Cavalry SPV I,LLC SUMMONS received today 4/4/2012 but summons dated 3/6/2012

[cher6474]

I just received a summons that is dated 3/6/2012 but it was just served today 4/4. When I look my case up online I see Histories ( Dates listed in descending order)

03/06/2012 COLLECTIONS CASE COMPLAINT FILED PURSUANT TO CRC 3.740. RN

ALH256899008.

03/06/2012 SUMMONS ISSUED.

03/06/2012 SUMMONS FILED.

03/06/2012 ORDER TO SHOW CAUSE HEARING/CASE MANAGEMENT REVIEW SIGNED

AND FILED BY BRUCE E. MITCHELL, COMMISSIONER TO SHOW WHY

SANCTIONS SHOULD NOT BE IMPOSED FOR FAILURE TO FILE PROOF

OF SERVICE PURSUANT TO CRC 3.740(E). MATTER SET FOR

HEARING ON 09/06/12 AT 01:30P M., IN DEPT. 002 .

CERTIFICATE OF MAILING FILED

I know I need to file my answer, but do I have 2 days or 30?

Edited April 4, 2012 by cher6474
better response

[legaleagle]

This appears not to involve you. This looks like the court dropping the hammer on these idiots for not providing proper documentation to the court regarding having you served.

[cher6474]

When do I need to file my answer since I was just served today?

[legaleagle]

I tried mightily, but cannot find anything in the CA rules that defines an answer period. It should be in Title 6, but I don't see it. They give a time for a cross complaint, not the complaint, usually you have 30 days. Post it here, we'll help you answer, do it as soon as you can to avoid problems.

[Seadragon]

you have to pay the fee also I believe it is $225.00 but may have gone up. when you file you can try a fee waiver if you are eligible.

Post the redacted complaint causes of action and lets get to it. You can do this. start reading the california rules of court for limited civil and we just happen to have several Ca. answer templates laying around.

Welcome to the suck.

[Seadragon]

When do I need to file my answer since I was just served today?

Get your answer in as quickly as possible. They may be trying to pull a fast one(has happened before).

[cher6474]

Thanks for your help in advance. The cause of action listed are 1. Account stated and 2. Money Lent

Paragraph 1. The true names and cpacities of Defendents herin sued by the fictitious names as DOES 1 to 10, Inclusive are unknown to Plaintiff, who therefore sues those Defendents under, pursuant to, and in accordance with the provisions of Section 474 of the Code of Civil Procedure. Plaintiff will ask leave of court to amend this complaint as and when the true names and capacities of Defendents named herin as DOES 1 to 10 have been ascertained.

Paragraph 2 At all times herein mentioned, Defendants, and each of them, were agents, servants and employees of each other and every remaining Defendant, and in doing the things alleged were acting in the course and scope of said authority of such agents, servants and employees.

3. Plaintiff is now and was at all times herein mentioned a limited liability company authorized to do business in the State of California.

4. Plaintiff is informed and believes and thereon alleges that Defendant XXXXXXX AKA XXXXX is an individual who resides in the City of XXXX, County of Los Angeles, State of California.

5. Before commencement of this action, in those cases where recovery of costs is dependent on such notices, Plaintiff informed the Defendant(s) in writing that it intended to file this action and that this action would result in a judgement against Defendant(s) that would include court costs and necessary disbursements allowed by C.C.P. 1033((2).

FIRST CAUSE OF ACTION

Account Stated

(Against All Defendants)

6. Plaintiff repeats and repleads and incorporates by reference the allegations made in Paragraphs 1 through 5 of this complaint.

7.On July 31, 2009, defendants were indebted to the original creditor xxxx in the sum of $x,xxx.xx on an account stated in writing. This xxxx account was for credit card purchases and/or cash advances and Defendant was billed monthly and failed to dispute as required under Federal Fair Billing Act applicable to such account (15 USC 1666 et seq.)

8. Prior to filing this complaint, all right, title and interest in the agreement which is the subject of this lawsuit, was sold and assigned by the original creditor, xxxx to CAVALRY SPV I, LLC.

9.Plaintiff made demand on defendants for payment of that sum, but no part of that sum has been paid to plaintiff, and the entire amount is now due and unpaid.

10. The payoff on this account as of July 31, 2009 is x,xxx.xx, plus interest will continue to accrue at the rate of 19.990 from July 31, 2009.

SECOND CAUSE OF ACTION

Money Lent

(Against All Defendants)

11. Plaintiff repeats and repleads and incorporates by reference the allegations made in Paragraphs 1 through 10 of this complaint.

12. Within the last four years Defendant became indebted to original creditor xxxx, in the sum of $xxxx.xx for money lent to or paid out for the benefit of Defendant at his/her request, based on Defendant use and benefit of his/her account.

13. Neither the whole nor any part of the above sum has been paid , although payment has been demanded, leaving a balance due, owing and unpaid to Plaintiff in the principal amount of $xxxx.xx, plus interest at the rate of 19.990% per annum, and costs of suit.

Edited May 4, 2012 by cher6474

[debtorshusband]

OK, so they filed a month ago, and it took until now to serve you. Pretty common, no big deal. Remember they're doing a volume business, so these things take time.

Like others have already posted, in California you have 30 days to file an Answer, from when you were served. So from today, 30 days is May 4. I assume you were served in person? If not, if you got this in the mail, they are probably claiming they served somebody at your home or place of business, and are completing Substitute Service by mail.

That Order to Show Cause/Case Management Review, is just the standard way the courts work in California. You'll notice it's scheduled for Sept. 6, 2012, or 6 months from when the suit was filed. That's a little on the slow side. Maybe your county court is very busy and is backed up. In my county they try to schedule the first conference for 3 1/2 months (105 days) after the suit is filed. If you hadn't been served by 9/12, the judge may have dismissed the case, or given the plaintiff a time extension to serve you.

Since you've been served, that's all moot. Once you file an Answer, that hearing will probably be automatically vacated (cancelled) and another conference will be scheduled for another several months later. We can talk about that later.

In case you don't already know, California provides easy-to-use forms for you. Here:

California Courts - Browse All Forms

You'll want to look at Answer-Contract, PLD-C-010 or General Denial, PLD-050. Use General Denial if you meet the requirements. And yes, it will cost $225 to file your Answer, unless you're destitute and qualify for a fee waiver.

I expect you'll have more questions in the future. We'll be here.

Good luck.

DH

Edited April 5, 2012 by debtorshusband

[cher6474]

Do I use the PLD-C-010 and additionally draft the answer on pleading paper. Just trying to get my ducks lined up...

[debtorshusband]

Do I use the PLD-C-010 and additionally draft the answer on pleading paper. Just trying to get my ducks lined up...

By using the form there is no need to duplicate it on pleading paper.

It's just that some lawyers turn their noses up at the forms, and like to create their own pleadings from scratch, which must then be in pleading paper format.

Regards,

DH

PS I really recommend the General Denial, it's so much easier to use.

Edited April 5, 2012 by debtorshusband
added PS

[cher6474]

I have just finished filling out the pld050 - general denial. and again need guidance to ensure I am doing it correctly (although it seems pretty straight forward.)

The very top section asks for the attorney or party with out an attorney - I entered my NAME - In Pro Per, additionally I entered my address and telephone number.

The second section I listed the address of the Superior Court where the case was filed

The third section I identified the plaintiff - (do I need to type in all caps as was done by the CA)?and myself (do I need to type as does 1-10 and Cxxxx X Rxxxxx aka Cxxxx Rxxxxx as done by CA?)

The fourth section I add the Case Number

The next section is where I have alot of questions... I've been reading on here conflicting ideas about whether or not to use an affirmative defense. In this case Should I or Shouldn't I?

[Seadragon]

Failure to state a cause of action for which relief could be granted.

Statute of limitations

Lack of Standing

Unclean Hands

If anyone thinks there should be more or less let me know.

[debtorshusband]

Failure to state a cause of action for which relief could be granted.

Statute of limitations

Lack of Standing

Unclean Hands

If anyone thinks there should be more or less let me know.

I agree with Seadragon on the first one. That's typical legal boilerplate that it seems like every lawyer puts down, including mine.

The second one definitely, but only if you're sure the SOL has expired. And if it has, it's a slam dunk win for you.

I agree with the third one, as Cavalry is a JDB.

The fourth one I'm not sure about. I don't know exactly what it means, so I wouldn't use it. But if you understand what it means, and it applies, then sure.

My lawyer added one more which I think applies to you:

"There was no Account Stated as alleged in the complaint."

Good luck.

DH

[legaleagle]

Failure to state a cause of action for which relief could be granted.

The complaint is well drafted, it states two legitemate causes of action.

Statute of limitations

Unlikely, the complaint states July 2009, but check it out for date of last payment.

Lack of Standing

Standing is for them to prove, not you to disprove

Unclean Hands

You'll have to prove that they did something unethical in relation to the complaint which would disqualify them from any relief from the court. Can you do this? The fact that they are JDBs isn't enough.

[cher6474]

SOL not up the last payment was made 11/2008. So Im back to wondering do i add affirmative defense or not?

[legaleagle]

I would ditch those, you'll never be able to prove them.

[cher6474]

Ok so should i file my denial with no affirmative defenses? Are they a requirement?

ALSO should i have something in there about them not recovering atty and court costs? And something about them being responsible for my court costs

Edited April 11, 2012 by cher6474

[legaleagle]

No to all. just the answer.

[cher6474]

Thanks a million! Wish me luck.

[legaleagle]

Go get 'em, dude. We have your back. Or dudette if you are a member of the female persuasion.

[FeltS32]

Sent off my answer and filed with the court, just need to get the CMRR slip back from USPS and then file that. Should I start my request for admissions now? Again there is no official form for this so I will be hunting for a template to start off of.

There was a case in my district court against the same creditor over a year ago that was dismissed for "chain of custody". I cant find a docket number or defendants name and the fun people at my courthouse arent willing to do any leg work. I figured this may help me with my case.

Thanks for the help so far!

[FeltS32]

Well today I already got a date for case management conference for late July. I think I should start the discovery process based on my searching and I have found some great suggestions from legaleagle however I am not sure on the format and the civil procedure doesnt seem to outline one...any thoughts?

[cher6474]

Filed my general denial today...Next step??? Im thinking next week I need to send a Bop letter...pointers anyone?

[1stStep]

Send a BOP over...