peanut835

Please, I Need Serious Help!!! Received summons from Cavalry SPV I LLC - Law suit MA

Recommended Posts

Hi guys, so I opened a CC when I was 18 (2008) for some reason they gave me a huge limit I was careless and now I am being sued.

I did a lot of research in the forum and think I still might have a chance, but this is where I ask you guys who have way more experience in this then I do.

I noticed that I should have sent a "DV letter" to the lawyer however I never received anything before the summons, I def. would have sent it and sent the case right into arbitration but now I have 20 days to respond to the complaint and provide my answers and it's too late to ask for a "DV Letter" :confused:

I know that in MA the SOL is 6 years and I also know that Bank of America is a DE based company and the SOL in that state is 3 years.

I was doing some reading and I think I can fight this case through arbitration, under the grounds that adopting DE law is more suited for this particular case because the credit line, interest rate, etc...is calculated under Delaware law. PLEASE correct me if I am wrong.

My main question is...

Since I have already been issued a summons, hand delivered to my house, and the law suit has technically been filed (or so I think it has) Is there any way I can put the case on hold and go right into arbitration? The case is brand new and I only received the summons yesterday.

I did a lot of searching and came across a few copies of BOA's credit card agreements (if any of you need these agreements please let me know!!)

-2003: JAMS

-2006: NAF

-2008: NAF

I also know that NAF no longer handles credit care arbitration cases and they are usually more inclined to take sides with the plaintiff. So obviously I would try to go through JAMS.

****Question Template****

1. Who is the named plaintiff in the suit?

-Cavalry SPV I, LLC, as assignee of Bank of America/FIA Card Services, N.A,

2. What is the name of the law firm handling the suit?

-The Law Offices of Goldberg & Oriel (Framingham, MA)

3. How much are you being sued for?

-Total $8,706.94 - Principle $4,664.16 + Int. $4,042.78

-Statutory Interest - (12% per annum from May 23, 2012 on or before which date demanded for payment was duly made)

-costs and attorney’s fees

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

-Bank of America / FIA Card Services

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

-Received summons

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

-Mail

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

-Yes, was dropped off at my home

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

-Was aware of the debt, was not aware of the law suit/summons

9. What state and county do you live in?

-Massachusetts, Essex County

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

-On or about November 29, 2008 Bank of America charged-off the balance due under the Agreement.

11. What is the SOL on the debt?

-Massachusetts - 6 years

-Delaware - 3 years

12.What is the status of your case? Suit served? Motions filed?

-Received summons yesterday (Aug. 1, 2012)…Suit served?

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, I had no idea I was being summoned

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?

-20 Days (August 21, 2012)

INTRODUCTORY STATEMENT

The Plaintiff seeks certain damages from the Defendant for Breach of Cardholder Agreement.

THE PARTIES

1. The Plaintiff, CAVALRY SPV I, LLC, as assignee of Bank of America/FIA Card Services, N.A., is a limited liability company duly organized by law having a usual place of business in Hawthorne, NY.

2. The Defandant, “Peanut835”, is an individual having a usual place of residence at “name of street” “name of city”, Essex County, MA

COUNT I

(For Breach of Cardholder Agreement)

3. The Plaintiff re-avers, re-alleges and incorporates herein by reference the allegations contained in Paragraphs 1-2 above with the same full force and effect as if expressly set forth herein.

4. On or about June 25, 2007, the Defendant entered into, executed and delivered to Bank of America / FIA Card Services, N.A. (“BOA”) a Cardholder agreement (“Agreement”) wherein BOA provided the Defendant with a credit card account (numbered XXXX-XXXX-XXXX-XXXX) and wherein the Defendant agreed to pay BOA and/or its assigns all balances due thereunder.

5. Thereafter, the Defendant defaulted on the agreement by failing, refusing or neglecting to fully pay all balances as and when due thereafter.

6. On or about November 29, 2008, BOA charged-off the balance due under the Agreement.

7. On or about October 25, 2011, BOA assigned all of its right, title and interest in and to the Agreement to the Plaintiff.

8. Thereafter, the Defendant failed, refused or neglected to pay the Plaintiff pursuant to the Agreement despite the Plaintiff’s demands for payment.

9. The principal balance due under the “Agreement” is $4,664,16 and interest has accrued thereon pursuant to the terms of the Agreement in the sum of $4,04278

10. The Defendant thus owes the Plaintiff the total sum of $8,706.94 plus statutory interest thereon at a rate of 12% per annum from May 23, 2012 on or before which date demand for payment was duly made, costs and attorney’s fees.

WHEREFORE, the plaintiff demands Judgment against the Defendant in the total sum of $8,706.94 plus statutory interest thereon at a rate of 12% per annum from May 23, 2012, on or before which date demand for payment was duly made, costs and attorney’s fees and the entry of such further relief as this Honorable Court should deem just and proper.

16. What evidence did they send with the summons?

-Complaint Letter

-“Statement of damages” listing:

-Contract claim

-Plaintiff and defendant name / address

-amount of contract claim

Thanks in advanced to all who contribute...I will be checking this thread frequently and will respond in a fairly quick time so all your questions/comments will be answered and appreciated

Share this post


Link to post
Share on other sites

A couple of things, what does the JAMS arbitration clause say? What I would likely do is use the 2003 agreement and let them argue that it does not apply and what the real agreement has to say.

If it was me I would send a notice of electing arbitration to them right away. Then go for the kill shot with the SOL for DE and in the alternative compel arbitration. That way if the judge does not agree with your SOL argument that DE law applies and it is SOL, he has to rule on compelling arbitration.

Share this post


Link to post
Share on other sites

A DV is useless at this point (it's borderline useless at any point in time).

However, you have your arbitration right. Arbitration has nothing to do with DV. Just elect arbitration per the agreement and then you can demand they drop the suit and file it in arbitration or you can file a motion to compel arbitration.

Share this post


Link to post
Share on other sites
A couple of things, what does the JAMS arbitration clause say? What I would likely do is use the 2003 agreement and let them argue that it does not apply and what the real agreement has to say.

If it was me I would send a notice of electing arbitration to them right away. Then go for the kill shot with the SOL for DE and in the alternative compel arbitration. That way if the judge does not agree with your SOL argument that DE law applies and it is SOL, he has to rule on compelling arbitration.

Thanks for the quick reply(s) Kent & ColtFan

Unfortunately I still can not post links but I do have the actual files for both the 2003 agreement and the 2008 agreement in PDF forms. Again please let me know if anyone needs them

2003 Arbitration Clause is as Follow

7.19: Arbitration. Any dispute, claim or controversy ("Claim") by or between you and us (including each other's employees, agents, or assigns) arising out of or relating to this Agreement, your Account, or the validity or scope of any provision of this Agreement including this arbitration clause, shall upon election by either you or us, be resolved by binding arbitration. Arbitration shall take place before a single arbitrator on an individual basis without resort to any form of class action. Arbitration may be selected at any time unless a judgement has been rendered or the other party would suffer substantial prejudice by the delay in demanding arbitration.

Arbitration, including selection of an arbitrator, shall be conducted in accordance with the rules for arbitration of financial services disputes of J.A.M.S./Endispute ("JAMS"). You may call JAMS at 949.224.1810, or write to J.A.M.S., 1920 Main Street Suite 300, Irvine CA 92614, to obtain rules and forms to initiate arbitration. If JAMS is unable or unwilling to serve as the provider of arbitration, we may substitute another national arbitration organization with similar procedures. This arbitration section of this Agreement shall be governed by the Federal Arbitration Act, 9 US.C. Sec. 1-16. Judgement upon arbitration may be entered in any court having having jurisdiction. Arbitration shall be conducted in the federal judicial district in which your billing address is located at the time the claim is filed. We will pay JAMS fees and expenses for claims asserted by us. We will also pay JAMS fees and expenses charged to you in excess of what filing fees would have been for you to initiate an action in court. If the arbitrator rules in favor of one party against the other, the other party shall pay all reasonable attorneys' fees and costs of the action on behalf of both parties (including any fees and expenses paid by one party on behalf of the other) unless the arbitrator or court decides such an award would cause a substantial injustice based on the facts and legal arguments set forth in the action. YOU UNDERSTAND AND AGREE THAT IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, THIS ARBITRATION SECTION PRECLUDES YOU AND US FROM HAVING A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH COURT, OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION IF YOU OR WE ELECT TO ARBITRATE.

Bank of America 2008 Arbitration Clause is as follows

Amendment: Effective November 30, 2007, the section of the Agreement titled, Arbitration and Litigation is replaced in its entirety with

the following:

ARBITRATION AND LITIGATION

This Arbitration and Litigation provision applies to you unless you were given the opportunity to reject the Arbitration and Litigation

provisions and you did so reject them in the manner and timeframe required. If you did reject effectively such a provision, you agreed that

any litigation brought by you against us regarding this account or this Agreement shall be brought in a court located in the State of

Delaware.

Any claim or dispute (“Claim”) by either you or us against the other, or against the employees, agents or assigns of the other, arising from

or relating in any way to this Agreement or any prior Agreement or your account (whether under a statute, in contract, tort, or otherwise

and whether for money damages, penalties or declaratory or equitable relief), shall, upon election by either you or us, be resolved by

binding arbitration. The arbitrator shall resolve any Claims, including the applicability of this Arbitration and Litigation Section or the

validity of the entire Agreement or any prior Agreement, except for any Claim challenging the validity of the Class Action Waiver, which

shall be decided by a court.

In addition, we will not choose to arbitrate an individual Claim that you bring against us in small claims court or an equivalent court, if any.

But if that Claim is transferred, removed or appealed to a different court, we then have the right to choose arbitration.

Arbitration shall take place before a single arbitrator and on an individual basis without resort to any form of class action. Arbitration may

be selected at any time unless a judgment has been rendered or the other party would suffer substantial prejudice by the delay in demanding

arbitration.

The arbitration shall be conducted by the National Arbitration Forum (“NAF”), under the Code of Procedure in effect at the time the Claim

is tiled. Rules and forms of the National Arbitration Forum may be obtained and Claims may be filed at any National Arbitration Forum

office, wwwarb-forumcom National Arbitration Forum, or P.O. Box 50191, Minneapolis, Minnesota 55405, telephone l-800-474-2371. If the NAF is unable or

unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code

of procedure. At your written request, we will advance any arbitration filing fee, administrative and hearing fees which you are required to

pay to pursue a Claim in arbitration. The arbitrator will decide who will be ultimately responsible for paying those fees. If you file a claim

against us, in no event will you be required to reimburse us for any arbitration filing, administrative or hearing fees in an amount greater

than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction.

Any arbitration hearing at which you appear will take place within the federal judicial district that includes your billing address at the time

the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by

the Federal Arbitration Act, 9 USC. $5 1-16 (“FAA”). Judgment upon any arbitration award may be entered in any court having

jurisdiction. The arbitrator shall follow existing substantive law to the extent consistent with the FAA and applicable statutes of limitations

and shall honor any claims or privilege recognized by law. If any party requests, the arbitrator shall write an opinion containing the reasons

for the award.

No Claim submitted to arbitration is heard by a jury or may be brought as a class action or as a private attorney general. You do not have

the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration

(Class Action Waiver). The parties to this Agreement acknowledge that the Class Action Waiver is material and essential to the arbitration

of any disputes between the parties and is nonseverable from this agreement to arbitrate Claims. If the Class Action Waiver is limited,

voided or found unenforceable, then the parties’ agreement to arbitrate (except for this sentence) shall be null and void with respect to such

proceeding, subject to the right to appeal the limitation or invalidation of the Class Action Waiver. The Parties acknowledge and agree

that under no circumstances will a class action be arbitrated.

This Arbitration and Litigation Section applies to all Claims now in existence or that may arise in the future. This Arbitration and Litigation

Section shall survive the termination of your account with us as well as any voluntary payment of the debt in full by you, any bankruptcy

by you or sale of the debt by us.

For the purposes of this Arbitration and Litigation Section, “we” and “us” means FIA Card Services, N.A., its parent, subsidiaries,

affiliates, licensees, predecessors, successors, assigns, and any purchaser of your account, and all of their officers, directors, employees,

agents and assigns or any and all of them. Additionally, “we” or “us” shall mean any third party providing benefits, services, or products in

connection with the account (including but not limited to credit bureaus, merchants that accept any credit device issued under the account,

rewards or enrollment services, credit insurance companies, debt collectors and all of their officers, directors, employees and agents) if, and

only if, such a third party is named by you as a co-defendant in any Claim you assert against us.

YOU UNDERSTAND AND AGREE THAT IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, THIS ARBITRATION

SECTION PRECLUDES YOU AND US FROM HAVING A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THROUGH

COURT, OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS. EXCEPT AS

OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION IF YOU OR WE ELECT TO

ARBITRATE.

Sorry for the long posts guys. I just want to help you out as best I can so you can help me.

Please let me know how you recommend I should proceed.

Thanks again and let me know if you need any more information.

Cheers :D

post-92754-135461079888_thumb.jpg

Share this post


Link to post
Share on other sites

Shall upon election by either you or us, be resolved by binding arbitration.

I stopped reading right there. You're good to go.

Share this post


Link to post
Share on other sites
Shall upon election by either you or us, be resolved by binding arbitration.

I stopped reading right there. You're good to go.

Haha thanks man.

I have no idea what I need to do to proceed. I am brand new to this and have a few questions.

1.) Can I use the 2003 agreement even though my account was opened in '07 and closed in '08.? I would prefer JAMS

2.) If I do take this to arbitration, do I still need to submit answers to the complaints?

3.) What is the likelihood that JAMS will take the S.O.L. from Delaware vs Massachusetts into account when it comes to this particular case?

What steps do I take?

-Contact JAMS

-Send letter to court

-Send letter to lawyer

Share this post


Link to post
Share on other sites

If the SOL is expired, you won't have to worry about ARB or a court case. However, you may have an argument depending upon how MASS views the SOL. Most states don't interfere if there is a written agreement estabishing the choice of law. To find out, look at this link:

"choice of law" - Google Scholar

Look for cases involving credit cards or lenders first. Even so, the law is the law. A few of these will tell you what MASS does. I bet you are the same as my state, where the court decides based upon what state has the greater interest. However, you must determine if this is past the 3 year SOL. Here's how.

Take the date of the first payment you missed, which established when the account went into default. Fast forward 3 years. If the date they filed their suit is after this date, you're in.

Share this post


Link to post
Share on other sites
If the SOL is expired, you won't have to worry about ARB or a court case. However, you may have an argument depending upon how MASS views the SOL. Most states don't interfere if there is a written agreement estabishing the choice of law. To find out, look at this link:

Look for cases involving credit cards or lenders first. Even so, the law is the law. A few of these will tell you what MASS does. I bet you are the same as my state, where the court decides based upon what state has the greater interest. However, you must determine if this is past the 3 year SOL. Here's how.

Take the date of the first payment you missed, which established when the account went into default. Fast forward 3 years. If the date they filed their suit is after this date, you're in.

Thanks a lot for your input.

However MA S.O.L. is 6 years. It's Delaware's SOL that is 3 years.

In MA where the "Agreement" was signed I am still within the SOL, hence why I was wondering if I could push it into ARB and have them determine that the choice of law would be Delaware. Simply, because in the "Agreement", B.O.A. clearly states that they use Delaware law to determine things such as credit lines and interest rates because B.O.A. is a Delaware based company as most banks are.

Please advise.

Cheers

Share this post


Link to post
Share on other sites

I don't mess around with arbitration so can't really give you firm answers. However, I don't see how you could use an agreement dated during a time when you did not have the account.

Share this post


Link to post
Share on other sites
bump

...... my 2006 agreement states that " If the NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure."

Your 2008 agreement may have similar language.

I elected arbitration with JAMS against BofA using the theory that if they can substitute, so could I. BofA dismissed the day before trial.

 

Share this post


Link to post
Share on other sites

You would argue the SOL according to the terms of the DE agreement you signed. They specified DE law, you agreed to it, no court should set aside that agreement and few will. If the SOL is expired, they are forum shopping. Do they really want to invoke MA law? You may be able to find a few statutes they might not like, such as interest rate law. Once they disavow their home state law they have no options. Typical stupid JDB lawyer mistake.

Share this post


Link to post
Share on other sites

So how do I demand to go into arbitration?

I have some time before I am obliged to submit my response to the complaint but I want to take it into arbitration.

Do I still need to submit my responses or can I just submit my demand for arb?

Also how do I go about it? Which parties need to be informed?

Lawyer, Court, BOA?

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.