And the Race is On! CACH vs. Me

[saytar]

Well Guess CACH thinks there is some juice to squeeze here. They filed a MJ and got their "service"  today. Working on an answer to the Petition now. Let me Post the Outline and the beginning rough draft, have 20 days to answer but why wait to do the response (not going to file it till a couple of days before deadline).

 

1. Who is the named plaintiff in the suit?
 

CACH,LLC
 

2. What is the name of the law firm handling the suit?

P. Scott Lowery P.C. (CACH in other words)

 

3. How much are you being sued for?

A little over $700.00

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

GE Money Retail Bank

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

Came by Big Brown

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

Delivered by Big Brown

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?

Several attempted calls....didn't answer.....Couple of letters.
 

9. What state and county do you live in?

Oklahoma

 

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

I am thinking around Oct-Nov 2011
Not certain yet (will be checking)....getting close to 3yrs I think, their cutting it close.
 

11. What is the SOL on the debt?

3yrs in Oklahoma

12. What is the status of your case? Suit served? Motions filed?

Yes 11/22/2014 ...Working on response to Complaint (Summary Judgement)

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.

Yes....response was just a bunch of photocopied statements, nothing else.

 

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.

20 days

Did you receive an interrogatory (questionnaire) regarding the lawsuit?

Nope, nothing but Petition and a baited fishhook letter to ...and standard Lowery Law firm "Information Form"....you know, DL #, Bank Account info, Employment Info.......Self Employed on SSDI here............anyone know Government's SS Bank Account #, etc (LOL)

CACH claiming to be current Owner....no information as to how, when, for how much....you know the standard nothing. Nothing to back up their claim.

 

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

Yes...only thing I got back was a pile of photocopied statements several months ago from OC...Nothing else, not even what they were sending them for for.

No prior request for interrogatory info (I am assuming their standard form is their interrogatory)

List anything else they attached as exhibits.
Nothing else from Court attached.....

 

17. Who is the Attorney filing the Case?

P.Scott Lowery...ie....CACH

Original Petition-Redacted.pdf

[saytar]

Ok Here is what I have so far.......Any suggestions are appreciated...................Even some critical comments, most of the time.

 

 

 

COURT DOCUMENT HEADER goes here.

ANSWER TO PETITION FOR SUMMARY JUDGEMENT

AND CROSS PETITION

 

 

Pro Se Defendant Poor Broke Soul comes now before the court and answers the complaint of the plaintiff, in this action as follows:

 

RESPONSE TO PRELIMINARY ALLEGATIONS

 

In answer to paragraph One

As no documentation, signed by defendant has been submitted with the plaintiff's Petition, Defendant is therefore without sufficient information or belief to admit or deny the allegations in this paragraph. Based on this lack of information or belief, defendant denies the allegations.

 

In answer to paragraph Two

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

In answer to paragraph Three

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

In answer to paragraph Four

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

In answer to paragraph Five

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

In answer to Plaintiffs Interrogatory or Post Judgment Information form:

 

Form received by Defendant and included with Service from the Plaintiff:

 

Hereafter known as Exhibit A attached.

These questions and answers are not necessary or required in this Cause of Action, but are rather a Post Judgment Remedy.  They are arbitrary and an undue burden in this Cause of Action

Therefore Defendant respectfully declines to answer these items at this time.

 

AFFIRMATIVE DEFENSE

 

Lack of Standing

This complaint is barred by the fact that plaintiff lacks standing to bring an action.

 

Note to Self: ........NEED TO INSERT SUPPORTING OCC CITATION IF POSSIBLE

 

Plaintiff ..has not laid down presented any legal groundwork supporting this Complaint, and therefore is not a party to the transaction and is not connected to the transaction. Defendant owes no duty to respond to plaintiff's allegations regarding the transaction at this time.

 

Note to Self: ........NEED TO INSERT SUPPORTING OCC CITATION IF POSSIBLE

 

WHEREFORE, defendant requests judgment as follows:

That plaintiff takes nothing by the complaint, which will be dismissed with prejudice.

That defendant recover from plaintiff  any cost or further relief deemed appropriate by this Court.

 

Date: __??____ Month, 2014

 

Pro Se Defendant, ___________________________ Signature, (name)

Address

 

Attach Copy of Service by Certified Mail

 

Attach Defendant Affidavit/Affirmation

 

Attach MOTION TO PROCEED IN FORMA PAUPERIS

[HelpingGreg]

5a.m. - really 6a.m., considering fall back in Fall's one added hour!

and, here I am, just thrilled as can be to read your enthusiasm and confidence before closing my ever-taller paper file and getting some much-needed rest over here!

i am Always reading, learning, growing!

When I am aware of any points that may benefit your case, of course, I will share right away!

Best Wishes!

Above All Else,

Don't Panic!

warmly,

[BV80]

@saytar

 

Are you sure that their petition is for summary judgment?  Your response reads more like an answer to a complaint.

[saytar]

Well Title of their filing is Petition and they are praying for judgment against me for the principal and attorney fees and then post judgment interest.................................Kinda sounds like a Summory Judgement to me.

 

Opps I posted a link to the Original Petition, but it's not working....was late when I posted it I will go back and Fix it. Actually the filing is Pretty Lame.......either the Attorney is on something or he is a newbie out of school.....from most of the filings I've seen around here (and on here) its not much. Not that he's a dummy....but I am thinking he is just convinced he can write anything and get away with it..........

Which normally I guess he does.......

 

 

Ok Link Fixed......BV80 you can see the original redacted ...uh...complaint.

[BV80]

@saytar

 

It appears that it's just a complaint.  Unless your court rules say otherwise, they can't file for summary judgment before serving you with a complaint.  And then, a MSJ is only appropriate if you've answered the complaint.

[saytar]

Oh...Ok I see the subtle difference now (it was quite late last nite when I did this)...... Not that it really makes a Lot of difference.........Fail to answer the Complaint and the next Filing will be for MSJ.

 

In the Summons they stated that Unless the Complaint is Answered a Default Judgment will be "rendered against you" for the relief demanded in Petition. The way I see it they have a Boilerplate MSJ done up and If I don't respond they'll file that Pretty quick. after the 20days......

 

If this is the case, then I'd best pull the Affirmative Defense Part on standing out and hold that bullet for the MSJ filing, as it wouldn't really have much bearing now, as anyone can file a Complaint, in the MSJ they'd need to submit more. I was waviering on that, I wasn't sure I really wanted to go there............... just yet.

 

Wouldn'nt want to put too many Cards on the table................. Just wanting to make them start spending and spending on this......they already have put $250.00 on the table filing this, almost half of what they posssibly get. Another filing or two and they've got more in than they can recoup.

 

Seeing as I have no recoverable asset's and my SSDI is non garnishable and it is the Only deposit's made in my Account (no co-mingling), the fact that in this economy I am too old to ever get hired at anything of substance, even if I wanted or was healthy enough to, they are in effect letting it run down their leg.

 

Any better suggestion's on a Response to the bottom feeder's?

[Seadragon]

I think that you can maybe have an FDCPA violation for them sending that form. The least sophisticated debtor could be fooled into giving them personally protected information under color of authority. I would check into a lawyer because there may be something there.

[saytar]

I think that you can maybe have an FDCPA violation for them sending that form. The least sophisticated debtor could be fooled into giving them personally protected information under color of authority. I would check into a lawyer because there may be something there.

LOL, you may well be right! I thought the same thing, but not the least sophistcated debtor, but as overshadowing (or is that actually shadowing?).....LOL both are FDCPA violations....send a "scary looking"  We Goin sue you if you don't fill out our form and "make arrangements" to pay us a little.

 

Right, pay them something and Totally reset the SOL. I don't think so.    I hadn't framed it quite that way, but in the back of my mind that's one reason I was going to submit it with my Reply as "Exhibit A". That way if they don't pay attention or protest......it's kind of an "admission"......one they can't wiggle out of later and deny they did it.

 

Had some dealings some year's back helping out someone fight a CPS case in CO. One thing I did discover is that ANYTHING submitted to the Court Clerk (CPS does it all the time) is required to be included and kept in the Case File (I used to file a "report to the court" memo about every 2wks or everytime CPS pulled a sneaky......got to where I had to sneak into town for hearings..CPS was ticked, bad), even though it might not be Kosher so to say or legal, its not illeagal, but most Judges and/or their Clerk Usually reads or looks over the case files before hearings (bring themselves up to speed so to say). Now Judges are human and even though they might ignore it in open Court, it can't help but come to mind when they are mulling their decisions.

 

Once it becomes a part of the case file it's now part of the "Official Record" of the Court and can't go away. That was one my first thoughts.

Problem is around me there are very few attorney's and even fewer that do FDCPA. The only one I can think of right now is a fellow I graduated from High School with (and was in same small Boy Scout Troop with). He is in Norman, OK, but mainly does Bankruptcies (but is licensed for Federal Courts).........about 150 mi away. But then again, that puts him about 130 mi closer to the Federal Court House than Me... 3 or 4 of my Graduating Class became lawyer's. He IS listed On Credit Info Center as a Comsumer Protection Lawyer, but his Webpage doesn't mention it. Guess Bankruptcies are more popular LOL.

I'll call him Monday and see what he's up to.......besides his musical side jobs (he's very music oriented...Dad was a Music Professor at CSU when we were in school..he and his sister were very into music)

 

Thinks for the input.....kinda of kicked the gears a bit.

[1stStep]

I'm with Seadragon - this is probably an FDCPA violation.

[BV80]

@saytar

 

We Goin sue you if you don't fill out our form and "make arrangements" to pay us a little.

 

 

They didn't threaten to sue if you don't fill out the form.  You've already been sued.   The information in the first paragraph of the form includes that the purpose is to determine a settlement. 

 

 

From the form:

 

We would be happy to discuss the possibility of offering you a payment arrangement to resolve this matter, which could include freezing the interest rate on your account at 0% hereafter if you timely make all payments agreed to.
 

 

The above MIGHT be a violation if they can't prove they have the right to collect interest.  That would depend on whether or not they could provide a copy of the applicable cardmember agreement and what is stated in that agreement.  You can be sure that the agreement allows for interest, but they would have to provide a copy of it.

It might also depend on OK collection laws in regard to interest on a debt.  This is not to be confused with a judgment rate of interest because, so far, there's been no judgment.

[saytar]

@saytar

 

 

They didn't threaten to sue if you don't fill out the form.  You've already been sued.   The information in the first paragraph of the form includes that the purpose is to determine a settlement. 

 

 

From the form:

 

We would be happy to discuss the possibility of offering you a payment arrangement to resolve this matter, which could include freezing the interest rate on your account at )% hereafter if you timely make all payments agreed to.

 

 

The above MIGHT be a violation if they can't prove they have the right to collect interest.  That would depend on whether or not they could provide a copy of the applicable cardmember agreement and what is stated in that agreement.  You can be sure that the agreement allows for interest, but they would have to provide a copy of it.

It might also depend on OK collection laws in regard to interest on a debt.  This is not to be confused with a judgment rate of interest because, so far, there's been no judgment.

True, bad choice of words. Goin a.....just trying to point out their thinking on most Oklahoma Consumers. I know at least in my County, when Midland,CACH and their other "entities" file out here, that only one of any 15 or 20 suits is even answered. Of those that do 90 %, those few with an attorney 100% of them are dropped. It's a 2 1/2 -3 hr drive from either Tulsa or Oklahoma City to my Courthouse for these "feeders". Most attorney's here locally won't deal with them on the Junk Debt....Now sue you if you default on your Car or Local Bank Loan, Sure no Problem.

 

I think there are only 7 or 8 attorney's in this County....One is the Judge, One is the Prosecutor...the other's take turns being a Public Defender (when they feel like it).

 

I'll start back thru the Civil Statutes and check about the interest, but pretty sure that a JDB can't tack much..if anything....on to the loan, until they get a Judgment (unless you do their form and voluntarily agree to it),Then I think they can get aound 5% simple interest on the award amount.....but I will try and check for sure.The OC is another matter, as long as they carry it on their books as in arrear's they can.

 

Funny thing is, I get a weekly (Gossip Sheet) with Court Filings, Sheriff's Reports. etc. For the past year, there have been no JDB filing's in my County. Midland use to be frequent one, and the others scattered out between the other "things". Regular filings, like a bank or business witha repevln claim, a business with overdue accounts, normal averge Civil Filings (discounting divorces, etc).

Has there been "something going on" that I haven't heard about? It was like there was some kind of moritorium on JDB's happening's, I'm pretty sure that my filing is the first actual JDB suit in several months.Not that it really matter's, I guess.......

Well thanks everyone. I am going to go over the Civil Statutes again.

 

if anything else come's to mind feel free to jump in. This is how we beat them, One lawsuit at a time.

[BV80]

@saytar

 

I'll start back thru the Civil Statutes and check about the interest, but pretty sure that a JDB can't tack much..if anything....on to the loan, until they get a Judgment,

 

 

Do some research on the above.   Under the FDCPA, a debt collector is allowed to do what the OC can do.  If the agreement between the consumer and the OC allows for interest, the debt collector can add interest.   In fact, unless your state laws say otherwise, the CA/JDB could add the rate of interest allowed by that agreement.

 

In your case, the plaintiff is only requesting the principle, reasonable attorney's fees, and POST-judgment interest.    But, that MIGHT be where you might have an overshadowing claim. 

 

If I'm reading the allegations in the complaint correctly, they're only requesting post-judgment interest.  Yet, the first paragraph in the settlement form says:

 

We would be happy to discuss the possibility of offering you a payment arrangement to resolve this matter, which could include freezing the interest rate on your account at 0% hereafter if you timely make all payments agreed to.

 

The settlement to which they're referring in the first paragraph of the settlement form is "prior to final disposition".   You settle before a judgment.  As a result, there would be no "post-judgment interest". 

 

In other words, in the settlement form, they're telling you that they might not charge interest if you make all the payments in a settlement (no judgment).   BUT, in the complaint, they're not requesting interest unless they get a judgment.

 

Does that make sense?

[saytar]

@saytar

 

 

Do some research on the above.   Under the FDCPA, a debt collector is allowed to do what the OC can do.  If the agreement between the consumer and the OC allow for interest, the debt collector can add interest.   In fact, unless your state laws say otherwise, the CA/JDB could add the rate of interest allowed by that agreement.

 

In your case, the plaintiff is only requesting the principle, reasonable attorney's fees, and POST-judgment interest.    But, that MIGHT be where you might have an overshadowing claim. 

 

If I'm reading the allegations in the complaint correctly, they're only requesting post-judgment interest.  Yet, the first paragraph in the settlement form says:

 

We would be happy to discuss the possibility of offering you a payment arrangement to resolve this matter, which could include freezing the interest rate on your account at 0% hereafter if you timely make all payments agreed to.

 

The settlement to which they're referring in the first paragraph of the settlement form is "prior to final disposition".   You settle before a judgment.  As a result, there would be no "post-judgment interest". 

 

In other words, in the settlement form, they're telling you that they might not charge interest if you make all the payments in a settlement (no judgment).   BUT, in the complaint, they're not requesting interest unless they get a judgment.

 

Does that make sense?

Yes...after reading it twice LOL.....Overshadowing, as (hand on gun, Clint Eastwood stare) pay us this or you get this (gun shoved to head)

 

So What there offering is basically a "Pre-Judgment" settlement...without benefit of Court monitoring or restrictions. Nice ploy to try and reset the SOL too....and avoid having to prove there claim in Court.

Not requesting interest unless they get a judgment, sounds as if don't have the agreement or can't prove that point.

 

Sounds like a win-win for them.........a lose-lose for me. I guess it never crosses their brains that if the debtor couldn't afford to pay in first place, and after they totally wreck the debtor's credit that debtor is  far less able to pay any settlement in the future. A True Oxymoron.

 

Thanks BV input appreciated.Always

[saytar]

Update..Sent copies of the Summons and my information over to my Attorney Friend in Norman. He's going to look it over and see if their is anything in their sending that form along with the Summons........He recognized the Attorney for CACH, has evidently butted heads with him before

 

Should know something on the FDCPA violation part in a day or two. If there is a good enough case and we can work out the "details" I'll turn him loose with it..

 

Either way I will continue on putting together my Answer and Start working on formating Interogatories and Admission's for Discovery. Those will probably come from them soon after the Answer is filed.

 

 

What kills me is CACH is reporting the Account in Dispute as of last nite (pulled file).....I'm thinking that reporting it in dispute ( I did DV them, all they returned was a pile of photocopied statements, nothing else ) and filing an Action at the same time is also a violation.....or really darn close......and why keep reporting it disputed if you have .(.cough, cough )...verified it?

 

FDCPA
§ 809. Validation of debts [15 USC 1692g]
( If the consumer notifies the debt collector in writing within the thirty-day period (I did) described in subsection (a) that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof,(I disputed it in it's entirety..) until the debt collector obtains verification of the debt or any copy of a judgment, or the name and address of the original creditor, and a copy of such verification (question is...does JUST a pile of photocopied receipts constitute verification under the FDCPA?) or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector.

 

I understand that the standards are low, but in that pile of statements there was nothing stating a definitive balance, that any balance on any particular statement was correct, or that the photo copies were supplied pursuant to my DV request.....I dug around package to even see WHO it was from. never found anything enclosed that claimed it was from them. I'm pretty sure I still have that package in the files.

 

Could this, along with a thinly veiled attempt at "overshadowing the least sophisticated debtor" be used? Or did they just barely cover their donkey's?

My thought is that its up in the air, depending on which side of what judge it fell.

 

Just curious.............any Opiniions?

[saytar]

What I got so Far......Answer to Complaint

 

 

 

 

ANSWER TO PETITION AND CROSS PETITION

 

COMES NOW Defendant, Broke Soul, pro se and makes appearance before the court and answers the complaint of the plaintiff, in this action as follows:

 

1. The Plaintiff, CACH LLC, here after known as CACH, has failed to provide any contract or agreement bearing the signature of the Defendant.

2. CACH has failed to provide a detailed accounting of the debts to the Defendant in the initial debt collection notice as require by the FDCPA and as evidenced by case law. Coppola v. Arrow Financial Services, 302CV577, 2002 WL 32173704(D.Conn., Oct. 29, 2002) – Information relating to the purchase of a bad debt is not proprietary or burdensome. Debtor must phrase their request clearly to obtain: The source of a debt and the amount a bad debt buyer paid for plaintiff’s alleged debt, how amount sought was calculated, where in issue a list of reports to credit bureaus, and documents conferring authority on defendant to collect debt.

3. That CACH has failed to provide any proof of a relationship between themselves and the alleged original creditor, specifically the authority of the plaintiff to collect the debt on behalf of the original creditor

 

RESPONSES TO ALLEGATIONS

As to Item One

The defendant has never done business with, CACH and the plaintiff is unknown to the Defendant. As no documentation, signed by defendant has been submitted with the plaintiff's Petition, Defendant is therefore without sufficient information or belief to admit or deny the allegations in this paragraph. Based on this lack of information or belief, defendant denies the allegations.

 

As to Item Two

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Item Three

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Item Four

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Item Five

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Plaintiffs Interrogatory or Information form:

Form received by Defendant with Service from the Plaintiff:

Hereafter known as Exhibit A, attached.

 

These questions and answers are not necessary or appropriate in this Cause of Action, but are rather a Post Judgment Remedy. They are arbitrary and an undue burden in this  Cause of Action. Therefore Defendant respectfully declines to answer these items at this time.

 

AFFIRMATIVE DEFENSES

LACK OF STANDING, REAL PARTY IN INTEREST

Defendant state that he has never done business with CACH and has no account or ever created an account with Plaintiff. As CACH has not established their claim or provided any legally valid documentation doing so, as is required by OK § 12-2017, when bringing an action in the Courts.  Wherein in accordance with OK § 12-2017, the plaintiff is not a party in interest and has no standing to bring suit against the Defendant in this matter, before this court.

UNCLEAN HANDS

CACH is a Junk Debt Buyer, whose Principal business model is to purchase debts "written off" as uncollectable by institutions, and applied to reduce that institution's tax liability by 100% of the amount claimed. These are then typically sold to other  collection parties at far less than face value as Junk Debt. The older the account the smaller percentage paid by the JDB or purchaser. Therefore, any alleged injury or damage the Plaintiff has sustained lies in their willful purchase of these type debts, any damages are the result of acts or omissions, knowingly committed by the plaintiff themselves, thus creating an inequitable claim of damage or injury,  seeking to receive a judgment in excess of actual damages is failing to seek justice in order to do justice, bars this action.

UNJUST ENRICHMENT

As previously stated CACH has failed to present proper evidence of the monies paid for purchase of the alleged defaulted account, therefore the full face value claimed  by the Plaintiff  is unsubstantiated in any part. Wherein any amounts they would recover by action of this court granting the unsubstantiated  amount claimed by the plaintiff petition would also constitute Unjust Enrichment.

EQUITABLE ESTOPPEL

CACH has neglected to provide the defendant and this Court any, verifiable accounting of the monies  spent by the plaintiff CACH in the purchase of the defendant's alleged defaulted account. Therefore without a true and accurate accounting of the cost of purchasing the alleged debt and comparison to the amount of monetary damage's claimed by CACH, they have not acted fairly by having made false representations or concealing material facts from the other party and the court, we maintain that Equitable Estoppel bars plaintiff's claim.

ACCORD AND SATISFACTION

Defendant alleges that as the a original creditor accepted payment from a third party for the alleged debt, or portion of the alleged debt, or that the  original creditor received other compensation in the form of monies and/or credit that there has been accord and satisfaction.

 

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counter Claims at a later date.

 

WHEREFORE, defendant requests judgment as follows:

That Plaintiff takes nothing by the complaint, which will be dismissed with prejudice.

That Defendant recover from Plaintiff any cost or relief as deemed appropriate by the Court.

[1stStep]

I would be very hesitant to cite out of state law on an OK court case - it's not binding...

 

 

If OK allows, I would see if you can do a general denial.

[saytar]

Ok, did a re-write........but according to State Statutes §12-2012

Defenses and objections - When and how presented - By pleading or motion.

B.  HOW PRESENTED.  Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross‑claim, or third‑party claim, shall be asserted in the responsive pleading thereto if one is required,(this is why I included affirmative defenses in prior draft) except that the following defenses may at the option of the pleader be made by motion:(hoping this allows affirmative defenses to be brought later on thru a regular motion or pleading)

 

1.  Lack of jurisdiction over the subject matter;

2.  Lack of jurisdiction over the person;

3.  Improper venue;

4.  Insufficiency of process;

5.  Insufficiency of service of process;

6.  Failure to state a claim upon which relief can be granted;

7.  Failure to join a party under Section 2019 of this title;

8.  Another action pending between the same parties for the same claim;

9.  Lack of capacity of a party to be sued; and

10.  Lack of capacity of a party to sue.

 

ANSWER TO PETITION AND MOTION TO DISMISS

 

COMES NOW Defendant, Dumb Broke, pro se and makes appearance before the court and answers the complaint of the plaintiff. The Plaintiff, CACH LLC, here after known as CACH, is unknown to the Defendant, that defendant has never entered into contract with CACH, therefore defendant issue's a general denial of plaintiff's claims as follows:

RESPONSES TO ALLEGATIONS

 

As to Item One

The defendant has never done business with, CACH and the plaintiff is unknown to the Defendant. As no documentation, signed by defendant has been submitted with the plaintiff's Petition, Defendant is therefore without sufficient information or belief to admit or deny the allegations in this paragraph. Based on this lack of information or belief, defendant denies the allegations.

 

As to Item Two

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Item Three

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Item Four

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Item Five

Same as paragraph One, Defendant is without sufficient information or belief to admit or deny the remaining allegations in this paragraph. Based on this lack of information or belief, defendant denies the remaining allegations.

 

As to Plaintiffs Interrogatory or Information form:

Form received by Defendant with Service from the Plaintiff:

Hereafter known as Exhibit A, attached.

These questions and answers are not necessary or appropriate in this Cause of Action, but are rather a Post Judgment Remedy. They are arbitrary and an undue burden in this  Cause of Action. Therefore Defendant respectfully declines to answer these items at this time.

 

AFFIRMATIVE DEFENSES

Defendant is without any information upon which to base any affirmative defenses in CACH claims, as plaintiff has failed to present information with their petition upon which to determine such defenses. CACH has failed to state a claim supported upon the evidence for which relief can be granted.

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counter Claims at a later date should more information be presented..

 

WHEREFORE, defendant requests judgment as follows: MOTION TO DISMISS

That Plaintiff takes nothing by the complaint, which will be dismissed with prejudice.

That Defendant recover from Plaintiff any cost or relief as deemed appropriate by the Court.

[1stStep]

Affirmative defenses become your burden to prove...meaning you have to prove every affirmative defense you assert.

 

The only thing I would consider using are "Lack of Standing to Sue." If you believe the debt is out of statute then use "Statute of Limitations Elapsed."

[saytar]

Ok filed the answer, just a general denial reserving the right to amend any defenses, etc at a later time if required. Now it is probably time to start work on Interogatories and admission's and wait for their response.

A tenatative date for a Court hearing is being set for Early December (Clerk will send official notice soon).

 

I am assuming that They will either dismiss the action or ask for a continuance and, I will be receiving their introgatories and admission's package soon. I am starting work on a rough draft of mine and should they send their's then I will shift mine around depending on how they present their's.

 

Don't think they were really intending to go to court since they included absolutely no documentation with the complaint. They were going for the "easy kill" SJ or bluff (read intimdation) to get the money. Now they have to make the decision on just how far they want to push.

 

Any suggestions on what to go for in admission's and interrog's welcome........And everyone have a good Turkey day and Merry,Merry Xmas!

[Anon Amos]

I would suggest you focus on RFP'S at this time rather than RFA and ROGS, or if not, to at least include the RFP's.

CACH has been known to fight pretty hard wether they include anything in the complaint or not.

[Seadragon]

ESI RFPD.zip

 

These can be tuned up for your state. Be careful as many states have specific language that has to be included with the request.

[saytar]

@Seadragon....Thanks for the rpd's, I'll look over them and the one's I'm working on.... So far no word from the other side, but they only got my reply Monday. Not sure whether to go ahead and send mine out or just wait.

A hearing is set for 2nd week in December. Expect to get some from them soon.

[Seadragon]

I think then you should also ask for the forward flow purchase agreement. We are having a discussion about that very document.

[saytar]

Ok hearing's been pushed out to Jan14th. CACH attorney replied to my answer and motion to dismiss, very nice 2 pages of baffle them Bravo Sierra, but it did flush them out on some documentation.........

 

You know the computer printout, the bogus affidavit, a copy of a CC billing statement, and bogus Bill of Sale documents.

 

Now it appears time to go for more discovery. Will be asking for FF agreement among other things. Also I am planning on issuing a subpoena for the affidavit signer and possibly the FF agreement, directly from CACH home office if possible.

 

First need to find out the "keeper of the records" (a Brian Sewall - from Syncrony Bank formerly GE Capital Retail Bank) address or legal service address and the appropriate address for the FF service (as I don't think they are going to cough this up willingly). I am thinking that they can be served by Certified Mail, if not I will need to find a cheap process server in MN and one for CACH's service address.....finding these could be difficult.

Any assistance on this would be of great help.

 

The documents received are viewable at: 

CACH_ReplytoAnswer-Redacted.pdf

Edited December 5, 2014 by saytar