once they saw that I had evidence of them violating my rights, they buckled very quickly!! And since we settled the day before court, I showed up in court the next day and their lawyer and I informed the judge that we had settled, and that was that! So for all of y'all fighting the good fight... DOCUMENT EVERYTHING!! You will win if you can clearly prove that they've broken the law. I feel so good right now. I've got some other things I have to clear up, but this is a very good start, and I feel confident that I will get the other negatives on my report cleared up eventually! I'm going after the credit bureaus next!! Good luck to everyone, and much love and thanks to all the advice from the knowledgeable CICers around here! :D:D:D
  3. Ok, here's an update: Court date is set for Feb. 26. Cavalry sent me a letter in the mail, wanting me to call to discuss payment arrangements and such. They want to try and settle the account. How should I respond to this? Should I respond with another DV letter? I want them to prove to me that this debt is mine, which they never have. Is that appropriate to do now?
  4. Thanks for that Tazjeepcj7. I am aware that they could argue that. The one thing that I found that could counter that is O.C.G.A. 11-9-102(a)(48)(iii) (part of the Uniform Commercial Code): (48) "Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary endorsement or assignment. The term does not include (i) investment property, (ii) letters of credit, or (iii) writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card. From what I can understand, this exempts credit cards from being called "written instruments". Is this sufficient?
  5. Ok... after doing some more research, I've revised my counterclaim. Took out some of the defenses, reworded some things, etc. Just posting it here for all to see. I'm pretty happy with it, and I'll file it tomorrow! Bring it on Cavalry! IN THE MAGISTRATE COURT OF THE STATE OF GEORGIA FOR THE COUNTY OF XXXXXXXX Cavalry Portfolio Services, LLC ) Plaintiff ) Case No._____________________ Vs. ) ) FIRST AMENDED ANSWERS, XXXXXXXX ) DEFENSES AND COUNTERCLAIMS Defendant(s) ) Defendant, appearing pro se, for its reply to the Complaint of Cavalry Portfolio Services, LLC (hereafter "Cavalry") states as follows. All allegations of the Complaint are denied unless expressly admitted herein. ANSWERS 1. The Defendant disputes the alleged debt, as solicited in the complaint. 2. The Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. 3. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. 4. To the extent a response is required, defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. DEFENSES 5. As and for a First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 6. As and for a Second Defense Defendant alleges that this action is time-barred under § O.C.G.A 9-3-25 of the laws of Georgia. 7. As and for a Third Defense Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages. 8. As and for a Fourth Defense Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 9. As and for a Fifth Defense Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 10. As and for a Sixth Defense Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule. 11. As and for an Seventh Defense Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case. 12. As and for a Eighth Defense Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws. 13. As and for a Ninth Defense 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, and there is no law that otherwise allows them. 14. As and for an Tenth Defense Plaintiff failed to comply with normal and accepted business practices. 15. As and for a Eleventh Defense Plaintiff’s claim is in violation of federal statute. 16. As and for a Twelfth Defense Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed. 17. As and for a Thirteen Defense Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive. 18. As and for a Fourteenth Defense Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. COUNTERCLAIMS FIRST CAUSE OF ACTION Statement of Facts 19. Defendant resides in Georgia and is a consumer as that term is defined by the Fair Debt Collection Practices Act 15 USC 1692 et seq (“FDCPA”). 20. Upon information and belief, CAVALRY PORTFOLIO LLC (“Cavalry”) is a foreign limited liability Company authorized to do business in New York; that Cavalry’s principal business is the collection of debts from others; that Cavalry regularly collects debts; that Cavalry uses the instruments of interstate commerce and the mail to collect debts. 21. Cavalry is a “debt collector” as the term is defined by the FDCPA. 22. The alleged credit card account is a “debt” as that term is defined by the FDCPA, that the alleged account was meant to be used primarily for personal, family, or household purposes 23. December 01, 2006, Cavalry sent a letter to the Defendant, requesting payment on this alleged debt. 24. January 27, 2007, Defendant sent Cavalry, by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. 25. A similar letter and request for validation were sent to Cavalry by way of certified mail on March 5, 2007. 26. Up until the date of this filing, no attempt at validation was received from Cavalry, yet they continued to pursue collection activity on alleged debt. Statement of Claim 27. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects: (a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(. SECOND CAUSE OF ACTION Statement of Facts 28. Defendant repeats and re-alleges each allegation in paragraphs 19-27 with like effect as if fully repeated herein. 29. Defendant received a notice from Cavalry, dated December 01, 2006, noting a Balance of $2,895.73. 30. Defendant received a notice from Cavalry, dated May 15, 2007, noting a Balance of $3,066.86. 31. Defendant received a notice from Cavalry, dated September 11, 2007, noting a Balance of $3,247.87. 32. Defendant was served with a Summons concerning alleged debt, dated December 19, 2008, noting a Balance of $3,167.87. Statement of Claim 33. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects: (a) By falsely representing the amount of the alleged debt and therefore violating 15 USC 1692e(2)(A) THIRD CAUSE OF ACTION Statement of Facts 34. Defendant repeats and re-alleges each allegation in paragraphs 19-27 and 28-33 with like effect as if fully repeated herein. 35. Defendant had asked for documents concerning alleged debt as validation on two occasions. 36. Up until the date of this filing, no attempt at validation was received from Cavalry, yet they continued to pursue collection activity on alleged debt. 37. Up until the date of this filing, Cavalry continues to report alleged debt to the credit bureaus. Statement of Claim 38. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects: (a) By failing to cease reporting of an alleged debt to the credit bureaus if Plaintiff has not validated the alleged debt, therefore violating 15 USC 1692g(. FOURTH CAUSE OF ACTION Statement of Facts 39. Defendant repeats and re-alleges each allegation in paragraphs 19-27, 28-33, and 34-38 with like effect as if fully repeated herein. 40. Defendant had asked for documents concerning alleged debt as validation on two occasions. 41. On December 19, 2007, Defendant was served with Summons concerning alleged debt. Statement of Claim 42. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects: (a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(. THEREFORE THE DEFENDANT ASKS THE COURT FOR JUDGMENT: 43. (a) Dismissing the complaint herein, ( in favor of the defendant on the counterclaims: (i) for actual damages, (ii) for statutory damages in an amount up to $1000 per 15 USC 1692k, (iii) for reasonable attorney’s fees, per 15 USC 1692k, © costs and disbursements of this action, (d) such other and different relief as the Court finds proper, (e) that any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void. Dated: January 13, 2008
  6. Another question: Should I just file a motion to dismiss the complaint? I feel I have grounds to do that. Or should I do that after I file my answer to the summons... or could I do them both at the same time?
  7. Thanks Stresspot. I knew it was a long shot, but I figured I wouldnt be able to argue it without some sort of proof. And I won't be having a lawyer, so I won't try to do that then. I will stick to the statutory damages and any other financial damage I can prove.
  8. It's in the FDCPA... section 15 USC 1692k(a)(2)(a)... statutory damages UP TO $1000. Sucks With the FCRA, I could bust them on each violation, but so far, it looks like Cavalry hasn't violated the FCRA, only FDCPA... I'll have to investigate a little more, but that's all I've got them on
  9. Thanks for that info, Stresspot! And you're right: FDCPA gives statutory damages of $1,000... plus any actual damages, attorney's fees, court costs, etc. I've definitely got Cavalry on the $1000 statutory violation... and I'm not trying to be greedy here, but I really wanna give Cavalry a kick in the a** for all the drama they've caused me. I could argue emotional distress under the actual damages, and monetary compensation for all the letters I had to mail, for which I have proof. From what I've read, the court won't necessarily ask for any documentation of emotional distress. Does anybody have any input on that? I suppose I could ask for a small and modest amount for actual damages...
  10. Yeah... Cavalry sucks. But you need to fight back! I'll be damned if I let these folks sue me when they've violated my rights so many times...
  11. pookie

    Question

    Gaylor... try starting your own thread about your situation... you'll get a lot more responses that way
  12. LOL... I copy and pasted from an Oklahoma example... I'll go back through and make sure I changed everything to Georgia. And so are you saying that I can sue for each violation of the FCRA, but I can only sue once for violation of FDCPA... no matter how many times it was violated, even if different sections were violated?
  13. OK... I am posting my summons response here, in hopes that any legal minds will take a look at it and see if it looks alright. Also posting it for reference for others who are in a similar situation... ______________________________________________________________ IN THE MAGISTRATE COURT OF THE STATE OF GEORGIA FOR THE COUNTY OF XXXXXX Cavalry Portfolio Services, LLC ) Plaintiff ) Case No._____________________ Vs. ) ) FIRST AMENDED ANSWERS, XXXXXXXXX ) DEFENSES AND COUNTERCLAIMS Defendant(s) ) Defendant, appearing pro se, for its reply to the Complaint of Cavalry Portfolio Services, LLC (hereafter "Cavalry") states as follows. All allegations of the Complaint are denied unless expressly admitted herein. ANSWERS 1. The Defendant disputes the alleged debt, as solicited in the complaint. 2. The Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof. 3. The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. 4. To the extent a response is required, defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof. DEFENSES 5. As and for a First Defense Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 6. As and for a Second Defense Defendant alleges that this action is time-barred under § O.C.G.A 9-3-25 of the laws of Georgia. 7. As and for a Third Defense Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages. 8. As and for a Fourth Defense Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 9. As and for a Fifth Defense Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 10. As and for a Sixth Defense Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule. 11. As and for an Seventh Defense Plaintiff's Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration. 12. As and for a Eighth Defense Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. 13. As and for a Ninth Defense Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. 14. As and for an Tenth Defense The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 15. As and for a Eleventh Defense Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits. 16. As and for a Twelfth Defense Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case. 17. As and for a Thirteen Defense Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities. 18. As and for a Fourteenth Defense Defendant alleges that Plaintiff's Complaint, and each cause of action therein is barred by the Doctrine of Estoppel, specifically Estoppel in Pais. 19. As and for a Fifteenth Defense Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws. 20. As and for a Sixteenth Defense 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, and there is no law that otherwise allows them. 21. As and for an Seventeenth Defense Plaintiff failed to comply with normal and accepted business practices. 22. As and for a Eighteenth Defense Plaintiff’s claim is in violation of federal statute. 23. As and for a Ninteenth Defense Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence, or that evidence necessary to provide for Defendant's defense has been lost or destroyed. 24. As and for a Twentieth Defense Plaintiff has no Fiduciary Duty. 25. As and for a Twenty-first Defense Plaintiff has failed to name all necessary parties. 26. As and for a Twenty-second Defense Plaintiff's alleged damages are the result of acts or omissions committed by non-parties to this action over whom the Defendant has no responsibility or control. 27. As and for a Twenty-third Defense Plaintiff's alleged damages are the results of acts or omissions committed by the Plaintiff. 28. As and for a Twenty-fourth Defense Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive. 29. As and for a Twenty-fifth Defense Plaintiff's alleged damages are limited to real or actual damages only. 30. As and for a Twenty-sixth Defense Defendant invokes the doctrines of Scienti et volenti non fit injuria and Damnum absque injuria. 31. As and for a Twenty-seventh Defense Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date. COUNTERCLAIMS FIRST CAUSE OF ACTION Statement of Facts 33. January 27, 2007, Defendant sent Cavalry, by way of certified mail, request for validation of alleged debt, including a questionnaire about said debt and a request for documentation. 34. A similar letter and request for validation were sent to Cavalry by way of certified mail on March 5, 2007. 35. Up until the date of this filing, no attempt at validation was received from Cavalry, yet they continued to pursue collection activity on alleged debt. Statement of Claim 36. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects: (a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(. SECOND CAUSE OF ACTION Statement of Facts 37. Defendant repeats and re-alleges each allegation in paragraphs 33-36 with like effect as if fully repeated herein. 38. Defendant received a notice from Cavalry, dated December 01, 2006, noting a Balance of $2,895.73. 39. Defendant received a notice from Cavalry, dated May 15, 2007, noting a Balance of $3,066.86. 40. Defendant received a notice from Cavalry, dated September 11, 2007, noting a Balance of $3,247.87. 41. Defendant was served with a Summons concerning alleged debt, dated December 19, 2008, noting a Balance of $3,167.87. Statement of Claim 42. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects: (a) By falsely representing the amount of the alleged debt and therefore violating 15 USC 1692e(2)(A) THIRD CAUSE OF ACTION Statement of Facts 43. Defendant repeats and re-alleges each allegation in paragraphs 33-36 and 37-42 with like effect as if fully repeated herein. 44. Defendant had asked for documents concerning alleged debt as validation on two occasions. 45. Up until the date of this filing, no attempt at validation was received from Cavalry, yet they continued to pursue collection activity on alleged debt. 46. Up until the date of this filing, Cavalry continues to report alleged debt to the credit bureaus. Statement of Claim 47. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects: (a) By failing to cease reporting of an alleged debt to the credit bureaus if Plaintiff has not validated the alleged debt, therefore violating 15 USC 1692g(. FOURTH CAUSE OF ACTION Statement of Facts 48. Defendant repeats and re-alleges each allegation in paragraphs 33-36, 37-42, and 43-47 with like effect as if fully repeated herein. 49. Defendant had asked for documents concerning alleged debt as validation on two occasions. 50. On December 19, 2007, Defendant was served with Summons concerning alleged debt. Statement of Claim 51. In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the FDCPA in the following respects: (a) by failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(. NOW THEREFORE, DEFENDANT PRAYS FOR THE FOLLOWING RELIEF: PRAYER FOR RELIEF: 52. A. For Defendant’s First Cause of Action 1) Statutory damages as specified in 15 USC 1692k in the amount of $1,000; B. For Defendant’s Second Cause of Action 1) Statutory damages as specified in 15 USC 1692k in the amount of $1,000; C. For Defendant’s Third Cause of Action 1) Statutory damages as specified in 15 USC 1692k in the amount of $1,000; D. For Defendant’s Fourth Cause of Action 1) Statutory damages as specified in 15 USC 1692k in the amount of $1,000; E. Actual damages in an amount to be determined by judge or jury; F. Exemplary relief in an amount to be determined by judge or jury; G. Injunctive relief; H. Declaratory relief; I. Any attorney fees if applicable; J. costs; K. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void. FURTHER, sayeth naught. 53. Defendant prays judgment in Defendant’s favor and asks relief in the total amount of Four Thousand Dollars ($4,000) plus any applicable attorney’s fees. 55. That any and all contracts having balances owed to the Plaintiff by the Defendant be declared null and void. FURTHER, sayeth naught. Dated: January 12, 2008 by XXXX XXXXX XXXX TO: Cavalry Portfolio Services, LLC 7 Skyline Drive Hawthorne, NY 10532