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Cavalry NY - Rubin and Rothman just appeared


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On November 19th i received a collection letter from Rubin and Rothman. I promptly replied with a simple DV mailed certified, I am currently awaiting the return of the green card. I pulled my credit report and shows that Cap One sold an old account that's still with in the SOL by 9 months to Cavalry in 4/13.    My question is since Cavalry will most likely sue on this debt should I DV Calvary directly in addition to Rubin and Rothman.     I ask this since it appears the trend in NY to file suit claiming account stated, would this help with a defense of account stated if its raised?

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no won't make a difference.  It is already in the lawyers office for review, they are probably getting ready to sue,  Just the DV to attorney is good.  They will probably verify the debt and ask you how you want to handle it.  If you ignore them, they will probably file.  I would just start reading my states rules for civil procedure, so I have a head start if you choose to fight it.  DVing calvary will not help with account stated, really wont do you any good.

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Check your state laws, in my state an attorney that that collects debts is a debt collector and cannot represent themselves in court, they must have an outside attorney.

 

It is against their own rules to do this, their rules, the attorneys, are called Canons

Canon 19. Appearance of lawyer as Witness for His Client.

When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.
 
Thus comes the legal maxim: Attorneys cannot testify as to the facts of the case.
Objection, Your Honor. The witness is incompetent under the advocate-witness rule
United States v. Edward,154 F.3d 915, 921 (9th Cir. 1998)
discussing advocate-witness rule in case in which during trial prosecutor found evidence in presence of two police officers who then testified about prosecutor’s discovery) Courts are reluctant to allow counsel for a party to testify for fear http://www.creditinfocenter.com/community/topic/322455-cavalry-ny-rubin-and-rothman-just-appeared/that the attorney will not be objective and that the trier of fact wil confuse the roles of advocate and witness and grant improper weight to the argument of counsel.

 

United States v Armedo Sarmiento 545 F2d, 785 (2nd Circuit 1976)

The testimony of an attorney for a party is not per se incompetent. However courts are reluctant to allow attorneys to testify except when necessary, i,e, all other sources of relevant evidence have been exhausted.
 
When the attorney tries to explain how, what, when, where, why, or whom he is attempting to testify, when attorney does this he acts in the form of the witness, it is against their own rules. 

 

 

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The chance they sue will depend on the amount more than anything. Sometimes a DV on accounts less than 1K will run them off.

 

The great news is that you are dealing with Calvary instead of Cap One! Cap One will fight to the end, while Calvary can be beaten and they may give up if you put up a fight. I would seriously look at going on the offensive if they file suit. Calvary rarely ever worries about violating your rights under the FDCPA. 

 

If they have left you any messages within the last year I hope you have saved them. Also keep any letters that they have sent you including the envelopes. Look at the amount they are requesting vs the amount that Cap One charged off. Calvary will need to justify how they came up with the new number and provide a copy of the original contract/agreement. If they do this and it is legal by state law then you need to look to see if they charged "post charge off interest". A good consumer attorney with FDCPA experience will be able to tell you if they have violated. If you have violations I would not hesitate to file an FDCPA case against them. This is the best way to make them go away forever in my opinion. 

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Another thing you will want to find out is whether they bought the debt or are acting as agent for Cap One. if Cap one hired them to collect the debt they way you handle things will be different.

 

If Cap One hired them and they are acting as agent for them you need to ask for the contract that gives them agency. Why? because Agency cannot be proven out of the mouth of the agent, it has to be proven out of the mouth of the principal. If they do not want to prove they are the agent they have no standing to sue, and the court has no subject matter jurisdiction.
 

Common law rules of agency,

A person who has an interest adverse to a principal cannot serve as an agent without knowledge and consent of that party.
The principal is personally liable for any tort (a civil wrong, such as fraud) of an agent if the principal authorized the agent to do the wrongful act, or if the act was within the scope of the agent‟s employment.

 

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Another thing you will want to find out is whether they bought the debt or are acting as agent for Cap One. if Cap one hired them to collect the debt they way you handle things will be different.

 

If Cap One hired them and they are acting as agent for them you need to ask for the contract that gives them agency. Why? because Agency cannot be proven out of the mouth of the agent, it has to be proven out of the mouth of the principal. If they do not want to prove they are the agent they have no standing to sue, and the court has no subject matter jurisdiction.

 

 

I'm almost positive Calvary only operates as a JDB. Calvary is known to hire CAs, but they do not act as a CA for any others.

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@BTO429

 

An attorney (whether he's a debt collection attorney or not) is not testifying when he is presenting the facts of the case. 

I am trying to explain the difference, presenting the facts is fine, but the moment they try to attest to the accuracy or the legitimacy of the facts they are testifying. I have sat though so many jdb suits in my area and watched as the plaintiff atty did everything and the plaintiff just stood there and said nothing. A simple objection from the defendant would have stopped this.

I stated that atty's can present the facts, but they cannot attest to them. That is why we have witnesses in our court system, they are needed to support the facts. Without a witness there is no case. If you think of jursidiction of the court as a four legged table, it needs four legs to stand up, two of those legs are two complaining parties, the second leg is standing to sue and the courts jurisdiction, the fourth leg is a witness, to attest to the facts. No witness no table.

 

What I am saying is the moment the atty tries to prove that the facts are accurate he is testifying, that is what the witness is for. He cn present the fact but he needs to call his witness to prove the fact.

 

 I sat in court(traffic court) and watched the prosecutor attest to everything and never called the officer to the stand, a simple objection would have stopped this. When it was my turn I objected, and the judge told him if he has a witness he needs to call him, the officer was not in court, my motion to dismiss was heard and the judge agreed. I stated that since there was no complaint from an injured party and no injured party present that the prosecution has failed to state a claim for which relief can be granted. It works the same way in civil or criminal court. No witness no case.

That is why we need to learn how to impeach the witness and get the testimony stricken from the record.

I have a trick that I use, this depends on council for the plaintiff and their reaction.

If the witness is present I ask two questions, this would be if a rep from the debt collector is present and not just they attorney.

The first one being "have you filed a valid a valid cause of action against me?"   Now of course they are going to answer yes

My next question is "how many elements are in a valid cause of action?" What I am doing here is trying to elicit an objection from the plaintiffs atty, some time it works most of the time but not always. The objection I am looking for is "the witness is not competent" now if the atty is good he should say he witness is not competent to answer the question, but a lot of time they only say the witness is not competent. If the Judge agrees, the court has now ruled that the witness is not competent. You have to let the judge make a ruling before you do the next thing. If they atty does say the witness is not competent, and the judge agrees, I immediately ask for the witness to be excused and barred from any further testimony because his own council has declared him incompetent, and so has the court.

If the judge asks if he has any more witnesses to call and the atty says no, I object and make a motion to dismiss because there is no witness.

Like I said some time this works sometimes it dont. You just have to hope the atty makes the right statement and so does the judge. It has worked for me on some occasions.

There is another angle I have used. Some of these complaints from junk debt buyers do not claim that there was an injury or that the plaintiff has suffered an injury. There has to be a sworn statement of injury in other words they have to state that they have suffered injury. I have motioned to dismiss on these grounds, some times I get a dismissal sometimes the judge gives them back their complaint and tells them to fix it. If that is all that happens you can at least get some more time to work on your defense from this approach. The issue here is they have to put the language in their complaint that Plaintiff has suffered an injury. I know it is petty but hey, if you need more time to work on your defense it may get you the time you need without having to use your one free continuance.

 

I always make them prove everything they say I do not care what it is. f they say the sky is blue I want evidence that proves it. I do this because any statement that you do not refute is deemed admitted.

 

Have you ever run into one of those judges that takes over and starts asking all the questions? Well if you do you need to object, on the grounds that it is practicing law from the bench. I object on the record as an aplealable issue, the judge never likes it but if you loose the case you have an appeal because the judge is the impartial trier of the facts not the prosecutor of the case. The judge has a right to ask questions but he cannot take over the plaintiffs job and prosecute the case.

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@BTO429

 


I am trying to explain the difference, presenting the facts is fine, but the moment they try to attest to the accuracy or the legitimacy of the facts they are testifying.

 

How would the attorney testify?

 

I have sat though so many jdb suits in my area and watched as the plaintiff atty did everything and the plaintiff just stood there and said nothing.

 

Considering the plaintiff doesn't have to be there unless it's a trial and the owner is going to be called as a witness, I can't imagine that too many JDBs are going to show up.

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@BTO429

 

 

How would the attorney testify?  By trying to prove the allegations nd facts are true on his own without some sort of affidavit or a witness in person. If he acts as a witness would.

 

 

Considering the plaintiff doesn't have to be there unless it's a trial and the owner is going to be called as a witness, I can't imagine that too many JDBs are going to show up. If they present the affidavit from the owner as they usually do, we know how to beat that. I have witnessed some of the older attornies in my area that have been in the business for a long time argue this, so I asked them about it. And this is what they told me. In order for them to have standing the plaintiff(injured party) must be present (they can be present if the attorney enters an appearance on their behalf) but often times the atty's forget to do this. And the attorney tries to do what the witness is supposed to do. He testifies just as the witness would through his words, He can offer the fact and the evidence, but he cannot testify himself to the accurateness of the fact or evidence, he needs witnesses to rely on to do this.

You see this a lot in traffic court where the prosecutor tries to present and argue that you violated a traffic law, he was not there and did not witness the event he cannot testify about the incident. He cannot give the testimony that the arresting officer should give. He can say on or about a certain day at a certain time you were issued a traffic citation that is all he can do, he cannot go into detail about what the officer saw.

If a jdb atty officers some evidence that says they own the debt he can present it, but he cannot go into detail and offer the testimony that the witness should offer. If an attorney could testify as to the facts we would not have a need for a witness.

After the witness gives his testimony he then can argue in more depth about what the witness just testified to. If you get an affidavit thrown out he cannot testify about any thing in that affidavit, he needs to direct his proof in some other manner. The only thing that can stop him from doing this is if the other party objects, or the court will allow him to continue.

 

 

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@BTO429

 


By trying to prove the allegations nd facts are true on his own without some sort of affidavit or a witness in person. If he acts as a witness would.

 

If he's presenting facts based on the evidence provided by his client, he's not testifying.  If there's no affidavit, you object to the evidence as unauthenticated.

 


 

 

If they present the affidavit from the owner as they usually do,

 

 

JDBs rarely present an affidavit from the owner of the company.  The vast majority of the time, the affiant is an employee of the JDB.

 


 

In order for them to have standing the plaintiff(injured party) must be present (they can be present if the attorney enters an appearance on their behalf) but often times the atty's forget to do this.

 

 

 

I've heard of the defendant having to enter an appearance or new counsel replacing previous counsel having to enter an appearance, but I've never heard that the attorney for the plaintiff must enter an appearance. 

 

Rule or case law, please? 

 

If it's required, fine.  But I'm not sure I buy that often times attorneys forget to do it.

 


He can offer the fact and the evidence, but he cannot testify himself to the accurateness of the fact or evidence, he needs witnesses to rely on to do this.

 

If a jdb atty officers some evidence that says they own the debt he can present it, but he cannot go into detail and offer the testimony that the witness should offer.

 

 

 

I agree, but attorneys usually don't do that.  Their statements are usually based upon their client's evidence and affidavit.   That's why we object to that evidence.

 

If the attorney says "According to the affidavit of______", he's simply stating what's in the affidavit.  He's not testifying in place of the affiant.

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Rubin and Rothman are acting as the CA for Cavalry. This is Cavalry's first attempt to collect on this debt.   I highly doubt that Cavalry will be able to produce the original contact as the account was opened as a Best Buy/HSBC card which was bought by CapOne then charged off and sold to Cavalry.    I appreciate everyones help and have just begun researching defenses and this whole process. I will not back down from these scum JDB.

 

Rubin and Rothman dont seem to ever act as an attorney for Cavalry in my area, thier cases are mostly handled by the Choi Firm in my area.  Disputing the debt directly with Cavalry wouldnt be advisable or should it be as they are just beginning to try and collect?  Would this show them even before a suit is filed that Im not going to back down or would it raise their interest to the account?

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