Cavalry Portfolio / BoA CC Collection Questions

[azdebtowed]

Had a credit card charged off by BoA in November 2008. Balance at the last statement was $42,XXX. Charge off amount on the credit report indicates $42,XXX ; "Last Late Date 10/2008". Now the lovely Cavalry Portfolio Services has the debt and they showed a balance due of $68XXX on a credit report date 6/1/2012. I sent them a Debt Verification letter and received their standard generic response that many people on these boards have seen. Only includes "Original Institution" "Original Account Number" "Calvary Reference Number" "Open Date" "Charge off Date" and now we have an account balance due of "$71,XXX" with a letter dated September 05, 2012. The account was opened while in Arizona, the payments were stopped in Arizona, and located in Texas for the past 2 years now. The reason I outline the states is to try to gather an opinion of the SOL on this account. There seems to be an ongoing debate about older accounts and Arizona's statute of limitation. The old laws say that 3 years prevail but recent legislation has changed the interpretation of the laws to 6 years. The question is, would we be grandfathered in here?

Now I read the Simkus v Cavalry Portfolio Recovery lawsuit someone had posted on another board and it contained this court opinion based on Bank of America ceasing to send updated statements to the consumer. "These factual allegations support the claim that Bank of America evinced its intention to waive the right to charge interest post charge-off."

Yet this balance seems to be growing at an alarming rate. I sent them another letter indicating that their first letter was not adequate and have now received a reply. This time the reply once again included their generic template with a new balance of $72,XXX dated October 16, 2012. This balance has grown approximately $860 since receiving their last letter. This time they included with their response 3 Bank of America statements dated 10/2008, 11/2008, and 4/2008. The 11/2008 statement indeed shows the balance as $42,XXX.

This account is the only thing standing in the way of qualifying for a home loan so I would like to be able to combat this in an aggressive manner. I crafted and sent both of these letters to Cavalry prior to discovering these forums so I may have done something that could be frowned upon. That being said, I would like to take an appropriate course of action at this point and wondered what some of you may think.

Am I in the clear here on the SOL? Do I have a way to get this removed from the CRA's ?

[Public Enemy]

AZ members have said that it the SOL in AZ was always 6 years. There were some judges that were mistakenly using 3 years for the SOL so the legislature just made it more clear.

If that is true then there is no grandfathering to be had.

[azdebtowed]

I have lived in Texas now for a few years but I assumed that they could still apply the SOL from Arizona as that is where the default occurred. In addition I know Cavalry has an office presence in Arizona as well.

[BrunoTheJDBkiller]

Are they suing in Texas? That will determine your SOL argument. Texas seems to have a borrowing statute which allows you to use the SOL of the OC, which is 3 years. I would argue that TX law applies, not AZ law. They could have sued you when you defaulted in AZ, why didn't they? Prob because they intended to let the interest build up for a few years. This is a huge amount, they will pursue this. I suggest contacting this attorney:

Jerry J. Jarzombek The Law Office of Jerry Jarzombek, PLLC 714 W. Magnolia Avenue Fort Worth, Texas 76104 817-348-8325 817-348-8328 Facsimile [email protected]

[azdebtowed]

No there is no lawsuit of any kind. They took the debt over in late 2011 and this leads me to believe that they bought it around the time Arizona passed their legislation making it "more clear" that the SOL was 6 years. My guess is they did a flurry of letters back then to scare people and are not pressing the issue based on POSSIBLE SOL interpretation by a judge. I don't know if that is accurate or not though. My question is though - Is there anyway to get a CRA to remove this based on inaccurate balances or some other type of technicality?

[BV80]

No there is no lawsuit of any kind. They took the debt over in late 2011 and this leads me to believe that they bought it around the time Arizona passed their legislation making it "more clear" that the SOL was 6 years. My guess is they did a flurry of letters back then to scare people and are not pressing the issue based on POSSIBLE SOL interpretation by a judge. I don't know if that is accurate or not though. My question is though - Is there anyway to get a CRA to remove this based on inaccurate balances or some other type of technicality?

You first have to dispute any inaccurate information with the credit reporting agencies. You can dispute first with the JDB, but that would eliminate your chance of suing Cavalry under the FCRA if they refuse to correct any info. To be able to sue under the FCRA, you have to dispute with the CRAs first.

If they correct any inaccurate info, the TL can stay.

How is the balance inaccurate?

Edited October 30, 2012 by BV80

[BrunoTheJDBkiller]

For this kind of money, they'll sue you, count on it. They'll probably file twenty minutes before the SOL expires. Where else can they get this kind of interest?

[azdebtowed]

Bruno - Thanks for the reply. If the Arizona SOL is 3 years, then it is already past the point. If it is 6 years as some people then, then I would still have two more years. If the Texas SOL's apply (4 years), then the expiration of the SOL would be in about 30 days (If starting from charge off point.. If you start from the date of the first default then the SOL is expired). Also my understanding is that they may not be able to charge interest. Check the case Simkus v Portfolio Recovery.

BV80 - Thanks for the reply also. Is there another strategy available to potentially remove the TL?

--- If Bank of America waived its right to charge interest, then CPS would not inherit the right to do so. Therefore, if CPS retroactively charged interest, it may have violated the aforementioned provisions of FDCPA and ICAA. Since neither Simkus, nor CPS, allege that Bank of America expressly waived its right to charge interest after charging off Simkus's debt, the issue is whether Bank of America impliedly waived its rights. Implied waiver is factually specific and dependent upon the "conduct, acts or words of the party who is alleged to have waived a right." In addition, after charging off the debt, Bank of America never sent any further billing statements to Simkus indicating that it was continuing to charge interest on the charged-off amount. These factual allegations support the claim that Bank of America evinced its intention to waive the right to charge interest post charge-off. ---

If this is the case then the balances that Cavalry would be representing that I owe them could be considered a violation of the FDCPA.

Edited October 30, 2012 by azdebtowed

[BV80]

You cited a case from the Illinois federal court. If you plan on suing, it would be preferable to have case law from the Arizona federal court or the 9th Circuit Court of Appeals.

If you can find case law to support that BofA waived the right to collect interest, then if Cavalry won't change the amount on your CR or delete the TL, then you'd have an FDCPA violation and an FCRA violation.

Note that they don't have to delete their TL. They could merely change the amount of the debt to the correct amount. If information is accurate, or if inaccurate information is corrected, a furnisher is under no obligation to delete a TL.