Grizz2443

I'm being sued by Cavalry SPV, I need some advice

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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( B)(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.

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Can you win?  Absolutly yes.  Will you win?  No one can answer that for you, it will completely depend upon your willingness to study and learn the codes that apply, the rules of court, your local rules, and legal system.  There are many on here that will guide and help you with what you need but the fight is your to fight.

 

Are you certain your complaint is verified?  Getting a verified complaint in these matters is not that common.  Verified means at the end of the complaint, where the attorney signs their name, it says “I declare under the penalty of perjury under the laws of the state of California that the forgoing is true and correct,” or something very close to that.  If it’s not verified, you can use a general denial form which is here.

 

File your answer and send them a BOP right away.  Here's a sample BOP you can download and edit as required.  The areas in the brackets [ ] are the areas you'll need to edit.

 

Missing pages?  You can go to the court and get copies easy enough.  That might be a good idea just to see what's missing.

 

Also, there is a great thread by a poster here, ASTMedic, that will really give you a good rundown on the whole process.  It's with a different JDB but the process is very similar.  Here's the thread.

 

This should get you started, good luck,

 

rt

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Winn Law Group?  

 

Rivertime offered some great advice!  Make sure the complaint is verified, like RT said, it's uncommon.  They may include something about verifying the jurisdiction, which can be confused as a verified complaint.  

 

I ran into Cavalry as well and won my case (dismissed prior to going to trial), and you could probably as well.  It's a long process and will require a lot of reading/work, but for the relatively small amount, I doubt they put forth that much effort to carry this thing all the way to the end.  

 

Follow RTs advice, get your answered filed and work on the BOP and feel free to ask any questions you might have.  There are a lot of helpful people on this forum, probably the best advice you'll get and FREE.

 

Best of luck!

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Fill out the 20 questions that you see at the start of many threads. This is so that you can have more people weigh in. Depending on who the OC is etc,.there will be different strategies depending upon the applicable cardholder agreement. Given the amount you are talking about, one that needs to be explored is private arbitration.

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Racecars 20 questions for California

 

1. Who is the named plaintiff in the suit?

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

3. How much are you being sued for?

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

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

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

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

Process Service Requirements by State - Summons Complaint

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

9. What state and county do you live in?

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

11. What is the SOL on the debt?

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).

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

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.

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.

 

16.We need to know what the "charges" are. Please post what they are claiming. Common counts, account stated,breach of contract,for money received on behalf of the plaintiff, open book account,unjust enrichment.

 

17.Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

 

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

 

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

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The summons has a a page 2nd to the last that says "I declare under penalty of perjury of the laws of the state of california that the foregoing is true and correct..." but this page and the page before it says "Declaration RE: Venue" on the bottom and not complaint for common counts" so I guess it isn't verified after all.. that's a relief. Thanks for the clarification.

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Joe,

You have recieved some really solid steps to begin the journey. It is also good that you recieved a big dose of reality when dealing with JDB and collections. Common sense becomes Uncommon sense as you learned. Paying the complete bill and then asking for a deduction on the second file with the same JDB. Common Sense says they should give you a break and lower the amount. Good you have learned that lesson.

Assuming you may not qualify for a fee waiver on filing fees it is always good to get a grasp of the financial picture to fight the case. First, getting a lawyer to handle will not be cost effective. The lawyer will cost almost as much as the total amount of the amount being sued for. This means you will need to go it Pro Se. Filing your answer and several motions, along with Postage will run around $350 to $400 to fight the case. Obviously, there will be considerable time.

The reason I bring this up is you mention wanting to settle. Currently your profile with this JDB says "Paid in Full on the last file", you need to convince them you are going to be really hard to get any additional money from. This is done with actions not words. You will need to fight them in order to get to any settlement chance. You may find that by fighting they decide to abandon this claim, but this will take time and effort.

If you truely want to work towards a settlment you will need to take into consideration the cost to fight first. So let's say I am close at $400 bucks. You said you will offer a low ball of $700-800. If you add the costs to fight to even get them to consider a lower amount your total outlay is almost $1200 dollars or 80% of the $1500 you believe is owed. 80% is not a good settlement number IMO.

I write this to get you to change your mindset and consider this not a moral issue of I owe so I should pay something. But remember this is a business transaction. You already know how the JDB feels about moral or common sense. There is nothing wrong with wanting to settle, it happens in most civil cases. You need to put them into a position to accept a much lower number or you may find that you want to force them to trial.

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1.) The summons served to me seems to be missing a few pages in the complaint section and It is "verified" . Ive heard it doesn't matter if it's missing pages out of the complaint, it's still valid. is this true? I'm guessing I need to file a PLDC-010. I did some searching online and found someone with the same exact of wording used in their complaint and I'm assuming its the same as mine, (except mine is obviously missing pages). Ive posted it below.

Answer- PlD-C-010 is a safe bet be sure to include Lack of Standing and SOL as two affirmative defenses.

2.) My last payment was 07/2008 and the summons was filed in 05/2012, just 2 months shy of the Statutes of Limits in California(4 years), But Ive heard that since Washington Mutual was aquired by Chase, and they are located in Delaware (3 year SOL), would I be able to argue SOL and get it dismissed? Their credit card agreement, which I looked up online states ("subject to Delaware's lawa") explicitly. I've had this card since 2004, when it was Providian (Delaware), my credit history says CHASE(Delaware) and the summons says Calvary - Washington mutual (California). I don't even know which card agreement is the one that's valid anymore (They've changed it so much). Can the summons even be valid since Washington Mutual doesn't even exist anymore? Did they intentionally do this because WAMU was based in California?

Answer- Calvary has purchased the debt and the rights to collect. They typically have a very hard time proving this in court, if you follow the many examples of what, how and when to do things. As far as the SOL defense, there is a case law that could support your SOL position regarding 3 years from Deleware. The Case is Resurgent Financial, LLC v Chambers. You are new so go get the case from google. Knowing this and getting properly in front of the court takes some time and understanding which you will need to learn. First step is to get an answer filed.

3.) My question is how should I go about answering/responding each of these complaints below without screwing myself and getting a default judgement? Should I just pay a lawyer to do this for me? What can I claim as my affirmative defenses?

Answer- See previous post, lawyer may not be cost effective unless the attorney. You need to deny all the allegations except where you live and who you are and include the affirmative defenses mentioned.

4.) After I deliver the response/answer to the court and the plaintiff. What should my next steps be? Should I file a BOP? and file that one form (I forget which one it was), in order to obtain all the evidence they plan on using against me?

Answer- Follow the steps of others and you have the greatest chance of success. Answer then BOP, no need to go any further than this until you have accomplished these two.

5.) Should I try to contact the attorney representing the plaintiff at this point and try to settle with them? I know this might (toll) screw up my SOL argument, so should I just wait to find out if SOL is a valid argument?

Answer-No contact right now, file answer send BOP. You will know when it is time to settle when they offer. First one to offer in most negociation looses....

6.) If I do settle, how can I gurantee the court date will be cancelled or dismissed and that these crooks won't try to go after the rest of the money? I know I need an official letter from them but what does the court need to see?

Answer- Courts are underfunded and over croweded so your case could take a year or more to complete. Remember actions will get them in the settling mood not words.

7.) When I call them to settle, what should I say or not say so I don't incriminate myself? I'm going to try offer a low ball offer first like $700-$800 and see what they say. I'm afraid though, that even if I offer $1500 which is the maximum I can borrow, they still might decline and pursue a judgement against me.

Answer- Settlements require that you create leverage for them to want to settle. You are a person who pays the full amount. Until you change that dynamic by them understanding they may not get a nickle, no settlement is possible. As far as incriminaiton only you know what you have already said on the phone calls they were recording....discontinue contact at this point. Let your filings in court speak for you.

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Hey I am going thru the same thing and came here for help. I am like you..well your first paragraph willing to settle and be done and not fight. Have you decided what to do? I have not yet but leaning more to trying to fight it. Keep me posted if you like via personal msg. and I will do the same on my case. Mine is in TN. And I am loosing sleep and have been on this site for hours looking at posts and web sites. So far it looks to me like it could be like playing cards. JMO tho. It seems like a lot of people from Cali are getting sued. I have not met anyone on the site from TN yet dealing with Calvary. I just moved from Cali a year ago.

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Well I'm going to file an response in a couple days. Ive just been doing a lot of reading lately about CCPs and CRCs, local rules and appellate court decisions. Looking at different ways I could fight this. Such as SOL and Lack of Standing. or maybe going to arbitration. It looks like its going to be an uphill battle though and the more I read the tougher it seems. Trying to learn as much as I can for now. Good luck with your case and I'll try to keep you updated.

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Same here, its just a collections letter as of now. So Its says I have till April to decide on one of these options or call to set up something. I sent a copy of it to my lawyer and he is wanting to take them to court over the letter lol.Saying I could probably make money off them.I am not sure yet as to what I will do. I may just C&D and give them my lawyers number for now if they want to talk to me it will be thru him.I already have one so why not. I keep reading other cases against Midland it looks like they do not give that easy,. and it looks complicated and long and drawn out. My husband is deployed and my father passed away and I need to go see my 74 year old mother. I just have "life" going on and do not have time for these thugs. Good luck and I will keep you posted and let me know if you send a letter and what it says. It may help me do the same.

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Same here, its just a collections letter as of now. So Its says I have till April to decide on one of these options or call to set up something. I sent a copy of it to my lawyer and he is wanting to take them to court over the letter lol.Saying I could probably make money off them.I am not sure yet as to what I will do. I may just C&D and give them my lawyers number for now if they want to talk to me it will be thru him.I already have one so why not. I keep reading other cases against Midland it looks like they do not give that easy,. and it looks complicated and long and drawn out. My husband is deployed and my father passed away and I need to go see my 74 year old mother. I just have "life" going on and do not have time for these thugs. Good luck and I will keep you posted and let me know if you send a letter and what it says. It may help me do the same.

If you trust your lawyer, and he is telling you their dunning letter amounts to an FDCPA violation, I see little reason not to go along with that. At teh very least, it makes for fairly good leverage against the debt collector: you can use it to reduce, or even eliminate, the alleged debt. Midland Funding, at least in California, is no exception to that rule.

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