Being Sued Calvary SPV **HELP Please!

[corbin980]

Hello and good day to all.

 

I live in Georgia.

 

Long story short. I had a credit card with HSBC. This card a credit limit of $900. I had gotten behind on this card and HSBC called me to set up a payment arrangement. My outstanding balance was $1316 and HSBC called me to set up an arrangement where I was told that if I made a payment of $400.00 I would be under my credit limit and the card would be eligible for use once again. I made the payment like I was asked, but when I checked my account online It was not under the credit limit like the employee told me it would be per our conversation. I called HSBC back and was told that I needed to make another payment of around $100 and some change to be able to use my account again. I expressed my displeasure and tried to file a complaint with my Bank to recover the funds, which did not happen. I left the card alone and thought I would settle at a later date. This was in the first part of 2010. I made my payment on March 23rd of $400.00.

 

The debt was sold to Calvary SPC. During 2011 and 2012 I did not receive any requests to settle and Calvary called my family to try to recover the funds. None of my family was listed as contacts on my credit account as means of contact. Calvary was instructed by my brother to stop calling him in which it took many months for them to finally stop.

 

Fast forward to 2013, I received a letter from a law office wanting to settle this debt for around $1200.00 and I asked for verification of this debt from the lawyer's client and was told that they checked with HSBC and the amount is correct of $1176 and their last payment date listed of May 12th was also what they had on file to be correct. This information is wrong as I have my bank statement that shows the last payment date I ever made to this account was in March. My credit reports also show that I was paying as agreed during those 3 to 4 months after I know I sent only one payment in March. I offered to settle with the lawyer office once for .40 on the dollar which was around $450.00 then sent another offer to settle of $850.00.They sent another counter offer of 1080$.I did not respond and I was then served papers that I was being sued. The lawyer did enclose a copy of my last statement and a excel spreadsheet of my name and what they say I owe and a bill of sale where calvary bought my alleged debt from HSBC

 

I answered the summons and straight out denied the complaints and demanded strict proof or denied with out knowledge of information to sufficient to form a belief as to the truth of the complaints and therefore denied them. Here is a list of my defenses.

 

AFFIRMATIVE DEFENSES

As and for their affirmative defenses, the Defendant asserts and state as follows:

FIRST AFFIRMATIVE DEFENSE

The PLAINTIFF’s claims are barred by the doctrine of unclean hands. Plaintiff breached its obligations by failing to acknowledge and adhere to payment arrangements set forth by HSBC’s employee on or about March 22^nd 2010.

SECOND AFFIRMATIVE DEFENSE

The PLAINTIFF’s claims are barred because Plaintiff violated the FAIR DEBT COLLECTIONS ACT by repeatedly contacting the Defendant’s family members who were not obligated, nor listed as secondary contacts to any credit obligations related to aforementioned claims by Plaintiff.

THIRD AFFIRMATIVE DEFENSE

PLAINTIFF knowingly admitted to purchasing the defaulted debt allegedly owned by the DEFENDANT, causing PLAINTIFF’s injury to its own self, therefore PLAINTIFF is barred from seeking relief for damages.

FORTH AFFIRMATIVE DEFENSE

PLAINTIFF failed to respond to attempts by DEFENDANT to resolve debts and knowingly listed payments and payment dates inaccurately, therefore PLAINTIFF is barred from seeking relief for damages.

 

 

I got a letter in the mail yesterday that states I have a trial date set for The 26th of this month and no other notice would be given. My question is should I get on the ball now, today and submit a formal discovery for my payment history and amounts, phone numbers used and dates of their "attempts" to recover this debt and the Original credit card agreement and signatures or is this date just a prelim date. I feel this information is important to my defense and feel like the lawyer's don't have much to stand on and are trying to rush into trial.  I am in the process of getting this information to send and just would like some guidance.

[shellieh98]

When were you served? What are the causes of action? Has any discovery been conducted? It looks like you might be outside your window for discovery

[corbin980]

I was served Aug 5th. Returned my answers on 27th of Aug. Well with in the 30 days. Just received the letter of court date for 26th of this month yesterday. Seems awful short time for them to jump to trial. The clerk at the court said I had 30 days from when I filed my answer to submit any more paper work or file a counter claim. Also called the court and was told that the trial date was set because they are an efficient court system. She said I can submit paperwork/requests up to and on the court date.

[shellieh98]

Is it a trial date? Is this small claims? She is wrong if this isn't small claims. You would need time to submit discovery requests, and give them 30 days to answer.

I would suggest you look into your rules of civil procedure, that gives you the timeline for discovery. If it is small claims, you may have disclosure rules.

What were the causes of action? (The grounds they say they are suing you for)

Did they submit any evidence to you? Any affidavits? Redact them leaving out identifying info and post them if you can.

[Harry Seaward]

I'm going to start by saying I don't know the first thing specific to GA law so this is just general suggestions.

I  read "efficient" as lazy and/or not interested in hearing from defendants in debt collection cases so you're probably going to have to work extra hard to get heard.

 

Second, you need to look into filling a motion to continue so you can conduct proper discovery. It may be their "efficient" system doesn't allow for this, but find out.

Finally, your last payment may have been in March 2010 but it sounds like you were delinquent a good amount of time before this. The SOL clock begins ticking (usually) when you first become delinquent or over your limit. GA SOL is 4 years on oral debt and 6 on written. You're probably still within SOL on GA law but see if the agreement has a choice of law provision for a state with a shorter SOL (I think HSBC is New Hampshire with a 3-year SOL). It would mean amending your answer to assert a SOL affirmative defense, but it could very well prove to be worth the trouble.

[corbin980]

It is small claims,magistrate court it is only for 1300$, I could pay now, but its more of a principal thing. 

 

I will scan in the complaint tonight and let you all see. Lady on phone said trial date when I asked if hearing or actual trial. I will look into the SOL, but if i sent a request for documents to be returned within 30 days I would have already had my trial and then would be SOL..

I will work on the motion to continue. I do not have a copy of the agreement from the CC company and would like to have my copy in the discovery process along with payment dates and amounts. 

 

Thanks All

[shellieh98]

Ok your rules for small claims are going to be different than regular court. START READING THEM. Some states have rules that say a lawyer can't file against you in small claims, find out if that applies to your state. Read your disclosure rules for small claims, this is how you will know what to do when they give you any evidence.

[corbin980]

I was reading, doesn't look like there is any discovery.

I guess that is why the lady I spoke too said that if i wanted to file any discover I would do it the day of the trial which I thought was weird. It makes sense now. If there is no discovery, what are my chances. I have bank statements, tracking numbers of my letters to try and settle and was going to bring my brother who received phone calls from Calvary SPC trying to collect on my debt. I cant really think of anything else I could do with out the phone calls and information. The SOL for Georgia is six years.

[shellieh98]

They should have sent you all of the proof they have when they filed the complaint. You should not provide anything, it is up to them to prove their case, you do not want to help them.

Did you admit to the debt in your answer?

You don't owe Calvary anything, they paid less than 50 bucks for rights to collect 1300 from you. If you admitted the debt in your answer, it is going to be more difficult for you to win. Post what they sent you.

This is from your rules..this tells me they should have sent you every thing they have, and if they try to send you more I would object. Small claims sucks lol

The plaintiff must file a sworn statement with the clerk of the appropriate magistrate court, describing the charges made by the plaintiff against the defendant. This statement is called a statement of claim, or a claim. The statement of claim should include the following:

The complete name, address and phone number of the plaintiff (and his attorney, if he has one.)

The complete name and street address of the defendant.

The damages, or the amount of money or property the plaintiff is seeking.

A brief statement explaining why the defendant is being sued, including the date(s) of the underlying incident(s).

Copies of all relevant documents, such as contracts, receipts and canceled checks. (Keep the original documents for your files.)

If the defendant is a person, the claim must be filed in the county where the defendant lives.

[shellieh98]

Oh good just retread, you did deny the debt. Post what they sent you and we can help you understand why what they have should not be enough to win. GA had some new rules at the first of the year that requires you to understand why the evidence should not b let in. They made it easier for the JDB to get affidavits etc. admitted. So hope you have some study time.

[corbin980]

The Complaint only had the bill of sale where Calvary bought the debt, an old statement from 2011 which I have never seen and looks like an excerpt from an excel spread sheet with my info and the amount they say I owe along with the incorrect last payment date of May 12th. There is no original contract or any payment details. When I asked the office for verification I only received a letter from them stating that they had checked with HSBC and the info they have on file is correct. I sent two letters to try and settle before we went to court. One for 375$ and another for 850$ neither of which they accepted. I filed those answers and here we are.

[Harry Seaward]

In their Complaint, did they say "breach of contract" or something else, like "account stated"?

 

I just looked at an HSBC agreement I have from 2006 and it says the Account will be governed by the laws of the State of Nevada, which has a 4-year SOL.

 

The 6-year SOL in GA is for written contracts.  If they didn't provide a contract, they can't claim it's breach of contract which leaves them with a 4-year GA SOL for either open or oral accounts.

[BV80]

@corbin980

 

If this is in Magistrate Court, discovery requests are not allowed in that court in GA without permission from the judge.

[shellieh98]

Did they send an affidavit from someone stating that your account is based on personal knowledge, and is correct? Did they send a statement from the credit card in addition to the excel spread sheet? Don't worry if the info is wrong, it doesn't matter, you are going to attack standing so it doesn't matter what they say.

[corbin980]

I only received the Excel spreadsheet, bill of sale, complaint and copy of statement right before they charged it off in 2011. No affidavit

[debtzapper]

http://www.govcollect.org/files/Georgia_Debt_Collection.pdf

 

 

Under "Significant GA cases" read 1, 2, and 3

[needabailouttoo!]

Hi Corbin980-

 

    I'm in Ga. and just won a case with HSBC being the OC in July. Magistrate court actually has advantages. What I find helpful is to also submit a Motion to Dismiss With Prejudice along with my Answer. I hammer them in the Motion for their misconduct. You have a few to claim already. You also have already admitted to this debt by offering to settle, twice. That may hurt:

To achieve an account stated, the agreement must amount to a recognition of a debt by a party, with a promise, express or implied, to pay the debt. This recognition can be established by a creditor delivering to a debtor a statement regarding the account and the amount owed. The receiver/debtor is bound to examine the statement, and if he admits it to be correct, a binding account stated is established. Once an account stated is established, it acts as an admission by both parties that the amount is due.

 

But—Calvary doesn’t have standing, as they can’t prove their debt ownership.  Debtzapper has provided an awesome link that I’ve really found helpful, as it contains case law that handcuffs Calvary and which you should cite in your Motion to Dismiss With Prejudice. Here’s a recent post of mine, explaining the real audience of the Motion, and what you should expect from Magistrate Court. I’m post #6 and 7. http://www.creditinfocenter.com/community/topic/321537-if-you-recently-won-what-legal-defense-did-you-bring-to-trial-and-how/#entry1264906

 

It is small claims, and there is no discovery. Google your county’s Magistrate Court website online to get a feel for their specific rules on top of ordinary Rules of Procedure. Then, for homework before your court date, determine your assigned courtroom from your court date letter and go down to the courthouse and sit and watch how simple Magistrate Court goes. You won’t ever speak before a judge. I go into that and why a Motion to Dismiss is important in the above post.

Here is the Ga. laws debtzapper provided that you need to include in your Motion:

 

Admissibility of documents

In Nyankojo v. N. Star Capital Acquisition, 298 Ga. App. 6, 10, 679 S.E.2d 57, 61 (2009), the Court of Appeals of Georgia refused to uphold an assignment where the documents produced in the case did not affirmatively link the assigned account to the same account number as the original account. The Court noted that computer-generated information, showing certain information tending to show an assignment for which no foundation was laid by a witness, was inadmissible hearsay.

 

Traditionally a very creditor-friendly state, Georgia courts have recently become much tougher on debt buyers, specifically with regard to assignment issues. In Georgia, a party may assign a contractual right to a third party. However, that assignment must be in writing in order for that contractual right to be enforceable by the assignee. The written assignment must identify the assignor as well as the assignee. In Wirth v. Cach, LLC, 300 Ga. App. 488, 490-91, 685 S.E.2d 433, 435 (2009), the Court of Appeals of Georgia held that a written assignment evidencing the transfer must be present in the record for the debt buyer to succeed in its suit. An affidavit attesting to the assignment is not sufficient. Nor is a bill of sale without an attachment that identifies the transferred account number. This case demonstrates that debt buyers should be diligent in obtaining all available documentation in order to support their assigned debt or risk being unable to collect in court.

 

Calvary is a party between themselves and whomever they bought your debt from (I think they may be JDB2) and this debt purchase is governed by an account purchasing agreement aka forward flow agreement. It is here that your bill of sale is but one page of, and it is here that an additional exhibit is referenced, but not provided to you, that contains your name and account number. This is what Wirth v. Cach, above, is referencing.

Here is another post of mine explaining why JDBs will lose their case because of these forward flows and how you can use this in your Motion. Once your JDB becomes aware that you know about these and that they failed to provide theirs, your case evaporates.

I’m post #44.http://www.creditinfocenter.com/community/topic/321461-johnson-mark-llc-and-midland-funding/page-3

 

Also, there’s this:

Although a contract may incorporate all or part of another instrument by reference, see Unifund CCR Partners v. Shah, 946 N.E.2d 885, 891, 407 Ill. App. 3d 737, 349 Ill. Dec. 389 (2011), without knowing the content of each receivable file, the court cannot discern whether Webb's account was one of those incorporated into the contract. Moreover, just because Webb's account number was identified as sold at the beginning and end of the chain of assignment does not mean that the chain is unbroken. To effectuate a valid assignment, the assignor must have an assignable right. Restatement (Second) of Contracts § 324, Comment A (1981). Without knowing the content of the receivable files, it is unclear what interest (if any) Sherman Originator III, Sherman Originator, and LVNV had in Webb's debt. It is therefore possible that Webb's debt was not assigned to any one of these entities, making it impossible for one entity to assign it to the next. 

 

Let me know if I can send you my case.

[corbin980]

Thanks for all the advice. I still do not have a problem with settling this debt with Calvary. My only issue is that I was railroaded by HSBC and feel that is the wrong thing to do to someone who had perfect payment history from 2004 up until Jan of 2010. I would still have the card had they not screwed me just to get money. I would just like to get a settlement that is fair based on the events. 

 

They have included the Excel spread sheet which states my account number and a purchase date that is the same as the bill of sale. It only states the original date, acct number and balance and my last payment date. IT is behind the bill of sale and on the bill of sale it is only listed as exhibit A. The paper does not expressly say that my account was bought by Calvary.  

 

Please send away. 

[racecar]

http://www.scribd.com/collections/3042742/Frederick-J-Hanna-and-Associates-Midland-Funding-v-Sheridan-Gwinnett-Georgia

http://www.scribd.com/JillianSheridan/documents All Published Documents (64)