Jump to content

Indiana: Sued by Calvary SPV I, LLC


Recommended Posts

Hey everyone,

 

I just received a letter from a local law firm (do these guys have people sifting through court records on a daily basis looking to make a quick buck?) stating that court records show a lawsuit was filed against me. Just to play it safe, I went to the IN gov site and sure enough, the case number listed did indeed exist. Unfortunately, I could not pull up any details on the suit (documents submitted, etc). Like many who have come here, I too found myself in a position of being afraid. After reading the many posts and very helpful suggestions from members, I thank God that I found this site, as it is giving me the information I need to fight back. As I have yet to receive anything official from the court, I'm not sure what I need to do to get ready, but I will start reading through threads and get a battle plan going and adjust it accordingly based on what comes. I will continue to post as more information becomes available

 

- DonValor

Link to comment
Share on other sites

UPDATED: 10/09/2014

 

Don't have a lot of information as of yet, but thought I'd get this part started...

 

1. Who is the named plaintiff in the suit?

 

- Calvary SPV I, LLC

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

- Lloyd and McDaniel, PLC

 

3. How much are you being sued for?

 

- $1,781.02 plus interest and expenses

 

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

 

- HSBC Bank Nevada, N.A./BEST BUY CO., INC.

 

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

 

- Served

 

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

 

- Notice on door, followed by a copy in the mail

 

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

 

As far as I know it was. It was left at my door by the sheriff

 

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?

 

- Indiana, Porter County

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

 

- Don't recall. Per my credit report last late payment date was listed as 08/11

 

11. What is the SOL on the debt?

 

- Unknown as of now

 

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).

 

- Suit Served

 

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? (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. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 

- I have 20 days commencing the day after I received the summons.

 

The "charges" are as follows:

 

1. The Plaintiff owns and is the holder of an account due and owing by the Defendant, and is the assignee of HSBC Bank Nevada, N.A./BEST BUY CO., INC..

2. The Defendant is indebted to the Plaintiff in the amount of $1,781.02.

3. Venue is proper with this court based on the Defendant residing in XXXXXX county.

 

"Relief" requested as follows:

 

1. Judgment against the Defendant in the sum of $1,781.02

2. Interest thereon at the rate of 8% per annum from the date of Judgment, until the Judgment is satisfied

3. For Plaintiff's costs herein expended

4. For any and all other relief to which the plaintiff may be entitled pursuant to contract, statute or common law.

 

I did not receive a questionnaire regarding the lawsuit.

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract?

 

- No evidence

Link to comment
Share on other sites

While you're waiting, find the rules of procedure for the court the lawsuit was filed in.  That will tell you what you have to do next (once you are actually served) and when you have to do it by.

 

Here are some thoughts for you going forward.

1.  The debt is probably for a credit card which will have had a credit card agreement.  The agreements almost always have a 'choice of law' provision which says "the laws of the state of ____ govern this agreement".  Find out the statute of limitations for that state and compare it to the state you live in.  If the foreign state has a shorter SOL, then find out if your state has a 'borrowing statute' which allows your state to apply the SOL from the state named in the agreement.

 

2a. At some point you will get the evidence they intend to use to prove their case.  Since you're being sued by a debt buyer, they will claim the debt was sold to them from someone else.  They will probably present a bill of sale to support their claim.  Look over that bill of sale very closely for language like "being sold without recourse or warranty of any kind" in regards to the sale of the debt.  If the seller cannot guarantee the accuracy of the debts, how is Cavalry able to do it?  I would argue that this scenario creates a lack of trustworthiness as to the claimed debt itself and any records associated with it.

 

2b. In regard to 2a, left unchecked, Cavalry will try to claim there exists an agreement between the parties that inserts a layer of protection that ensures the accounts are accurate.  They are talking about a 'forward flow' agreement.  These agreements will never contradict the bill of sale, and in most cases will further the 'disclaimer' of accuracy. Again, I would argue a lack of trustworthiness.  When it comes time in your case to make your discovery requests (usually a couple of months after you are served), head them off at the pass and ask them to produce this agreement right out of the gate.  They probably won't do it voluntarily so expect a battle over this.

 

2c. Also in regard to 2a, the bill of sale will have been signed by someone from the seller.  Most of the time the bill of sale will not have been accompanied by an affidavit so there is no way to verify that the person that signed it is who he/she claims to be or that they have the legal capacity to bind their company to such a contract.  And you guessed it.  Lack of trustworthiness.

 

3. At some point, Cavalry will produce an affidavit from their own employee claiming to be familiar with the records of whoever they bought the debt from.  Dig around for caselaw from YOUR state to find out how your courts handle these type of affidavits.  Some courts allow a witness from Company A to testify about business records from Company B under the 'adoptive business records doctrine'.  Hopefully your state is not one of them.  On a side note, sometimes Cavalry will produce an affidavit from one of the other business involved in the transaction.  This complicates things and you'll have to come up with a strategy if they do it.

 

4. When you are served, check to see if Cavalry is asking for interest.  When an original creditor (OC) charges off a debt they almost never apply interest post charge-off.  I would argue that by not charging interest the OC waived its right to that interest and that waiver was shifted to Cavalry along with all of the other rights and responsibilities Cavalry will claim it inherited from the OC.

 

5. Depending on what you find out once you are served, you may have a case for a lawsuit against them for FDCPA violations.  Do not dismiss this opportunity if it exists, even remotely.  Get input on this from other board members on your case as it progresses and you get more information from Cavalry.  The statute of limitations on FDCPA claims is one year so don't doddle if it looks like you might have a case.  Get in touch with a consumer rights attorney.  http://www.naca.net

 

 

Best of luck.

  • Like 1
Link to comment
Share on other sites

@donvalor besides doing what Harry advised, read these recent threads.  Also, go to your county courthouse, and attend some debt collection trials.  Just go as a spectator, observe, and get a feel for what goes on.  And talk to some consumer lawyers.  Bring along any debt collection letters you may have or any debt collection tape recordings you may have for possible FDCPA/TCPA violations.

 

A consultation with a consumer lawyer is free. 

 

 

http://www.creditinfocenter.com/community/index.php?app=core&module=search&do=search&fromMainBar=1

  • Like 1
Link to comment
Share on other sites

As a former resident of Porter County (Valpo), Harry has great advice.  As a newbie two years ago(case still going on), I had an oops I should have had a V_8 moment  when A consumer atty (free consultation)  told me that JDB's aren't afraid of pro per 's because there are no atty fees , nothing to lose for them.

 

The consumer atty will probably be reasonable and much less that if you get a judgment against you.  Also , when you win you will get your costs back.  So grab some orville redenbacher (you know) and a least talk to a consumer guy first!!!!!!!!!!!

Link to comment
Share on other sites

 JDB's aren't afraid of pro per 's because there are no atty fees , nothing to lose for them.

 

This is probably true. Counter this with forcing them to make many appearances, send docs, spend money in general. File a countersuit perhaps if you can. Make them understand the the idea that it WILL cost money, and WILL be a pain in the a$$, they may lose, or if they win, they may face appeal, which costs more money, ect. Make frequent mention (and pay close attention) to FDCPA violations. I swear just sending DV letters with aggressive use of the words FDCPA,  lawsuit, the law, my rights, gets results..I've noticed several JDB's sold off some of my alleged accounts after receiving these letters I've sent. Most of them never respond again.

Link to comment
Share on other sites

Re: fees, the emerging tend is contractually capped fees. In other words the JDB and their lawyer enter into an agreement that the JDB will not incur any more than X amount in fees. This amount seems to be around $1,000. This means the JDBs have no incentive for backing off when a defendant contests the lawsuit - it will cost them the same for 2 months of litigation as it will for 2 years and an appeal or two.

The only way to cost them REAL money is to sue them in Federal court for FDCPA/FCRA violations.

Link to comment
Share on other sites

Wow! Lots of advice!

@Harry Seward: I found the rules of procedure for Porter County and will be reading that through the weekend.

@debtzapper: Based on the info that Harry posted, I've been doing some more reading during quick breaks at work and started thinking the same thing. I will stop by the courthouse to get a feel for how things go. I had thought of going to see some of the cases my appointed judge tries, but thought maybe that would be a bit risky if they recognize me once I'm there for my case. 

@hot in az: Interesting. You left NWI and I left AZ. Guess we switched spots! :-) I would agree; I would think that no lawyer would be afraid of a pro per. After all, WE didn't spend thousands of dollars on a law degree. But from the many posts I've read here, I think that thought turns out to be an Achilles' heel for many of them as well.

@easy619: My thoughts exactly. If I can make this more costly for them as early as possible, I think my chances of winning increase. After all, they paid pennies on the dollar for all these alleged accounts. To lose money on any of them would be incredibly harmful for them.

 

I do agree with the notion of speaking with a consumer lawyer for a consultation, just to get a better feel for where I stand and all. Of course, with my current financial situation, this may be the catalyst that will tip the scales and force me to declare bankruptcy. Been avoiding that for the last four years, but don't know how much longer I can last.

 

Thanks so much everyone for taking the time to respond and provide great advice! I really do appreciate it!

 

- DonValor

Link to comment
Share on other sites

Funny we switched states. Still a Cubs fan tho they were creamed today and this year. Usually a consumer atty consult is free, and they may have pmt plans, and BK would depend what you are being sued for and how many other debts you have.

 

Call the court before you go and ask the clerk when a civil debt suit is scheduled. Don't think it would be risky if a judge sees you, as they could be out sick and a pro tem takes the case.  I got one of thoses letters to so went to the court house andlooked at my case. They did not serve me for three months but I knew what they had and started preparing.

Link to comment
Share on other sites

So I received the summons. Seems to be from a credit card, but not much other info that can help identify the account or if it was ever mine. Any case, I'm going to start working on my response and plan on calling an attorney for a consultation. Hopefully I can get some time with one this week. Regardless of how that goes, I want to have my response to the court in by this weekend.

 

I've found plenty of examples of how to respond in the forums, but the interesting thing is that I didn't get a set of questions that I'm supposed to answer. All it asks for is  a written answer either denying the claim or a claim of relief against the plaintiff.

 

I'll do some more reading as time permits.

 

Thanks,

DonValor

Link to comment
Share on other sites

  • 3 weeks later...

Everyone,

 

Sincerest apologies for not responding in so long. To say that the last weeks have been insane is truly an understatement. Today is the first day I've had to actually get home with a bit of time and seeing as how tomorrow is Day 18 and I have until Day 20 to respond, I've a lot of work to catch up on, so I most likely will be up all night. Additionally, Day 20 falls on a Sunday, so I've no choice but to make sure I've sent out my response via certified mail tomorrow.

Per @shellieh98, I've updated post 2 with responses as best I could. I am now in the process of drafting a response to the complaint. I will continue to post throughout the night. As always, any help or comments is appreciated.

 

Oh, one more thing, I received a letter from a local law school offering to represent me with law students. Still kinda debating it, but in my current situation (no way I can afford a lawyer) I am very inclined to accept the offer. Thoughts?

 

- DonValor

Link to comment
Share on other sites

@donvalor  DEFINITELY take up the offer of the law school.  Law school students are supervised by law school faculty members, and the students are at the top of their game. Besides consumer law clinics, law schools often run family law clinics. criminal law clinics, immigration law clinics, etc.    They have helped countless individuals over  many years.

 

No need to debate it.  Let the law school represent you!

Link to comment
Share on other sites

Update: Filed my response at the courthouse today. I didn't make any changes to the previously posted draft. I'm feeling fairly confident that, while not a work of law genius, it should be sufficient to make clear that I'm fighting. Now my new homework is to contact the local law school that offered to assist/represent me (hopefully the offer is still on the table). Will also continue to do more reading of the various posts to formulate a defense beyond the "I deny" this of the answer.

 

-DonValor

  • Like 1
Link to comment
Share on other sites

  • 2 years later...
On 10/10/2014 at 1:56 PM, donvalor said:

Update: Filed my response at the courthouse today. I didn't make any changes to the previously posted draft. I'm feeling fairly confident that, while not a work of law genius, it should be sufficient to make clear that I'm fighting. Now my new homework is to contact the local law school that offered to assist/represent me (hopefully the offer is still on the table). Will also continue to do more reading of the various posts to formulate a defense beyond the "I deny" this of the answer.

 

-DonValor

@Donvalor I am in the exact same boat as you. I live in Indiana and I recieved a complaint on oct 14th from Cavalry SPV that is the exact same as yours expect for $2k and the original creditor was citibank. Any updates on your case? I am in the process of filing an answer. What affirmative defenses did you use?

Link to comment
Share on other sites

Just now, Harry Seaward said:

@Miheegz your best bet is to start your own thread (if you haven't already) to keep things as simple as possible. 

I have a thread open. Our cases are so similar I thought we could share resources and exposure. My thread is 

@donvalor I am in the process of filing a motion to dismiss the cases based on Indiana evidence rule 802 A, since the affidvait they attached is signed by their own employee and not one of the original creditor I believe it falls under hearsay and trial rules 9.2 (A), which requires a written instrument or an affidvait of debt but since the affidvait is hearsay they are in violation, and 12 (B) (6) which holds that they failed to state a claim upon which relief can be granted since they havent provided a written instrument of affidvait.

Link to comment
Share on other sites

The HSBC card agreement has an arbitration agreement.  Cavalry will not spend $3500 to start an arbitration case that they hope to collect $1700 on.  They come out in the negative either way on that deal, so that is why JDBs like them avoid arbitration.  Read what your card agreement says about arbitration.  You would have to motion the court to ask them to order the parties to arbitration per the card agreement and to stay the case in court. This is called a Motion to Compel Arbitration and there are many threads about this on the site.

Link to comment
Share on other sites

4 hours ago, fisthardcheese said:

The HSBC card agreement has an arbitration agreement.  Cavalry will not spend $3500 to start an arbitration case that they hope to collect $1700 on.  They come out in the negative either way on that deal, so that is why JDBs like them avoid arbitration.  Read what your card agreement says about arbitration.  You would have to motion the court to ask them to order the parties to arbitration per the card agreement and to stay the case in court. This is called a Motion to Compel Arbitration and there are many threads about this on the site.

Is the cost quote for AAA? I am in the same boat as OP except my OC is citibank. So you are saying a they are likely to leave you alone if you file a motion to compel arbitration? My CC agreement has a clause saying all conflicts shall be mediated by AAA. Is the whole gamble that they will leave you alone after that or is there an other advantage to going to AAA?

Link to comment
Share on other sites

3 hours ago, Miheegz said:

Is the cost quote for AAA? I am in the same boat as OP except my OC is citibank. So you are saying a they are likely to leave you alone if you file a motion to compel arbitration? My CC agreement has a clause saying all conflicts shall be mediated by AAA. Is the whole gamble that they will leave you alone after that or is there an other advantage to going to AAA?

All information on AAA costs and the consumer rules are found on the AAA website www.adr.org.  Yes, it is about $3500 to get started and goes up from there.  This is why the strategy on arbitration is effective against JDB's whose business model is simply collecting as much as possible for as cheap as possible.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.