nsarma312

Sued by Cavalry SPV in Cook County, Illinois - Please Help if Possible

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Hi Everybody,

 

New to the forums, received a summons a few weeks back and have been trying to research my options solely by myself but starting to get a little nervous as my court/trial date is coming up: 4/1/14

 

In retrospect I feel I should've signed up and asked for help a few weeks ago (served on 3/7/14) but in between work and "hoping for the best" never got around to it..

 

The lawsuit was filed in Small Claims in Cook County, IL and the only thing I've done is to file an appearance before the return date and mail a copy of the appearance to the plaintiff's lawyer as the summons mentions not needing to file an answer unless ordered by the court. Any help/advice would be appreciated in terms of what to do next and at the time of the trial.

 

 

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.)

FREEDMAN ANSELMO LINDBERG, LLC

 

3. How much are you being sued for?

$7000

 

4. Who is the original creditor? (if not the Plaintiff)
Bank of America/FIA Card Services, N.A

 

5. How do you know you are being sued? (You were served, right?)
Served a summons by Sheriff.

 

6. How were you served? (Mail, In person, Notice on door)

In person

 

7. Was the service legal as required by your state? 
Yes

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

One or two debt collection letters from the plaintiff, that I ignored.

 

9. What state and county do you live in?

IL - Cook County

 

10. When is the last time you paid on this account?

Don't remember unfortunately, pulled my credit report and there are 3 dates related to this card; Date Opened: 5/14/07, Date Closed: 2/21/2009 and Last Payment Made: 3/25/10 (but this looks to be the date the debt was sold).

11. What is the SOL on the debt?

In IL I believe it's 5 years, but due to confusion in question 10 I'm not sure...


12. What is the status of your case?

CASE SET ON TRIAL CALL

When I filed my appearance in person I was given a trial date by the clerk.

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?  
The return date was 3/18/14, filed an appearance before that date in person and now waiting for trial on 4/1/14. Only the complaint and an affidavit were part of the summons.

 

5 claims in the complaint

 

1. Defendant is indebted to plaintiff by virtue of a certain agreement opened or in the alternative entered into by defendant on or about May 14 2007. Plaintiff has performed any and all conditions required by the agreement, if any.

 

2. Plaintiff acquired on or about Feb 27 2012 for a valuable consideration all right, title and interest in the account stated originally owed by defendant to Bank of America.

 

3. That the defendant are in default of the terms of the agreement by failing to make payments due.

 

4. That after allowing for all credits due defendant , there is due and owing as of Jan 17 2014 the sum of 7000.

 

5. That demand has been made upon the defendant for the balance due, but defendant has failed to pay and still continues to refuse to pay said balance justly due.


16. What evidence did they send with the summons?

An affidavit of claim signed by an employee (and notarized) of the plaintiff is the only thing attached to the complaint.

 

 

THANK YOU IN ADVANCE!!!

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I would ask for an extension as you just found out about arbitration and need some additional time to prepare your Motion to Compel Private/Contractual Arbitration in JAMS.

 

Send an email and then a letter to the law firm CMRRR asking them to withdraw the case from court and to send you a check for $250 so you can initiate with JAMS.
 

 

At your written request, we will advance any arbitration filing fee, administrative and hearing fees which you are required to pay to pursue a Claim in arbitration.

 

 

Calvary only paid around $210 for your account and arbitration is very expensive for them.  Minimum of $3500.

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Thanks for the responses! Arbitration is definitely an option I'll keep in mind, was wondering more along the lines on what to maybe expect at court on trial date; what to bring, what i might be asked point blank, should i have my answer written just in case, will i have to verbally "answer" each claim in the complaint in person,  etc..

 

Working on getting the affidavit scanned and will then post that asap, thanks again 

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@nsarma312

 

Did you claim the SOL as an affirmative defense?   Do you know if you made a payment after the account was closed on 2/21/2009?   If you didn't make a payment, the debt may have been outside the SOL when the suit was filed.

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Thanks for the responses! Arbitration is definitely an option I'll keep in mind, was wondering more along the lines on what to maybe expect at court on trial date; what to bring, what i might be asked point blank, should i have my answer written just in case, will i have to verbally "answer" each claim in the complaint in person,  etc..

 

Working on getting the affidavit scanned and will then post that asap, thanks again 

 

Filing just an appearance form serves as a general denial, so you're good there. The judge may ask you some questions, they may not. They will likely set a date for trial. What Calvary has filed is likely enough to meet the pleading standards for Small Claims court. You need to get what evidence they have against you, proof of standing, proof it's your account, etc.

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@gwheelock915

@Spikey

 

That does make sense generally, that there wouldn't be a trial if I haven't seen their evidence. I was just thinking their evidence was simply the Affidavit of Claim provided in the summons/complaint.

Summons originally had the Return Date as 3/18/14, but when I went to the courthouse on 3/11/14 to file the appearance the clerk said that the court/trial date was then set for 4/1/14 - online docket says the same thing.

 

My guess is that "CASE SET ON TRIAL CALL" simply just means the first time the judge will be taking a look? I plan on showing up and doing what you mention gwheelock915, especially on the deny the allegations count.

 

Still researching what motions I'll attempt to file, do I have to know exactly which route I want to go in front of the judge? (SOL, proof of purchase of account; it does look like BofA charged off the account in 2010, but the current plaintiff states the the debt was bought in 2012..)

 

Or, will I be able to show up and mainly just listen to what the judge determines next steps to be and go from there? Do I have to "prove" my denials, or does the plaintiff/lawyer then have to prove their claims (is that affidavit not their initial attempt at that)?

 

If there are no credit card statements provided by the plaintiff, is the onus on me to locate those if SOL is a defense? If so, should I be trying to contact BofA about this to pin down the last payment date? My Credit Report (and reading on these forums) says that the last payment date was when the account was charged off.. is that the date that SOL defense is dependent on, or is it truly the last time I/myself made a payment?

 

Conceptually I'm starting to understand the various Affirmative Defenses commonly used, and can see how they can be applicable in my situation - still trying to catch up on how procedurally (filed motions, verbal comments made in court, etc) I'd attempt those things.

 

So glad I found this forum, best concentration of useful (and motivational) information on JDBs purchasing debt more than once removed from the OC and how to deal with it..

 

 

Thanks!

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Find out what the rules are for small claims in your state. "Trial call" could mean that, as in many small claims courts, everyone whose name is on the docket goes up to the judge, informally tells their story, and the judge asks questions. 

 

You may or may not be able to engage in discovery or do much of anything. But that affidavit is not worth the paper it was badly copied on.

 

The affiant could be the owner of the company who set up the records keeping system, and even so, has NO KNOWLEDGE of the actual history of the account that they are suing you on: they didn't work with the records for your account--assuming that it IS your account--as the account was being recorded in the first place.

 

Attack that affidavit properly, and you can win.

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 I was just thinking their evidence was simply the Affidavit of Claim provided in the summons/complaint.

 

They likely have more but do not have to attach it to the complaint. They may have account statements, a bulk bill of sale with a spreadsheet print out showing your account, the credit agreement, among other things.

 

 

 

If there are no credit card statements provided by the plaintiff, is the onus on me to locate those if SOL is a defense? If so, should I be trying to contact BofA about this to pin down the last payment date? My Credit Report (and reading on these forums) says that the last payment date was when the account was charged off.. is that the date that SOL defense is dependent on, or is it truly the last time I/myself made a payment?

 

SOL begins when you made the last payment on the account. Their statements may or may not show that information. If you're going to use SOL as an affirmative defense, the burden of proof is on you, not them. Don't assert it unless you're sure you have the proper documentation to prove it,

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@Spikey

@Wins the Battle

@gwheelock915

 

Yup, that does look like what is going to happen tomorrow morning: Trial Call, as opposed to an actual Trial (yet).

 

For anyone that has gone to one (especially in Cook County), at a Trial Call do I have to verbally Answer the claims in the Plaintiff's complaint AND provide Affirmative Defenses all in one go?

 

I know that sounds like a stupid question given the general point made about "how can you prepare if you don't have their evidence".

 

If I simply Deny all claims if/when asked by the Judge during Trial Call, can I decide what additional motions to file later on - after seeing the plaintiff's evidence?

Or should I expect a much more fluid process tomorrow morning itself - where I'll have to know HOW exactly I want to defend based on the info. only on the Complaint and Affidavit (both posted in this forum)?

 

Sorry for all seemingly repeat questions, I want to be able to be honest and react accordingly tomorrow - just don't want to get caught out on some legal technicality tomorrow because the plaintiff lawyer shows up tomorrow morning with all their "evidence" and I'm still mentally poking holes in their joke of an affidavit..

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If your small claims courts in IL are like the ones in MN, I would bring my A game, and all my objections. Write them out, and there's no problem for you to read them. Hit hard on standing. The affidavit, the bill of sale, whatever they have is probably dodgy, and can be attacked.

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@nsarma312 I'm not in Cook County so i can't answer your questions about procedure there. In the multiple small claims cases I've dealt with in my own county, I never saw the judge at the trial call. My one non-small claims case I needed to see the judge because I waived service but he wasn't interested in anything else other than giving me time to file my answer. The next hearing was just to set time lines for discovery and the trial date, the opposing council got the judge to sign off so I didn't see him at that hearing.

 

The Trial Call is not the trial, the judge may ask you questions although he/she may not care. The big things for you to challenge is their standing and proof that it's your account other than they say so. You want their evidence proving it.

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I'm not familiar with Illinois small claims, but attack attack attack the affidavit. If you go to trial, tell the judge this:

"Your honor, imagine if someone came in here to give eyewitness testimony in a traffic accident case and they didn't actually see the crash. They just read about it somewhere. Well, this is the same thing. The debt buyers don't know anything about the debt. They just read about it."

Good luck!

-J

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@Spikey

@Wins the Battle

@gwheelock915

 

I've been out of town for a about a month now so haven't had a chance to post on this forum in a while.

Had the Trial Call at the beginning of April, judge just asked if I admit/deny - said deny and they set a trial date for 6/3/14.

 

It was all very quick so the only thing I managed to get in was to ask if I had permission to submit a motion for Discovery - the judge said sure.

The Plaintiff's lawyer stepped in at that time and asked me "are you asking to validate the debt?" - so I said sure.

Lawyer then asked the judge if the trial could be set to "status call" - the judge said sure.

 

I'm not entirely sure what "status call" means but it sounds like more of an update as opposed to a time to pass judgement.

 

In any case a few weeks ago I got a letter from the lawyer's office that summarized the total balance they're seeking, a request to contact them to "resolve this amicably", and some statement from the OC from early 2010.

 

I wanted to call the lawyer to see what they meant but gave up after being on hold - my main questions to them (that I'll pose here as well) were going to be that I still have not seen anything outside of the Affidavit that indicates the Assignee (the JDB) owns the debt in question - Should I call back and just ask for a "bill of sale"?

 

At this point the documents I have been provided (without any formal motions filed by myself are): Complaint, Affidavit and a monthly statement from the OC.

 

I admittedly haven't been doing any of my own follow up with the OC (doubt it's possible) to find out when the "last payment" was made to explore SOL options, or filed a motion to see if the JDB/lawyers have a bill of sale.

 

Any ideas on my next steps?

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