ismac

Discovery Help Needed!

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Being sued by Cavalry Investments for 2007 Best Buy debt; I believe this maybe a debt I owed long ago but the lawsuit did not attach the signed contract only an affidavit stating I owe the debt.  I filed an answer denying essentially because they have not shown me proof (i.e. signed contract) since they are pursuing litigation. 

 

I have discovery to serve today and need help answering; and to know the key deadlines of legal actions to be done in suits; and any other helpful advise; thank you.

 

RFA #1.  Admit that Def is a resident of ____  County, AR

RFA #2.  Admit that Def purchased certain items and charged same on the charge account which is the subject of this lawsuit

RFA #3.  Admit that the amount past due on said accout, which has not been paid, and has been owed by Def for a period of time  is $1280.49

RFA #4.  Admit that the monthly statements/bills in regard to this account were sent to and received by Def

RFA #5.  Admit that Def never notified Plaintiff or the original creditor in writing of any dispute in regard to this account (balanced)

RFA #6.  Admit that the Def never notified Plaintiff or the original creditor in writing of any complaints or requests to stop credit on this account

RFA #7.  Admit that Def has no documentation indicating the balance of this account to be less than $1280.49

RFA #8.  Admit that Def is indebted to Plaintiff in the amount of $1280.49

 

ROG #1.  Did Def sign the application for this account?

ROG #2.  Was the Def aware of the existence of this debt?

ROG #3.  Did Def, or anyone on behalf of Def, ever notify Plaintiff or the original creditor in writing of any complaints or requests to cancel this account?

RFP #1.  In reference to Interrogatory No. 3, if Def responded in the affirmative, please provide Plaintiff with a copy of Def's correspondence to Plaintiff

ROG #4.  Did Def receive one or more monthly statement/bills related to this account? If so, did Def notify Plaintiff or the original creditor in writing within sixty days of receipt of such statements/bills that Defendant objected to the statement?

RFP #2.  In reference to Interrogatory No. 4, if Def responded in the affirmative, please provide Plaintiff with a copy of the objection

ROG #5.  Does Defendant admit any liability to Plaintiff for any amount?

ROG #6.  In reference to Interrogatory No. 5, if Def responded in affirmative, please state the amount Def alleges is owed by Def to Plaintiff

ROG #7. If the amount admitted is less than that sought in Plaintiff's Complaint, please set out in detail the basis for the discrepancy between the two numbers.

ROG #8.  Please state the name, address and telephone number of each witness who will be called to testify on behalf of Def at the trial of this matter.

ROG #9.  Please briefly outline the testimony of each witness named.

ROG #10.  Please list all documents Def intends to introduce at the trial of this matter.

RFP #3.  In reference to Interrogatory No. 10, please provide Plaintiff with a copy of each document named.

ROG #11.  In regard to Plaintiff's RFAs to Def, if any of the responses by Def is anything other than an unqualified admission, please explain such response in detail, and identify or furnish copies of any documentation which would tend to support any such response(s) of and from Def

ROG #12.  Please state your address

ROG #13.  Please state how long you have lived at that address.

ROG #14.  Please state the name of your current employer.

ROG #15.  Will you treat these Interrogatories as continuing in nature?

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When was this case filed? I am unaware of any SOLs longer than 6 years (although there may be some) but 2007 is well beyond that.

 

My suggestion would be to hand them your own set of admissions, number one being: ADMIT: The underlying debt for this case is beyond the Statute of Limitations, and we have knowingly filed a time-barred suit.

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Sol in ark is 3 years for credit card, 5 yrs written contract. They will probably try to say it is a written contract, but it is not.

When was the last time you paid on this, and when did they file suit? Let's start there. We will help you answer these, but first lets get more info.

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Did they attach any contract at all?  If they didn't you can try a motion to dismiss based on violating Rule 10 of Arkansas Civil Procedure.  The Judge is likely to let them fix the problem rather than dismiss, but it is another front to push on. 

 

There is precedence in Arkansas pushing credit cards as written contracts and as such use the 5 year statute of limitations.

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My name is Yvette and I am handling this for my brother who is being sued and is a truck driver and is currently on the road.  Please see answers to your questions below here:  I'd appreciate any help.  Thanks.

 

Here’s the summary:

 

1.         First lawsuit

  • Filed 4/6/2010 by Cavalry Portfolio Services LLC as Assignee of Cavalry Investments LLC as Assignee of HSBC Bank Nevada, N.A.\Best Buy, and attaching:  Cardmember Agreement and Disclosure Statement and Affidavit of Claim with their Bill of Sale and an Statement of Account
  • First suit suing for $1074.30 (w/other costs $1,088.90)
  • Charge off date: 6/30/2009
  • Last payment date: 2/12/2009
  • Dismissed case on 11/18/2010 because couldn’t get service

 

2.         Second lawsuit

  • Filed 1/8/2014 by Cavalry Investments, LLC as Assign HSBC Bank Nevada, N.A./Best Buy
  • Second suit suing for principle $1,045.43 (w/other costs $1,280.49)
  • No signed contract by Defendant attached only an Affidavit dated 10/21/2013
  • Served 1/19/2014
  • Filed Answer timely 2/18/2014
  • Plaintiff’s discovery served 4/4/2014; due today (incls. 3-day mail rule)

 

Cavalry bought account 7/20/2009.

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The problem is you cannot answer for your brother.  If he travels that much he really needs to hire a lawyer to represent him..  Given that they violated the FCDPA he should be able to find a consumer attorney to take this on contingency.

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Alright, thanks.  Just trying to get information for him not necessarily answer for him.  I appreciate the input.

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  • Last payment date: 2/12/2009

They are suing him past the SOL.  I do not know if your rules state you must assert the SOL defense, but if I were him, I would ammend my original answer and assert the SOL claim, along with a counter suit for FDCPA violation of suing on a time barred debt.  the sol expired on ths around march of 2013. 

 

google some consumer attorneys in your state, they may take this case at no cost to you.  If you can not find one, do the above to get the ball rolling while you try and get a consumer attorney.

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@shellieh98

 

The AR Supreme Court has held that the SOL on a credit card debt is 5 years.

 

However, the statute of limitations had not yet run on the underlying complaint because it is undisputed that the debt arose from a credit card contract, which is subject to the five-year statute of limitations. Born v. Hosto & Buchan, PLLC, 372 S.W.3d 324, 336 (Ark. 2010).

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@BV80 I am going on this, but it did not look up the statue.

Injury to Person 1 yr. §16-56-104

Libel/Slander Libel: 3 yrs. §16-56-105 Slander: 1 yr. §§16-56-104

Fraud Common law fraud and fraud and deceit: 3 yrs. §16-56-105

Injury to Personal Property 3 yrs. §16-56-105

Professional Malpractice Legal: 3 yrs. §16-56-105; Medical: 2 yrs. §16-114-203

Trespass 3 yrs. §16-56-105

Collection of Rents 3 yrs. §16-56-105

Contracts Written: 5 yrs. §16-56-111; Oral: 3 yrs. §16-56-105

Collection of Debt on Account 3 yrs. if not written or under seal §16-56-105

Judgments 10 yrs. §16-56-114

- See more at: http://statelaws.findlaw.com/arkansas-law/arkansas-civil-statute-of-limitations-laws.html#sthash.03HGHpFC.dpuf

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@shellieh98

 

It actually is 5 years according to the site I use:  http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php

 

They filed in January which would put it within the SOL just barely.  Probably by about a month.

 

It is this statute that governs AR credit card debt:  

 

Arkansas Code

Title 4 - Business and Commercial Law
      Subtitle 1 - Uniform Commercial Code
            Chapter 3 - Negotiable Instruments
                 Part 1 - General Provisions and Definitions
                        § 4-3-118 - Statute of limitations.

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The UCC views a negotiable instrument as a written instrument. Under their definition the sum of money owed on a written or negotiable instrument is determined when the contract is signed, such as a loan from a bank. Credit cards do not fall under that. Not to say JDB or other lawyers won't try to make that argument.

It falls on the defendant to prove that if challenged. But arksanas I found where it considers credit card debt open ended accounts, which falls under 3 years.

Open Acconts

Arkansas has different statutes of limitations that give creditors different amounts of time based on the kind of credit given. Credit cards are considered open accounts, meaning the debt total is open to change over time as the cardholder continues to use the card and incur more debt. In Arkansas, open accounts have a three-year statute of limitations, according to BCS Alliance.

Times

Though the Arkansas statute of limitations on open accounts is three years, that doesn't mean you are off the hook if you've had a card for three years of more. The statute of limitations time limit begins once you fail to make a payment on your card. Once this happens, your card company has three years to file a lawsuit against you. This happens each time you make a payment, so even if you go two years without paying and then make a single payment, the statute of limitations essentially starts over again.

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So I guess it would be up to the consumer to make the argument. I would still consult the lawyer and pursue the sol defense.

Read more: http://www.ehow.com/info_8012008_statute-limitations-arkansas-credit-card.html#ixzz3189QodGf

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One of your discovery admit questions should be " admit the credit card is an open ended account, meant to be able to charge for items received at various times"

Also look for any wording in your governing agreement about it being an open ended account.

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And then there is this.

Definition: An open-ended account is an account that has a varying, revolving balance. A credit card is an example of an open-ended account.

Your user agreement has varying language of changing interest rates, payments, and balances that would further support it being an open ended account.

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Thank you all for this info!  My brother plans to speak with an attorney tomorrow; and work his discovery which is also due tomorrow (he called and got an extension) and will use your suggestions here for it.  Will keep you posted.

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@shellieh98

 

Open Acconts
Arkansas has different statutes of limitations that give creditors different amounts of time based on the kind of credit given. Credit cards are considered open accounts, meaning the debt total is open to change over time as the cardholder continues to use the card and incur more debt. In Arkansas, open accounts have a three-year statute of limitations, according to BCS Alliance.

Times
Though the Arkansas statute of limitations on open accounts is three years, that doesn't mean you are off the hook if you've had a card for three years of more. The statute of limitations time limit begins once you fail to make a payment on your card. Once this happens, your card company has three years to file a lawsuit against you. This happens each time you make a payment, so even if you go two years without paying and then make a single payment, the statute of limitations essentially starts over again.

 

 

The 3-year statute in AR makes no mention of an open account.

 

16-56-105.  Actions with limitation of three years.

  The following actions shall be commenced within three (3) years after the cause of action accrues:

   (1) All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of record of the United States or of this or some other state;

   (2) All actions for arrearages of rent not reserved by some instrument in writing, under seal;

   (3) All actions founded on any contract or liability, expressed or implied;

   (4) All actions for trespass on lands;

   (5) All actions for libels; and

   (6) All actions for taking or injuring any goods or chattels.

 

The in Born v. Hosto & Buchan, PLLC, AR Supreme Court specifically ruled that a credit card is subject to the 5-year SOL.   In fact, Born raised the issue of the 3-year SOL, but the court rejected it.

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@ismac

 

An attorney would probably be familiar with the AR Supreme Court's ruling in Born v. Hosto & Buchan, PLLC, but your brother needs to mention it to the attorney just in case.

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It is the contract not under seal.  Now I know you found some case law BV80 that says it is 5 year sol, but I am going by what the statues says.

 

16-56-105.  Actions with limitation of three years.

  The following actions shall be commenced within three (3) years after the cause of action accrues:

   (1) All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of record of the United States or of this or some other state;


 

 

contracts under seal.

  • even payment did not discharge a sealed contract, if the instrument itself was not physically destroyed.[3]
  • fraud was not permitted as a defence to a sealed contract
  • subsequent modifications to a sealed contract were not binding except where the modifications were also under seal.
  • a principal not designated as such in the contract (undisclosed principal) could not be connected to the contract if it was sealed.

So my understanding of a contract under seal would be a loan, written instrument.  That is where the principal has to have a specific amount minus interest and fees that the consumer would pay back at the time the contract was signed.  Credit card debt does not fall into that catagory. 

I had info in another thread that had contrract definitions according to the business law library and also the UCC that supported this. I need to find that.

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Northwest Arkansas Recovery, Inc. v. Davis, 200 SW 3d 481 - Ark: Court of Appeals, 1st Div. 2004

In Arkansas the term " `open account'means an account based upon running or concurrent dealings between the parties, which has not been closed, settled, or stated, and in which the inclusion of further dealings between the parties is contemplated. "

 

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@shellieh98

 

Northwest was not a credit card case.   It was an attorney seeking his fees for services he provided to Northwest.  That's a completely different kind of account from a credit card account.   In that case, there was only one business (law firm) whose services were being charged on the account.  Northwest wasn't charging the services or products of other businesses to that same account.   A credit card account involves multiple merchants whose products are charged on the account..   In any case, the Supreme Court ruling would trump Northwest.
 

 

 (1) All actions founded upon any contract, obligation, or liability not under seal and not in writing, excepting such as are brought upon the judgment or decree of some court of record of the United States or of this or some other state

 

 

I'm going by what the AR Supreme Court stated.  In the case I cited, Born raised the 3-year SOL (16-56-105) by stating that no contract had been provided.   Therefore, there would be no written contract.  The court rejected his assertion.  

 

The OP can, of course, argue the 3-year SOL.  It would help if there were case law supporting a 3-year SOL for credit cards, but there's not.  Hopefully, the plaintiff won't bring up the Born case, and the judge will agree with the defendant. 

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Found a case where Defendant successfully used Utah Statute of limitations in Arkansas. https://caseinfo.aoc.arkansas.gov/cconnect/PROD/public/ck_public_qry_doct.cp_dktrpt_frames?backto=P&case_id=26CV-13-635&begin_date=&end_date=

 

Two things though.

1) It looks like the argument was made during trial and there is no paper trail to look at to see what cases the Defendant might have cited.

2) The lawyer for the Plaintiff is Stamatis and he is pretty easy to beat.

 

 Check the agreement, It might say that Nevada is the governing law. Nevada looks to have a 4 year SOL.

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@Mantis Knight

 

It appears that the account was opened in UT and most of the charges were made in that state.  It's also possible that the account was defaulted upon in UT and the rest of the transactions were merely interest and late charges.   But we don't know for sure.  All we know is that the majority of transaction took place in UT.

 

3.  The Plaintiff's argument that the law of the State of Arkansas should apply is without merit as the majority of the transactions upon which the lawsuit is based were executed outside this State and the contract, which Plaintiff drafted, expressly provides that Utah law be utilized.

 

http://circuit051.courtconnect.net/docsdms/Default.aspx?A=106/ck_image.present?DMS_ID=a443a495-8087-44ad-8ac2-48f7aa9ee1b8

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Yes, Nevada is the governing law.  It reads:  Applicable Law - This Agreement and your Account will be governed by federal law and, to the extent state law is applicable, the laws of the state of Nevada, whether or not you live in Nevada and whether or not your Account is used outside Nevada.  This Agreement is entered into in Nevada, your Account is maintained in Nevada, and all credit under this Agreement will be extended from Nevada.

 

Also Stamatis is the lawyer in his case.

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@BV80

Couldn't an argument be made that the majority of the transactions could also be that all payment processing, customer service, billing, etc originated in UT.

 

In her Answer she stated "Said account through xxxx originated in the State of Texas, which statute of limitations is four years, of which statute has expired and account is time-barred."

 

So it looks to me like the account was opened in Texas.  She may have then moved to UT before moving to AR, we don't know.

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