Unconventional

Cavalry vs. Me in Washington State

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Hello Everyone. I think it's time to start a thread about my junk debt buyer lawsuit, so here it is.

 

The case in a nutshell:

 

Case filed in Yakima County District Court: 11-19-12

Summons & Complaint served at my residence: 12-27-12

Answer filed: 1-4-13

My Discovery Requests mailed CMRR and filed: 3-20-13

Trial set for: 4-25-13

 

1. Who is the named plaintiff in the suit? CAVALRY INVESTMENTS, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Janie Marie Wilson, David B. Schumacher

3. How much are you being sued for? principal amount of $10,XXX.XX, plus interest at 16.99% per annum from September 10, 2008, [currently $7,XXX.XX], until paid, plus reasonable attorneys' fees in the sum of $1,7XX.XX if this action is not contested, and such other and larger sum as the court deems appropriate if it is contested, and all costs incurred herein...

4. Who is the original creditor? (if not the Plaintiff) Washington Mutual Bank / Chase

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 to husband

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

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? I don't remember any

9. What state and county do you live in? Washington state, Yakima county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) I've never applied for a Washington Mutual account, but Cavalry reported a date of first delinquency of March 2008 to one of the credit bureaus.

11. What is the SOL on the debt? Possibly complicated - 6 years in Washington, 3 years in Delaware for Chase accounts, 4 years in California where the alleged cause of action would have occurred, and 4 years in Texas where the only possible user of the alleged account currently resides

 

12. What is the status of your case? Suit served? Motions filed? Trial set for April 25th, and I believe the plaintiff's deadline for responding to my Requests for Admission is around April 19th.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I have disputed the debt with the credit bureaus for Cavalry's reporting of it.

14. Did you request debt validation before the suit was filed? No (was not aware of the alleged debt)

15. How long do you have to respond to the suit? I had 20 days, and filed my answer in 8 days. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

 

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 was sent with the summons, and no evidence has been produced as of now (almost 5 months after they filed the case).

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http://caselaw.findlaw.com/wa-court-of-appeals/1574743.html

 

You should read this case, very revealing. I would not try the SOL defense in WA. They do not seem to have a borrowing statute. However, I would look into failure to mitigate damages. They do this all the time. They could have sued the day the account went delinquent in 2008, but they let the interest pile up for 5 years. What are you, their personal investment fund?

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http://caselaw.findlaw.com/wa-court-of-appeals/1574743.html

 

You should read this case, very revealing. I would not try the SOL defense in WA. They do not seem to have a borrowing statute. However, I would look into failure to mitigate damages. They do this all the time. They could have sued the day the account went delinquent in 2008, but they let the interest pile up for 5 years. What are you, their personal investment fund?

Yes, I remember reading that case right after I had filed my answer. I had neglected to include the Delaware 3-year SOL in my affirmative defenses, and then realized that it probably wouldn't have helped anyway.

 

I will make note of the 'failure to mitigate damages' and maybe bring that up at the trial.

 

Part of my plan for April 25th is to verbally ask the judge if I can make a Motion for Summary Judgment on Answers Deemed Admitted.

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http://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CR

 

Here are your rules of procedure. See Rule 56. You don't need to ask the judge, you can file MSJ any time you want. What was deemed admitted? If they admitted to the right stuff you may have them.

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What was deemed admitted? If they admitted to the right stuff you may have them.

The document got messed up on my computer, but the Requests for Admission section of the Discovery Requests that I sent on March 20th was the same or close to this:

 

REQUESTS FOR ADMISSION

1. Admit that there was no written agreement, signed by the Defendant, between the Defendant and Washington Mutual Bank.

RESPONSE:

2. Admit that there was no written agreement, signed by the Defendant, incorporating the terms of any credit agreement CAVALRY INVESTMENTS, LLC alleges to exist in this case.

RESPONSE:

3. Admit that there is no written agreement between CAVALRY INVESTMENTS, LLC and the Defendant.

RESPONSE:

4. Admit that CAVALRY INVESTMENTS, LLC did not send the Defendant any notification of assignment of the alleged account or assignment of rights.

RESPONSE:

5. Admit that as of the date of the Complaint, CAVALRY INVESTMENTS, LLC had no evidence admissible at trial that proves the Defendant owes any debt.

RESPONSE:

6. Admit that CAVALRY INVESTMENTS, LLC was not assigned the alleged Original Creditor's obligations under the purchase agreement(s).

RESPONSE:

7. Admit that CAVALRY INVESTMENTS, LLC does not have the alleged agreement to claim the amount(s) submitted in the Complaint.

RESPONSE:

8. Defendant has never applied for a Washington Mutual Bank credit card. Therefore, admit that no such Application exists.

RESPONSE:

9. Admit that the alleged account was in default at the time of purchase.

RESPONSE:

10. Admit that the Plaintiff is considered a Debt Collector under the Fair Debt Collection Practices Act.

RESPONSE:

11. Admit that the Plaintiff is barred under the Fair Debt Collection Practices Act § 1692 f(1) from collecting interest on any amount not authorized by the agreement creating the debt or permitted by law.

RESPONSE:

12. Admit that the Plaintiff is not a bona fide purchaser for value, or a value sufficient to support a valid assignment.

RESPONSE:

13. Admit that the Defendant has not consented to any Novation of the account.

RESPONSE:

14. Admit that the purported account was purchased for the purposes of collection only, and that no credit was extended to the Defendant by the Plaintiff.

RESPONSE:

15. Admit that the Holder in due course doctrine regarding negotiable instruments does not apply to the assignment of consumer account receivables made primarily for household or personal use.

RESPONSE:

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5 and 6 will do nicely to kill their case, the rest is useless. 1 and 2 are borderline. Altho you will have to provide a copy of what you sent them as an exhibit. Make sure they really are admitted, some states require a procedure and a motion for this, others do not.

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5 and 6 will do nicely to kill their case, the rest is useless. 1 and 2 are borderline. Altho you will have to provide a copy of what you sent them as an exhibit. Make sure they really are admitted, some states require a procedure and a motion for this, others do not.

Thank you very much for your help. Fortunately, I filed a copy of what I sent them with the court (even though since then I've read some advice saying that it should not be filed with the court). So I can pay a few dollars to get a copy of it from the court clerk if necessary.

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Cavalry is one JDB that is know to give in when pushed and having WAMU as the OC makes it even better. The main thing you don't want to happen is to get run over in court due to court procedure or filing of forms. Since every state has different rules and the conduct of judges varies its a good idea to speak with someone familiar with your area. 

 

Check with KENTWA to make sure you have what you need to defeat them.

 

http://www.creditinfocenter.com/community/user/56906-kentwa/

 


 

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It has been a while since I lived in Washington and a few things have changed. You are going to want to check everything with your rules, case law, etc. Your best shot is to get this knocked out before trial. If it was me and they failed to answer admissions I would file a motion to deem admissions admitted, right now. I hope you sent them CMRR, as they will claim you never sent them to them and can show the court that plaintiff is "misstating the facts". If judge lets them deny the admissions and they claim they have all this stuff, then you file a motion to exclude based on discovery misconduct because they did not respond to your discovery request in a timely manner.

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It has been a while since I lived in Washington and a few things have changed. You are going to want to check everything with your rules, case law, etc. Your best shot is to get this knocked out before trial. If it was me and they failed to answer admissions I would file a motion to deem admissions admitted, right now. I hope you sent them CMRR, as they will claim you never sent them to them and can show the court that plaintiff is "misstating the facts". If judge lets them deny the admissions and they claim they have all this stuff, then you file a motion to exclude based on discovery misconduct because they did not respond to your discovery request in a timely manner.

Thank you KentWA. I have read a lot of the rules, but what should I be looking at to learn the case law that I should know?

 

Are you suggesting that I file a motion to deem admissions admitted before the April 25th trial date?

 

Is that different and/or better to do than what I had in mind, a motion for summary judgment on answers deemed admitted?

 

Given that I sent the discovery requests on March 20th, what would be the earliest date that I can file one of these motions?

 

I did send the discovery requests CMRR, and have the green card in my file box with everything else that is related to the case.

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The Return Receipt that I have for the discovery requests shows delivery to Cavalry's attorney on March 23rd.

 

I was looking at this in the Superior Court Rule 36 REQUESTS FOR ADMISSION:

 

"The matter is admitted unless, within 30 days after service of the        request, or within such shorter or longer time as the court may allow, the       party to whom the request is directed serves upon the party requesting the       admission a written answer or objection addressed to the matter, signed by       the party or by his attorney..."

 

I'm guessing now that the "within 30 days after service" runs out around April 22nd. I don't think that allows time for any written motions to be filed before the trial date on April 25th.

 

Does anyone have any advice on what I should be preparing to say to the judge in court? Thank you.

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Copy of the statute, copy of the service, no answer. Pretty much a procedural thing, the statute doesn't have any language that requires any further action by you. Just bring this to the judge's attention. Provided an answer doesn't appear in your mailbox by the 22nd, that is.

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Copy of the statute, copy of the service, no answer. Pretty much a procedural thing, the statute doesn't have any language that requires any further action by you. Just bring this to the judge's attention. Provided an answer doesn't appear in your mailbox by the 22nd, that is.

Sounds good. Do I need to be prepared to argue any other points?

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A letter came in the mail today from Cavalry's attorney:

 

"April 16, 2013

 

RE: Cavalry Investments, LLC v. Unconventional, et al.

       Yakima County District Court Case No. 127163

 

Dear Unconventional:

 

          I represent plaintiff Cavalry Investments, LLC in the above-referenced matter. My client has reviewed your Answer and based on the representations contained therein, has agreed to no longer pursue this debt and dismiss the case against you with prejudice. Enclosed is the Stipulated Motion & Order of Dismissal. Please sign, date, and return the original to me in the enclosed envelope. I will then submit the Dismissal to the proper Judge for signing and entry.

 

If you have any questions, please do not hesitate to call (toll free (877)....

 

          I am a debt collector. This communication is an attempt to collect a debt and any information obtained will be used for that purpose.

 

Very truly yours,"

 

(I'll post the court document next.)

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"STIPULATED MOTION & ORDER OF DISMISSAL

 

          Plaintiff, CAVALRY INVESTMENTS, LLC, by and through its attorney, David B. Schumacher, P.C.; and Defendendants

 

Unconventional and Unconventional's Ex, Pro Se, hereby stipulate and agree that the above-captioned matter including any

 

counterclaims and/or defenses thereto be dismissed with prejudice and without costs to any party.

 

          IT IS SO STIPULATED, PRESENTMENT WAIVED."

 

Then there are places for me and the attorney to sign and date it. Next page:

 

"ORDER

 

          THIS MATTER having come on this day before the undersigned Judge/Commissioner of the above-entitled Court on

 

the stipulated motion for dismissal with prejudice, and the Court being fully advised in the premises, NOW, THEREFORE,

 

          IT IS HEREBY ORDERED that Yakima County District Court, Case No. 127163 including all claims and

 

counterclaims asserted therein be are hereby dismissed with prejudice and without fees or costs taxed against any

 

party..."

 

 

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Yes you are but they are giving up to avoid trial. You would feel pretty friggin bad if you tsnked this stip and then lost at trial due to a pro plaintiff judge. If you think you can take them in court, you will find that once the judge hears about this stipulation he is gonna be torques that he wasted this time.

 

Having said that I think this is a good deal for you, one that is alot better than the other alternative and I know i am always saying fight to the last man but this time I have a feeling about this, the real unknown variable is the judge. You never know if you force their backs to the wall they may say fuggit and make it tough on you to make you an example.

 

with prejudice means you can get the entries off your CR. It is basically a Pay for Delete which could raise your credit score and make the others think twice about suing you.

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"STIPULATED MOTION & ORDER OF DISMISSAL

 

 

      IT IS HEREBY ORDERED that Yakima County District Court, Case No. 127163 including all claims and

 

counterclaims asserted therein be are hereby dismissed with prejudice and without fees or costs taxed against any

 

party..."

 

Congratulations! Getting it dismissed with prejudice makes it absolutely awesome!

 

This just goes to prove that the WAMU files are the garbage of all garbage. Anyone getting sued on anything related to Providian or WAMU by any JDB should fight and not give them an inch. Reading this made my day!

 

Great Job!  ::USA::

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