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CACH, LLC and Kirkland Law Group vs Me


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I have been reading here and on the internet for 4 solid days.  I am amazed at the time folks are taking to help others.  Hope I can do the same some day.  Meanwhile here is my situation.

 

1. Who is suing you? CACH, LLC through a local attorney


2. For how much? rather not say--over 10,000, under 30,000

3. Who is the original creditor? Sears/Citibank and Bank of America

4. How do you know you are being sued? Summons and Complaint

5. How were you served? Delivered to my house in person.


6. What was your correspondence (if any) with the people suing you before you think you were being sued? I did not answer any phone calls from people I did not know.  I did receive one certified letter from the law group saying they were going to sue.  They also stated that I could call and resolve the matter.  At the bottom was the statement that "This is a communication from a debt collector." So what is their true relationship with CACH?  Do they get a cut of the profit over and above the lawyer fees? A new law, going into effect in Oct., will require all debt collectors to register with the state. CACH is registered but not the law group.

 

7. Where do you live? Washington State

8. When is the last time you paid on this account? apparently 11/10 and 10/10


9. What is the status of your case (if anything has been opened)?  I have about 15 days left to file my answer

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? No

12. Does your summons require a response in writing?  Yes. Within 20 days. 

 

13. What evidence did they send with the summons? for CitiBank: Bill of Sale and Assignment (This is rather vague. It lists a contract ID and 2 document IDs.  No account number or amount is listed. It references an "Exhibit 1" which is not included. For Bank of America: an Affidavit of Sale and Certification of Debt (I am sure this is robo signed but can I prove it?  The Notary used a seal but I did not find him registered in his state. The lady making the affidavit states "That Affiant is employed by FIA Card Services, N.A. in the position of Bank Officer, has personal knowledge of the manner and method by which FIA Card Services, N.A. maintains its normal business book and records, and is duly authorized to make this affidavit." and "The contents of this affidavit are believed to be true and correct based on the computerized and hard copy books and records of FIA Card Services." and "FIA Card Services is a wholly owned subsidiary of Bank of America Corporation."  So this does not show personal knowledge does it?  The affidavit goes on to state an account number, amount owed, date that the account was sold to CACH and that the original contract may not be available.  Also included are credit card statements from both banks.

Do I have a basis for getting some of this removed? If so, how and when?  Do I address it now in the answer?

 

14. What is the SOL on the debt?  6 years

 

COMPLAINT

 

1. Plaintiff is a Colorado corporation in good standing, has all necessary licenses and has paid all applicable fees.

2. Defendant xxxxxx comprise a martial community under the laws of the State of Washington and reside in Y county.  Each of the acts or occurrences set forth herein benefitted them individually and benefitted their marital community.

3. Defendants xxxxx owe Plaintiff the principal sum of xx,xxx.xx plus interest at the rate of 12% per annum, plus costs of suit, pursuant to the terms set forth in the affidavit of sale and the statement of account.

 

WHEREFORE, Plaintiff prays for judgement against Defendants as follows:

  a) for xx.xxx.xx principal plus interest at the rate of 12% per annum;

  B) for costs of suit and either a statutory attorneys or a reasonable attorney's fee pursuant to R,C.W. 4.84.250

  c) for such other and further relief as the Court deems just and equitable.

 

1. ANSWER 

 

      Defendant answers the complaint as follows:

 

1.  Do not know whether the statement is true. Plaintiff has provided no proof that it is authorized to bring suit. Defendant demands strict proof thereof.

 

2.  I admit my surname is xxxxxxx.  I deny the rest of paragraph 2.

 

3.  Deny

 

II. AFFIRMATIVE DEFENSES

Defendant's other defenses are:

 

1.  Plaintiff is filling in X County for an alleged debt for someone they state lives in Y County. This court does not have subject matter and personal jurisdiction. (include this last bit?) ( I am not married nor was married during the time in question nor do I live in Y county.)

2.  The Plaintiff lacks standing in this matter.

3.  Assignment of alleged debt not proven. or (Plaintiff’s Complaint is not based on its personal knowledge of the alleged debt)

4.  Damages not proven.  

5.  Plaintiff's alleged damages are limited to real or actual damages only. (delete?)

6.  Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.  (delete?)

7. Statute of Frauds.  Attorneys have not proven that they were retained by CACH, LLC as its representative in this matter. Law firm is well known as a debt collector and so stated in their attachment to the summons.

8. Unjust enrichment.  Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested. 

9. Unclean hands.  Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue by not producing a signed copy of the credit card agreement.

 

 

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time

 

 

 

III. COUNTER CLAIMS

 

Fraud under the DFCA  (not sure of wording here.  Do I need to cite a certain passage?) I  talked to a lawyer who said that  what they were doing was illegal or problematic because they attached a note to the summons that stated "you can still settle this matter and avoid going to court" and "this is a communication from a debt collector."  So they are trying to make me believe I can make all this go away with a phone call.  Meanwhile they would win by default if I did not submit a formal answer in time.

 

Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time.

 

 

IV. EXEMPT INCOME

 

My income consists of a government pension.  (WashingtonLawHelp.org  recommends this as well as attaching bank statements)  A retired on-line lawyer suggests making them work for everything.  I sure am not going to give bank statements, but what do you think of letting them know my income is exempt from garnishment?)

 

 

WHEREFORE, Defendant prays this case be dismissed with prejudice, together with costs, along with any further relief the court deems just and proper. 

or

WHEREFORE: Defendant requests that this lawsuit be dismissed with prejudice and that a judgment be entered against the plaintiff for any counter-claims, costs, or attorney fees.

or

WHEREFORE, Defendant prays that this Court find judgment for Defendant,

deny Plaintiffs’ request for relief, deny Plaintiffs’ request for damages, deny

Plaintiffs’ request for costs, deny Plaintiffs’ request for attorney’s fees and deny Plaintiffs’ request for any relief whatsoever. Defendant further prays that this Court hold that Defendant is the prevailing party, and dismiss Defendant with prejudice.

Dated this 12th day of July, 2013

 

Additionally I am nervous about facing the judges here who I believe are not friendly toward the common person.  I was told there a numerous cases and even the people with lawyers are losing or perhaps settling.

Thanks in advance.

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<p>o.k. I guess I did not make this clear.  There were 2 credit cards from 2 companies: 1. Sears/Citi  2. Bank of America  combined into one summons</p>

<p>They are suing me for one combined amount which I cannot figure out how they obtained.  The affidavit states an amount from Bank of America.  For Citibank there is a credit card statement with a new balance amount, but the two amounts do not add up to what they are suing me for.</p>

<p>Thanks for the encouragement on standing.  I was just reading the thread on standing. But the affidavit still concerns me.  I am wondering if the judge accepts the affidavit could he award a judgement in less than they ask for i.e. just the amount in the affidavit.</p>

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You are basically fighting 2 cases that cach has bought. So all of the CACH fighting techniques apply. Maybe make counterclaims for the violations to raise the ante.

 

Not being mean but this is going to be an overly technical case where you have to know every bit of law to defend this. Are you up to it? If so lets get down to the basics You will have to answer the complaint. Maybe do some good discover or a motion for a more definite statement.

 

The rest is an assault on their standing, records keeping, the counterclaims. and the courts adherence to the statutes.

 

You first best step is to read the Rules of Civil Procedure 3 times through.

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o.k. I did figure I needed counterclaims.  I am reading the WA state court rules.  Are you suggesting reading the Federal rules as well?  It seems it is best to make all counterclaims in the answer.  Also it seems I should submit motions at that time.  Is this usual?  Just not sure I am understanding everything. 

 

One big question is who should the counterclaims be directed toward.  The law firm has done some serious violations, but as CACH is officially suing me, I was trying to find counterclaims against them. Would the law firm be considered a third party or can one typically make counterclaims against both the law firm and the JBD???  It seems to make a difference in whether my attack is a counterclaim or an affirmative defense. 

 

"(i) Nonparty at Fault. Whenever a defendant or a third party defendant

intends to claim for purposes of RCW 4.22.070(1) that a nonparty is at
fault, such claim is an affirmative defense which shall be affirmatively
pleaded by the party making the claim. The identity of any nonparty claimed
to be at fault, if known to the party making the claim, shall also be
affirmatively pleaded."

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In response to your responses. There are so many court rules, but I think I figured out which ones apply.  For others in WA state they seem to be "Civil Rules for Courts of Limited Jurisdiction."

As to the need to bifurcate the case, the time for filing an answer if fast ticking away so I am not attempting to do that.

I see a lot of people have read my case but not commented.  Maybe it will help if I post my final, or nearly final, version of my answer.

 

 

 

1. ANSWER

 

      Defendant answers the complaint as follows:

 

1.  Do not know whether the statement is true. Plaintiff has provided no proof that it is authorized to bring suit. Defendant demands strict proof thereof.

 

2.  I admit my surname is xxxxxx.  I deny the rest of paragraph 2.

 

3.  Deny

 

 

II. AFFIRMATIVE DEFENSES

Defendant's other defenses are:

1.  Plaintiff is filling in X County for an alleged debt for someone they state lives in Y County. This court lacks personal and territorial jurisdiction.

2.  The Plaintiff lacks standing in this matter.

3.  Assignment of alleged debt not proven.  Plaintiff’s Complaint is not based on its personal knowledge of the alleged debt, but rather on hearsay. 

4.  Damages not proven.  

5. Statute of Frauds.  Attorneys have not proven that they were retained by CACH, LLC as its representative in this matter. Law firm is well known as a debt collector.

8. Unjust enrichment.  Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested. 

9. Unclean hands.  Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue by not producing a signed copy of the credit card agreement.

 

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time

 

 

 

III. COUNTER CLAIMS

 

Plaintiff and Scumbag Law Firm committed fraud under the Fair Debt Collection Practices Act, specifically violating the following sections:

 

807. False or misleading representations (15 USC 1692e)

 "A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:   2) The false representation of--A) the character, amount or legal status of any debt."

Defendant is with belief that the Plaintiff and Scumbag Law Group falsely represented the character or legal status of the alleged debt.  At the present time, Plaintiff and Scumbag Law Group have failed to clearly prove proper assignment of the alleged debt, and as such Plaintiff and Scumbag Law Group have violated the FDCPA by falsely representing the character of the alleged debt. 

 

"(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer."

Plaintiff and Scumbag Law Group used false and misleading representations. Specifically, Plaintiff's attorney's, Scumbag Law Group, presented themselves to the Defendant as a collection agency authorized to do business and conduct the business of a collection agency in the state of Washington. Plaintiff’s attorney, Scumbag Law Group, clearly states in an attachment to its complaint and summons that “This communication is from a debt collector."  The least sophisticated consumer would surely believe a collection agency filling suit, referring to themselves as debt collectors in writing, and alleging that Plaintiff is owed money for alleged debts, was in fact a licensed collection agency and conducting themselves within the bounds of applicable federal and state laws. Scumbag Law Group has and had no legal authority to act as a collection agency and/or a collector during this time due to their lack of being licensed as a Debt Collector by the State of Washington. By conducting litigation activity to collect a debt, Scumbag Law Group is certainly attempting to collect a debt and act as a debt collector in the State of Washington. As Scumbag law Firm, is without a proper license to collect debts in the state of Washington, Scumbag Law Firm, has knowingly used false and misleading representations and is in violation of the FDCPA.

 

"(15) The false representation or implication that documents are not legal process forms or do not require action by the consumer."  

In his summons and complaint Plaintiff, via Scumbag Law Firm, attached a notice stating "You can still settle this matter and avoid going to court." A phone number and e-mail for Scumbag Law Group were also included with the final words, "Call Now! This is a communication from a debt collector."  This attachment is clearly meant to imply that the summons and complaint are not legal documents and are thus designed to lure the defendant into thinking that a legal answer is not required, therefore obtaining a judgement by default. Therefore Plaintiff and Scumbag Law Group have knowingly implied that the summons and complaint are not legal documents requiring an official response to the court.

812. Furnishing certain deceptive forms (15 USC 1692)

"(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating."

"(B) Any person who violates this section shall be liable to the same extent and in the same manner as a debt collector is liable under section 813 for failure to comply with a provision of this title."

Scumbag  Law Group designed and furnished an attachment to their summons and complaint which would create in any unsophisticated consumer the belief that Scumbag Law Group and not CACH, LLC is the entity trying to collect the alleged debt. Therefore Scumbag Law Group is liable to the same extent as CACH, LLC.

 

Additionally Plaintiff violated Chapter 19.16.250 of the RCW.

 

"No licensee or employee of a licensee shall:

     (1) Directly or indirectly aid or abet any unlicensed person to engage in business as a collection agency in this state or receive compensation from such unlicensed person: PROVIDED, That nothing in this chapter shall prevent a licensee from accepting, as forwardee, claims for collection from a collection agency or attorney whose place of business is outside the state."

 

Plainitff allowed Scumbag Law Group to act as an unlicensed collection agency. In letters dated April 5, 2013 and June 3, 2013 and in an attachment to it's summons and complaint Scumbag Law Group stated that "this is a communication from a debt collector" thus causing any reasonable person to assume that Scumbag Law Group itself was a debt collector.

 

"(8) Give or send to any debtor or cause to be given or sent to any debtor, any notice, letter, message, or form, other than through proper legal action, process, or proceedings, which represents or implies that a claim exists unless it shall indicate in clear and legible type:
     (a) The name of the licensee and the city, street, and number at which he or she is licensed to do business;"

Plaintiff, via Scumbag Law Group, sent letters to the Defendant dated April 5, 2013 and June 3, 2013.  These letters did not include the license number, city and state in which CACH. LLC is licensed to do business.

Defendant reserves the right to submit counterclaims that may becomes applicable and/or available at a later time.

 

 

 

 

WHEREFORE: Defendant requests that this lawsuit be dismissed with prejudice and that a judgment be entered against the Plaintiff CACH. LLC  and against Scumbag Law Group for any counter-claims, costs or attorney fees. 

Additionally Defendant requests that Plaintiff be directed to remove the alleged debt from credit report records.

 

 

I wasn't sure about counter claims against both the lawyer and CACH; but they are both such scumbags and intertwined in their misdeeds, it seemed the thing to do.

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  • 2 weeks later...

Diana,

 

Did you receive an orange card attached to your summons and complaint.  I am an attorney investigating this practice and if so, would like to discuss it with you.  Please send me an email at cnorahs@aol.com if you are interested in talking with me about it.

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  • 1 month later...
  • 1 year later...

o.k. I let this sit for a long time as there was no action from Kirkland Law Group.  Now I have been served court papers by Mandarich Law Group who has taken over the case.  See my comments on spacejam's thread.  The wording I got from Mandarich was basically the same as spacejam's. Amongst the court papers is an "Amended Complaint."  Based on the code of Washington Section 80, I have determined that I need to answer these complaints (I long ago answered the original complaints).  I have "ten (20)" days to answer, whatever that means, but I will assume 10 days.  Any comments are appreciated, but my questions are:  

Do the original complaints still hold?  They involved 2 credit cards from 2 different banks.  The new complaints address only one.

Do my original Counter Claims still hold?  If Mandarich is taking over for Kirkland are they responsible for Kirkland's illegal actions?  Kirkland did some clearly illegal things I called them on.  So do I include these in my current counter claims?  

Is there something else I should do?

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