ks1017

Calvary SPV - notice of intention to file litigation

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Need some help. I am 2 months away from the SOL of 4 years on this debt. I just received the letter on 8/1. the last payment made on the account is 10/14/2011. what should my first steps be in trying to push this out past the SOL?

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Who was the OC?

 

You likely can't stop them from suing because that is what they do. Wait until the last minute before SOL expired to file (if they already haven't) so they can rack up as much interest to the account (often illegally) as they can.

 

Depending on the OC, you may have an arbitration clause in the card agreement.  Filing arbitration takes away their legal right to sue you, so that may be an option, but again, it will depend on what OC this is.

 

Otherwise, I would look into counterclaims and ways to fight back against them if they do sue.  I am very familiar with Cavalry.  I know how much they love to violate federal collection laws.  You may want to get hard copies of all your credit reports because I bet you there are some violations within them along with any collection letters they previously sent you. 

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ARBITRATION PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. Agreement to Arbitrate: Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”). Claims Covered What Claims are subject to arbitration? All Claims relating to your account, a prior related account, or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, thirdparty claims, interpleaders or otherwise; and Claims made independently or with other claims. A party who initiates a proceeding in court may elect arbitration with respect to any Claim advanced in that proceeding by any other party. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis. Whose Claims are subject to arbitration? Not only ours and yours, but also Claims made by or against anyone connected with us or you or claiming through us or you, such as a co-applicant or authorized user of your account, an employee, agent, representative, affiliated company, predecessor or successor, heir, assignee, or trustee in bankruptcy. What time frame applies to Claims subject to arbitration? Claims arising in the past, present, or future, including Claims arising before the opening of your account, are subject to arbitration. Broadest interpretation. Any questions about whether Claims are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced. This arbitration provision is governed by the Federal Arbitration Act (the “FAA”). What about Claims filed in Small Claims Court? Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim. What about debt collections? We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt. How Arbitration Works How does a party initiate arbitration? The party filing an arbitration must choose one of the following two arbitration firms and follow its rules and procedures for initiating and pursuing an arbitration: American Arbitration Association or JAMS. Any arbitration hearing that you attend will be held at a place chosen by the arbitration firm in the same city as the U.S. District Court closest to your then current billing address, or at some other place to which you and we agree in writing. You may obtain copies of the current rules of each of the arbitration firms and forms and instructions for initiating an arbitration by contacting them as follows: American Arbitration Association 800-778-7879 (toll-free) Website: www.adr.org JAMS 800-352-5267 (toll-free) Website: www.jamsadr.com At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time, or in connection with any particular Claims, that party can still require arbitration at a later time or in connection with any other Claims. What procedures and law are applicable in arbitration? A single, neutral arbitrator will resolve Claims. The arbitrator will be either a lawyer with at least ten years experience or a retired or former judge, selected in accordance with the rules of the arbitration firm. The arbitration will follow procedures and rules of the arbitration firm in effect on the date the arbitration is filed unless those procedures and rules are inconsistent with this Agreement, in which case this Agreement will prevail. Those procedures and rules may limit the discovery available to you or us. The arbitrator will take reasonable steps to protect customer account information and other confidential information if requested to do so by you or us. The arbitrator will apply applicable substantive law consistent with the FAA and applicable statutes of limitations, will honor claims of privilege recognized at law, and will have the power to award to a party any damages or other relief provided for under applicable law. You or we may choose to have a hearing and be represented by counsel. The arbitrator will make any award in writing and, if requested by you or us, will provide a brief statement of the reasons for the award. An award in arbitration shall determine the rights and obligations between the named parties only, and only in respect of the Claims in arbitration, and shall not have any bearing on the rights and obligations of any other person, or on the resolution of any other dispute. Who pays? Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay, unless you get a fee waiver under the applicable rules of the arbitration firm. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. However, we will advance or reimburse your fees if the arbitration firm or arbitrator determines there is good reason for requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of that party’s attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.

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I would elect ARB now.  If they file in small claims before you can to ARB, then there is a clause that keeps it from going into arb.  

 

this part of the agreement here. What about Claims filed in Small Claims Court? Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim.

 

So If it were mine, I would send a demand letter ASAP CMRRR disputing the debt with Cavalry, and demanding arbitration with JAMS.  Then I would go to the JAMS website and file.  If they file in small claims court before you do either of these things, and they do it before the sol expires, you will have to fight it the old fashioned way.

 

If you file it will cost you 250.00.  The agreement says they will pay from the first day of the hearing, but in order to get the ball rolling, you need to pay the initiation fee.  Your fees are capped at 250.00, and in California even if they did take you up and go to ARB, they cannot collect any fees they pay for arb back from you. (I need to find that little rule, it's a gem for cali)

You can just send them a demand for arb, and hope that prevents them from filing.  If they do file, this gives you a counter claim, and you could ask for a dismissal because you already elected arbitration.

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You send it to their attorney.  Make sure you read the JAMS rules on how to file.  Their claim form IS what they consider the "demand".  You are welcome to also include a seperate letter explaining that you are demanding JAMS per the card agreement, however, just make sure you include the proper form from JAMS too.

 

I agree with @shellieh98 - I would file this with JAMS asap to prevent Citi from trying to file in small claims and then argue that you are not able to arbitrate because of the small claims exception in the card agreement.

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Because they will not go to arbitration, it would cost them to much.  If they file before the sol runs out, there is a chance you could lose.  You would need to learn the rules of civil procedure for California, and fight it, with a chance at losing.  You will be taking court off the table by electing arbitration before they file against you.  If they file anyway, you can get it dismissed, and maybe sue them for an FDCPA violation.

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I'm just kinda thinking out load here folks, so correct me if I'm wrong...

 

"Notice of intent to file litigation" does not mean they have or even will file suit.  What if the OP just hangs on for another 2 months (assuming that's when the SOL runs out) to see if they do file?  Then, if they do file...elect JAMS before going to court.  If they don't file, find a lawyer and sue them for the "overshadowing" FDCPA violation.

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I'm just kinda thinking out load here folks, so correct me if I'm wrong...

 

"Notice of intent to file litigation" does not mean they have or even will file suit.  What if the OP just hangs on for another 2 months (assuming that's when the SOL runs out) to see if they do file?  Then, if they do file...elect JAMS before going to court.  If they don't file, find a lawyer and sue them for the "overshadowing" FDCPA violation.

 

FDCPA forbids making threats of actions they are not entitled to or have no intention of taking, so if they send a notice of intent to file litigation, they by law must file or be in violation of the FDCPA for threatening an action they had no intention of taking.

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I'm just kinda thinking out load here folks, so correct me if I'm wrong...

 

"Notice of intent to file litigation" does not mean they have or even will file suit.  What if the OP just hangs on for another 2 months (assuming that's when the SOL runs out) to see if they do file?  Then, if they do file...elect JAMS before going to court.  If they don't file, find a lawyer and sue them for the "overshadowing" FDCPA violation.

 

The SOL clock does not stop by filing arbitraiton.  I see no downside to filing arb now, but I see a couple potential problems by just waiting.  The biggest one is they may file in small claims causing problems with moving it to arbitration from there.

 

If a JDB sends me a letter telling me they plan to sue me, I take them at their word and start planing accordingly.  My goal would be to jump on them and put them on the defense rather than waiting for them to start up things on their own terms.

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I would at the very least send a demand letter for arb with JAMS in response to their Intent to sue. This would afford some protection that they can't file in small claims without fear of having to go to arb with jams. His arb agreement states no arb if he is sued in small claims. If he elects before, then legally they can't file...in any court. If they do, I would either get it kicked into JAMS, or counter sue, or better yet find me a NACA attorney to do it for me.

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@ks1017 there is a step by step on how to fill out JAMS paper work, as well as a sample demand letter in the arbitration forum. Look for posts by linda7. get your demand letter sent out now, then work on the other stuff.

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@willingtocope

 

"Intent to file" means they intend to do so.  Therefore, they have to file.   On the other hand, if they sent a letter claiming they were "considering" it, that would be a different story.

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i am sending the letter to Attorney to let them know i am electing arbitration via JAMS... since this has not gone to court yet, do i need to include the JAMS forms with the letter?

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no, but you need to include a copy of the credit card agreement with the arbitration clause highlighted.  

You can say 

 

Dear xxxx,

I dispute this debt.  Under the terms of the credit agreement all disputes if elected will be settled via arbitration.   Exact language per the agreement is "Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”)."  I elect arbitration to settle all disputes for this alleged debt.  I choose the forum to be in JAMS as per the credit agreement.   Also per the credit agreement it states "  You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt."

Thank you, me.

 

I will say that your agreement says whoever initiates arbitration chooses which forum, so they may go file in AAA, it is not as expensive.  Depending on how much they are trying to collect will determine if they will do that.  If you want it in JAMS (will cost them 5k to 10k at the very least) then I would suck up the 250.00 and initiate with JAMS.

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only the attorney that sent you the letter that works for cavalry.  But since it is just reviewed, I would send a copy to cavalry also so that they can't give it to another lawyer and fein "they didn't know"  Citibank is out of the picture, no need to send them anything.

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I would elect ARB now.  If they file in small claims before you can to ARB, then there is a clause that keeps it from going into arb.  

 

 

 

Assignees cannot bring suits in small claims court CCP 116.420.

 

CACH fought with me to go into arbitration, so that's one jdb that I know will follow you into arb in CA .  There are no appeals in arbitration, the rules of evidence are not used and plaintiff gets to pick the arbitrator.

 

I would recommend anyone considering arb in CA to think about it very hard and look into how often it  actually is used, and how often plaintiff prevails in arbitration in Cali ( do your research).

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