numbersguy

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  1. As for filing an answer in NY, the 20 (or 30) days doesn't start with being served. The clock for answering the suit doesn’t start until the process servers files an affidavit with the court saying that you were properly served. Once that has been filed the “official start of the clock” is 10 days later. After the 10 days you have 20 days to answer the suit (or “file” an appearance depending on the type of complaint) if you were served in person or 30 days later if you were served via another method. In theory, you could go almost 60 days before filing and answer. It depends on when the service affidavit is filed and method of service. Another thing about mentioning arbitration in your answer, you haven't elected, etc., so just having that clause doesn't make it a defense. If you're going to mention arbitration, send a letter in accordance with the arb clause in the agreement. Once that is done, you can answer the arb portion as follows depending on how your card agreement reads: That the Court lacks jurisdiction over the person of the Defendant as Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff and Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement.
  2. Here is part of a post of mine from years ago. Calvary also called me about a $8500 debt. I told them in a letter to stop calling. If you want to contact me send a letter. Not a true C&D but haven't heard from them since and the debt aged out. Anyway, when it comes to Calvary in NY, this is what I posted: From research that I've done in the last few days on Cavalry (both here in their home court so to speak and upstate NY), they are the poster child for Defaults “Я” Us. At least in the NY Tri-state area suits are filed by their in-house attorney. Or is it just a coincidence that their attorney of record in the cases I looked at had the same address as Cavalry? Their upstate NY attorney uses a very similar complaint and virtually nothing submitted as evidence. One thing they both have in common, no cases in the last few years have gone anywhere near a courtroom trial. You have one of three things happen - 1) default judgment, 2) stipulated settlement (usually more than 75% of the original complaint amount or 3) voluntary dismissal. Of the defendants that actually enter a decent answer to the complaint, i.e., one's who don't file an answer that says that they are financial strapped and have this medical condition and that is why I can't pay, the percentage of suits that end #3 goes up dramatically. See if you can access on line various court’s websites or county clerks records to see if you can research Cavalry cases filed in IL This will give you an idea of what you’re up against. I would think the Circuit Court clerk in Morrison or Sterling might be able to point you in the right direction. The equivalent in NY is that the county clerk is the keeper of the records of suits filed and related motions etc. Depending upon the county, you can see complaints, answers, motion, etc. that were filed on line. In other counties, you can get on line the parties involved but no details about the cases themselves unless you go to the clerk’s office and have them pull the hard copy files. It appears to me that the only type of person that will lose to Cavalry is one who doesn't push back or a Japanese soldier that has just come out of hiding from the jungles from WW II. Even then I'm not so sure. .
  3. It's one thing to fight a credit card lawsuit pro se. It is entirely another to try to file for bankruptcy on your own. Do people do it successfully? Yes, but often bankruptcy cases are not successful because the debtor forgot to dot an "i" or cross a "t" on the forms filed with the Court. Better to put together the $1500 or so for the BK attorney to handle your case.
  4. If Schachter Portnoy is Cavalry's attorney and the amount in question is a couple of thousand dollars or less, chances are the suit will either lie dormant or eventually be withdrawn by them since you filed an answer. Schachter Portnoy may be related to Cavalry as they share the same address in Valhalla, NY. If you go on the NYS Courts' Electronic filing web site and research Cavalry cases in Westchester and/or Rockland counties, you will see that Schachter/Calvary (like most JDB's) file in bulk looking for default judgments. For the most part, where answers are filed in response to their suits, the claims aren't pursued.
  5. As for an initial communication, it depends on the court. Some Federal Districts have held that it is a communication, others say no since they did not physically talk to you. They're all over the map. The best one in favor of a debtor was that the court said since the caller ID identified the CA and even if the CA did not leave a message, that was considered a communication (don't ask me how). As for a five day letter, don't be surprised if a letter shows up in a week or two with a date within the 5 days. Since chances are there is no cancellation postmark on it, they can easily say, "But Your Honor, we mailed it on such and such date. We can't help it if the post office didn't deliver it in a timely manner." As for not identifying themselves as a debt collector, there was a case before a Federal Appellate Court that was directly on point. The name of the case escapes me, but the CA said there were caught in between a rock and a hard place, i.e., if they said in the msg that they were a debt collector they felt they would be in violation of FDCPA. If they didn't identify themselves, that would also be in violation. I don't know how the judge ruled on that point as I was researching another type of possible violation, once I saw that the case didn't fit what I was researching, I stopped reading it.
  6. EXACTLY @CCRP626!!! Saying calls are inconvenient satisfies the requirement that the CA/JDB now knows what you say is inconvenient. If you don't say what is inconvenient, then the after 8:00 AM and before 9:00 PM rule for calls applies. Telling the CA not to call falls short of a full C & D since you can tell them to contact you via written correspondence to a specific address. They can choose whatever method of sending that written communication, i.e., US Mail, FedEx, Pony Express. You're not telling them to stop ALL communications. You are letting them know what is or is not convenient for you. Forgive me for appearing smug, but luck hasn't had anything to do with it. Having detailed records of calls along with other documentation does the trick. And for the record, there has been no need to bait them into violating, they've done a good job of doing that themselves.
  7. I disagree with the contention that it will be thrown or laughed out of court. I have collected on several FDCPA claims re: no phone calls letters only variety. Settled both before suit was filed and after. While the FDCPA doesn't not specifically say "partial communication." It does say "(1) at any unusual time or place or a time or place known or which should be known to be inconvenient to the consumer." So the only thing wrong with the OP's letter was that calls would be considered harrassment not to be inconvenient. In a staff commentary letter in which the FTC published it interpretation of the FDCPA, it stated: 2. Inconvenient or unusual times or places (section 805(a)(1)). A debt collector may not call the consumer at any time, or on any particular day, if he has credible information (from the consumer or elsewhere) that it is inconvenient. If the debt collector does not have such information, a call on Sunday is not per se illegal. Also, someone forgot to tell the Consumer Financial Protection Bureau about limiting phone calls. On their site they have a sample letter which states in part: Dear [Debt collector name]: I am responding to your contact about collecting a debt. You contacted me by [phone/mail], on [date] and identified the debt as [any information they gave you about the debt]. You can contact me about this debt, but only in the way I say below. Don’t contact me about this debt in other way, or at any other place or time. It is inconvenient to me to be contacted except as I authorize below. You can only contact me at: [Mailing address if you want to get mail] [Phone number and convenient times if you want to be contacted by phone] [If correct, include the following] My employer prohibits me from receiving communications like this at work. Thank you for your cooperation. I would suggest that you talk to a consumer attorney. If you have the appropriate proof, i.e., certfied letter sent to the collector and recordings of phone calls etc. that they made after they received you letter, they will give you an idea if your case is worth pursuing. I can't say specifically what my settlements were due to non disclosures, but suffice it to say, I didn't pay any money to my attorney as a retainer.
  8. I respectfully disagree. By not filing an answer, you guarantee a Midland win and default judgment. If you file an answer denying the counts, you force them to either send you discovery, file for a MSJ or decide for the amount involved, it isn't worth investing additional time and money. If they do either of the first two things, then sit back and don't invest your time and the result is no different than not answering - judgment Midland. By filing an answer (you don't have to include affirmative defenses), you signal to them that they may have a fight on their hands - possibly letting the case wither and die. Maybe it's only a 1% or even a 10% chance they don't pursue it, if you file an answer. But in my book, a 1% chance is better than a no percent chance. There is no cost to you, other than the cost of ink, paper and a couple of first class stamps and maybe 30 miunutes of your time. In NY, a judgment filed with the County Clerk creates a possible lien for 10 years. At the end of 10 years, they can file for one additional 10 year period for a total of 20 years. Either way. Good luck again
  9. Well said. It's sort of like the disclaimers that investment firms say in their commericals or printed marketing materials..."Past investment results have no bearing on future performance." Unless you're Bernie Madoff.
  10. As far as what is considered a "household," it may vary by jurisdiction. Some courts consider a household to include all people in the house. Others only include those people that are financially dependent upon the person filing BK. Once that is determined, you'd be able to then figure out whether your income exceeds. Having said that, the means test usually only looks at your income for the six month immediately proceeding your filing. If you're starting a job after you file, I don't have an answer. That's why it is wise to pay the $1500 or so to retain a BK attorney and not try to file on your own. BK court is definitely a place where you want to make sure all the i's are dotted and t's crossed.
  11. It could be a secured card that you receive an offer for. Usually within 6 months of the discharge (some sooner) for a small amount, eg., $500. It can be expensive if you carry balances going forward, however, after another 6 months or a year of paying on time, not maxing out the card, you'll start to get offers for unsecured cards. It won't happen overnight, but it will happen.
  12. I'd have to go back and see what constitues an "event" for purposes of the three years but essentially, you are correct in assuming that since it is within the same tax year, you'd have to claim the amount. As to a assessment letter that you received in connection with your property taxes, it depends on what your taxing authority uses to determine assessed value. Some use fair market value, others may use some other method.
  13. First things first, go back and edit the dollar amount you mentioned to a more generic $1XXX. Based on the exact dollar amount and other information that you gave, it would be easy to go into the NYS Electronic Filing System as a guest and get information on you, e.g., name, address, etc.. I think Monroe participates. Based on the info you gave us and the rules cited above, you are essentially "judgment proof." Midland might not pursue it, however, given that it's Forster & Garbus (a Long Island based firm) they will see it through assuming you default. They would then file the judgment with the County Clerk and do one of two things - sit on it hoping that you come into money someday or sell the judgment to someone else. You have to decide if you want to contest this. If yes, then you need to file answer by no later than May 13th (it could be later but use May 13th as your deadline date). Before everyone starts saying that you have to file an answer in NY within 20 days of being served in person (30 days if served by nail and mail), NY has some peculiar rules as to how service is completed. The abridged version is that the clock doesn't start ticking on an answer until 10 days after the proof of service is filed with the court (April 11th was a Saturday, earliest day to file with the Clerk is April 13th). It could be longer but I won't bore everyone with the details. Given that its F&G, you won't have anything else attached to the summons and complaint as it's not required in NY and besides, that would actually require one of their paralegals go locate and actually attach additional papers to the complaint. Their complaints are all written using the same boilerplate. Written is a strong word as their legal software just pulls in personal information off of their database or spreadsheet file. So decide if you want to fight it (personally, I would if I were judgment proof just for the amusement angle). If you want to fight it and you have it, can you post a copy of the WebBank agreement? That way you can receive input from members as to an arbitration option. Good luck.
  14. If the attorney thinks it is so "cut and dry" he wouldn't be asking for money upfront. If he has taken on consumer credit cases before he knows that he gets paid by the violator. If he's asking for a retainer, then 1) he doesn't really think it is a slam dunk or 2) he hasn't handled very many FDCPA claims before. Keep looking.
  15. There are too many unknowns for anyone here to offer the probability of you getting sued. What is the amount that we are talking about? If it's $500, then the liklihood is lower than if the amount is $5,000. There will be differing opinions when you get the collection letter from Midland, as to whether you send them a DV request and also if you should tell them not to contact you, etc. Some say not to as that will prompt a lawsuit. I can only speak from experience. When Asset bought one of my debts, I DV'd them. Asset later merged with Midland and I started getting calls and letters from Midland, I DV'd them and only have been getting letters offering 75% discounts to pay. It's been 18 months and no lawsuit yet (Amt is $2,000). I didn't push arbitration in the letter and will wait to see if they ever purchase a case index number to file a complaint. At that point, I'll decide if I want to play the Arb card. As to your house, do you have equity in it and why do you think they would force a sale of the house? Many states have homestead exemptions that kick if a creditor would try to force a sale. For example, in NY, if your equity is say $75,000 in your house and someone (other than the bank holding the mortgage) tries to enforce a lien judgment, it comes up short since the lien amount would impair your equity, therefore no sale. The exemption amount varies by county. At most, they place a lien on the property hoping that someday when the house is sold and the value had increased so that your equity increased above the exemption amount. If they try to force a sale, they would have to hope that the resulting sales price pays off the mortgage, other prior liens, foreclosure costs, etc. and is still higher than the exemption amount. I think if you do some research, it would be fair to say that it would be rare for a judgment creditor to try to force the sale of one's home.