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Help Vacate Judgement Cavalry in Indiana


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Hello all~ I'm new here and would appreciate any help or suggestions you can give me.
I failed to answer a summons because, I initially was going to file BK instead....and didnt then  a default judgement was entered against me.

Ended up NOT filing BK yet.

Was thinking if possible fight the default, and then I wouldn't have to file BK.

Below is the origial complaint info:

 

1. Who is the named plaintiff in the suit?
Cavalry SPV I LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
William C. Butler
3. How much are you being sued for?
12K
4. Who is the original creditor? (if not the Plaintiff)
Navy Federal Credit Union
5. How do you know you are being sued? (You were served, right?)
Served(not personally) left in door.
6. How were you served? (Mail, In person, Notice on door)
Summons left in the door.
7. Was the service legal as required by your state?

I'm not sure. Indiana court web site states it can be left at residence.

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?

None that I know of.  However, had numerous phone calls with what I thought was Cavalry's collections department.
9. What state and county do you live in?

Indiana, Floyd county.

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
7/2011

11. What is the SOL on the debt? To find out:
Loan was originally made in Virigina ~ 6 years.
I live in Indiana for the last 8 years ~ 10 years.

Assignment of Accounts statement from Cavalry states "under the laws of Delaware" ~ 3 years

Statute of Limitations on Debts

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

Default judgement...didn't answer the summons.
Also Plaintiff took me to court to find out my assets. Spoke to Plaintiff's attorney, and said I was going to file BK.  Told him about problems getting paperwork to get the vehicle licenced and attorney said, "this is messed up""will need to talk to my client".


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

Had issues with the title of the vehicle.

Once I moved to Indiana I needed title or verification from OC so I could get licence plates etc.

NFCU, said if I made a payment they would send it, but never did.

Again, I made the requested payment in 7/2011 and they never sent me the required documents so I could actually USE the car that the loan was for.

I've had to have it towed whenever I move.

Offered for them to come get it...they never did.

I haven't been able to use the car for many many years now.

 

Much later, was served with summons...from JDB, file date 9/25/2012.

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?
Still within the time frame to VACATE judgement.

COMPLAINT_____________________________________________________

1.  The plaintiff is a limited liability company organized pursuant to the laws of a state other than Indiana.

2.  Defendant is believed to be a resident of Floyd County, Indiana.

3.  The original credit grantor is Navy FCU, who sold or assigned defendants's debt and the plaintiff purchased same for valuable consideration.

4.  Defendant is in default for failure to pay the plaintiff and the original credit grantor.

5.  Defendant is indebted to Plaintiff on an outstanding balance of 12K plus interest and court costs.

6.  Demands for payment have been made upon the defendant.

WHEREFORE, plaintiff demands judgment against the defendant in the sum of 12K, interests, costs of this action and all other proper relief.

Respectfully submitted.

Wright and Lerch

By William C Butler

______________________________________________________

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Affidavit of non military service ~ signed by Plaintiff's attorney
 

Status Report Pursuant to Servicemembers Civil Relief Act ~ signed by Mary Dixon~dept of defense.
 

Affidavit of Debt ~ is NOT notorized. Also, name written appear to not match each other.

Also Affidavit of Debt has an account balance of 16k .(does not match complaint amount)
 

BILL OF SALE AND ASSIGNMENT OF ACCOUNTS ~ between Navy Federal and Cavalry. Does state "without recourse and without representations or warranties, express or implied, of any type, kind or nature except as set forth in the Agreement (herein defined):" 

Also it refers to an "agreement" which isn't attached. (this is notorized)
 

LIMITED POWER OF ATTORNEY ~ between Navy Federal and Cavalry.  (notorized)~refers to a certain "Purchase and Sale Agreement" which was not included.
 

PROMISSORY NOTE, SECURITY AGREEMENT AND DISCLOSURE ~ does not include complete account number, serial number of vehicle, also incorrect information of security vehicle.  Has my signature, but no date.  amount financed 12k+.  purpose of loan Refinance consolidate.  (which it wasnt..it was not a refianance or consolidation). Also, has an additional untitled paper which appears to be a contract, which is signed by Mary Mcsomething the assistant treasurer. not signed by me.  Also no date on this doc.

________________________________________________________________________

Just want to add that I don't think anyone has the paperwork for the vehicle.

I think that is why they did not repo it and even if I paid the amount in full right now...noone would be able to give me the paperwork I need to be able to get licence plates etc.

Also, the summons was filed in the Superior Court for the county of Floyd. Superior Court #3.

 

Your thoughts and suggestions are greatly appreciated.

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Well, if you got the default because you failed to show, then not much you can do at this point.  You could have said you were never served, but then you stated

"Default judgement...didn't answer the summons.
Also Plaintiff took me to court to find out my assets. Spoke to Plaintiff's attorney, and said I was going to file BK.  Told him about problems getting paperwork to get the vehicle licenced and attorney said, "this is messed up""will need to talk to my client".

So that would kill that.  I do believe you are stuck with it.  You could try and call them asking for a one time payment settlement, but since they got the judgement, I doubt they would reduce it by much, maybe by 50% if you paid it all at once.

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Well, if you got the default because you failed to show, then not much you can do at this point.  You could have said you were never served, but then you stated

"Default judgement...didn't answer the summons.

Also Plaintiff took me to court to find out my assets. Spoke to Plaintiff's attorney, and said I was going to file BK.  Told him about problems getting paperwork to get the vehicle licenced and attorney said, "this is messed up""will need to talk to my client".

So that would kill that.  I do believe you are stuck with it.  You could try and call them asking for a one time payment settlement, but since they got the judgement, I doubt they would reduce it by much, maybe by 50% if you paid it all at once.

I guess one could say...

Did not know about default judgement till served with court order to appear for asset assessment.

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You could try it, but when you talked with him, you didn't deny the debt.  But if you file for a motion to vacate, the worst they could do is deny it.  There should be a court form on your court website for a general pleading, and title the pleading "motion to vacate"  Then state the facts like on xx/xx/xx a default judgement was entered on Defendant.

then go on about how you were not served.  But i would look at the record first, see what it says about service, it will tell you who they served, then you can see if service was legal in your state.

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It is difficult to vacate an Ind. Judgment 

 

STANDARD OF REVIEW

 

The burden is on the movant to establish grounds for Trial Rule 60( B) relief. In re Paternity of P.S.S., 934 N.E.2d 737, 740 (Ind.2010). "A motion made under subdivision ( B) of Trial Rule 60 is addressed to the `equitable discretion' of the trial court; the grant or denial of the Trial Rule 60( B) motion `will be disturbed only when that discretion has been abused.'" Id. at 740-41.

 In reviewing the discretionary act of the trial court, we note that the term "discretion" implies flexibility in light of varying circumstances and the absence of a hard and fast rule or a mandatory procedure. Discretion is a privilege allowed a judge within the confines of justice to decide and act in accordance with what is fair and equitable. The exercise of judicial discretion must be examined in light of and confined to the issues of the particular case, and is reviewable only for an abuse thereof.

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