Cavalry SPV in Florida

[jman2020]

1. Who is the named plaintiff in the suit?  Cavalry SPV I LLC

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

3. How much are you being sued for? $1,691.82 + "post-judgement interest at the maximum rate allowed by law + all such other and furhter relief to which Plaintiff may be justly entitled."

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

5. How do you know you are being sued? (You were served, right?) Personally served a Summons  to Appear for Mediation Conference

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

7. Was the service legal as required by your state? Seems so, yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Quite honestly, I have never heard of Calvalry before this notice to appear for Mediation Conferences

9. What state and county do you live in? Florida, Lake County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) June 30, 2011

11. What is the SOL on the debt? To find out: Four or Five years, seems that SOL isn't applicable

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Waiting to attend a Mediation Conference.

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? In their complaint they are listing Account Stated and Unjust Enrichment

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

They have attached two papers titled as Assignment and Bill of Sale. The first one lists that HSBC Bank Nevada, N.A. is selling Calvary SPV I, LLC, a number of Accounts, however none of my account's information is listed, and this page only has one signature from David Naumen, Senior VP. The second page lists that HSBC Recieveable Acquisition Company I, II, and IV, is selling Cavalry SPV I, LLC a number of "Recievables". What "Recievables" is, isn't mentioned and the page is signed by David Nauman again twice.

 

A third page with some information such as the date that Calvary bought it, the account number and the amount on the account, and my name are on it.

 

The fourth and fifth page confuse me however. It seems to be account information directly from the bank. It has the bank's headers and information about interest and various details about the account on it, but nowhere does it state that the account was sold to Calvalry SPV I.

 

I've been doing as much research and reading on the internet, and it seems that they haven't truly proved that they bought MY account. I think they proved they bought a NUMBER of accounts, but sending me a page with a few bits of personal information doesn't count as ownership, correct?

 

This is of course going to go into a small claims court in Florida, and I don't believe that I need to write and file an Answer just yet. Is this correct?

 

I would also like to mention that I am a single parent with a child, and a mother on disability who has difficulty maintaining her house (making her bed, etc.) so even if the JDB has a claim, could the court possibly throw out the case due to my inability to pay?

 

Thank you for your time.

[jman2020]

Something else I forgot to add,

I read recently that a few cases were hit with "robo-signing."

However, no one really explains this too well. How am I to know whether or not to argue the legitamacy of a signature?

[LawKitty]

Inability to pay is not a defense in Florida.  You may be what they call "Judgment or Collection proof" in that they won't get anything from you even if they do get a judgment.  Generally if you keep any money in a bank account, they will just take it through levy after a judgment because that's the easiest thing to do.  You would probably have exemptions if it got to that point, but this can be fought and possibly won. 

 

From what you've said, they do not appear to have proven their case as far as they owning YOUR debt with the paperwork they filed.  You are in small claims court so no answer is needed at this time. 

 

What they will try to do is get you to agree to a stipulated payment plan or a consent to judgment (if you can't make ANY payments).  Mediation is just a conference between you, the plaintiff's attorney and a neutral mediator.  The plaintiff's attorney will generally only be able to authorize payment plans on the full balance or a settlement of a certain percentage if you can pay a lump sum.  If you want to fight the lawsuit (which I would recommend), then don't agree to a stipulated payment plan, don't consent to judgment, and don't even acknowledge you owe the debt or owe Cavalry anything.  They have to prove their case, so don't make it easy for them.  

 

Tell the judge you are contesting it and want to set a trial date (as far as out as possible, because you need to do some discovery).  You aren't sure this is your debt or that you owe it, or the amount is correct, etc.  You lose nothing by fighting this.

[jman2020]

Thanks for the response LawKitty.

 

Our Mediation is scheduled for the next Wednesday, so I will go in and just ask for a trial date immediately. I've read that a number of these attorney's really only make money if they actually collect, and that many of them weren't counting on entering court, and with the scant information I've found, this particular firm seems to prefer to settle.

[blackomega]

jman2020, I seem to remember HSBC having Virginia Choice of law in their agreements. If so that should make the SOL 3 yrs.Depends on what the card agreement said from 2011. I can look and see if I can find that. If I am right (which I believe I am) then the sol would have expired 6/2014 from what you wrote.

[blackomega]

HSBC issued a bunch of cards but all seem to have the choice of law below. Law kitty I am sure can advise if I am on the mark or not but I believe I am. Note I am NOT a lawyer but this is how I understand it.

 

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 Virginia, whether or not you live in Virginia and whether or not your Account is used outside Virginia. This

Agreement is entered into in Virginia, your Account is maintained in Virginia, and all credit under this Agreement will be

extended from Virginia.

 

I found this in the CFPB (Consumer Finance Protection Bureau) website archives. I downloaded the Quarter 4 2011 archive. There is a CSV of the agreements included then you extract the right one.

 

As for Florida using Choice of law from another state, here is how I understand it, and law kitty may be able to confirm:

 

Florida courts will treat choice of law provisions as substantive law:

 

"Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision." Gaisser v. Portfolio Recovery Associates, LLC, 571 F. Supp. 2d 1273 - Dist. Court, SD Florida 2008. "In Florida, a choice of law provision of a contract is presumptively valid unless the party seeking to avoid it shows that application of the chosen law 'contravenes [a] strong public policy' of Florida." Mazzoni Farms, Inc. v. E.I. Du-Pont De Nemours and Co., 761 So.2d 306, 311 (Fla.2000) "We therefore conclude that the contractual provision shortening the period of time for filing a suit was not contrary to a strong public policy." Burroughs Corp. v. Suntogs of Miami, Inc., 472 So. 2d 1166 - Fla: Supreme Court 1985. 

 

Florida also includes choice of law in the Florida Statutes, specifically statute 671.105(1) 2012.

 

I have seen this successfully used in the following cases:

 

L.W.T., Inc. v. McCorriston, 15 Fla L. Weekly Supp. 443a (Fla. 13th Jud. Cir. November 19, 2007) 

 

Gaisser v. Portfolio Recovery Associates, 2008 WL3824746 (S.D. Fla. August 5, 2008)

 

L.W.T v. Brodsky Fla.Cir.Ct.,2006

 

Capital One Bank v. Pincus 

 

Capital One Bank v. Gregorich. 

 

Hope all this helps!

[debtzapper]

Inability to pay is not a defense in Florida.  You may be what they call "Judgment or Collection proof" in that they won't get anything from you even if they do get a judgment.  Generally if you keep any money in a bank account, they will just take it through levy after a judgment because that's the easiest thing to do.  You would probably have exemptions if it got to that point, but this can be fought and possibly won. 

 

From what you've said, they do not appear to have proven their case as far as they owning YOUR debt with the paperwork they filed.  You are in small claims court so no answer is needed at this time. 

 

What they will try to do is get you to agree to a stipulated payment plan or a consent to judgment (if you can't make ANY payments).  Mediation is just a conference between you, the plaintiff's attorney and a neutral mediator.  The plaintiff's attorney will generally only be able to authorize payment plans on the full balance or a settlement of a certain percentage if you can pay a lump sum.  If you want to fight the lawsuit (which I would recommend), then don't agree to a stipulated payment plan, don't consent to judgment, and don't even acknowledge you owe the debt or owe Cavalry anything.  They have to prove their case, so don't make it easy for them.  

 

Tell the judge you are contesting it and want to set a trial date (as far as out as possible, because you need to do some discovery).  You aren't sure this is your debt or that you owe it, or the amount is correct, etc.  You lose nothing by fighting this.

 

@LawKitty

 

Thank you for your timely response to the OP.  It is very much appreciated.

[jman2020]

Hey guys, had that pretrial conference yesterday.

 

The conference was scheduled for about 9 am so I arrived at about 8:40 just in case the other side showed up early.

Well they didnt, and even showed up about 6 minutes late, once they arrived the mediator called us into a back room where the attorney told us how much she was wanting (which was a different amount than was on the complaint, she was asking for more) and asked things like if I was married, had a job and asked if I was familiar with this debt.

 

I told her I was not familiar with it, and then told both the mediator and the atorrney that I do not believe they own anything and am ready to set up a trial date.

Both of them looked a little surprised with this, and then the mediator said that is all they needed, and will let us know when a date for a conference can be set up. That was pretty much the end of that waste of time.

 

I should mention that the attorney was a third-party person to boot (not even the attorney listed on the complaint, doesn't even work in their firm). While they are setting up some dates, I'm thinking of writing up requests to strike all of their evidence papers that were attached to the complaint. I believe its also worth noting that they haven't provided a signed contract.

 

Speaking of, thanks blackomega for your posts. I read those cases, and even though no one has a copy of our contract, I plan on using the lack of said contract as a reason why no possible terms on it can be enforceable.

[Clydesmom]

One thing that has not been mentioned is FL law requires that you be notified 30 days in advance if the debt is to be sold.  If that wasn't done it is a violation and some have gotten dismissals based on this lapse in compliance with the law.

[debtzapper]

@jman2020

Read all of @LawKitty's posts. She gives excellent advice there.

[blackomega]

Jman2020, I strongly believe that your debt is outside of SOL based on virginia law being the choice of law in all the HSBC card agreements I can find. I would seriously consider locating and calling a NACA (National Association of Consumer Advocates) attorney. If I am right, which I believe I am, they most likely (never guaranteed) will take the case on contingency since suing on an out of statute debt is an FDCPA violation (not to menation FCCPA).

 

We personally have used Scott D. Owens in the past and he eats these guys alive and may even file a class action against them. All depends on your particular situation. I am not saying to call him and no one else but more so telling you to contact ANY NACA attorney, If nothing else the usually free consultation will help you get your bearings. Lack of contract is not necessarily a case killer as they usually can and will get one before any trial.

[LawKitty]

I see that they are suing on Account Stated and Unjust Enrichment.  The Judge in my area immediately throws out the Unjust Enrichment claim because that is a cause of action based on a quasi-contract or implied contract.  In other words it is a cause of action that is used when there is actually no written (or "express") contract.  Account Stated is not based on an implied contract because the creditor usually states that you requested an account, there was an agreement, they sent you statements of the account, and you did not dispute them.  A contract is either implied or express.  It cannot be both.  The creditors basically sue on different causes of action in hopes that one will be the right one.  But since the contract has to be either implied or express, this Judge always throws out the Unjust Enrichment cause of action.  That might be something you can use.  Account Stated is the big one most creditors use here in Florida, it seems.  The fact that the 'fill-in' attorney stated a different amount than what is in the complaint could be helpful.  If they have a different amount on the complaint than on the supporting documentation or the statements, then it could reasonably be argued that there cannot be an agreement (or meeting of the minds) on a sum certain when the creditor is showing different amounts that are due.  Which one is the right amount?  Which one is the one you allegedly agreed with, etc.?  That is, of course, if you even get to that point.  I'd attack the assignment, lack of notice of assignment at least 30 days before filing suit, most likely lack of filing cost bond (unless they are a Florida company).  File a motion to dismiss on these points.

[debtzapper]

@LawKitty

Thank you for that detailed explanation of FL contract law, and for your excellent advice.