Next steps...

[jmkglloyd]

1. Who is the named plaintiff in the suit?

CALVALRY SPV I

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Is this important?

3. How much are you being sued for?

>$10,000

4. Who is the original creditor? (if not the Plaintiff)

BofA

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

In person

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

AZ, Maricopa

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

2008

11. What is the SOL on the debt? To find out:

Was 3 yrs but is now 6 yrs as of 4/12/2012

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Served in person. Filed an answer denying all allegations and sent copy to lawyer. Court website has pre-trial conference scheduled for end of May.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Had 20 days to respond - DONE.

I don't have the paperwork in front of me right now, however to summarize:

- Open account was made with bank on or around said date in 02.

- Correspondence was ignored by plaintiff.

- Plaintiff defaulted and debt was transferred to collections.

- Plaintiff owes specific amount with accrued interest and fees.

No interrogatory provided.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

No evidence presented with summons and complaint. No. No. No. Nothing else attached. Only the summons and the complaint.

17. Read this article:

Article read and answer was based on this article, however worded and arranged for my case based on given complaint.

So now what. I have been provided nothing from the lawyers and have a pre-trial conference scheduled next month. As far as I can tell they have nothing on me except the information that they provided in the complaint which is readily available in my credit report (which I can prove).

As for the SOL. Is there a grandfather clause for the bill that the gov signed in April of 2011? The account was opened before then, the account went into default with the OC before then, however the SOL was not quite up before the bill was passed. Any insight on this? I was about 5 months shy of the original 3 yr SOL before the bill was signed.

If the collector sent me any notices (which I do not recall), I'm not sure when they started. The reason I say this is because they registered the businee name with the AZ Corporation Commission just last year (in Aug I believe). Can you see where I am going with that? Is this relevant?

Thanks in advance for any and all help.

Edited April 8, 2012 by jmkglloyd

[legaleagle]

I would argue the SOL based upon the cardholder agreement, which specifies that both parties agree to be bound by the laws of Delaware, which has a 3 year SOL. Both parties agreed to this, and the court should not interfere and impose AZ SOL. There is no controversy, thus no reason for the court to change the terms of the contract. I looked at at least a hundred SOL cases, 99% of them were car wrecks, insurance claims, and divorces. In most of these cases there was no contract, and there was a controversy between the laws of the two different states, so the court had to decide. Nothing like that here except they were too stupid to file their case in time.

[BV80]

So now what. I have been provided nothing from the lawyers and have a pre-

trial conference scheduled next month. As far as I can tell they have nothing on me except the information that they provided in the complaint which is readily available in my credit report (which I can prove).

As for the SOL. Is there a grandfather clause for the bill that the gov signed in April of 2011? The account was opened before then, the account went into default with the OC before then, however the SOL was not quite up before the bill was passed. Any insight on this? I was about 5 months shy of the original 3 yr SOL before the bill was signed.

If the collector sent me any notices (which I do not recall), I'm not sure when they started. The reason I say this is because they registered the businee name with the AZ Corporation Commission just last year (in Aug I believe). Can you see where I am going with that? Is this relevant?

Did they provide the name of the OC and and the OC's account number in the Complaint?

Regarding the SOL, the reason for the clarification of the 6 year SOL was because some courts ruled the SOL was 3 years under an open account, and others ruled cc debt was 6 years as a written agreement. The court merely confirmed that a cc account was a written agreement. They did not make a new law changing the SOL from 3 to 6 years.

In reference to Cavalry's registration, I assume you want to show they were collecting without a license? Make sure AZ requires out of state debt collectors to be licensed. Also make sure that JDBs are considered debt collectors under AZ law. Not all states consider a JDB to be a debt collector, because they're not collecting debts for someone else. They're collecting them for themselves.

Read the following thread. It applies to ALL JDBS.

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

[1stStep]

Two quick things...

1. A JDB in AZ is not considered a debt collector for licensing purposes, and

2. Calvary registered because they opened an office near 48th St and Broadway in Phoenix...

[jmkglloyd]

Thanks everyone for your replies. Here are a few followup questions to your answers.

@legaleagle

I would argue the SOL based upon the cardholder agreement, which specifies that both parties agree to be bound by the laws of Delaware, which has a 3 year SOL. Both parties agreed to this, and the court should not interfere and impose AZ SOL. There is no controversy, thus no reason for the court to change the terms of the contract. I looked at at least a hundred SOL cases, 99% of them were car wrecks, insurance claims, and divorces. In most of these cases there was no contract, and there was a controversy between the laws of the two different states, so the court had to decide. Nothing like that here except they were too stupid to file their case in time.

I think you're on to something here. I just pulled a CC agreement from BofA website and two things popped out.

1. WHAT LAW APPLIES

This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of

the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.

Then they go on to say

(2) WE MAY SELL YOUR ACCOUNT

We may at any time, and without notice to you, sell, assign or transfer your account, any amounts due on your account, this

Agreement, or our rights or obligations under your account or this Agreement to any person or entity. The person or entity to

whom we make any such sale, assignment or transfer shall be entitled to all of our rights and shall assume our obligations

under this Agreement, to the extent sold, assigned or transferred.

So it sounds to me that your are correct in that the CC agreement is governed by the State of Delaware and JDB is also bound by these terms. I will need to pull Delaware SOL and present this. Do I wait until my pre-trial conference or should I jump on it now? If so, how?

@BV80

Did they provide the name of the OC and and the OC's account number in the Complaint?

They provided only the OC name and NOT the account number. I'm not sure they have this.

Regarding the SOL, the reason for the clarification of the 6 year SOL was because some courts ruled the SOL was 3 years under an open account, and others ruled cc debt was 6 years as a written agreement. The court merely confirmed that a cc account was a written agreement. They did not make a new law changing the SOL from 3 to 6 years.

I understand that it was merely a clarification, but the governor still signed the amendment. However, according the BofA, I don't follow AZ law even though the contract was signed is AZ. I will be looking into Delaware law to substantiate the post from legaleagle.

In reference to Cavalry's registration, I assume you want to show they were collecting without a license? Make sure AZ requires out of state debt collectors to be licensed. Also make sure that JDBs are considered debt collectors under AZ law. Not all states consider a JDB to be a debt collector, because they're not collecting debts for someone else. They're collecting them for themselves.

1stStep already answered this one.

@ 1stStep...thank you for the clarification.

So here's my ammo thus far.

1. Contract is governed by Delaware state laws which indicates they are beyond the SOL.

2. They provided no proof, no account, no contract, no nothing. To me this appears to be a bogus lawsuit.

Last question, is a DV still valid or is it a moot issue? I'm betting they will push this out as long as possible to try to get me to crack. All I have is time so they don't even have that against me. I figure at this point I should just them fry themselves with no evidence and the fact that they are bound by Delaware SOL, which has expired.

Opinions, thoughts, anything?

[jmkglloyd]

I actually just refreshed myself on the AZ SOL and this is what it says

12-548. Contract in writing for debt; six year limitation; choice of law

A. An action for debt shall be commenced and prosecuted within six years after the cause of action accrues, and not afterward, if the indebtedness is evidenced by or founded on either of the following:

1. A contract in writing that is executed in this state.

2. A credit card as defined in section 13-2101, paragraph 3, subdivision (a).

B. If there is a conflict between another jurisdiction and this state relating to the statute of limitations for a debt action as described in subsection A of this section, this section applies.

According to subsection B, AZ SOL still applies as there is an obvious conflict between Delaware and AZ SOL.

Am I interpreting this correctly? If so then the only thing I have is their obvious lack of evidence.

What do you think?

[1stStep]

Attack their standing to sue...I'll bet they can't / won't be able to come up with anything that shows they own the account...this is what you go after.

Also, does that contract mention arbitration?

[jmkglloyd]

In continuing my research, I have found very different views on DV at this point (I have been served and I have answered). However, in AZ it appears that once I answer we automatically go into the discovery period. Whether this is true or not, most of the reading I have done says that DV can be done at anytime. Even if it is moot to DV at this point it will at least at send a message to the lawyer that he's not going to run over me. Because of this I have in numerous instances that the lawyer will just back off and move on the next default judgement.

Please, someone tell me if I'm in the general area of being correct. Either way, I'm going to request a DV from the lawyer so I have something, or the lack thereof, to have for my pre-trial conference.

[Coltfan1972]

Even if it is moot to DV at this point it will at least at send a message to the lawyer that he's not going to run over me.

Actually if you DV the atty after already being sued, you will send the message (right or wrong) that you will be run over. Sending a DV after being sued only sends a message that one has no clue how court works. That is not a good combo when you're representing yourself.

What will send a message that you won't be run over and has a good chance at getting them to go away is a big ole pile of discovery sent to them.

Actually discovery is like DV only under discovery they have to respond with everything (generally speaking) you ask for. In a DV they only have to pretty much say yep the records show you owe it.

Send discovery not a DV. A DV sent will probably mean they will get even more aggressive with you. It will send a message, just the wrong message.

It would be a huge error to send a DV at this stage in the game.

Whatever you decide, send it per the rules of procedure. They won't be required to answer unless you are procedurally compliant.

[jmkglloyd]

@coltfan1972

Maybe my terms were a little mixed as I didn't really understand the difference between the two, but I do now. Thanks!!!

So yes, I plan on sending a Request for Production (ARCP Rule 33) as AZ calls it.

I am now looking for proper format. Does anyone have any good examples that I can reference, specifically for AZ?

[legaleagle]

conflict "statute of limitations" - Google Scholar

Lots of good info here. I really don't like the way these courts just step in and set aside a valid legal contract between parties.

[jmkglloyd]

I'm in the process of writing my discovery letter thanks to all the examples I have read (especially from beergoggles). Do I need to write it on pleading paper even though I don't file it with the court?

[Coltfan1972]

Just regular paper is fine.

[jmkglloyd]

Disclosure papers was received by the courts yesterday. How am i supposed to answer these questions when the lawyer/plaintiff has provided no documents and I of course have none of my own?

1. What are the facts supporting the claim?

2. A description of damages and copies of any exhibits that show how you calculated the dollar value of the damages claimed.

3. What law supports your claim?

4. List of witnesses

5. List of documents and other information

A. Any documents or evidence which would be available for review by the courts which supports you claims.

B. Any other information, documents, or witnesses of which you may have knowledge, pertaining to this matter.

Again, I HAVE NOTHING so how am I to comply with these requests from the court. These are not from the lawyer but from the courts.

I had planned to send for discovery this week but they have 40 days to comply with discovery which is past my pre-trial date. The disclosure seems to basically ask for the same info except discovery I would demand for specifics.

[jmkglloyd]

Anyone interested in helping out here?

[1stStep]

Yes - your discovery needs to be on pleading paper and not filed with the court... make sure you send it CMRRR in case you need to file a motion to compel or preclude.

[legaleagle]

1. What are the facts supporting the claim?

The Plaintiff has made a wholly unsupported claim for damages based upon the unproven alleged purchase of a credit card debt which Plaintiff alleges was originally defendant's account.

2. A description of damages and copies of any exhibits that show how you calculated the dollar value of the damages claimed.

The Defendant did not make any such calculation. This matter should be addressed by the claimant.

3. What law supports your claim?

Defendant makes no claim other than Plaintiff cannot make his case. The Rules of evidence, common law, and statutory requirements apply.

4. List of witnesses

Defendant has no intention of calling any witnesses at this time.

5. List of documents and other information

No documents at this time.

A. Any documents or evidence which would be available for review by the courts which supports your claims.

Defendant has no such documents independent of what Plaintiff has produced. Discovery is incomplete.

B. Any other information, documents, or witnesses of which you may have knowledge, pertaining to this matter.

None at this time

Edited April 12, 2012 by legaleagle

[usagi555]

Actually if you DV the atty after already being sued, you will send the message (right or wrong) that you will be run over. Sending a DV after being sued only sends a message that one has no clue how court works. That is not a good combo when you're representing yourself.

What will send a message that you won't be run over and has a good chance at getting them to go away is a big ole pile of discovery sent to them.

Actually discovery is like DV only under discovery they have to respond with everything (generally speaking) you ask for. In a DV they only have to pretty much say yep the records show you owe it.

Send discovery not a DV. A DV sent will probably mean they will get even more aggressive with you. It will send a message, just the wrong message.

It would be a huge error to send a DV at this stage in the game.

Whatever you decide, send it per the rules of procedure. They won't be required to answer unless you are procedurally compliant.

Yeah, but isn't that something that you personally would enjoy?

[jmkglloyd]

Thank you all for your time. Will keep you all updated on the status.

[jmkglloyd]

I received an Application for Entry of Default and Notice and a Motion for Default Judgment from the lawyer today. Not sure why, as my answer was filed well within my 20 day limit and I also sent for discovery.

What do I do now? How do I respond to this or do I need to. My answer was filed so I didn't think this could be done. I understand the lawyers don't generally check before they pull the trigger so I am assuming once the judge finds out that I DID file my answer he will throw out the judgment.

The court website is vague at best and has no details.

[debtorshusband]

I just typed this in another thread, so I'm just going to cut-and-paste:

I don't think there's a need to get real concerned. This is just the product of debt collection attorneys operating like a paper mill. They are pushing a lot of papers around on a lot of cases, (and the work is being done by minimum wage clerks) so mistakes like this are not surprising, and I've seen this happen before. Not that it doesn't shine a spotlight on their incompetence.

What's likely to happen is simply this: The judge (or possibly the court clerk) will deny their motion because an Answer has been filed by the defendant. However, that doesn't mean you shouldn't keep a close eye on the case.

Just so you know, the Request for Entry of Default is not the formal Request for Default Judgment. It is just the plaintiff "putting their foot in the door." Basically, once 30 days have passed after service of the Compaint, the plaintiff can file for default judgment. But if they don't do it right away, and the defendant files a late Answer, the judge may accept the Answer, and the plaintiff loses their chance at a Default Judgment. Since a full request for default judgment takes some time to put together, they file for the Entry of Default. Like I said, that gets their foot in the door, and a late Answer by the defendant will most likely not be accepted after that.

The reason why the formal Request for Default Judgment takes more time to put together is because they must include the same evidence they would introduce at trial: proof of their ownership and an accounting of how the amount they are claiming was calculated. I have seen case paperwork where the judge denied the Default Judgment and dismissed the case because the plainitiff's paperwork was so shoddy, all without the defendant ever lifting a finger in their own defense. (Not that anyone should count on being that lucky themselves.)

Regards,

DH

[jmkglloyd]

Well, it has been awhile since I updated this. I had pre-trial today and the lawyer called in. He filed a motion to appear by telephone so it was legit.

The judge asked what I wanted and I told him that I wanted a trial as the plaintiff did not provide any proof to substantiate their claim and that discovery had already expired about a little more than a week ago. The lawyer has no idea about the request to produce and I showed the Judge my certified receipt. The judge seemed completely unfazed by the fact that discovery was not answered and in fact gave the Plaintiff an additional 4 weeks to produce and set another pre-trial conference. The lawyer did state that he had evidence that includes my SSN, account statement with account number, and a witness. I'm anxious to see what they produce and who (or what) their witness is.

Is anything I need to do at this point other than wait for their alleged "proof"?

[jmkglloyd]

So now I get the Plaintiffs Initial Disclosure Statement per Rule 26.1. It has several sections:

I. Factual Basis of Plaintiff's Claim.

Basically describes that Defendant went into contract with OC and defaulted and that Plaintiff is the current owner of said contract with stated unpaid balance.

II. Legal Theory for Plaintiff's Claim

They are claiming breach of contract and state one case.

III. Witnesses

They list one witness who is the litigation manager for Plaintiff, c/o Plaintiff attorney. Witness is to testify regarding the agreement entered into by defendant, the course of performance by plaintiff, the breach of the agreement by the defendant, the damages, the assignment of account to plaintiff, and related matters.

VII. Computation and Measure of Damages

States principle amount and interest and attorney fees.

VIII. Exhibits

Just lists thing they can admit into court. They then attach a Bill of Sale which is signed by the VP of the OC. The Bill of Sale references an included attachment a computer generated (from the looks of it) sheet with three lines that has a purchase date, account number, last pay date, OC, and initial balance. I am assuming this was from a list of 100's or 1000's. Last but not least, they attached a generic CC agreement from the OC.

I am thinking lack of standing at this point. The witness is going to do what? He can't prove the Bill of Sale as his signature on not on the Bill of Sale. Anyone can walk into the court room and tell the judge that it pertains to the alleged account. Isn't this hearsay without the original signer of the Bill of Sale as a witness?

Can I get any of these document thrown out from hearsay of hearsay (Bill of Sale, loan schedule, and generic contract)??????

[jmkglloyd]

Any help with what I have would be appreciated.

Again, the JDB provided

- A generic bill of sale signed by OC representative and dated.

- They also provided a printout with my name, account number, last payment made (11/19/2008), original amount due, OC name.

- Lastly, a generic CC agreement from 2002 which is when the alleged card was opened.

BTW, this was sent after the request for production had expired.

Is there anyway any of this can be tossed out?

Edited June 1, 2012 by jmkglloyd

[legaleagle]

You need to take a look at the annotated code, (statutes) to see what passes for admissible evidence in AZ.