concernedinny

Being sued in NY (Calvary / Portfolio) - Served

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I was served a "Consumer Credit Transaction" on the 19th of August.  In it, it indicates that I am "summoned and required to serve upon plaintiff's attorney an answer to this complaint in this action within twenty days after the service of this summons, exclusive of the day of service..."  

 

The attorney is out of Schachter Portnoy LLC in Valhalla NY and it says that the plaintiff is "Cavalry SPV I, LLC,  AS ASSIGNEE OF SYNCHRONY BANK"

 

Page 2, which contains the "VERIFIED COMPLAINT" states in part:

 

"1. That at all times hereinafter mentioned, plaintiff, CAVALRY SPV I, LLC, is a limited liability company with a place of business in the State of New York.

 

2. Plaintiff, by purchase and assignment, acquired from SYNCHRONY BANK , original creditor all right, title, and interest in the defaulted account, account number ****************1452, of defendant(s), ((my name here)).

 

AND FOR A FIRST CAUSE OF ACTION

 

3. Plaintiff, through assignment, is the lawful owner of a consumer credit agreement entered into by defendant(s).

 

4. Defendant(s) did breach the aforesaid consumer credit agreement and Plaintiff seeks the sum of $1,192.19.  Payment has been demanded by Plaintiff but has not been made.

 

AND FOR A SECOND CAUSE OF ACTION

 

5. Plaintiff seeks for Defendant(s) the sum of $1,192.19, upon an account stated between them, did promise to pay Plaintiff said sum upon demand.  Payment has been demanded by Plaintiff and has not been made.

 

WHEREFORE, Plaintiff demands judgment against defendant(s) for the sum of $1,192.19, with costs and disbursements of this action and interest thereon."

 

The third, and final, page is a signed verification (notary signature, etc.)

 

I consulted with an attorney who told me that while I was more than welcome to retain him, he would be more expensive than just attempting a settlement.  I left a voicemail for Schachtner Portnoy advising them that I was unaware of the account, had not received documentation regarding any bills (mail or phone call) and that I would like someone to call me back.  This was all on the 19th.  I still (not surprisingly) have not heard back from Schachtner Portnoy.

 

What I've been able to find leads me to believe that they have not provided me with all the necessary documentation.  I mean, Synchrony manages more than 57 credit accounts (yikes) - who are they claiming I owe money to?  I don't truthfully know what the deal is.

 

Any advice on how to proceed would be wonderful.  The attorney I consulted with indicates that they purchase these 'junk debts' for pennies on the dollar and a quick settlement should be easy, but no one is calling me back so that doesn't help me at all.

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Synchrony Manages so many because they are holders of almost every type of store card there is. Any idea which store card it would be? They used to be called GE MONEY BANK.

At any rate all of their cards hold an arbitration clause with JAMS. Calvary will not go.

If you choose to try arbitration to fight this, I would send the law firm a letter stating you elect priviate contractual arbitration with JAMS to settle this dispute.

Then file a PETITION TO COMPEL PRIVIATE CONTRACTUAL ARBITRATION, AND MOTION TO DISMISS OR IN THE ALTERNATIVE STAY CASE PENDING ARBITRATION.

You would include a copy of the credit agreement in both and highlight the arb agreement.

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Here is a sample motion. http://www.creditinfocenter.com/community/topic/326255-portfolio-recovery-associates-llc-suing-me-in-arkansas/page-2#entry1327825

If you go to synchrony 's website, you can get a copy of the credit card agreement there to include in your motion and letter. You would file these in lieu ( instead of) an answer.

Yes most attorney's will advise you to just settle.

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Synchrony Manages so many because they are holders of almost every type of store card there is. Any idea which store card it would be? They used to be called GE MONEY BANK.

At any rate all of their cards hold an arbitration clause with JAMS. Calvary will not go.

If you choose to try arbitration to fight this, I would send the law firm a letter stating you elect priviate contractual arbitration with JAMS to settle this dispute.

Then file a PETITION TO COMPEL PRIVIATE CONTRACTUAL ARBITRATION, AND MOTION TO DISMISS OR IN THE ALTERNATIVE STAY CASE PENDING ARBITRATION.

You would include a copy of the credit agreement in both and highlight the arb agreement.

 

I don't...and to be honest, I would have expected that they would have to show me some sort of proof that they hold the debt legally/lawfully.  Where would I get the agreement?  They haven't sent me anything other than what I posted :-\

 

Here is a sample motion. http://www.creditinfocenter.com/community/topic/326255-portfolio-recovery-associates-llc-suing-me-in-arkansas/page-2#entry1327825

If you go to synchrony 's website, you can get a copy of the credit card agreement there to include in your motion and letter. You would file these in lieu ( instead of) an answer.

Yes most attorney's will advise you to just settle.

 

Thank you...I'll review that now.  I appreciate the help.  

 

I just don't understand how they can file some random suit without proof to back it up.  If I tried to submit a case like that at work, I'd be laughed out of court!  (police department)

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They usually get 1. A bill of sale between the original creditor, and the junk debt buyer.

2. An affidavit they make saying it's all true, and you owe.

3. An account statement with your name and billing statement on it.

That is the bare minimum, some get more, some not even that. They are most interested in default judgements. They can order more from the original creditor, but it costs them.

If you are positive this in no way can be your account, you might try fighting them in court. But if you do that, you waive arbitration. I highly doubt they will go to arb for anything under 10k.

Go to www.creditkarma.com for a free account, and peek at your credit reports. Or you can get the complete reports one time a year at annualcreditreport .com. It will show you any accounts that have been charged off...and or sold to another lender. That can give you a good idea if this is indeed one of your old forgotten accounts, or if it is a case of mistaken identity. Come back after that, if it isn't no way your account you might have better options using counter claims against them.

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I know of a law firm that handles these cases cheaply - if you are being sued in Nassau Suffolk Westchester or NYC.  He also provides unbundled legal services (meaning he will create an answer on your behalf, but you file and serve the answer pro se.)

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@concernedinny

 

Take the advice of @usctrojanalum and send him a PM.  He has worked for lawyers and knows the good lawyers in NY.  A consultation with a lawyer is free and there is no obligation.  The legal climate in NY is favorable for defendants now, but having a lawyer represent you makes it more likely you will win. And it is so much easier to let someone else do the work.

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I know of a law firm that handles these cases cheaply - if you are being sued in Nassau Suffolk Westchester or NYC.  He also provides unbundled legal services (meaning he will create an answer on your behalf, but you file and serve the answer pro se.)

 

I'm not, unfortunately.  I live in Upstate NY.

 

@concernedinny

 

Take the advice of @usctrojanalum and send him a PM.  He has worked for lawyers and knows the good lawyers in NY.  A consultation with a lawyer is free and there is no obligation.  The legal climate in NY is favorable for defendants now, but having a lawyer represent you makes it more likely you will win. And it is so much easier to let someone else do the work.

 

I would love to.  I am upstate, however... I did do a consult with an attorney and he said that for the "small amount" be requested, that it would be cheaper in the long run to settle out or attempt to speak with the firm myself.  I am waiting on a second consultation with a different firm to see what they have to say.  I have an arbitration 'response' prepared in case that's what he recommends.

 

 

 

I appreciate all of the feedback.  I just want this handled and done and what I've been able to find is that for the amount being requested an arbitration response will lead to a much reduced settlement and disposition...apparently I can also ask for a different kind of marking on my credit report (paid in full vs settled) to ease things as well.

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They did not even include 1 or 3...just 2 and it was the affidavit that they included as their original filing.  Would it be worth mentioning that in my response to request arbitration - I mean, I wonder if they can even produce it?

 

They usually get 1. A bill of sale between the original creditor, and the junk debt buyer.
2. An affidavit they make saying it's all true, and you owe.
3. An account statement with your name and billing statement on it.
That is the bare minimum, some get more, some not even that. They are most interested in default judgements. They can order more from the original creditor, but it costs them.
 

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No, that is what discovery is for. But if you ask for discovery, you waive your right to arbitration. You can't litigate.

Most lawyers will tell you not to arbitrate. That is because if it actually goes to arbitration, and this is your account, you most likely lose. You would cost money for everyone, and lose anyway.

The difference here with this type of case is you are being sued by a junk debt buyer. 98% of the time they won't arbitrate, and when they do it is for debts upwards of 10k or more.

The other side will not give you a contract, because they don't want to abide by the contract. That is why you produce it. They are suing you on an account stated theory, so they do not need that contract. Use of the card is the contract (in their eyes)

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@[member="concernedinny

 
To answer the complaint, deny every allegation in the complaint except your name.   Then list Arbitration  as an Affirmative Defense.  Then include this Notice of Intent to Arbitrate, but make sure you use the EXACT LANGUAGE in your card agreement.  Also, include the second paragraph to comply with NY law.
 
 
 
 
 
NOTICE OF INTENT TO ARBITRATE



Pursuant to XXX cardholder agreement,(see attached), I  ELECT arbitration via JAMS to resolve all of our disputes.

As per this agreement, "Any claim or dispute (“Claim”) by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or any prior Agreement or your account (whether under a statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), shall, upon election by either you or us, be resolved by binding arbitration.. "
 
 

Please Take Further Notice that, unless within twenty days after service of this Notice of Intention to Arbitrate you apply to stay the arbitration herein pursuant to Article 75 of the New York Civil Practice Law and Rules, you shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

 
 
I hereby certify that a copy of this Answer was sent by Certified Mail Return Receipt Requested to 
 
JDB lawyer
address
date
 
 
Also, file a copy with the court.
 
 
 
 

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do you know what judicial department you live in? I know of a bunch of really good cases if you live in the 4th department.  Even if you live in the third, the cases could still be used as persuasive precedent. 

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I'm in the 3rd...

 

I'm working on my full denial and request for arbitration today.  I have the example above (thanks debt zapper) but that language does not match anything in the agreement for the card that this is.  Attached is my agreement that I've retrieved.  Can someone please help?  (Not that everyone hasn't done a TON already - thank you, this site has been a Godsend)

 

 

creditcardagreement_11253.pdf

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CACH, LLC, Plaintiffs

v.

NE ENTERPRISES LLC, and Norman Scott Buisch, as Guarantor, Defendants.

No. 47443.June 10, 2014.

Attorneys and Law Firms

 

 

DENNIS F. BENDER, J.

 

The plaintiff herein, as assignee of Wells Fargo, has brought this motion for summary judgment alleging the defendants defaulted on a commercial line of credit. Plaintiff seeks judgment in the sum of $15,003.33, plus costs and disbursements.

 

Counsel for the defendants, in opposing the motion, alleges the plaintiff has made an insufficient showing that would warrant a grant of summary judgment herein. Specifically, defendants note that the presentation by the plaintiff is based upon the affidavits of its attorney, U. William Sung, Esq. and Peter Huber, identified as “an employee of and an authorized agent of CACH, LLC”. As such, defendant submits the aforementioned persons have no actual knowledge of the assignorcreditors business records or actual knowledge of the original assignor's books, records, or proceedings as would enable admissibility under CPLR 4518(a) as a business record. There has been no proper foundation for admission of credit card statements by a person with personal knowledge of the maker's business practices and procedure. Unifund CCR Partners v. Youngman, 89 AD3d 1377, 1378 (4th Dept 2011); See also West Valley Fire District No. 1 v. Village of Springville, 294 A.D.2d 949, 950 (4th Dept 2002).

Defendants point out the documents proffered must be established as being kept in the ordinary course of business of Wells Fargo Bank, NA not CACH, LLC. In support of defendants' argument, counsel cites Velocity Investments, LLC v. Cocina, 77 AD3d 1306 (4th Dept 2010). In Velocity Investments, LLC v. Cocina, as in the case here, the plaintiffs submitted copies of credit card statements allegedly sent to the defendant, who failed to pay or object to them. The Fourth Department noted, however, that “plaintiff failed to lay a proper foundation for the admission of those documents as business records pursuant to CPLR 4518(a), (citations omitted ) which was the only basis proffered by plaintiff for their admissibility.” Clearly, counsel for the plaintiff has no personal knowledge. A review of Mr. Huber's affidavit shows that he states “as part of my duties for plaintiff's recovery operation, I am personally familiar with the manner and method by which plaintiff creates and maintains its books and records, including computer records of credit card accounts such as the credit card account of defendant. I have personally reviewed plaintiff's business records relating to the facts stated in this affidavit concerning defendant's credit card account.” As noted therein, however, the current plaintiff is CACH, LLC not Wells Fargo. Thus, Mr. Huber does not have personal knowledge of the transactions between the defendants named herein and the plaintiff's predecessor, Wells Fargo.

 

The plaintiff, through counsel U. William Sung, Esq, does not directly answer this issue but rather attempts to argue the defendants have defacto admitted the facts asserted in the moving papers. This is simply not the case. The answer of the defendants denied the allegations in the complaint (Exhibit B, moving papers). The answering papers from defendant's attorney attack the sufficiency of the allegations of plaintiff's motion for summary judgment. There is also no affidavit from or representative of Wells Fargo establishing the assignment of the debt to the plaintiff herein. Palisades Collection, LLC v. Kedik, 67 AD3d 1329(4th Dept., 2009); Cach LLC v. Fatima, 32 Misc.3d 1231(A) (Nassau Co. District Ct., 2011); Citibank (South Dakota) N.A. v. Martin, 11 Misc. 3rd, 219, 226 (N.Y.C Civil Court 2005).

 

*2 Plaintiff's motion for summary judgment is denied, without prejudice, for failure to provide a proper foundation to establish both the assignment of the debt from Wells Fargo to Cach, and the admissibility of the documents as business records, pursuant to CPLR 4518(a). The Defendant's cross-motion for summary judgment upon searching the record is also denied, without prejudice.

 

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

 

So, this case is an unreported decision - but the logic behind the reasoning is sound - and it also provides citations to other cases that can be used. 

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@concernedinny  To answer your question about the language in the agreement, just do this:

 

Make a copy of the agreement where it mentions arbitration and attach it to your Notice.  Then type out what is below: 

 

 
NOTICE OF INTENT TO ARBITRATE



Pursuant to XXX cardholder agreement,(see attached), I  ELECT arbitration via JAMS to resolve all of our disputes.
Now look at your arbitration agreement, and under "What Claims are Subject to Arbitration," type out  what is in paragraph 1.
 
After that, type this out:
 

Please Take Further Notice that, unless within twenty days after service of this Notice of Intention to Arbitrate you apply to stay the arbitration herein pursuant to Article 75 of the New York Civil Practice Law and Rules, you shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

 

Then type out this:

 

I hereby certify that a copy of this Answer was sent by Certified Mail Return Receipt Requested to 
 
JDB lawyer
address
date
 
 

 

(File a copy of this with the court.)

 

 
Now look at your agreement under where it says, "How to Start Arbitration and the Arbitration Process," and initiate with JAMS.

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@concernedinny  To answer your question about the language in the agreement, just do this:

 

Make a copy of the agreement where it mentions arbitration and attach it to your Notice.  Then type out what is below: 

 

 
NOTICE OF INTENT TO ARBITRATE

Pursuant to XXX cardholder agreement,(see attached), I  ELECT arbitration via JAMS to resolve all of our disputes.

Now look at your arbitration agreement, and under "What Claims are Subject to Arbitration," type out  what is in paragraph 1.
 
After that, type this out:
 

Please Take Further Notice that, unless within twenty days after service of this Notice of Intention to Arbitrate you apply to stay the arbitration herein pursuant to Article 75 of the New York Civil Practice Law and Rules, you shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

 

Then type out this:

 

I hereby certify that a copy of this Answer was sent by Certified Mail Return Receipt Requested to 
 
JDB lawyer
address
date
 
 

 

(File a copy of this with the court.)

 

 
Now look at your agreement under where it says, "How to Start Arbitration and the Arbitration Process," and initiate with JAMS.

 

 

 

Mine doesn't have a section that states what is subject to arbitration.  There's nothing similar to what you've written.  It's rather vague (in the agreement) IMHO.  It's attached below...am I just being dense?

creditcardagreement_11253.pdf

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@concernedinny

 

Look for the text below in your agreement, it is there.

 

RESOLVING A DISPUTE WITH ARBITRATION

 

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. • What claims are subject to arbitration 1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below. 2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate. 3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide. • No Class Actions YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

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@concernedinny

 

I downloaded your card agreement.  When I wrote this below,  I was looking at your card agreement.

 

 
Now look at your arbitration agreement, and under "What Claims are Subject to Arbitration," type out  what is in paragraph 1.
 
 
This paragraph is not from your agreement, but I included it from the NY statute.
 

Please Take Further Notice that, unless within twenty days after service of this Notice of Intention to Arbitrate you apply to stay the arbitration herein pursuant to Article 75 of the New York Civil Practice Law and Rules, you shall thereafter be precluded from objecting that a valid agreement was not made or has not been complied with and from asserting in court the bar of a limitation of time.

 

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You file an answer with the affirmative defense that the Court lacks subject matter jurisdiction (among other things) due to an arbitration provision... then pursuant to the statute provided by DZ.. specifically below... be sure to check out what 7502 says with regards to limitations and that you do not fall into one of those categories. good luck. 

 

(a) Application to compel arbitration; stay of action. A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (  b ) of section 7502, the court shall direct the parties to arbitrate. 

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Was there any update to how this was resolved? I recently received a similar letter, and was curious how this worked out for you.

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