Being Sued By CACH LLC in SC

[ualtaher75]

Just received paperwork on the 19th of march. I have 30 days to respond. Case is being tried in Magistrates Court. I am trying to work on my answer right now. I've called a few lawyers in my area , but they are to expensive (2oo/hr) I've contacted on Firm in columbia and have had one email correspondence where he asked about county and when I made last payment on debt. Haven't heard back since my response 1 day ago.

 

My wife is the defendant and i don't know how comfortable she would be up answering questions. I've already gleaned a bunch of statements an knowledge from this site and some articles.

 

I've been working up a sheet here

And a request for production here

 

 

 

1. CACH LLC is the Plantiff

 

2. Law Offices of Edward Overcash LLC in Greenville SC is the attorney for Plaintiff.

 

3. They are suing for $$5386.38

 

4. Original Credito was MBNA, then BOA bought them, the affidavit said FIA credit services was/is records holder.

 

5 & 6.They just dropped packet off on porch, never spoke to anyone.  I called clerk of court and they confirmed case number.

 

7. A lawyer told me this was ok if a Sheriff or officer of the court did this.

 

8. No correspondence before or after being served.

 

9. South Carolina , Horry

 

10. Based on the Statments they gave me 09/11, but i had already fallen behind by 2-3 months of payments in 11/10.

 

11. 3 years in my state is SOL

 

12. Status is Pending

 

13. Haven't disputed debt

 

14. N/A

 

15. I have 30 days from the 19th of March

 

16. An Affidavit, 10 months of statements, and a verified statement of account form.

 

 Here is what came. ( I copied the forms from another person being sued on this site and everything was identical except Defendant name monies owed and 1st affidavit signee)

 

Summons and Complaint

Plaintiff, JDB, complaining of the Defendant, alleges that:

1.      Plaintiff is a limited liability company.

2.      Upon information and belief, Defendant XXXXXX is a resident of the above-captioned County and is subject to the jurisdiction of this Court.

3.      Credit was extended to Defendant on a revolving line of credit on an open account by Bank of America Corporation, one of its subsidiaries, or a bank to which it is the successor in interest. (the Issuer)

4.      Defendant used the account and/or authorized the use of the account to obtain cash advances and/or make purchases and or transfer balances from other accounts.

5.      Defendant was provided with statements by the Issuer without protest and did not object to them or indicate that they were erroneous in any respect.

6.      Defendant defaulted on the obligation to make the required payments on the account, making a last payment on or about xx/xx/2011.

7.      Plaintiff subsequently purchased the account for valuable consideration and the account was assigned to Plaintiff.

8.      After assessing all due charges and credits, there is now due and owing on this account the sum of $0,000.00 as shown by the Verified Statement of Account attached hereto and incorporated herein by reference.

9.      Although demand has been made, Defendant has failed to pay the amount due and the notice to cure required by S.C. Code §37-5-110 and §37-5-111 has either been given or is not required.

  

WHEREFORE, Plaintiff prays for judgment against Defendant in the amount of $0,000.00 actual damages, the costs of this action, and for such other and further relief as this Court deems just, proper and appropriate.

 

AFFIDAVIT #1

 

 

STATE OF COLORADO)                                    VERIFIED STATEMENT OF ACCOUNT 

 

COUNTY OF DENVER )

 

I, Signe Espinoza being duly sworn, states:

That I am an authorized agent of JDB (hereafter "Plaintiff'), which is doing business at 4340 S. Monaco, Second Floor, Denver, CO 80237, that I am authorized to make the statements and representations herein, and that I am competent to testify to the matters stated herein. Said statements are based upon my personal review and knowledge of the records of Plaintiff, which contain information provided by Bank of America Corporation d/b/a Bank of America; or its subsidiary, Bank of America, N.A.; or its subsidiary, FIA Card Services, N.A., d/b/a FlA Card Services (aka and successor in interest to MBNA America Bank, N.A., a/k/a MBNA America, N.A., a/k/a MBNA America, a/k/a MBNA Bank, N.A., a/k/a MBNA Bank, a/k/a Maryland National Bank, N.A., a/k/a MBNA), which is successor in interest to Fleet Bank (RI), N.A., aka Fleet Bank, N.A., and Bank of America Card Services; or one or more of its other subsidiaries or affiliates; or its assignee. These records include the debtor's name, social security number, account balance, the identity of the original creditor and the account number. These records are kept in the course of a regularly conducted business activity and are made either by a person having personal knowledge of the information contained therein or based on information conveyed by a person having personal knowledge of the information contained therein, and I know from my experience in reviewing such records and from common knowledge of how these accounts work that those records are made and maintained by individuals who have a business duty to make entries in the records accurately at or near the time of the event that they record. These records consist of both hard copy information and electronic information that is generated, stored and maintained in accordance with generally accepted standards in the retail and financial industries by individuals who possess the knowledge and training necessary to ensure the accuracy and reliability of the records.

The business records maintained on account ************, also known as ************ (the Account), including computer records, which are a compilation of the information provided upon acquisition and information obtained since acquisition, show the Account is the result of the extension of credit to MY NAME by Bank of America Corporation, one of its subsidiaries, or a bank to which it is the successor in interest (the Original Creditor) which originated on or about xx/xx/xxxx. These business records indicate the Original Creditor or a previous assignee last received payment on this Account on or about xx/xx/xxxx, the Account was charged off on or about xx/xx/xxxx, that for good and valuable consideration, Plaintiff purchased and was assigned the Account from the Original Creditor, its successor in interest, or its assignee, and that the Plaintiff is the current creditor of the Account. All credits and payments have been properly applied and the balance as set forth herein is currently due and owing.

Based upon the business records and information previously referenced, Plaintiff is the current owner of this Account and the amount now due to Plaintiff on this Account from MY NAME, over and above all set-offs, counterclaims, payments and credits is XXXXXXXXXX.

 

Signed and Notarized xx/xx/2013

 

AFFIDAVIT #2

                                                                AFFIDAVIT OF SALE AND CERTIFICATION OF DEBT

STATE OF  NORTH CAROLINA )

 

CITY OF GREENSBORO )

FIA Card Services, N,A.

Accountholder: MY NAME

 

 The undersigned. Teresa Haith, being duly sworn. states and deposes as follows:

l. That Affiant is employed by FIA Card Services, N.A. in the position of Bank Officer, has personal knowledge of the manner and method by which FIA Card Services, N.A maintains its normal business book and records, and is duly authorized to make this affidavit.

2. That the contents of this affidavit are believed to be true and correct based on the computerized and hard copy books  and records of FIA Card Services, N.A" maintained in the ordinary course of business. with the entries in them having been made at or near the time of the transaction recorded.

3, That FIA Card Services. N.A. is a wholly owned subsidiary of Bank of America Corporation and is successor in interest to MBNA America Bank NA. Fleet Bank (RI), and Bank of America, National Association (USA).

4. That the account records of FIA Card Services, N.A. show that:

a. Account number XXXXXXXXXX, formerly account number XXXXXXXXX was opened on xx/xx/xxxx by My NAME.

b. Pursuant to the terms of the card member agreement with FIA Card Services. N.A , there was due and payable $0,000.00  as of the charge off date of xx/xx/xxxx.

c. Said agreement and account was., on xx/xx/xxxx, sold, transferred and set over unto JDB. with full authority to do and perform all acts necessary for collection. settlement, adjustment, compromise or satisfaction of the said claim, and as of that date, there was due and payable on this account the sum of $0,000.00, with all just and lawful offsets, payments, and credits having been allowed.

d. There were no uncredited, payments, just counterclaims or offsets against said debt when sold.

 

1.       That as a result of the sale of said account, JDB and or its authorized Agent, has complete authority to settle, adjust, compromise and satisfy same, and that FIA Card Services, N.A. has no further interest in the account for any purpose.

2.       That the original contract in this matter may not be available or no longer accessible to Affiant.

 

Signed and Notarized on xx/xx/2014

[Wins the Battle]

You must understand this: YOU don't have 30 days from service. Your wife does. If you are going to do this on your own, then you can assist her, but she's going to be the one talking in the courtroom, and she's going to have to know what to say and how and when to say it.

 

You are helping by being here. What will help even more is for her to be here. I'm a grandma with absolutely no legal background. If I can learn this stuff, so can she.

 

All that said, check a couple of things. First, check to see how your state defines SOL. Some states claim that any payment moves the SOL. Others, that only a payment that brings the account up to date will do so.

 

At the same time, your wife can be pulling her financial records to see exactly what the last date of payment was. Both the OC and the JDB can be wrong on that.

 

You two can find other threads here with the same plaintiff; search by that name. Do google searches for robo-signing and the OC. 

 

I will have more to say about that particular chain of title after my hearing concludes next week. That particular JDB DOES monitor this site, as do at least some of their DC attorneys.

[ualtaher75]

Thanks, been looking into the Sol and communicating with an consumer attorney that I found from one of the links from this site . (I think)

[BV80]

@ualtaher75

 

When was your last payment on the account?  Have you  checked your bank records to confirm the date of last payment?

 

When was the suit filed?

[ualtaher75]

Filed on March 14 th 2014

 

Last payment according to the statemnts they sent was 09/2011

 

but I was behind in payments around 10/10 or 11/11. The earliest statement they sent was from 02/11 showing I was behind by 3 payments.

 

account was opened in 2002

 

I have to get the bank to search I don't have those bank statements anymore and my account online won't go back that far

[Wins the Battle]

If you were already behind at the beginning of 2011, then SOL IS an absolute defense. 

 

You could find an attorney through naca to represent you, probably on contingency. It's illegal, and your wife can collect, if the plaintiff has violated FDCPA by filing a time-barred suit.

 

When defense attorneys in debt collection cases know that they have a sure win, they tend to be willing to take no money upfront. The penalty isn't high, just $1,000, of which they'll probably take some, and charge the other party for their costs. But would you rather have 60% of $1,000, and NOT do all the work, or pay all your filing fees, do all the work, and, at best, come out with a dismissal?

[BV80]

@Wins the Battle

 

The SOL is going to depend on the date of his last payment.

[Wins the Battle]

@BV80: is SC a state where any payment moves it? Based on what the OP said, I was gathering that no payments were made in 2011 at all. But I could have misread what he wrote.

[BV80]

@Wins the Battle

 

Yes, the SC SOL is based upon the date of last payment.

 

In response to #10 (When is the last time you paid on this account), the OP stated, "Based on the Statments they gave me 09/11, but i had already fallen behind by 2-3 months of payments in 11/10."

 

He needs to check his bank records.

[ualtaher75]

There accounting is probably right we fell way behind almost lost our house and all, I was trying to catch back up on payments then things just fell apart.

 

thanks for advice

[Wins the Battle]

It's worth checking, nevertheless. If you can prove SOL, that's an absolute defense against a lawsuit. As well as a violation of the FDCPA on their part.

[ualtaher75]

What do you guys think about a jury trial?

 

A friend told me to ask for it since it makes the process longer.

 

I'm thinking in the answer to state :

STANDING to SUE  (I don’t believe they have standing)

INJURY in FACT ( they bought debt for pennies and are sueing on 100 percent, how have they been injured 100 %)

FAILURE TO PROVE OF THE ALLEGED UNDERLYING CONTRACT

the debt buyer has not proven an unbroken chain of title therefore has no standing to sue.

find out about securitization

(did CACH actually spend 5300 to buy my debt if not why am I paying more than what it expended?)

 

thought?

[BV80]

@ualtaher75

 

INJURY in FACT ( they bought debt for pennies and are sueing on 100 percent, how have they been injured 100 %)

 

 

It doesn't matter that they bought the debt for pennies on the dollar.  An assignee steps into the shoes of the creditor.   They can sue for the full amount.

 

 

FAILURE TO PROVE OF THE ALLEGED UNDERLYING CONTRACT

the debt buyer has not proven an unbroken chain of title therefore has no standing to sue.

find out about securitization

(did CACH actually spend 5300 to buy my debt if not why am I paying more than what it expended?)

 

 

Which underlying contract?  The contract between you and the OC?  Or the contract between the OC and the JDB?

 

I would not touch securitization.   The few courts that have dealt with the issue in regard to a credit card debt have ruled against the debtor.  It's not an easy fix.

 

You can pay more than has been expended because of the amount of the debt.  Again, the assignee steps into the shoes of the creditor.  

 

I'm going to be brutally honest for your sake and for the sake of others who read this thread.  You have an affidavit from the OC that references your name and account number.   It says that the account was sold to the JDB.  That goes pretty far to convince a judge that the JDB has standing to sue.

 

Do you have any evidence at all to dispute the plaintiff's claims?

[ualtaher75]

No, I don't have any evidence.

The best i ve heard with current situation is from a lawyer who looked at my info, but there fee was to high.

He said do defense on them proving debt in court.

[nobk4me]

@ualtaher75

 

 

It doesn't matter that they bought the debt for pennies on the dollar.  An assignee steps into the shoes of the creditor.   They can sue for the full amount.

 

 

 

Which underlying contract?  The contract between you and the OC?  Or the contract between the OC and the JDB?

 

I would not touch securitization.   The few courts that have dealt with the issue in regard to a credit card debt have ruled against the debtor.  It's not an easy fix.

 

You can pay more than has been expended because of the amount of the debt.  Again, the assignee steps into the shoes of the creditor.  

 

I'm going to be brutally honest for your sake and for the sake of others who read this thread.  You have an affidavit from the OC that references your name and account number.   It says that the account was sold to the JDB.  That goes pretty far to convince a judge that the JDB has standing to sue.

 

Do you have any evidence at all to dispute the plaintiff's claims?

 

 

This (bolded text) seems to be the CACH modus operandi these days.  These affidavits are probably robosigned, maybe even forged.  Find out everything you can about the affiant and the notary.

 

My strategy, when faced with this, was arbitration.  CACH won't touch JAMS with a 10-foot pole.

[ualtaher75]

I don't think we have a jams location in sc though

[BV80]

@ualtaher75

 

Check out the following on the SC Bar Association website: Arbitrating a Consumer Case Through Jams, Start to Finish

 

http://www.scbar.org/LinkClick.aspx?fileticket=Kvyd23kq7I4%3D&tabid=1127

 

Take special note of page 11.

[ualtaher75]

So, answer the complaint and then also inform the court I want to seek arbitration? 

 

From what I read they will come to my home town, so, I need to be the one contacting jams etc. ?

 

Thanks

[nobk4me]

Yes, JAMS will send an arbitrator to hold a hearing in your local area.

 

You need to answer the complaint, including an affirmative defense that litigation is barred by an arbitration clause.  Then you need to file a motion to compel arbitration.  Then you can initiate in JAMS.

[ualtaher75]

Can the debt collector still call trying to collect a debt after they filed a court complaint.

They ve called twice this week and ledt messages.

[BV80]

@ualtaher75

 

Yes.  They probably want to try to settle.  That's a common practice.  The attorney of one party will call the attorney of the other party to attempt to settle.  Since you're acting as your own attorney, they're allowed to call you.