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Help with my Answer - Being Sued by Calvalry SPV I, LL


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I need to file an answer Monday.   Plaintiff is Cavalry SPV I as assignee of FIA Card.  

 

 

The complaint reads as follows: 

 

1. The Plaintiff claims the defendant owes the plaintiff of $4578.04 because:

Prin: $4,578.04 Int: $0 AF:$, Total $4,578.04. 

open account

14-02021-0

 

The plaintiff also claims from the defendant court costs in the sum of $299.99.

 

 

That's all that is in the complaint.

 

 

My records show the last payment to BOA was in Dec 2010 so they are outside the SOL as the complaint is dated 4/07/14, yes?

 

Will a general denial and an affirmative defense of SOL suffice or should I still request full documentation in my answer?

 

Also, am I wrong in thinking this is complaint is lacking? Is this one of those filing where they are assuming I won't answer or appear? 

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Since more than 90% of the time defendants don't answer, that's what they are expecting.

I don't know AL law, so check your rules of procedure to see if you have to request proof when you answer. Most jurisdictions provide for disclosure/discovery within a certain period of time which is when you would be provided those things or request them if not provided voluntarily.

Also, in AZ we can file a motion to dismiss in lieu of an answer. A case where the SOL has unquestionably expired would be a perfect case for a MtD. The trick is in wording the motion so as to assert the SOL has expired but not admit to the debt.

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Cavalry is hoping for the low hanging quick default judgment fruit that is true.  There is a thread in this forum from someone who got sued (I think by them) in AL and won based on the SOL.  I will try to find it. I am work so it may be tonight.

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Your state is 6 years written, oral contracts, 3 years open ended accounts. You need to find out what your state uses for credit cards, open ended or written contracts.

Delaware is 3 years, but you would have to study really hard on how to use it, check and see if your state even has a borrowing statute, and be able to apply it to your case

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Farmgirl won her case.  Read all posts, esp Feb 15 and the links I provided therein.

 

I BEAT Midland at trial in Alabama!!!!!!

19 May 2014 - 02:52 PM

I WON!!!!!!!

 

They sued for breach of contract and account stated.

 

Today, after 2 continuances, a motion to compel (that was ignored) and a lot of stress on my part I had my day in court. 

 

I was able to get all of Midland's evidence thrown out.  This included bills of sale and affidavits from the OC and from the first purchaser and an affidavit from Midland on the alleged debt.  Also thrown out were copies of the alleged account's statements, and 2 "pre-legal reminders" from Midland. 

 

The judge actually stopped me when I brought up Rule 201 Judicial Notice of Adjudicative Facts (I was going to bring up some of the class actions against Midland for robo-signing and using false affidavits.  He then told me that he was not going to allow their evidence and since the rules of evidence are strict in district court, I did not need to continue as he was making a judgment in my favor.  I asked if this was with or without prejudice and the judge informed me that per the law they have 14 days to refile.  He then said but I don't think they will.  LOL

 

Thanks to all on here that answered my prior posts.  I also found "Defending Junk Debt Buyer Lawsuits" by Peter A. Holland invaluable in coming up with defenses and objections. 
I do have to say that now I really understand why everyone recommends certified mail with return receipts.  The attorney actually said they didn't receive anything that I sent until they got the compel order.  Ya right. 

anyone have access to Am. Jur. 2d Accounts and Accounting Section 26

13 April 2014 - 07:22 AM

My trial date against Midland is on Wednesday.  I have found a great deal of information here and online, in particular a paper titled "Defending Junk-Debt-Buyer Lawsuits" by Peter A Holland.  In this paper he cites Am. Jur. 2d Accounts & Accounting section 26.  I would like to be able to have the entire section available instead of just the cited part and cannot find access online.

 

Thanks.

Send second request for documents or request formal discovery

23 March 2014 - 08:21 AM

Being sued by Midland. Court date was originally set for mid-March (Alabama moves quickly with these things), I filed a request for a continuance (I asked for 60 days) so I could request documents and it was then set for mid- April.  In the response to my continuance, the court stated, defendant "is encouraged to contact the plaintiff's lawyer to seek copies of the documents she wants.  If she is not satisfied, she may file a motion with the court requesting permission to conduct formal discovery." 

 

I sent a first request for documents on March 2 and have not received a reply.  Should I just file a motion to conduct formal discovery or contact the lawyer with a second request. 

Per Alabama civil procedure after a formal discovery request, I need to show that I "endeavored to resolve the subject of the discovery motion through correspondence or discussions with opposing council."

 

 

Rec'd summons 1/27, replied. Already received court date in Alabama

15 February 2014 - 06:22 AM

I received a summons from Midland 1/27/14 and replied denying everything but name and address.  (I have another post regarding that but I can't put a link in here.)  I just received a notice of case setting for mid-March!  Set for bench trial.

 

They are suing for breach of contract and account stated.

 

Should I bother sending a production of documents request?  I looked through Alabama's civil procedure and looks like they would have 30 days to respond to discovery but that puts it after the trial date.

 

I haven't found much on the forum from Alabama but I did find one topic from last year that were being sued by midland.  It didn't look they filed any document requests and when they went to court the attorney basically stated they didn't have documents and then "found" a dismissal document.

 

Again, they sent absolutely nothing except the summons.  It included a 4 digit account number and the date of charge off.   Nothing regarding when they obtained the supposed debt.

 

So, should I just go to court or send any requests with such a short time line?

Being sued by Midland in Alabama help with affirmative defense

01 February 2014 - 10:40 AM

I received a summons on Monday. (my profile is listed as FL as I have another action there but I live in AL and have for more than1 year)

 

Midland Funding suing for ~$6000 atty Holloway and moxley

 

Complaint (my answers in bold)

1. I am me and live at my address.  Admit

2. Venue is proper..... admit

 

3. Midland was assigned all rights etc, etc from Citibank, who provided a credit card w/ account *** in response to an application for a credit card made on or about 11/2007. Defendant objects to this statement to the extent that it assumes disputed facts and facts not in evidence that there is an account and that the account is valid, and that is due and owed to plaintiff.  Without waiving forgoing objection, defendant denies.

 

4. Defendant used card to purchase goods and services.  plaintiff's statement is conclusory and offered without admissible evidence.  defendant is without information of knowledge sufficient to form an opinion as to the truth or accuracy of the allegation therefore defendant denies.

 

5. Defendant defaulted under the agreement by failing to remit payment when due. same as #3

 

6. OC mailed regular statements that reflected account activity.  Statements showed amount due. Defendant objects to this statement to the extent it seeks information beyond defendant's knowledge to the extent that it seeks to impose upon defendant a duty to seek out information not in defendant's possession, custody or control and to the extent it assumes disputed facts and facts not in evidence.  Without waiving foregoing objection, defendant denies.

 

7. Account charged off around 9/2010.  after a reasonable inquiry, defendant Is unable to aver the truth of the matter, therefore denies.

 

8. Midland demanded payment which has not been satisfied. same as #3

 

9. Midland performed all conditions precedent to filing action. deny

 

Count 1- Breach of Contract

 

10. The parties had an agreement wherein, OC agreed to pay on behalf of defendant and in advance  for certain goods and services, as authorized under the credit agreement or permit defendant to draw cash advances against credit line.  OC performed under agreement by paying merchants.  Defendant was obligated under the terms to repay those sums along with any interest or finance charges under the agreement. same as #4

 

11. Defendant breached the agreement by failing to remit payment when due.  This breach caused OC to suffer damages in the amount due on the credit account.  OC assigned its right to seek remedy for those damages to Midland.  same as #3 but stating "balance" instead of "account"

 

Count 2- Account stated.

 

12.  Midland asserts that defendant's use of of the credit card to purchase goods and services represented a periodic account, for which OC rendered monthly statements to defendant.  same as #11

 

13.  Plaintiff reserves the right to assert other claims and/or parties as may be later discovered during the course of the proceedings.   deny

 

Midland prays this court enter judgment as follows

a. ~$6000 which is principal balance due.

b. All costs of court

c. All such further relief plaintiff is entitled.

 

_________________________________________________

 

I am unsure about what affirmative defenses I can use. I have read AL civil procedure rules but the legal jargon is like greek to me.  I was thinking:

 

1st defense: 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 to sufficient to constitute a cause of action against defendant fro which relief can be granted.

2nd defense: Defendant alleges that this action is time-barred under AL SOL 3 years for an open account (which a credit card is) My understanding is that a credit card can't be an account stated as an account stated is designed for occasional payments and an open account is designed to allow borrowing without a set time to pay it back just minimum payments.

3rd defense: Plaintiff admits to purchasing the alleged debt causing plaintiff's injury to its own self, therefore plaintiff is barred from seeking relief.

4th defense: Defendant claims failure of consideration as there has never been any exchange of any money or item of value between plaintiff and defendant.

5th defense: claim lack of privity as defendant never entered ito any contractual or debtor/creditor arrangement with plaintiff

 

Thanks for any help or insight.

 

 

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Watts and Herring is AL's biggest consumer law frm. Here they discuss credit card defense and SOL.  You may want to contact them.  If you have any FDCPA violations, they would defend you on a contingency basis, meaning little or no charge to you.  A consultation is free.  

 

http://www.alabamaconsumer.com/2014/03/statute-limitations-alabama-credit-card-lawsuit-3-years/

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