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Need Help! Being sued by Cavalry/Winn Law group


wenhen
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I was served on Sunday from the Winn Law group.  It is for a Best Buy/HSBC account I had.  I believe the SOL run in June of this year based on the charge off date on my credit report.  Below is a copy of the complaint.  I need help with how to answer and what defenses I should use.  ANy advice is appreciated!  Also, is there a form I can use to answer?  Thank you!

 

 

prian l-rl, Winn (State Bar No. 86779)
la3r1M.Hoalst (State Bar No. 101082)
J^ol*. E 9orlql (State Bar No. iS0053i
Stephen_S. Zeller (State Bar No" 265664)
!1sey_M. Je_nsen (State Bar No. 263593i
Wim Law Group, A Professional Corporation
I 10 E Wilshire Ave Ste 212
Fullerton CA 92832
Telephone: (7 14) 446-6686
Fax No.: (714) 446-6680
File No: I 4-08462-0-CVI-DZ- (1 9 1 0-00)
Attoneys for Plaintiff

caseNo.

"Limited Liability Case"
COMPLAINT FOR ACCOLN{T STATED;
MONEY LENT

DEMAND AMOUNT: $7,xxx.xx




SUPERIOR COURT OF CALIFORNIA
_______COUNTY,

CALVARY SPV i, LLC, as assignee of
CAPITAL ONE, N.A.,

Plaintiff.

VS.

XXXXXX
DOES 1 to 10, Inclusive,

Defendant

Plaintiff, CAVALRY SPV I, LLC, as assignee of CAPITAL ONE, N.A., Successor in
Interest to the original creditor HSBC BANK NEVADA, N.A., as issuer of the BEST BUy CO.,
INC' credit card account, complains of Defendants, and each of them, singularly and collectively,
that:

1  The true names and capacities of Defendants herein sued by the fictitious names as
DOES 1 to 10, Inclusive, are unknown to Plaintiff, who therefore sues those Defendants under,
pursuant to, and in accordance with the provisions of Section 474 of the Code of Civil procedure.
Plaintiff will ask leave of court to amend this complaint as and when the true names and
capacities of Defendants named herein as DOES i to 1O have been ascertained.
2. At all times herein mentioned, Defendants, and each of therm, were the agents, servants
and employees of each other and every remaining Defendant, and in doing the things alleged,
were acting in the course and scope of said authority of such agents, servants, and employees.
3. Plaintiff is now and was at all times herein mentioned a limited liability company,
authorized to do business in the State of California.
4. Plaintiff is informed and believes and thereon alleges that Defendant XXX AKA XXXX is an individual who resides in the City of XXX,
County of XXX, State of California.
" 5. Plaintiff is informed and believes and thereon alleges that Defendant XXX AKA XXXX is an individual who resides in the City of XXX,
County of XXX, State of California.
6. Before commencement of this action, in those cases where recovery of costs is
dependent on such notices, Plaintiff informed the Defendant(s) in writing that it intended to file
this action and that this action would result in a judgment against Defendant(s) that would include
court costs and necessary disbursements allowed by C.C,P. $ 1033(bX2).

FIRST CAUSE OF ACTION
Account Stated

(Against A11 Defendants)
7. Plaintiff repeats and repleads and incorporates by reference the allegations made in
Paragraph.s 1 through 5 of this complaint.
8. On November 30, 2011, defendants were indebted to the original creditor, HSBC BANK
NEVADA, N.A., as issuer of the BEST BUY CO., INC. credit card account in the sum of
$7,830.04 on an account stated in writing. This account issued by original creditor, HSBC BANK
NEVADA, N.A., as issuer of the BEST BUY CO., INC. credit card, was subsequently assigned to
CAPITAL ONE, N.A., as Successor in Interest, and was for credit card purchases and/or cash
advances. Defendant was billed monthly and failed to dispute as required under the Federal Fair
Billing Act applicable to such account (15 USC $ 1666 et seq.)

Page2

COMPLAINT FOR COMMON COUNTS



9. HSBC BANK NEVADA, N.A., as issuer of the BEST BUY CO., INC. credit card, sent
defendant monthly billing statements showing purchases, payments and balance owed, on each
billing statement.
10. Prior to filing this complaint, all right, title and interest in the account which is the
subject of this lawsuit, was sold and assigned by CAPITAL ONE, N.A., as Successor in Interest to
HSBC BANK NEVADA, N.A. as issuer of the BEST BUY CO., INC. credit card account, to
CAVALRY SPV i, LLC.
" 11. This Obligation is based on a BEST BUY CO., INC. credit card account that was issued
by HSBC BANK NEVADA, N.A. Therefore, HSBC BANK NEVADA, N.A. is the creditor to
whom the obligation was owed originally prior to the assignment of the debt to Plaintiff,

i2. Plaintiff made demand on defendants for payment of that sum, but no part of that sum
has been paid to plaintiff, and the entire amount is now due and unpaid.
13, The payoff on this account as of November 30, 2011 is $7,xxx.xx.

SECOND CAUSE OF ACTION
Money Lent
(Against All Defendants)
14. Plaintiff repeats and repleads and incorporates by reference the allegations made in
Paragraphs 1 through 12 of this complaint.
15. Within the last four years, Defendant became indebted to the original creditor, HSBC
BANK NEVADA, N.A., as issuer of the BEST BUY CO., INC. credit card account in the sum of
$7,830.04 for money lent to or paid out for the benefit of Defendant at his/her request, based on
Defendant's use and benefit of his/her account. This HSBC BANK NEVADA, N.A., as issuer of
the BEST BUY CO., INC. credit card account was subsequently assigned to CAPITAL ONE,
N.A., as Successor in Interest. Thereafter, the account was assigned by CAPITAL ONE, N,A., as
Successor in Interest, to Plaintiff.
16. Neither the whole nor any part of the above sum has been paid, although payment has

Page 3



been demanded, leaving a balance due, owing and unpaid to Plaintiff in the Principal amount of
$7,xxx.xx, and costs of suit,
WHEREFORE, plaintiff prays for judgment against defendants, and each of them, jointly
and severally, as follows:

FOR THE FIRST CAUSE OF ACTION
(1) Principal of damages in the sum $7,xxx.xx;
' (2) Costs of Suit and;
(3) Such other relief as the Court may deem just and proper.

FOR THE SECOND CAUSE OF ACTION

(1) Principal of damages in the sum $7,xxx.xx;
(2) Costs of Suit and;
(3) Such other relief as the Court may deem just and proper.

Winn Law Group, A P.C.

Dated: October 10,2014

[ ] Stephen S. Zeller
fol Casey M. Jensen
Attorney for Plaintiff

Pase 4

COMPLAINT FOR COMMON COUNTS

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I have the exact same scenario….was served a few weeks ago…. In fact same attorney in same law grp. I am still very new, tho I have the advantage of having a friend go thru this last year and got a dismissal. I learned a bit and am borrowing their computer so lots of access to old bookmarks! 

 

The very first thing you have to do is answer the summons. You have 30 days (check on first page to verify that). Most likely the complaint is not verified so you can file a general denial  which is form PLD - 050.  I would not put affirmative defenses since they become yours to prove. Apparently the plaintiff has to prove lack of standing anyway and that would be the only one you may want to use, but not necessary. 

 

Also  write…Defendant prays this case be dismissed with prejudice along with any further relief the Court deems just and Proper.

 

One more thing you may want to write but I do not have the exact wording (I haven't filed mine yet either) Is….Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date. Please double-check this…there is someone on the site I'm sure that has exact wording. Maybe someone else on the forum can verify.

 

Also you need to file a Proof of Service (POS) POS - 030  or POS 040…(have someone not related to case fill out the form)

 

Send the answer with the POS to the plaintiff and make sure to send it Certified Mail Return Receipt. 

 

Lastly…you CAN do this..I promise. Lots of reading cases on this site, as well as Court Rules etc...You will have to devote a portion of your life to this for a while. But you can beat it..my friend did and I feel confident too.

 

Not to load you up but the next thing on your plate will be sending a Bill of Particulars (BOP) very easy. File the answer first tho. Then go right to the BOP. Come back for more info…many helpful people here. I will do what I can but as I said ..I am new to this too. Just make sure to double-check every detail….if you're not sure ask questions so it's clear in your head. You need to help yourself too by researching and looking up answers to your questions..it's school all over again. hahaha

 

You've come to right place!!! Good Luck….

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I have the exact same scenario….was served a few weeks ago…. In fact same attorney in same law grp. I am still very new, tho I have the advantage of having a friend go thru this last year and got a dismissal. I learned a bit and am borrowing their computer so lots of access to old bookmarks! 

 

The very first thing you have to do is answer the summons. You have 30 days (check on first page to verify that). Most likely the complaint is not verified so you can file a general denial  which is form PLD - 050.  I would not put affirmative defenses since they become yours to prove. Apparently the plaintiff has to prove lack of standing anyway and that would be the only one you may want to use, but not necessary. 

 

Also  write…Defendant prays this case be dismissed with prejudice along with any further relief the Court deems just and Proper.

 

One more thing you may want to write but I do not have the exact wording (I haven't filed mine yet either) Is….Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date. Please double-check this…there is someone on the site I'm sure that has exact wording. Maybe someone else on the forum can verify.

 

Also you need to file a Proof of Service (POS) POS - 030  or POS 040…(have someone not related to case fill out the form)

 

Send the answer with the POS to the plaintiff and make sure to send it Certified Mail Return Receipt. 

 

Lastly…you CAN do this..I promise. Lots of reading cases on this site, as well as Court Rules etc...You will have to devote a portion of your life to this for a while. But you can beat it..my friend did and I feel confident too.

 

Not to load you up but the next thing on your plate will be sending a Bill of Particulars (BOP) very easy. File the answer first tho. Then go right to the BOP. Come back for more info…many helpful people here. I will do what I can but as I said ..I am new to this too. Just make sure to double-check every detail….if you're not sure ask questions so it's clear in your head. You need to help yourself too by researching and looking up answers to your questions..it's school all over again. hahaha

 

You've come to right place!!! Good Luck….

 

Thank you so much for the response.  DO you know if your friend got a dismissal right away from the answer they filed?  I spent all night reading and searching on google and I feel like it is hopeless.  I feel like I should hire an attorney?  ugh! 

 

I just don't know where to start.  I see "file and answer"  "do a general denial" "file specific denials or lose the right to do so later"  "ask for arbitration" I don't know how to proceed and I feel very stressed about it

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@wenhen when was the last payment on this account?

 

I can't be totally sure but the account was closed and charged off in June 2010.  My bank, Chase, has online statements but the problem is that I would sometimes make payments as a check by phone and so the statements don't show the checks past 2 years.  I am sure I can request them from Chase but I don't think I have time before I need to respond.  I do know that I never paid anything to Calvary

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Just noticed the date on the bottom of your complaint...Oct 10, 2014. Have you past your 30 days to respond or did it take Winn that long to serve you? If so your options are more limited, but not impossible.

 

 

They served me on Sunday night at my home.  Nov 16th.  I think it just took some time from the attorneys office to the courthouse and then to me.  So I should be within the 30 days without an issue. 

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As far as "rounding" your number is just simply to keep things a little vague. I've heard that sometimes these collection attn'ys troll the sites to get info.

As far as getting a dismissal it takes time and no it won't happen right away. In my friend's case after the answer was filed, a Bill of particulars was sent, a couple of meet and confer letters, then a Motion to Compel. the judge denied the motion even tho the plaintiff didn't show up. But the judge did suggest sending Discovery which was the next thing. The plaintiff didn't answer so another Motion to Compel. After that the plaintiff dismissed before the Motion hearing.

Shellieh98 has a good question - when was the last payment made. Was it over 4 years ago? If so that is your affirmative defense.

You can do this but you need to take it a step at a time. it's completely doable.

So the date on complaint says Oct 10, 2014... Did it take that long for them to serve you?

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I am not sure exactly on the last payment.  see above 

 

The complaint was

signed by the attorney on Oct. 10, 2014

Filed with Court Oct. 28, 2014

I was served Nov, 16, 2014

 

They are suing you as well?  In CA?

 

Thanks for helping!!

Yes they are! Same everything ....I will answer on Monday and start studying. You should look up your case online and check your first hearing date. Mine is in 2017!!! But still you must answer within 30 days. Is the Nov 16 date stamped anywhere on the summons? I' m going by the stamped date on my summons which is earlier than they really served me. Just to be safe.

Don't worry...you can do this.

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Yes they are! Same everything ....I will answer on Monday and start studying. You should look up your case online and check your first hearing date. Mine is in 2017!!! But still you must answer within 30 days. Is the Nov 16 date stamped anywhere on the summons? I' m going by the stamped date on my summons which is earlier than they really served me. Just to be safe.

Don't worry...you can do this.

 

I Don't have access to my courthouse website from home because I use a MAC and the courthouse is only accessible with Internet Explorer.  I don't have anything that has a time stamp.  The process server just handed them to me and walked away.  I guess I will call the courthouse to be sure the right date is noted on the case.

 

So you already have a hearing date? Right out the gate?  Are you filing a general denial or specific answers?  What is your plan of attack?

 

Thanks again!

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Does anyone know if I can file something to have my husband removed from the lawsuit?  He was never on this account, not even as an authorized user.  I know CA is a community property state but from researching I see that they can include your spouse if the purchases were for "necessaries" 

I am assuming they have included him because he is employed and I am not so they would be able to garnish his wages if it came to that.

Thanks

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Does anyone know if I can file something to have my husband removed from the lawsuit?  He was never on this account, not even as an authorized user.  I know CA is a community property state but from researching I see that they can include your spouse if the purchases were for "necessaries" 

I am assuming they have included him because he is employed and I am not so they would be able to garnish his wages if it came to that.

Thanks

 

 

I would think so ..hopefully someone else from the forum can chime in on this…..

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I Don't have access to my courthouse website from home because I use a MAC and the courthouse is only accessible with Internet Explorer.  I don't have anything that has a time stamp.  The process server just handed them to me and walked away.  I guess I will call the courthouse to be sure the right date is noted on the case.

 

So you already have a hearing date? Right out the gate?  Are you filing a general denial or specific answers?  What is your plan of attack?

 

Thanks again!

My summons has a Court Stamped date on the upper right corner  and another stamped date towards the bottom with a name I'm assuming is the process server. It's stamped near the "Notice to the person served" box. That date matches the upper right date but that is not the day I was served. I am using that date tho…don't trust that they won't.

 

I'm assuming that's my hearing….something is scheduled for 2017!…gonna have to look into it further...I thought I saw one other poster say the same thing. The Courts must be jammed with all the debt cases. 

 

I'm not sure yet how to proceed. I will file a General Denial. (make sure your complaint is not verified..most are not) In my case I won't use any affirmative defenses.  Statute of Limitations may be a consideration for you. In my summons they actually list a last payment date and as far as I know it's correct. Check that and make sure it's accurate.

 

Tho I'm not using any affirmative defenses I am checking box 2 and putting ASTMedics (thread you must read) language: 

 

1. Defendant denies every allegations made by the Plaintiff in the Complaint.

 

2. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later time.

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They served me on Sunday night at my home.  Nov 16th.  I think it just took some time from the attorneys office to the courthouse and then to me.  So I should be within the 30 days without an issue. 

 

mark this date on your calendar. you have 30 calendars days to file and response to the complaint.

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the complaint is not verified, so a general denial will do. On my answer i would include some affirmative  defenses like: lack of standing to sue; lack of privity; and Statute of Limitations. thought, California SOL for written contracts is 4 years , some credit cards observe Delaware SOL which is only 3 years.

 

I don't think that contacting the original creditor to find out when you made the last payment will help much, since you will probably be routed to the JDB. maybe on your credit report, see if you can get one for free and check there.

 

send out a Bill of Particular (BOP). they may object to the BOP request due to the Account Stated theory, but because of the money lent cause of action they should respond to that request with all the documents that they have.

 

BOP should be in pleading paper:

 

 

 

BOP Sample:

 

 

NAME

STREET ADDRESS

CITY/STATE/ZIP

Tel:

Fax:

 

IN Propria Persona

 

 

 

 

 

 

 

SUPERIOR COURT OF THE STATE OF CALIFORNIA

 

COUNTY OF XXXXXXX

 

CENTRAL JUSTICE CENTER

 

 

 

 

NAME OF PLAINTIFF,

 

                        Plaintiff,

 

            vs.

 

 

NAME OF DEFENDANT,

 

                        Defendants.

 

Case No.:

 

BILL OF PARTICULARS/COPY OF ACCOUNT PURSUANT TO CCP §454

 

Dept:

 

Hon. <judges Name

 

Response due 10 days after receipt to prevent preclusion of the giving of evidence

 

DEMAND FOR BILL OF PARTICULARS

            To PLAINTIFF________ and [its/their] attorneys of record herein:
            DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account.
D
ated:: 04/21/13

 

By:      __________________________________   TYPED  NAME,  In Propria Persona

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