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Hi everyone! I was served about 25 days ago by CACH LLC. Originally, I thought that the collection on my credit wasn't mine, so I disupted it and it was deleted. . I was able to hire an attroney that will send them a letter as a response to the judgement. He doesn't think that he can win alleging lack of standing or proof that I owe the debt. He thinks that he should pursue the SOL defense more.

 

The original creditor was Bank of America (allegedly), the terms and conditions were likely from Delaware. My attorney thinks that he can get this case dismissed because that the agreement was made with Delaware with the choice of court, and their SOL is only 3 years, as opposed to the 6 year SOL in Oregon. 

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I don't know if anything has changed in the last two years or if the matter went to the OR Supremes as was reported as a possibility, but in 2012 the OR Court of Appeals ruled on this borrowing statute.  Specifically, the higher court said "Oregon courts must apply Oregon's statute of limitation rather than Delaware's."

 

You might want to read:

 

http://www.oregonlive.com/business/index.ssf/2012/03/the_oregon_court_of_appeals_sa.html

 

http://www.publications.ojd.state.or.us/docs/A144530.pdf

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The Delaware three year borrowing statute definitely does no longer apply inn Oregon. Bret Knutson and his team argued that and lost. You will have to use the conventional means of defense which includes the automatic loss with mandatory Oregon Court Adjoined Arbitration. Just make sure you file all the paperwork on time every time. Once you appeal and get to regular court with a real judge, after arbitration, you will most likely win. In the mean time admit absolutely nothing. Keep filing requests for discovery and all the pre-trial motions to run the expenses up for the Plaintiff. 

 

Best of luck,

HP

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How funny. I hired Bret Knewtson. Should I be concerned?! He is only interested in using the SOL Defense. Should I pass on this information to him?

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By the way, they sued me in Multnomah County, which I hear might be a little more pro-consumer than the extremely corrupt Washington County. Can you guys help me come up with a few defenses I should use? I really have no idea about any of the necessary forms that need to be filed, and really feel helpless! Oh, and should I fire my attorney?

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I wouldn't fire him!  Since he's the one who lost that SOL defense in the previous case (I'm familiar with him and the case), he wouldn't be offering the SOL as a defense if he knew it was a loser, and he certainly knows more about how his argument will be received than we would.  He's a good guy, and I think he wouldn't take your case if he thought it was a slam-dunk for the plaintiff, IMHO. 

 

But, also, it's your money and your case, so you do get to choose whether to be represented.  I will say that I don't know of many lawyers in Portland who will defend any collections lawsuit these days without CLEAR FDCPA violations, identity theft, etc.

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Thanks for your advice! I am having second thoughts about Bret because he only wants to pursue the SOL defense. Should I express my concern to him? I think I could win with the standing argument.

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@

 

I would want him to explain how, considering his loss in CACV of Colorado, LLC v. Stevens on the issue of the DE SOL, he believes he could win this time?  The court was very specific as to why the OR SOL applied.   

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Your thoughts are greatly appreciated! I literally have no clue how to proceed now that I have filed an answer. Is there anyone who is very familiar with Oregon Civil Procedure? 

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I agree with @BV80 as to making him explain why he thinks he can prevail with the SOL defense in your case.  I'm thinking there must be more to the story? 

 

Also, it doesn't necessarily matter that you filed your answer already.  Even if you didn't bring up any defenses in your answer, like standing, you will use what comes out of the discovery period and the documentation they do or don't provide, to make your case.  All of these apply whether or not you stick with your lawyer.

 

If everything goes as it usually does, you will soon receive Requests for Admission and Requests for Production of Documents from the plaintiff.  You can be putting together your own versions of these also and serving them on the plaintiff, and there are excellent examples in this forum to use as a starting point.  Regardless of how much you think you can prove that they don't have standing to sue you on this account, or that they can't provide a complete chain of title for the account, or prove that it's your account, you are still going to have to use the motions, pleadings, etc, to make your case.

 

And, you will also soon receive a notice from the court that an arbitrator will be assigned, and there will be a list of lawyers who are in the arbitration game - you mark any names that you think you don't want, but it doesn't matter because they all seem to be tools of the man, as it were, so there's no strategy to be employed here.

 

I received the arbitration notice about a month after filing my answer, and the JDB promptly filed an MSJ (motion for summary judgment) against me about a month after that.  The arbitration date was set for September 5th, and they have to file it no less than 60 days before "trial" - they filed it July 5th.

 

If you lose at arbitration, whether it's via an MSJ or not, you can file for a new trial, Trial de Novo, and it starts over, except the discovery is already complete.  The plaintiff will most likely start bombarding you with threats of new documentation they intend to introduce at trial to scare you into settling. 

 

I took a less aggressive approach than Huey Pilot, also in Oregon, as he hit them with lots of motions, but he won and I lost, so maybe his approach is better?!

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Thanks @chicamarie ! I'm sorry if this comes off as complete ignorance on my part, but I am  completely lost in regards to the Discovery process and am not really sure what it involves. Is there a site where I can find document templates that I can use in my case? I did assert 6 affirmative defenses in my answer (mostly about standing). I really need a step by step guide about where to go from here. Thanks again!

 

Oh and BTW here are the affirmative defenses I listed:

 

1.     Defendant is informed and believes Plaintiff lacks the legal standing to bring and maintain this action.

2.     Plaintiff has not proven the alleged debt is valid nor proven the amount of the alleged debt is accurate. Plaintiff must prove that the principal, interest, collection costs, and attorney's fees are all correct in the alleged credit agreement and lawfully charged. Defendant also insists that Plaintiff produce the alleged credit agreement, account statements and purchase receipts to prove the amount of the alleged debt.

3.     Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor agreement with Plaintiff.

4.     Plaintiff’s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

5.     Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

6.     Plaintiff's Complaint fails to state if the alleged Assignor even has knowledge of this action or if the alleged Assignor has conveyed all rights and control to Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against Defendant.

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Just realized I never filled one of these out. I hope this helps! Thanks -M

 

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.)

    - I'd rather not say

3. How much are you being sued for?

    - $9000+

4. Who is the original creditor? (if not the Plaintiff)

    - Bank of America, N.A

5. How do you know you are being sued? (You were served, right?)

    - Summons served

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?

    - None

9. What state and county do you live in?

    - Portland, Multmoah

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 their claim, in May 2010, but I think it was actually August 2009.

11. What is the SOL on the debt?

    - 6 years in Oregon.

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 filed: 01/14; Summons & Complaint served: 04/2014
    - Response: Denial Filed 04/2014

   


13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

    - Yes- original account wasn't on credit but collection was. It was deleted.

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.

    - Already responded

16. We need to know what the "charges" are. Please post what they are claiming.Common counts,account stated,breach of contract,claims of debt for goods sold and delivered,for work performed,for money loaned or advanced,for money paid and repayment is due,for money received on behalf of the plaintiff,money due on an account stated or on an open book account, indebitatus assumpsit, quantum meruit,quantum valebant,unjust enrichment.

    - Breach of Contract, Account Sated

 17. Is the complaint "verified"? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

    - No.  The complaint is not verified.

18. Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

    No.

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

There is no evidence with the summons or complaint.

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I agree with @BV80 as to making him explain why he thinks he can prevail with the SOL defense in your case.  I'm thinking there must be more to the story? 

 

Also, it doesn't necessarily matter that you filed your answer already.  Even if you didn't bring up any defenses in your answer, like standing, you will use what comes out of the discovery period and the documentation they do or don't provide, to make your case.  All of these apply whether or not you stick with your lawyer.

 

If everything goes as it usually does, you will soon receive Requests for Admission and Requests for Production of Documents from the plaintiff.  You can be putting together your own versions of these also and serving them on the plaintiff, and there are excellent examples in this forum to use as a starting point.  Regardless of how much you think you can prove that they don't have standing to sue you on this account, or that they can't provide a complete chain of title for the account, or prove that it's your account, you are still going to have to use the motions, pleadings, etc, to make your case.

 

And, you will also soon receive a notice from the court that an arbitrator will be assigned, and there will be a list of lawyers who are in the arbitration game - you mark any names that you think you don't want, but it doesn't matter because they all seem to be tools of the man, as it were, so there's no strategy to be employed here.

 

I received the arbitration notice about a month after filing my answer, and the JDB promptly filed an MSJ (motion for summary judgment) against me about a month after that.  The arbitration date was set for September 5th, and they have to file it no less than 60 days before "trial" - they filed it July 5th.

 

If you lose at arbitration, whether it's via an MSJ or not, you can file for a new trial, Trial de Novo, and it starts over, except the discovery is already complete.  The plaintiff will most likely start bombarding you with threats of new documentation they intend to introduce at trial to scare you into settling. 

 

I took a less aggressive approach than Huey Pilot, also in Oregon, as he hit them with lots of motions, but he won and I lost, so maybe his approach is better?!

 

I would stick with Bret Knewtson as he's one of the few attorneys that will take a collection case on prior to Oregon mandatory arbitration. It really doesn't matter what his approach is on the SOL.  He just might get lucky at arbitration and win for you. Regardless the pressure will be on him by the Plaintiff to try to get you to settle. I WOULDN'T.  Once you get past Arbitration and on to real Court you have a good chance of dismissal. I filed a number of pre-trial motions including a Defendants MSJ to run up the costs and have the documents available for re-trial at the Trial De Novo. (Also Automatic) The JDB's attorneys (both Johnson Mark & DNGPC) client (Midland) didn't want to go the $10,000.00 - $50,000 expense of attorney fees and flying in witnesses for real court so they dismissed with prejudice. After Arbitration you can get just about any attorney you want if necessary. 

 

HP

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@Pasc I read some of that blog, and all those people getting "direction" from this guy I would bet my bottom dollar they have or will lose their case.  There just isn't any sound advice coming from him.  Advising people to file a motion to dismiss because the statements sent to them show no charges isn't going to work in my opinion.  Telling someone to file a dismiss because an affiant stated "if the defendant lives in california, then she signs the affidavidt under perjury of california: isn't going to work either. 

OP sorry to hijack your thread, just want people to be aware the guy isn't helping, and these people are lost, and will lose if they don't learn their court rules, and do things properly.

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@shellieh98

 

No worries! I do, however, need some advice regarding my case. I was just assigned a hearing date for Mandatory Arbitration and received their motion for telephonic appearance and have no clue how to object. I also need some information regarding Oregon's rules about Requests for Admission.

 

Thank you all for your help!

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You will more than likely lose in arb, because that's the way it goes in Oregon. Be prepared to object to anything your able to and try to have case law for it. What you are doing is setting yourself up for an appeal. A lot of time you will be able to win on appeal as long as your prepared. Just know that they won't let you win in arb. Get on here and read and research and be prepared for both the arb and for your appeal.

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@TomnTex

 

Thank you for your reply! I am well aware that I will not win in Arbitration but I'm not to concerned since I will be granted trial de novo. Thank god that I don't have to appeal the loss and only file for a new trial. What I am interested in is subpoenaing a witness of theirs but I don't have a copy of a meet and confer letter requesting the addresses for service. Any templates you might know of?

 

Thank you very much! 

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Since I've moved back, I have not had to be involved in the Oregon courts thankfully. Check with Huey Pilot she should have something.

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A meet and confer letter is just that.  No template.

 

Dear JDB Lawyer,

You have (name of person) swearing by affidavit as to (whatever he is saying is true). I have denied this account and it's accuracy.   I would like to peronally question this affiant.  I will be objecting to this affidavidt based on heresay, and would appreciate an address where I can issue a subpoena to this witness.  Thank you, me.

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So they are suing you on Breach of contract and Account stated.

 

This is what they need to prove up in breach of contract.  So your requests would be the things here, like the contract itself.  If there is no contract, or it they are saying it was an oral one, the sol on oral contracts should be up.  So they would need a signed contract.

 

Needs to prove A valid contract existed. In order for them to even start a breach of contract suit, they must be able to show that a valid contract existed between them and the other party. If you have a written contract that has been signed by both parties, then this is relatively straight forward. However, if you only had an oral agreement or some other handshake agreement they may have a more difficult time proving that an enforceable contract existed.  Request the signed contract, if they say there is none, then they won't be able to meet the burdeon of a breach. Cehck the SOL for oral contracts.  if it is done, then in your admission requests you could put something like "admit there is no signed contract, and plaintif is suing upon an alleged oral agreement" 

Performance. In order to succeed in a breach of contract action, they must be able to show that they held up their end of the bargain under the terms of the contract.

Breach. It seems pretty straightforward that in order to win a breach of contract suit, they must prove that the other party breached the contract, meaning that they did not do what they promised to do.

Damages. Here, they must be able to prove their economic damages. That is where you get into how much is really owed, and how much are fees and interest.  Make them show every dime by requesting a complete accounting.

 

Account stated.  This is a little tougher to beat, that is why they use it.  I have some theories here at the end, and I am no way saying this would work, but I am throwing it out there, and want some opinions. 

 

These are the elements that need to be proved to enforce an account stated.

 

“An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance.” “An account stated is merely a form of proving damages for the breach of a promise to pay on a contract.”

 

Essentially, that means that if a credit card company sends a bill and you don’t dispute it, then it’s presumed to be correct – and yours.

What that fails to address is the fact that credit cards are governed by federal law, which requires credit cards to be issued only in response to an application. If there’s no application then you can’t send out a credit card – period.  Make sure you ask for the application of the card.  When they don't have it, you can use that against the account stated theory. 

Following the line of logic, if a credit card company sends out a bill to someone that has no responsibility to pay the debt, federal law trumps the common law theory of “account stated” and holds that liability cannot be inferred just because the bill is sent and no dispute is made.

 

Oregons view of account stated is in this case law, and could be used to help prove there was no account stated.

 

 Oregon law which provides that an unliquidated claim cannot serve as the basis for an account stated. In Johnson v. Stillwell, 90 Or. 211, 176 P. 123 (1918), for example, the plaintiff sued the defendant for a breach of contract, alleging two causes of action. In the first cause of action, the plaintiff claimed that the defendant owed him $254.88 under a contract by which the parties had agreed to winter their livestock together. In the second, the plaintiff claimed that the defendant had breached the agreement, resulting in the loss of cattle valued at $1140. The defendant answered both counts by pleading an account stated. The Oregon Supreme Court reversed the jury's finding for the defendant. It found that the trial court erred in giving a jury instruction that required that the jury find for the defendant on the breach of contract claim if it found an account was stated, because "a promise to pay a certain sum in settlement of a claim for unliquidated damages cannot be the basis of an account stated." Id. at 216, 176 P. at 124.

 

 

This is what I found for unliquidated damages.  The theory comes into play here.

Unliquidated damages refer to damages in a breach of contract case that were not predetermined by the party. The concept of unliquidated damages appears in the law in both torts and contract law. It can refer to any damages award a court awards in a breach of contract case. It can also refer to damages in a tort case that are left to the discretion of the judge or jury, such as damages for pain and suffering.

 

So I'm just thinking out of the box here.  How can an account stated in oregon be the amount they are suing for if it was not predetermined by the plaintif before the breach? Would that not make it unliquidated damages?  Everything I find says that unliquidated damages are left to the judge to make the final determination, but if Oregon does not allow unliquidated damages in account stated, wouldn't it be a mute point? 

Another article I was reading talked about why credit card compaines use account stated, and it said because most people don't know how to fight it, and that account stated in a credit card account really doesn't apply, it is more for certain breaches of contracts for services, and damages for not doing the service under the contract. 

ok so something to think about, opinions welcome.

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Hi Shellie!

 

In Discovery, they admitted that there is no contract (there goes their breach of contract claim!) and since there is only ONE statement (an admitted fake by them) with no charges or payments, they cannot prevail on their account stated claim. There goes their entire case! :) They claim that they are suing on "breach of implied contract", yet the statement shows no breach (default). How do I deal with this?

 

I appreciate all of your help!

 

PS: Thanks for all of the case law!

 

pdxdebtor

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