bluewraith

Cach vs Me in Indiana

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1. Who is the named plaintiff in the suit?
CACH, LLC
2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
Taylor Law, PLLC of Kentucky
3. How much are you being sued for?
$4,4XX.XX + 8% interest per annum, Plaintiffs costs, and "any and all other relief to which the plaintiff may be entitled pursuant to contract, statute, or common law"
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?)
Served a summons
6. How were you served? (Mail, In person, Notice on door)
Summons packet wedged in door on 3/20. Summons page only received via USPS first class on 3/22. Both are dated 3/18
7. Was the service legal as required by your state?
As best I can tell, yes.
8. What was your correspondence (if any) with the people suing you before you think you were being sued?
The lawyers sent letters and called. I ignored all if it. I do have 2 google voice messages left by their offices though.
9. What state and county do you live in?
Indiana, Miami County
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
According to the affidavit in the packet, 10/2009
11. What is the SOL on the debt?
6 years
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).
Complaint was filed on 3/17
13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
No
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
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?
20/23 days on receipt of summons. The summons is dated 3/18 though, so at a minimum 14 days remain.
16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Exhibit C - Bill of Sale and Assignment of Loans

A billing statement dated October 2009 showing a payment on 9/30 with a balance due of $4,2XX.XX

A second style of billing statement dated May 6 - June 4, 2010. This statement lists the full $44XX as balance due, with previous balance of $4,3XX,XX.

Affidavit of Claim

Status Report Pursuant to Servicemembers Civil Relief Act As of Feb 28th, 2014

 

 

I've been reading all I can on here the past couple of days and its quickly getting overwheling, so I figure I'll post my own situation and see what we can do from here. This will be the first time I've ever had to be in a courthouse for anything, so I figure I'm in the same boat as 90% of other members here. Please forgive my ignorance on these subjects, and I'm sure I'm going to make a few mistakes along the way.

 

I know I will need to reply to the complaint. When I went to the Court Clerks office to see if they had any special form of reply, I was given a blank stare. This is a very small county, and it seems like the person assisting me had never seen a summons before. I don't think they will be much help going forward.

 

From what I have gathered, I believe I want to challenge their standing. I've had a lot of JDBs sending me letters and calling me and I've ignored all of them. (Young and dumb, my mistakes, etc) I don't recall, since its been years since I delt with credit cards, but I'm almost certin that this account has been with other JDBs as well.

 

If there are any questions, I am an open book.

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You need to look up your local court rules, and state rules of court as well as the rules of civil procedure. There must be an "answer" or "general denial" form you can download, or you may have to use numbered legal pleading paper and "draft" an answer. Look up your code of civil procedures under "pleadings" and see what It says. You can also pull cases from your court and see what people have done.

 

I don't know your rules or I would tell you where everything is, but until someone else chimes in this gives you some direction. After that you need to find your states rules of evidence and authentication if you are going to learn how to fight it.

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I would file a Motion to Compel Private/Contractual Arbitration.

 

CACH paid around $130 for your account and probably don't want to pay $3500+ for arbitration.

 

Junk debt buyers, like CACH, Midland, LVNV are not fans of arbitration because it is very expensive for them and cheap for you.

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You need to look up your local court rules, and state rules of court as well as the rules of civil procedure. There must be an "answer" or "general denial" form you can download, or you may have to use numbered legal pleading paper and "draft" an answer. Look up your code of civil procedures under "pleadings" and see what It says. You can also pull cases from your court and see what people have done.

 

I don't know your rules or I would tell you where everything is, but until someone else chimes in this gives you some direction. After that you need to find your states rules of evidence and authentication if you are going to learn how to fight it.

The only local court rules I have been able to find seem to only cover criminal cases. Nothing is mentioned about civil, nor seems to be relevant to it.

http://www.in.gov/judiciary/files/miami-docs-lr101411.pdf

 

Indiana Rules of Trial Procedure seems like a good starting place for me though.

http://www.in.gov/judiciary/rules/trial_proc/#_Toc341261770

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I've also found Indiana Rules of Evidence

http://www.in.gov/judiciary/rules/evidence/

 

Reading through this stuff is making me understand why lawyers charge so much..  Everything seems to loop back onto itself so many times. I'm getting ready to type up my Answer to Complaint now. I'll be sure to post a draft up here as soon as I'm finished so it can be critiqued.

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@bluewraith

 

Right now, just for your answer, concentrate on your rules of civil procedure.   Those rules will include how to answer a complaint (both format and substance).  They should also inform you as to what should be attached to a complaint. 

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Complaint

The Plaintiff, by counsel, for its cause of action against the Defendant states as follows:

1. The Plaintiff owns and is the holder of an account due and owing by the Defendant, and is the assignee of Bank of America, N.A..

2. The Defendant is indebted to the Plaintiff in the amount of $44XX.XX.

3. Venue is proper with this court based on the Defendant residing in MIAMI county.

WHEREFORE, Plaintiff respectfully requests the following relief:

1. Judgment against the Defendant in the sum of $44XX.XX;

2. Interest thereon at the rate of 8% per annum from the date of Judgment, until the Judgment is satisfied;

3. For Plaintiff's costs herin expended;

4. For any and all other relief to which the plaintiff may be entitled pursuant to contract, statute, or common law.

 

Do I have to do anything about the WHEREFORE clause in the reply? I've not seen anything about replying to that section of the complaint in the laws, nor in anything I've read on here yet.

As for my answers, so far this is what I have:

Defendant, appearing pro se, for its reply to the Complaint naming CACH, LLC Plaintiff as follows: All answers correspond to the numbered paragraphs of the Complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

 

      1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

      2. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment

      3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment

I am unsure of #3. I do reside in MIAMI county, but I'm not sure if the venue is proper. Would I ADMIT in part, my residence, and DENY in part, the venue? What should I look for to see if the venue is proper?

 

I get hung up on the small things a lot of times that I don't know. Such as the overall format of the page.. I basically took the formatting and headers from the summons and complaint and copied them the best of my ability to a new template in open office. Once I figure out how to convert to PDF, I'll start attaching redacted copies instead of just copy/paste.

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@bluewraith
 

 

I am unsure of #3. I do reside in MIAMI county, but I'm not sure if the venue is proper. Would I ADMIT in part, my residence, and DENY in part, the venue? What should I look for to see if the venue is proper?

 

 

If they're suing you in the correct location for your case, then it's the proper venue (place, location) where the case should be filed.

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      1. DENIED: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and therefore denies.

      2. same

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      1. DENIED: Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment and therefore denies.

      2. same

 

"If he lacks knowledge or information sufficient to form a belief as to the truth of an averment, he shall so state and his statement shall be considered a denial." Indiana Rules of Trial Procedure, Rule 8 ( B)

 

I did update the document to reflect those changes though. Thank you.

 

Is there a sticky with acronyms used on this site? Some things I have read tend to be self explaining (JDB, CA, DV, etc) and others I don't understand. It makes it a bit difficult when reading through the threads to see if something is applicable or not.

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There is a sticky somewhere with acronyms.

 

Also, find out how long you have to answer the complaint and use the time against them by learning how to fight the case. You don't have to answer early, but make sure you answer on time.

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I have 20 days from the day I was served, 23 if received by mail. The summons is dated March 18th, yet was not "nailed and mailed" until the 21st.

 

I do plan on taking my time with this. Since its my first time in this situation, I want to be sure everything is done properly.

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@bluewraith

 

In regard to my response about the venue, if it's correct, admit it.  Venue is very simple.  Either you're being sued in the proper location or not.

 

Save your denials or statements that you don't have enough information for allegations or admissions that really matter and could affect your case.   You don't want to appear as though you're avoiding issues that are relevant to the lawsuit.

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Ok, so here is what I have so far. I know I'm missing a signature line, but I'm still researching what IN requires for wordage.

 

I'm getting conflicting messages regarding affirmitive defense..  Some threads say always use them and throw in the kitchen sink for good measure, others say to not use them.

answer to complaint.pdf

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I'm still not sure if I should add any affirmitive defense to my Answer to Complaint yet. I've been reading the sticky about them, and I'm not really getting anywhere with them. I don't even know if any of them really apply in my case or not. I've pulled a few out that I'm taking an interest to, but I'm not sure if they are valid in my situation or not. I don't know how I would prove them later on if required.

 

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

-- Refrencing the complaint in post #7 of this thread, and the bill of sale/affidavit of debt, is this valid? I know I will later be attacking the bill of sale and affidavit if it goes that far.

 

 

Plaintiff admits 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.

-- I see this as being an old reference that just does not apply to current cases. It makes sense to me to include it, but also to not include it.

 

 

Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

--  I've never done business with this JDB before, nor any JDB that I can recall.

 

I'm just getting so nervous about the whole situation. I've been studying the Indiana Rules of Trial Procedure for hours and I don't feel like I've gotten anywhere yet. I see that certain defenses can be made as motions IRTB 12(B)

 

Would it help if I were to post a redacted copy of the Affidavit of Claim?

 

I'm sorry if I'm not making much sense right now. I've been losing a lot of sleep the past few days over this.

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There is a sticky with documents that posters here have filed in their cases. Look at some of the affirmative defenses. GOOGLE WHAT THEY MEAN. 

 

Some people go to websites, find a bucketful of affirmative defenses and throw it all into their answers, never really knowing what they are claiming. Failure to state a claim is probably good, as you rarely get actual evidence, good or bad, with the summons.

 

Unlawful enrichment, as well; they are claiming that you owe them money without having admissible evidence that you do.

 

There are others.

 

The only reason that I would challenge proper venue is if I were planning to elect arbitration. That's because affirming venue, when you are choosing a different venue, could be a mistake. If you plan to litigate, there's no problem affirming venue, however.

 

BOTH litigating by yourself, and electing arbitration are fraught with peril. But so is admitting to owing money to a JDB. Choose your peril, you know?

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There is a sticky with documents that posters here have filed in their cases. Look at some of the affirmative defenses. GOOGLE WHAT THEY MEAN. I have. That is why I am asking questions on them. I do not want to throw in the kitchen sink only to look like "that guy" and get everything thrown out on me.

 

Some people go to websites, find a bucketful of affirmative defenses and throw it all into their answers, never really knowing what they are claiming. Failure to state a claim is probably good, as you rarely get actual evidence, good or bad, with the summons. In post #1 I state the evidence they sent. I'm asking if I should still use this defense in the reply to complaint, if it is even valid to use with what they sent me.

 

Unlawful enrichment, as well; they are claiming that you owe them money without having admissible evidence that you do.

Reading a post by legaleagle in the thread linked below, post #15, he states "UE is to be used when somebody already has your money, not in this contect. If you win on the merits, you won't have to pay the plaintiff." Can anybody elaborate on this?

 

There are others.

 

The only reason that I would challenge proper venue is if I were planning to elect arbitration. That's because affirming venue, when you are choosing a different venue, could be a mistake. If you plan to litigate, there's no problem affirming venue, however. I will be admitting venue is proper

 

BOTH litigating by yourself, and electing arbitration are fraught with peril. But so is admitting to owing money to a JDB. Choose your peril, you know?

 

 

Link - http://www.creditinfocenter.com/community/topic/310699-lets-have-a-discussion-on-affirmative-defenses/?p=1131200

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Their evidence is not evidence. You can probably find, on the website for IN courts, your states Rules of Evidence (ROE). Most states follow the Federal rules, but may tweak them in some fashion. Look particularly at the definition of "hearsay" and how business records may or may not rise above that definition to be admissible.

 

Since you are dealing with a JDB, ask yourself this question: can an employee of an assignee attest to the accuracy of the paperwork of the assignor? Once you have answered that, you just need to learn the language to attack.

 

Even if they have attached an affidavit from the OC, there is a really good chance that it's been robo-signed, and has giant holes in it. I read the affidavit sent with MY CACH suit at least 10 times before I saw the biggest hole. Then I started to see more. 

 

It allowed me to attack it thoroughly in my Motion in Opposition to Summary Judgment, for the hearing coming soon. 

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Their evidence is not evidence. You can probably find, on the website for IN courts, your states Rules of Evidence (ROE). Most states follow the Federal rules, but may tweak them in some fashion. Look particularly at the definition of "hearsay" and how business records may or may not rise above that definition to be admissible.

 

Since you are dealing with a JDB, ask yourself this question: can an employee of an assignee attest to the accuracy of the paperwork of the assignor? Once you have answered that, you just need to learn the language to attack.

 

Even if they have attached an affidavit from the OC, there is a really good chance that it's been robo-signed, and has giant holes in it. I read the affidavit sent with MY CACH suit at least 10 times before I saw the biggest hole. Then I started to see more. 

 

It allowed me to attack it thoroughly in my Motion in Opposition to Summary Judgment, for the hearing coming soon. 

 

 

Records of a Regularly Conducted Activity.  A record of an act, event, condition, opinion, or diagnosis if:

(A)      the record was made at or near the time by — or from information transmitted by — someone with knowledge;

(B)      the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

©      making the record was a regular practice of that activity;

(D)     all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(9) or (10) or with a statute permitting certification; and

(E)      neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

 

 

 

The wording in the affidavit seems to match up to the laws required. I'm not quite sure what I should be looking for though?

 

On a side note, I happened to remember a box that has been sitting my garage that was awaiting a nice burn pile... I just went through it and find two other JDBs letters attempting to collect on this same account. Capital Management Services (dated 9/19/11) and Associated Recovery Services (dated 6/7/11). I see no mention of either company on my CR, but the dollar amount matches what CACH has listed. I also located a letter from the current lawyers dated 3/4/13 where the dollar amount does NOT match. Will this be of any use, or should I just toss it back on the pile?

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Keep in mind that you don't have to fight the whole case or understand everything right now, you just have to answer the complaint and get your denial on record. 

 

Unless you have the SOL as an affirmative defense you probably don't have any that you need to list. Unjust enrichment would mean you already paid them. Failure to state a claim for which relief can be granted means they did not state a cause of action in the complaint like "breach of contract" "open book" "account stated" "unjust enrichment" etc. Lack of consideration is not going to apply.

 

You just need to answer, deny all allegations and learn the proper way to fight this. If you think you have an affirmative defense to it then you can assert it, if not; then you don't need one. Don't stress over this and start losing sleep this early.

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Ok, so here is my Answer to Complaint.

 

I'll be taking a few copies with me to the courthouse. Its my understanding that they will keep one to file, they will return a copy after it has been filed, and a final copy that I will send to the lawyers via CMRRR.

 

Are there any other steps that I should take? I've read about an appearance form in Indiana ( IRTP 3.1(A) ). I drafted one that includes the information request that I will be taking with me. There is a state form available, according to IRTP 3.1 (F) but I was not able to find one online for pro se, only forms for an attorney. If they have a specific form and require it at the courthouse, I'll gladly fill it out there in person.

REDACTED answer to complaint.pdf

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I know I will need to reply to the complaint. When I went to the Court Clerks office to see if they had any special form of reply, I was given a blank stare. This is a very small county, and it seems like the person assisting me had never seen a summons before. I don't think they will be much help going forward.

 

I dropped by the courthouse again today. They gave me door service of a pleading for someone who no longer lives here, so I figured while I was in the area I would inquire again if there was any specific state form required to file my Appearance, or any Local Court Rules. 4 different clerks for 2 different courts later, I left with a copy of my CSS and that's it. I'm starting to think that nobody has gone pro se in this courthouse before. Looks like I'll be relying solely on the Indiana Rules of Trial Procedure to make sure I'm doing everything properly.

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There must be a code of civil procedures (or something to that effect as well) I'm surprised you don't have local court rules. You may be able to talk to the law librarian at your local law library, they are usually very helpful, and (in my opinion) more trustworthy than the court clerk.

 

Also, most states usually have an "answer" form you can download to answer. And I would see if you are required to file a "proof of service" for the answer. You can probably find this stuff somewhere under "pleadings".

 

"They gave me door service of a pleading for someone who no longer lives here"...(not sure what you mean here) was a summons for someone else dropped off at your place?

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There must be a code of civil procedures (or something to that effect as well) I'm surprised you don't have local court rules. You may be able to talk to the law librarian at your local law library, they are usually very helpful, and (in my opinion) more trustworthy than the court clerk.

 

Also, most states usually have an "answer" form you can download to answer. And I would see if you are required to file a "proof of service" for the answer. You can probably find this stuff somewhere under "pleadings".

 

"They gave me door service of a pleading for someone who no longer lives here"...(not sure what you mean here) was a summons for someone else dropped off at your place?

 

Yeah, someone elses stuff was tucked into my door. Same address, but must have been a previous tenant.

 

Indiana does require proof of service on each pleading. I've already added that onto my paperwork. IRTP 5 ©

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Was the summons from the same plaintiff or law firm?

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