csTrain

Sued by Cavalry in Georgia...

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all they provided was a statement from 5 years ago as 'exhibit A'. How should I go about my reply? Seems like a pretty weak attempt on their part.

 

*Edit...Citi is the OC.

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all they provided was a statement from 5 years ago as 'exhibit A'. How should I go about my reply? Seems like a pretty weak attempt on their part.

 

*Edit...Citi is the OC.

 

When was your last payment?

 

What county is this in?

 

Is this Magistrate Court?  If so then all you have to do is check off deny and show up for the trial.  There is no formal answer required.  

 

How much are they suing for approximately?

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Cavalry loves to violate the FDCPA, FCRA and TCPA.  I would start documenting all of their violations.  If this case is in Magistrate court, I would either use a counter claim against them or arbitration if your Citi card agreement has arbitration in it.

 

I would pull hard copies of all 3 CRAs and compare what Cavalry is reporting to any collection letters they have send and to the amount they are suing you for.  Cavalry has a tendency to be very inconsistent with the amount they claim is owed.  That is a good place to start looking for violations.

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The case is in Magistrate, and the amount is $5,xxx. Believe the last payment was in 2010. How would I find if the citi agreement has arbitration? Thanks for the help guys!

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The case is in Magistrate, and the amount is $5,xxx. Believe the last payment was in 2010. How would I find if the citi agreement has arbitration? Thanks for the help guys!

 

https://www.citicards.com/cards/acq/cma.do?screenId=13461&locale=en_US

 

Citi posts all of their current card agreements on their website.  Pick the one that applied to your account.  They all still contain JAMS arbitration.

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I believe the account was opened in 2005ish...how would I go about finding out if JAMS was in my cardholder agreements? And assuming JAMS was in it, could I get some advice on a response? I have 2 more weeks to file. Thanks so much guys!

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I believe the account was opened in 2005ish...how would I go about finding out if JAMS was in my cardholder agreements? And assuming JAMS was in it, could I get some advice on a response? I have 2 more weeks to file. Thanks so much guys!

 

Whether you want to go the arbitration route or not you do not need a formal response to do so in Magistrate Court.  MC does not allow discovery pre-trial or motions.  All you need to do is type up a Motion to Compel Contractual Arbitration and bring it with you to the hearing.  

 

Most of the larger GA counties like Fulton, Cobb, Gwinnett have a simple form on line or it was included with your summons where you just check off "deny" and that you want a trial and file it with the clerk.  Even if you file the MTC arb now it won't be heard until the trial date.  In all the courts you can simply show up to the court and at the end of the morning calendar tell the Magistrate you want to enter an appearance/answer orally to the summons and they can do that too.

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@csTrain

 

Any Citi agreement that was written while the account was open should be fine.  Be sure to read the arbitration section carefully.  Some Citi agreement contain small claims exclusions meaning that claims filed in small claims court are not subject to arbitration.

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It looks like my agreement does state that '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.'

 

Guess that defense is SOL. Was hoping that would scare off the JDB and drop the case. Any other ideas or direction? 

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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, third-party 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.

 

If this were me, I would still push arbitration.  The above is the very first paragraph of the arbitration section in the agreement.  This says that ALL claims including the application and enforcibility of the arbitration provision itself are for an arbitrator to decide.  I don't automatically give up my arb rights because they sued me in small claims.  I don't make an argument against myself and mention anything about the small claims exception.  IF they happen to bring it up, I will refer back to the very first paragraph again.  I would argue that the question of small claims is a controversy over the enforcability of the arbitration provision of the agreement and the agreement specifically states such an enforcability question should be decided by a JAMS arbitrator.   IF the JAMS arbitrator decided that the agreement precludes JAMS from hearing the case due to a small claims exception, then they can close their case and remand it back to the court to lift the stay.  This, of course, will be after Cavalry has paid for a full JAMS hearing on the matter.  Which they won't do.

 

That's just how I would do it.

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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, third-party 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.

 

If this were me, I would still push arbitration.  The above is the very first paragraph of the arbitration section in the agreement.  This says that ALL claims including the application and enforcibility of the arbitration provision itself are for an arbitrator to decide.  I don't automatically give up my arb rights because they sued me in small claims.  I don't make an argument against myself and mention anything about the small claims exception.  IF they happen to bring it up, I will refer back to the very first paragraph again.  I would argue that the question of small claims is a controversy over the enforcability of the arbitration provision of the agreement and the agreement specifically states such an enforcability question should be decided by a JAMS arbitrator.   IF the JAMS arbitrator decided that the agreement precludes JAMS from hearing the case due to a small claims exception, then they can close their case and remand it back to the court to lift the stay.  This, of course, will be after Cavalry has paid for a full JAMS hearing on the matter.  Which they won't do.

 

That's just how I would do it.

 

The  language I have seen on Citicard Credit Card Agreements is ambiguous. In contracts, ambiguity is normally construed against the maker of the contract.

 

https://scholar.google.com/scholar_case?case=16866630004849626539&hl=en&as_sdt=80005&sciodt=4,11

 

It is well established that any ambiguity in a contract is to be construed against the party who drafted it. See OCGA § 13-2-2 (5); Kennedy v. Brand Banking Co., 245 Ga. 496 (2), 500 (266 SE2d 154) (1980)

 

 As @fisthardcheese said, I would push for arbitration.

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Thanks so much for the information. How do I formally ask for arbitration? Tried to read up on JAMS but not seeing exactly how to go about requesting it. Is there a form letter, etc?

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Thanks so much for the information. How do I formally ask for arbitration? Tried to read up on JAMS but not seeing exactly how to go about requesting it. Is there a form letter, etc?

 

Send a letter to the Plaintiff's attorney stating you are electing contractual arbitration as per the card agreement for the alleged account.  Type up a formal motion and bring it with you to the hearing for the Magistrate to sign if they do not dismiss before then.

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The important thing here is to essentially file ANYTHING with the court that denies their allegations.  Some GA counties have answer forms on their websites and some will have a form you can fill out in person at the clerk's office. You could also simply type up a response that includes the case header at the top and is titled "Defendant's answer to complaint".  In the answer, I would state that I deny any and all allegations by the plaintiff.  I would make sure to file this with the court by taking 3 copies to the clerk's office and having all 3 staped by the court.  One copy goes to the court, the second copy should be sent CMRRR to the plaintiff's attorney and the third copy is yours to keep as proof of your filed answer.  Keep that copy with you and take it when you show up for your hearing.  Never assume that the court or the other side will still have their copy or have even seen that you filed anything.  I always want my copy and proof that it was sent to plaintiff.

 

After you file your answer, the court will notify you of your hearing date.  Usually it is abourt 30 days from when you file the answer.

 

Before your hearing date, I would send the letter electing arbitraiton with JAMS to their attorney CMRRR.  However, when you show up at the hearing, bring a copy of your letter and do not count on the attorney in court having ever seen or knowing about your election of arbitration.

 

I would also type up a formal motion to compel private contractual arbitration.  I would bring 3 copies of this to my hearing. I would also bring 3 copies of the card agreement.  When they have you meet their attorney in the hall to work out a deal, I would hand them my motion and let them know I plan on asking the court for private arbitration as listed in the agreement.  Expect their attorney to say all kinds of things like you have the wrong agreement, and that arbitraiton does not apply to them only the OC, and imply that arbitration will cost you a lot of money.  They will also still attempt to get you to admit that the debt is yours and that you owe it.  All you need to do is shrug off their lies and bully attempts and stick to your demand for arbitration.

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Update: Court date is next week. They filed a 'notice of filing original affidavit in liu of live testimony'. Included as exhibit A was bill of sale and assignment between Citi and Cavalry. Exhibit B is a statement from 5 years ago. 

 

Also, I mailed a letter to Cavalry stating I would be electing JAMS arbitration. Never heard anything back. How should I proceed on court date? Any help is very much appreciated.

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At the hearing, you will be asked to meet with their attorney in the hall or a conference room to attempt to work out a settlement before the judge hears the case.  All you have to do is had them a copy of your motion to compel arbitration and tell them you will be asking to stay or dismiss this case and compel private arbitration per the card agreement.

 

Be prepared for the attorney to be clueless about the fact that you alredy previsouly elected arbitration.  I would have a copy of your previous letter with you as well (not that it will matter, since you don't have to give prior notice in Magistrate court).  When the attorney starts saying crazy things like arbitraiton does not apply to them because they are not the OC or that arbitration will cost you a lot of money or other baseless claims, just say that the contract is enforcable to any assigns and agents of the OC (usually the very first paragraph of any card agreement) and you wish to envoke your contractual right to use arbitration.  Stick to your guns and don't let them intimidate you.  If you do this, there is a 98% chance you get them to pull out the dismissal form they already come to court with and sign it.

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Had my date in court this am. Met with attorney, told him I was going to file for arbitration, showed him the contract, and he said 'I thought you might do that. Here's what will happen, I am going to file a 30 day stay for you to file arbitration, and if not we will be back here in court.' He spoke to the judge, told him the plan and that was that., ..we never even entered the courtroom. So how should I proceed?

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File the arbitration claim today.

When you go back to court, don't let the attorny dictate what will happen. When he pulled this "30 day stay" stunt, I would have said no thanks, I want the judge to hear my MTC. Right now you don't have an order to arbitrate, you just have a continuance where you do it all over again in 30 days. They are giving you the run around in hopes you mess up and miss the next court date. They want that default judgement any way they can get it.

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Thanks a bunch firsthardcheese, that was kinda what I thought also. How do I go about filing the arbitration claim? Is the hope being that they will dismiss when they see I'm serious about the arbitration?

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Go to the JAMS website:  http://www.jamsadr.com/ Read the comprehensive rules for arbitration as well as the consumer supplemental rules.  These will give you the steps needed to file arbitration.  Their site has the form called Demand for Arbitration that you will need to fill out.  Send that in along with the required documents (a copy of the letter you already sent the JDB and a copy of the card agreement).  I don't recall what the Citi agreement says about paying for arb.  Some agreements state that they will pay any filing fee.  If it says this, I would point that out to JAMS in my cover letter and ask them to bill the JDB for your portion of the filing fee.  If it is silent on filing fees, then you may need to send in the $250 to JAMS.  Some people work around this by only sending in $50 and asking JAMS to allow them to pay the balance once the JDB pays their portion.  I would send as little money as possible because it is non refundable and I have a very high suspicion that Calvary will never pay or go to arb and you will just be out this money anyway.

 

Another thing I would do, only because of the little games this Calvary attorney played with you, is I would take my MTC up to the court and file it.  The court won't do anything with it, but it will add a little fun having it officially filed and not letting them get around it at the next court date.  Don't forget to get 2 other copies stamped by the court when you file - 1 to keep for yourself as proof it was filed and a second to send to the attorney.  I would also include copies of all my JAMS paperwork in the same package as the MTC I send to the attorney.  You have to send copies anyway according to JAMS rules.  Make sure you send it all CMRRR, as JAMS will require proof of service of your JAMS demand to the attorney.

 

One more note on the JAMS demand.  I would not mention their suit or their claims against you, I would only fill out the claim as if I am the one "suing" (arbitrating) against Calvary.  I will list their violations as my claim.  If you have no specific violation, I would state "violations of state and federal consumer laws" as my claim.  You can be generic and broad in the demand form and then file a specific complaint later (which it will never get that far anyway).

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Go to the JAMS website:  http://www.jamsadr.com/ Read the comprehensive rules for arbitration as well as the consumer supplemental rules.  These will give you the steps needed to file arbitration.  Their site has the form called Demand for Arbitration that you will need to fill out.  Send that in along with the required documents (a copy of the letter you already sent the JDB and a copy of the card agreement).  I don't recall what the Citi agreement says about paying for arb.  Some agreements state that they will pay any filing fee.  If it says this, I would point that out to JAMS in my cover letter and ask them to bill the JDB for your portion of the filing fee.  If it is silent on filing fees, then you may need to send in the $250 to JAMS.  Some people work around this by only sending in $50 and asking JAMS to allow them to pay the balance once the JDB pays their portion.  I would send as little money as possible because it is non refundable and I have a very high suspicion that Calvary will never pay or go to arb and you will just be out this money anyway.

 

Another thing I would do, only because of the little games this Calvary attorney played with you, is I would take my MTC up to the court and file it.  The court won't do anything with it, but it will add a little fun having it officially filed and not letting them get around it at the next court date.  Don't forget to get 2 other copies stamped by the court when you file - 1 to keep for yourself as proof it was filed and a second to send to the attorney.  I would also include copies of all my JAMS paperwork in the same package as the MTC I send to the attorney.  You have to send copies anyway according to JAMS rules.  Make sure you send it all CMRRR, as JAMS will require proof of service of your JAMS demand to the attorney.

 

One more note on the JAMS demand.  I would not mention their suit or their claims against you, I would only fill out the claim as if I am the one "suing" (arbitrating) against Calvary.  I will list their violations as my claim.  If you have no specific violation, I would state "violations of state and federal consumer laws" as my claim.  You can be generic and broad in the demand form and then file a specific complaint later (which it will never get that far anyway).

@fisthardcheese

 

Excellent advice on arbitration and on thwarting Calvary's lawyer

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I'm in the same boat (not quite as old and amount is $4,6xx) and need help filing an answer (Cobb County Magistrate).  I have had two people flake out on me with helping me, including two attorneys, and it needs to be done fairly quickly.  Is there anyone who would be willing to help for some extra money?

 

They didn't even properly serve, they just left it at the front door.  I'm so beyond myself and am willing to do whatever I need to do for someone to actually talk to me that's going to help. 

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@Snugglebunny0810

 

You would get better help by starting your own thread.

 

If you are in Magistrate Court, all you need to do is file a denial of all their claims.  This can be in any format or just go into the court and ask for an answer form and hand write that you deny all allegations.

 

They will give you a court date at least 30 days away.  This gives you at least month to prepare and work on how to deal with this.

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