Jump to content

Cavalry SPV I, LLC Credit Card Lawsuit. Need Help with a Lawsuit filed by Cavalry SPV I, LLC on "Stated Account"


Recommended Posts

Hi everybody.  I am now working on by second lawsuit against a junk debt buyer.  My first lawsuit against Unifund LLC ended in a dismissal. The present lawsuit I am working on is against Cavalry SPV I, LLC.  The law firm representing the JDB is

Winn Law Group located in Fullerton, CA.  I have read postings by lawyers on other websites stating that Winn Law Group ALWAYS goes to trial against Pro Se's. If this is true I'm going to need all the help I can get by my fellow Forum Friends. 

 

I have already completed my Denial, and Request for Docs, I have also responded to the plaintiffs request for admissions, and Interrogatories.  This was relatively easy since I had experience from my first case. Meet and Confers have come and gone. A trial date for December 6th has been set. Now I need help. 

 

 In the  Plaintiff's response to my request for documents they sent a copy of a B of A credit card agreement,  6 months of credit card statements, a bill of sale, and a verification letter. 

I uploaded all of these documents for everyone to study except for the credit card statements.

On the copy of the Summons Cavalry SP I, LLC says this is a "Stated Account". This term also appears on the Plaintiff's Case Management Statement.  There was no Affidavit sent, just the documents I uploaded.

 

My questions are as follows:

1) Is this a "Stated Account" case?

2) If it is how does this differ from other cases?

3) How should I proceed?

 

I was planning on sending Cavalry a CCP 96 about a month before trial to see what they plan on using. I would think since they didn't send an affidavit in discovery, they probably don't have one.  I was also going to file a Motion in Limine a week before trial, but I don't know how to proceed on a "stated account".

 

All my brainy friends out there please help.

Cavalry-Info-Oct-4.pdf

Link to comment
Share on other sites

WHAT LAW APPLIES

Find A BOA credit agreement that says this
This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.

 

The Delaware SOL is three years.

You can file a brief motion to amend your complaint.

Leave to amend is granted liberally by the Courts.

http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/

 

RESURGENCE FINANCIAL LLC v. CHAMBERS, No.

We hold that (1) Delaware's statute of limitations governs Resurgence's causes of action because the credit card agreement contains a Delaware choice-of-law clause and one of the original contracting parties was a Delaware corporation;  (2) applying Delaware law, the action is barred by the three-year limitations period of title 10, section 8106 of the Delaware Code 1 ;

 

 

 
 

Link to comment
Share on other sites

WHAT LAW APPLIES

Find A BOA credit agreement that says this

This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.

 

The Delaware SOL is three years.

You can file a brief motion to amend your complaint.

Leave to amend is granted liberally by the Courts.

http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/

 

RESURGENCE FINANCIAL LLC v. CHAMBERS, No.

We hold that (1) Delaware's statute of limitations governs Resurgence's causes of action because the credit card agreement contains a Delaware choice-of-law clause and one of the original contracting parties was a Delaware corporation;  (2) applying Delaware law, the action is barred by the three-year limitations period of title 10, section 8106 of the Delaware Code 1 ;

 

 

 

 

Hi RaceCar: Unfortunately they would be within the 3 year SOL.  They filed within the 3 years, but I wasn't served until the fourth year. I don't know how this would play out in California since the reference case was in Utah. 

Link to comment
Share on other sites

It's account stated... this is risky on their part, as if they fail to prove it, then they lose their case. On the other hand, it's smart in that it's the easiest to prove and isn't subject to a BOP.

 

Some things to hammer them on:

 

1. You need to get a complete credit card account agreement - 1 page does not suffice;

 

2. You want to get the forward flow agreement - the bill of sale does not establish anything by itself;

 

3. The affidavit the NY attorney signed - subpoena him to appear and hammer them on the In re Vinhee standards of computerized business records. My guess is no one is going to know anything... if you can establish that the records are not reliable, you may have a chance of winning.

 

4. Send discovery ASAP

Link to comment
Share on other sites

It's account stated... this is risky on their part, as if they fail to prove it, then they lose their case. On the other hand, it's smart in that it's the easiest to prove and isn't subject to a BOP.

 

Some things to hammer them on:

 

1. You need to get a complete credit card account agreement - 1 page does not suffice;

 

2. You want to get the forward flow agreement - the bill of sale does not establish anything by itself;

 

3. The affidavit the NY attorney signed - subpoena him to appear and hammer them on the In re Vinhee standards of computerized business records. My guess is no one is going to know anything... if you can establish that the records are not reliable, you may have a chance of winning.

 

4. Send discovery ASAP

Discovery is nearly complete.  I will be sending them a CCP 96. They are required to list all witnesses and documents they plan on using against me at trial.  Trial date has been set for Dec. 6th.  I will send out the CCP 96 about 30 days before trial.

 

I don't know if it's wise to subpoena a witness in New York.  California law (CCP 96) requires any witness to be subpoenaed to be within 150 miles of the trial court.

 

What is a "forward flow agreement"?  I would think if they don't have one, or didn't send one to me it would be to my benefit.

 

Cavalry did send the entire credit card agreement, but there is no account number anywhere on the agreement to match it with my alleged account.  Also, the Bill of Sale does not have my name or the alleged account number. The only documents with my name and alleged account number are 6 months of billing statements. There is no affidavit to verify anything they claim I owe, and, so far, no Declaration in Lieu   This is why I'm stumped as to how to proceed. If I file a Motion In Limine what case law can I use??  I haven't seen any for "accounts stated".

Link to comment
Share on other sites

It's account stated... this is risky on their part, as if they fail to prove it, then they lose their case. On the other hand, it's smart in that it's the easiest to prove and isn't subject to a BOP.

 

Some things to hammer them on:

 

1. You need to get a complete credit card account agreement - 1 page does not suffice;

 

2. You want to get the forward flow agreement - the bill of sale does not establish anything by itself;

 

3. The affidavit the NY attorney signed - subpoena him to appear and hammer them on the In re Vinhee standards of computerized business records. My guess is no one is going to know anything... if you can establish that the records are not reliable, you may have a chance of winning.

 

4. Send discovery ASAP

 

Looks like they're going with account stated.

I'm guessing 6 months of statements doesn't account for the entire time the account was open?

Cavalry did send the entire credit card agreement, but there is no account number anywhere on the agreement to match it with my alleged account.  Also, the Bill of Sale does not have my name or the alleged account number. The only documents with my name and alleged account number are 6 months of billing statements. There is no affidavit to verify anything they claim I owe, and, so far, no Declaration in Lieu   This is why I'm stumped as to how to proceed. There is virtually no proof this is my account, but from everything I have read on this forum an "account stated" is tougher to defend. 

I don't get it.  If I file a Motion In Limine what case law can I use??  I haven't seen any for "account stated".

Link to comment
Share on other sites

Zam you are going to want to subpoena the ccp98 witness. Did they give you an address within 150 miles from the court? ( they will usually put the lawyers office as the address). You absolutely want to do it. Don't worry, he can't be served there, but if you pay te Sherrif to do it, and he cannot be served personally, the hearsay evidence goes out the window. (As long as you object to it). There will be no one to lay the foundation for the business hearsay exception.

Link to comment
Share on other sites

Zam you are going to want to subpoena the ccp98 witness. Did they give you an address within 150 miles from the court? ( they will usually put the lawyers office as the address). You absolutely want to do it. Don't worry, he can't be served there, but if you pay te Sherrif to do it, and he cannot be served personally, the hearsay evidence goes out the window. (As long as you object to it). There will be no one to lay the foundation for the business hearsay exception.

Hi Shellieh98: The Plaintiff didn't file a CCP 98, or submit an  affidavit during discovery.  The only stuff submitted is what I attached on the download on my original post (please check out the docs I uploaded). Cavalry says their claim is an "account stated".  I need to know what this means, how it's different than defending against an affidavit or Declaration in Lieu, and how to blow it out of the water. Trial date is Dec 6th.

Link to comment
Share on other sites

Have you received their ccp96? That will have their ccp98 in it.

I am going to bed now, but I will post what account stated is tomorrow when I on my computer, I'm on my ipad right now.

They haven't sent a CCP 96. I haven't sent a CCP 96 to them yet.  Planning on sending out my CCP 96 next week.  I'm still stumped on how to proceed with a "stated account". Thanks for your help.

Link to comment
Share on other sites

Ok so what you were given thus far is just a crap response to a RFPOD. This is standard. You won't usually see a CCP 98 till their response to your CCP 96 request.

The card agreements are usually just an generic one that applies to the card. It almost never has any kind of info on it. The statements should show a full record from $0 - ending balance. They don't usually have all of them. This would be something to attack at trial.

There's really not much for you to do. My approach is this but there are other options:

They gave you crapy evidence. Evidence that will make it hard for them to win the case. That being said does it make sense to tell them their evidence sucks or wait and clobber them when they can't fix it? Some here say attack at every step. Who says you're not? Sometimes doing nothing is the right approach. It's just hard to accept that when you're 100% ready for war and want to attack everything. Yet it might be better to wait and let the enemy walk into your ambush.

Their case hinges 95% on having someone who has FIRST HAND KNOWLDGE of how the docs they intend to offer into evidence were made. They usually used a CCP 98 affidavit to do this. Reason being they don't had to pay a witness to show at trial. It's your job to destroy this affidavit. You do that by attempting to subpoena the witness. They can't use the affidavit if you request the witness to be at trial and the witness doesn't show. 99.999999% of the time this is why they loose. No witness = no way to authenticate the docs they have = no evidence to use = case is DOA. If the affidavit is admitted or they actually bring the witness then you attack each doc but your first thing to focus on is the witness. It just mass sense to do the most damage in one blow. Just don't forget to be ready to go after the other docs if needed.

Since the "witness" affidavit is all their case hinges on they will argue all kinds of BS to get the judge to buy that it should be admitted. Now with the new case law from the Target case this is very hard if you do your job.

Link to comment
Share on other sites

Ok so what you were given thus far is just a crap response to a RFPOD. This is standard. You won't usually see a CCP 98 till their response to your CCP 96 request.

The card agreements are usually just an generic one that applies to the card. It almost never has any kind of info on it. The statements should show a full record from $0 - ending balance. They don't usually have all of them. This would be something to attack at trial.

There's really not much for you to do. My approach is this but there are other options:

They gave you crapy evidence. Evidence that will make it hard for them to win the case. That being said does it make sense to tell them their evidence sucks or wait and clobber them when they can't fix it? Some here say attack at every step. Who says you're not? Sometimes doing nothing is the right approach. It's just hard to accept that when you're 100% ready for war and want to attack everything. Yet it might be better to wait and let the enemy walk into your ambush.

Their case hinges 95% on having someone who has FIRST HAND KNOWLDGE of how the docs they intend to offer into evidence were made. They usually used a CCP 98 affidavit to do this. Reason being they don't had to pay a witness to show at trial. It's your job to destroy this affidavit. You do that by attempting to subpoena the witness. They can't use the affidavit if you request the witness to be at trial and the witness doesn't show. 99.999999% of the time this is why they loose. No witness = no way to authenticate the docs they have = no evidence to use = case is DOA. If the affidavit is admitted or they actually bring the witness then you attack each doc but your first thing to focus on is the witness. It just mass sense to do the most damage in one blow. Just don't forget to be ready to go after the other docs if needed.

Since the "witness" affidavit is all their case hinges on they will argue all kinds of BS to get the judge to buy that it should be admitted. Now with the new case law from the Target case this is very hard if you do your job.

In discovery they did not send an Affidavit. I agree with you in terms of knowing when NOT to attack. If I mention to them something is wrong with their evidence I'm just giving them a chance to correct it and use it against me at trial.

 

Since the trial date is December 6th I guess I should send the CCP 96 asap to see if I receive a CCP 98. I don't want to wait too long to send the CCP 96 since I need ample time to subpoena their bogus witnesses.

 

I'm still at a loss as to why this case is a "account stated" and how it differs from any other case??

Link to comment
Share on other sites

Hey Zambonidog,

Welcome. The difference between 'account stated' and other cases is JDB assumes this will be an easy win. If you break down account stated it means there was an account stated in some form which both parties assented to. If you can prove there was no mutual assent between you and oc and/or you and jdb you should be one step ahead. Lookup 2013 California jury instructions and how plaintiff has to prove account stated theory. This should give you a pretty good idea.

I will try to find my notes on account stated.

Link to comment
Share on other sites

In discovery they did not send an Affidavit. I agree with you in terms of knowing when NOT to attack. If I mention to them something is wrong with their evidence I'm just giving them a chance to correct it and use it against me at trial.

 

Since the trial date is December 6th I guess I should send the CCP 96 asap to see if I receive a CCP 98. I don't want to wait too long to send the CCP 96 since I need ample time to subpoena their bogus witnesses.

 

I'm still at a loss as to why this case is a "account stated" and how it differs from any other case??

You can serve the CCP 96 no more than 45 days before trial and no less than 30 days before trial.

Many JDB, and some OC, use account stated since they can't prove any other sort of a contract between you and the OC (who's shoes the JDB stepped into when they purchased your acct). With acct stated their end of the contract was the credit give on a defendants end it was the use of said card that showed they agreeded to the contract. This is why they ask in admissions if you contested the charges on the card. If you didn't then you agreeded to the amount.

The reason that they have no signed contract is that the majority of the cases the card was applied for online thus no written contract.

Link to comment
Share on other sites

WHAT LAW APPLIES

Find A BOA credit agreement that says this

This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws.

 

The Delaware SOL is three years.

You can file a brief motion to amend your complaint.

Leave to amend is granted liberally by the Courts.

http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/

 

RESURGENCE FINANCIAL LLC v. CHAMBERS, No.

We hold that (1) Delaware's statute of limitations governs Resurgence's causes of action because the credit card agreement contains a Delaware choice-of-law clause and one of the original contracting parties was a Delaware corporation;  (2) applying Delaware law, the action is barred by the three-year limitations period of title 10, section 8106 of the Delaware Code 1 ;

How do we define the 'default date'? 

Looking at the credit card agreement from MBNA/BofA is states, 

" You will be in default of this agreement if

(1)you fail to make any required Total Minimum Payment Due by its Payment Due Date.

(2) your total outstanding balance exceeds your credit limit.

(3) you fail to abide by other terms of this Agreement."

 

StardusterToo was able to prove that the defaulted date was when she missed her last purchase and wasn't when she made her last payment. 

http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/

 

Is there any case law in CA that defines when debt is technically in default. SOL is from the date of default. I'm just trying to figure if there's any way around the last payment "restarting" the SOL date.

 

Here's the Delaware Law: 

http://www.easylawlookup.com/_easylookup.blp?GO=Prepare&print=&data=TITLE10&sidfw=&par=6441&p_start=229&p_end=229&p_para=6440&p_epara=6446&displayer=YES&site=EASY&location=76621&spon=EASY&stype=P&sterm=ACCRUING&smode=AND&sexact=ON&ru_sz=50#par_6441

Toward the end is states, "3 years from the accruing of the cause of such action". 

 

StardusterToo spells it out pretty well and it worked for her in Utah. However, California is a complicated state and I just wonder if this would work here?

Link to comment
Share on other sites

  • 1 month later...

Trial date is December 6th. The JDB sent me a "Declaration in Lieu of Live Witness Testimony at Trial pursuant to CCP 98". The affiant is a lady named Heather Wilcox who lives in Arizona, but says she is available for service in Glendale, CA during the 20 days prior to trial. I was going to issue a subpoena tomorrow (Friday), but that's 21 days prior to the trial date.  Should I wait until Monday to stay within the 20 day rule??

 

Most people on this forum say that service by Marshal or Sheriff is more credible than a regular process server, but how long does it take a Marshal to serve after issuing a subpoena?

Link to comment
Share on other sites

You can serve the CCP 96 no more than 45 days before trial and no less than 30 days before trial.

Many JDB, and some OC, use account stated since they can't prove any other sort of a contract between you and the OC (who's shoes the JDB stepped into when they purchased your acct). With acct stated their end of the contract was the credit give on a defendants end it was the use of said card that showed they agreeded to the contract. This is why they ask in admissions if you contested the charges on the card. If you didn't then you agreeded to the amount.

The reason that they have no signed contract is that the majority of the cases the card was applied for online thus no written contract.

TILA, 15 U.S.C. § 1666.

The Fair Credit Billing Act does take away consumers‘ rights to claim that they do not owe what is stated on a periodic bill. It does not mandate that consumers avail themselves of any dispute procedures.

Ford Motor Credit Co v. Milhollin, 444 U.S. 555 (1980);

Mourning v. Family Publications Service, 411 U.S. 356 (1973).

As does defendant, the FRB interprets 15 U.S.C. § §1643

(unauthorized use) and 1666 (billing errors) as alternative,

non-exclusive options:

Citibank (South Dakota) v. Mincks 135 S.W.2d 545 (Mo. App. Ct. 2004).Citibank has lost the argument that failure to take

advantage of the statutory remedies waives the consumer‘s

claims and defenses.―Nothing in the statute affirmatively imposes any

penalty on the consumer for failing to take advantage of the benefits of this statute.

 

Therefore their alleged claim that because you did not contest any of the periodic bills shows that you implied that you agreed to the amount is moot. You have a perfectly legit right to ask for them to prove their claim from a zero balance. Otherwise they cannot prove that the amount is correct and therefore they have failed to state a claim for which relief can be granted.

 

"your honor i motion for a dismissal for failure to stae a claim for which relief can be granted, and at this time I would also like to submit my bill for having to fight a frivolous claim."

  • Like 1
Link to comment
Share on other sites

TILA, 15 U.S.C. § 1666.

The Fair Credit Billing Act does take away consumers‘ rights to claim that they do not owe what is stated on a periodic bill. It does not mandate that consumers avail themselves of any dispute procedures.

Ford Motor Credit Co v. Milhollin, 444 U.S. 555 (1980);

Mourning v. Family Publications Service, 411 U.S. 356 (1973).

As does defendant, the FRB interprets 15 U.S.C. § §1643

(unauthorized use) and 1666 (billing errors) as alternative,

non-exclusive options:

Citibank (South Dakota) v. Mincks 135 S.W.2d 545 (Mo. App. Ct. 2004).Citibank has lost the argument that failure to take

advantage of the statutory remedies waives the consumer‘s

claims and defenses.―Nothing in the statute affirmatively imposes any

penalty on the consumer for failing to take advantage of the benefits of this statute.

 

Therefore their alleged claim that because you did not contest any of the periodic bills shows that you implied that you agreed to the amount is moot. You have a perfectly legit right to ask for them to prove their claim from a zero balance. Otherwise they cannot prove that the amount is correct and therefore they have failed to state a claim for which relief can be granted.

 

"your honor i motion for a dismissal for failure to stae a claim for which relief can be granted, and at this time I would also like to submit my bill for having to fight a frivolous claim."

Your first statement reads: "The Fair Credit Billing Act does take away consumers‘ rights to claim that they do not owe what is stated on a periodic bill."  Do you mean Does Not?

 

I noticed the Citibank case is in Missouri.  I'm wondering if this would be good case law in California.

Link to comment
Share on other sites

Trial date is December 6th. The JDB sent me a "Declaration in Lieu of Live Witness Testimony at Trial pursuant to CCP 98". The affiant is a lady named Heather Wilcox who lives in Arizona, but says she is available for service in Glendale, CA during the 20 days prior to trial. I was going to issue a subpoena tomorrow (Friday), but that's 21 days prior to the trial date.  Should I wait until Monday to stay within the 20 day rule??

 

Most people on this forum say that service by Marshal or Sheriff is more credible than a regular process server, but how long does it take a Marshal to serve after issuing a subpoena?

Make sure they served you the Declaration in Lieu at least 30 days before trial (check the date on the proof of service and the envelope it came in). By code, they had to send you the CCP98 30 days before trial and not a day less.

 

Service by sheriff/marshal is considered better. Some counties no longer offer this in civil cases, so process server is next best, IMO. Comply with the code and wait til you are 20 days out. I gave my process server the subpoena on a Tuesday, they made two attempts on Wed/Thurs and had a report back to me on Monday. My court website had a downloadable subpoena, but it didn't have a stamp/seal, thank god I didn't use it. I had to goto the courthouse to get the right one. Make sure you get a properly stamped/formatted subpoena.

Link to comment
Share on other sites

Serve that person at the address in Glendale, CA. My guess is that they are a)not going to be there, or B) is not the address where they can be personally served.

If that is the case, you can use Target v Rocha against the CCP 98 declaration.

I couldn't get the Sheriff to serve the subpoena as they said they no longer serve subpoenas in civil cases so I had to get a licensed process server in Glendale, CA to try to serve the subpoena ($55). The alleged affiant was not at the address given in the Declaration in Lieu. The people at the address said the affiant is an independent contractor who never comes to their office. When the process server asked if they would accept service for the affiant, they replied "No way". The process server typed up a declaration of non-service with an explanation of what happened. I will use this in my Motion in Limine to have the plaintiffs Declaration in Lieu of Testimony tossed. My question is this: Do I file the Subpoena and declaration of non-service with the court, or do I keep it and use it in my MIL and at trial?? Thanx.
Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.