Bobcat

Being sued by Cavalry SPV I in Florida

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On March 28, 2015, Cavalry SPV filed a suit against me according to the Clerk of the Court's records. A pre-trial hearing set for 30 days after the papers were filed. We're on day 18 now and still have not been served. (For the first 12 days after the suit was filed, we were on "stay-cation" and spent all day/every day working in the yard. We were easy to find!) Last night, we were out when a process server taped a business card to our door. I have not yet called this person back...wanted some advice first. From reading many of the posts on the forum, I think we may grounds to have the case dismissed.  But still not being served just 12 days before our hearing, I'm getting concerned we won't have time to prepare ourselves properly. Can anyone help us get started? I would be very grateful!

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I should also mention that the credit card agreement lists Utah as Applicable Law. Am I correct that unsecured (credit card) debt has a 4 year SOL in Utah? The fourth anniversary of my last payment on that account is 22 days away or 10 days after the scheduled pre-trial hearing. That hearing is just 12 days away, but I still have not been served papers. I'm just going on what the Clerk of the Court has posted online. What actions should I take (or not take) at this time?    

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How do you know you're being sued if you haven't been served?  Also, the Statute of Limitatios on Time-Barred Debt goes by where YOU live, not where the creditor or plaintiff is located.  I was served but the Plaintiff failed to file Proof of Service to the Court until well after the 20 days I had to respond had passed.  I filed my response anyway because in New Mexico at least, their failure to file the Proof of Service in a timely fashion is not technically illegal to the best of the research I can find.

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I was sued less than a month away from the 4 year time limit for New Mexico; that's legal.  However, they have not been able to provide admissible proof of their alleged Last Payment Date so far in Discovery, nor have they been able to provide an original Credit Card Agreement signed by me.  My pre-trial hearing for failure on their part to produce documents is Monday.  I have been successful in getting a different case from last year Dismissed with Prejudice but you have to stay on top of it and be pro-active!

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I only know that they filed suit because I started getting letters from attorneys saying a case had been filed and they wanted to represent me. I've found the case on the Clerk of the Court's website and have been monitoring it closely. I thought (or perhaps I misunderstood) that SOL is determined by the state designated under Applicable Law in the credit card disclosure...in this case Utah.  

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@Bobcat

 

It appears that in Florida, a lawsuit commences when the action is filed with the court.  That filing would stop (toll) the SOL.

 

RULE 1.050.  WHEN ACTION COMMENCED

Every action of a civil nature shall be deemed commenced when the complaint or petition is filed except that ancillary proceedings shall be deemed commenced when the writ is issued or the pleading setting forth the claim of the party initiating the action is filed.

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I'm hoping someone can offer guidance here. Our hearing is scheduled for April 28. What little we know about the case is from the Clerk of the Court's website. A process server came to the house last evening to serve papers, but we were not at home. She left a card. Since we are getting concerned that we still do not have the papers for this case yet and need time to prepare, we called the process server back last night to arrange to get the papers. Unfortunately, she said she was leaving town and won't return until the night before our hearing. She said she would ask a colleague to stop by before then, but made no promises. Don't we have a right in Florida to prepare for a hearing? I called the Clerk of the Courts office and they said as long as their computer system shows the paperwork was served at the time of the hearing, we expected to appear and to be prepared to present our case. Please, can any help us???    

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"© Notice. Reasonable notice shall be given for a case management conference, and 20 days notice shall be given for a pretrial conference." So, am I reading this correctly? I should have a right to have 20 days notice?

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@Bobcat

 

 

"© Notice. Reasonable notice shall be given for a case management conference, and 20 days notice shall be given for a pretrial conference." So, am I reading this correctly? I should have a right to have 20 days notice?

 

 

That's what the rule says.  I know you haven't been served.  You also never received notice for pretrial? 

 

Hopefully, @LawKitty will respond.

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I was served last night and have a "pre-trial conference" in five days. My wife spoke with the clerk of the court's office yesterday and they suggested calling the office of the judge for this case to find out if we could reschedule. The assistant said no. The paperwork says we should be prepared to explain the nature of our dispute. We're not sure where to begin. I've seen a questionnaire on this site that others have completed after being served. Is there a link for that?

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Sorry I didn't get back sooner.  I was out of town last week because we had a death in the family.  Judging by the date of your posting, your pre-trial is tomorrow.  All they will do at pre-trial is try to get you into a stipulated payment agreement or consent to a judgment.  They may require you to go into mediation at that time to try and work with the creditor's attorney (who will most likely be a fill-in and have limited authorization).  Since I haven't looked at what they sent you or what they are suing you for, it will be difficult to advise you fully.  Did Cavalry send you a notice that the debt was assigned to them at least 30 days prior to filing the suit?  Did they allege in the complaint that they did this?  If you want to fight the suit, then do not agree to a consent for judgment or to a stipulation.  Tell the Judge that you deny the debt, deny that the plaintiff has standing to sue or has proven that you owe them anything.  Don't go into detail as this is not the time to present your case.  Just ask for a trial date and state that you may wish to do discovery.  

 

If they filed suit before the governing law SOL, then you cannot use SOL for an affirmative defense, unless there is a question as to when the SOL began and there is a possibility that they are outside the SOL.  Once they filed suit, it tolls the SOL.  There may be other affirmative defenses, but I would have to see everything they sent you

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@LawKitty

 

I'm so sorry for your loss.

 

We know that you're busy and can't visit on a regular basis, but we appreciate the fact that you visit whenever you can and offer valuable insight and information.  (We know you can't offer "advice")  :-)  Thank you!

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My condolences, Law Kitty, for your loss. I greatly appreciate your insight and guidance in this matter. I've been reading your posts to others on this forum and they have been very helpful for me to better understand the strengths and weaknesses of my case. BV80 sent me a link to the lawsuit questionnaire last week (thank you, BV80), but I decided against posting my answers out of concern that I could be tipping my hand to the plaintiff's attorney.

 

This website has been so helpful and taught me a great deal. Still, the idea for facing a judge and an experienced attorney in court is intimidating. Late Friday afternoon, I called the attorney whose solicitation letter had first alerted me that a case had been filed against me. I took him up on his offer of a free consultation by phone. It turns out, he has a lot of experience defending people against junk debt collectors and Cavalry, in particular. He was hired at 5 pm Friday. First thing Monday morning, he released an avalanche of motions, notices, and other legal documents to the court and opposing counsel. About an hour later, Cavalry decided it would be prudent to dismiss the case without prejudice and agreed to pay my attorney's fees. Amazing!

 

The lessons learned from this experience are these: Just because you may have an old debt lingering around in your past, don't assume the lawyer who filed the suit has a solid case. Or that you owe his client anything. In my case, the suit was quite flawed. The original creditor was misidentified, the final credit card statement showed a zero balance due, and the junk debt Bill of Sale wasn't worth the paper it was printed on. There many more flaws, but those were the big ones. The plaintiff's attorney is hoping you 'll panic at the thought of going to court, that you will be uninformed, or that you can be intimidated into handing over money just because they demanded it. Read everything you can about junk debt creditors, reach out to others on forums like this one to better understand the merits of the case against you, and don't be afraid to take an attorney up on an offer of a free consultation.

 

Finally, I would like to post the name of the attorney who helped me. Is that permitted on this site?

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My condolences, Law Kitty, for your loss. I greatly appreciate your insight and guidance in this matter. I've been reading your posts to others on this forum and they have been very helpful for me to better understand the strengths and weaknesses of my case. BV80 sent me a link to the lawsuit questionnaire last week (thank you, BV80), but I decided against posting my answers out of concern that I could be tipping my hand to the plaintiff's attorney.

 

This website has been so helpful and taught me a great deal. Still, the idea for facing a judge and an experienced attorney in court is intimidating. Late Friday afternoon, I called the attorney whose solicitation letter had first alerted me that a case had been filed against me. I took him up on his offer of a free consultation by phone. It turns out, he has a lot of experience defending people against junk debt collectors and Cavalry, in particular. He was hired at 5 pm Friday. First thing Monday morning, he released an avalanche of motions, notices, and other legal documents to the court and opposing counsel. About an hour later, Cavalry decided it would be prudent to dismiss the case without prejudice and agreed to pay my attorney's fees. Amazing!

 

The lessons learned from this experience are these: Just because you may have an old debt lingering around in your past, don't assume the lawyer who filed the suit has a solid case. Or that you owe his client anything. In my case, the suit was quite flawed. The original creditor was misidentified, the final credit card statement showed a zero balance due, and the junk debt Bill of Sale wasn't worth the paper it was printed on. There many more flaws, but those were the big ones. The plaintiff's attorney is hoping you 'll panic at the thought of going to court, that you will be uninformed, or that you can be intimidated into handing over money just because they demanded it. Read everything you can about junk debt creditors, reach out to others on forums like this one to better understand the merits of the case against you, and don't be afraid to take an attorney up on an offer of a free consultation.

 

Finally, I would like to post the name of the attorney who helped me. Is that permitted on this site?

 

Well said.

 

About an hour later, Cavalry decided it would be prudent to dismiss the case without prejudice and agreed to pay my attorney's fees. Amazing!

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