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filing motion to dismiss / order to dismiss in Arkansas


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Hi all, 

 

After a few months of lurking on here I was finally able to create an account so I can ask some questions

 

I am being sued by Cavalry SPV I, LLC

 

Using some very good info from other posts I was able to create a very good answer, and was able to handle their requests for admittance and interrogatories as well as being able to send back some of my own. (those were just sent out today so lets see what happens). 

 

I am now at the point where while I could probably try and counter sue etc I really just want this over and done with. I would like to file a motion to dismiss with prejudice. For starters when the plaintiff answered my answer they did not provide any of the strict proof I was demanding. 2nd, they attached some kind of a bogus demand for payment letter which goes something like this (you guys are gonna love this one)... 

 

The "affidavit" they filed is dated April 30, 2013, and claims that the amount I owe is $1,694.14, wile the supposed demand for payment letter they sent is dated April 8, 2013 for the amount of $1,824.14.

 

Now the two questions I really want to know are 1: Why is the affidavit amount less than the demand letter and 2: Why does the affidavit even exist in the first place? (Last time I checked April 8th to April 30 is only 22 days and federal law states I have 30 days to respond.... not that I ever got this letter to begin with but still....)

 

 

So I basically want to use their own "evidence" against them for starters. I spoke with the filing clerk and she said that I can file a motion to dismiss but I also have to file an order for the judge to sign should it get dismissed. My biggest stumbling block is finding an example order for the judge to sign. I have found tons of info for the motion to dismiss and think I have a good one drawn up but cant find any example orders.

 

... or should I just go ahead and try to sue them for the 4 or 5 violations (I have counted so far) and what is the best way to do that? Since I have already filed my answer, and did counter claim 2 violations I had found I have found more violations since then (not being licensed in Arkansas for starters) 

 

 

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oops... here are the answered to the prerequisite questions ;)

 

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.)

Allen & Withrow

 

3. How much are you being sued for?
$1,694.14 or $1,824.14 depending on which bogus document you go by

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

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

I was served

6. How were you served? (Mail, In person, Notice on door)
Notice at the door, called a number, dude came and gave me papers

7. Was the service legal as required by your state? 
Not sure
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?
Absolutely NOTHING

 

9. What state and county do you live in?

Benton county Arkansas

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

Since there has been absolutely ZERO references to any account numbers impossible to tell. I had several BoA accounts but if I were to guess prior to Jan 2010. That is when I dumped all business with BoA

 

 

11. What is the SOL on the debt? To find out: 

From what I can tell Arkansas goes by the rules of the state of the jdb which in this case is Delaware which I believe is 4 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).

 

In discovery process


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

No, not yet. 

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 but they never send me a notification letter. 

 

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? 

 

30 days

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

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

Bogus affidavit. 

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Any chance the lawyer representing them has initials TS?

 

If they didn't attach an agreement to the complaint you can nail them. Supreme Court ruling in 2012. LVNV Funding, LLC v. Rae Nardi.

In LVNV Funding the Plaintiff unsuccessfully argued that a suit could be brought on an account based on a complaint containing an Arkansas Code § 1645-104 affidavit and therefore Rule 10(d) was inapplicable. Id. But the court, in ruling against this argument, clarified that an affidavit pursuant to Ark. Code Ann § 16-45-104 merely offers proof of the amount of the account if it complies with the rules of evidence, but that it does not satisfy or excuse compliance with Rule 10(d). Id (emphasis added).

 

I motioned to Dismiss based on this in my case. It never got ruled on as the other side offered me a Mutual Dismissal. If they had a copy of the document they likely would have been allowed to simply amend their complaint. 

 

I sent a request for documents asking for contract, bill of sale, and other items. When they replied they failed to comply with Ark rules 34. Which requires the documents be organized and labeled to correspond to the request.

 

I also sent in my request for admissions for them to admit that Cavalry SPV did not have a license to collect debt in the state of Arkansas. 

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Hey there Mantis, As a matter of fact he does have those initials. Your posts have gotten me through to where I am now... done a lot of copy/paste and paraphrasing so I can't thank you enough for all that! Did you have to actually file an order for the judge to sign as well? the Bentonville clerk says I need to file both the motion to dismiss and the order for the judge to sign should the motion be granted at the same time. 

 

BTW: I noticed in some of the motion you sent there are a few "Id." marks in there. What does that mean? 

 

(Actually I see them right up there in the post you just replied with) 

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