Recommended Posts

Hi everyone!

 

I have to preface this by saying that I've been reading these forums since the day I discovered them. Today I finally made a point to register and ask for some of this amazing advice for myself. I fear I'm not sure what to do next. Also being from Maine, I feel like there aren't many resources specifically for this state available to me since, well, not a lot happens here. :-P  Regardless of it being in Maine though, so much of the advice I've learned from here has been incredible.  You guys are all great and I'm hoping to catch the attention and help I've seen other people receive. Anything would be greatly appreciated! So here goes... If I leave out any important info, I'll be checking this pretty regularly to reply. This is for we'll say a close friend. She's lost in all of it and I've been pretty excited to learn about this and find a way to help her out. But I know all of the details required. Being such a small area too I'm a bit nervous to post too much info as I feel it would be pretty easy to narrow things down. So if anyone recommends I should edit some info out, please let me know!

 

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? Schreiber/Cohen, LLC

 

3. How much are you being sued for? 18,xxx.xx

4. Who is the original creditor? Union Federal Savings Bank

5. How do you know you are being sued? Papers served to Co-Signer and defendant's address from 5 years ago.

6. How were you served? Co-Signer in person, at the door. Defendant was not until after answer was filed

7. Was the service legal as required by your state? I'm not sure. Some of the debt collection laws I've read said that they can't serve you by a sheriff? Which is how it was served. But to my knowledge that's a fairly common practice of serving someone papers.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None to the defendant. Though they called the co-signer relentlessly, at work, and accused the defendant (to the co-signer) of being a bad person, etc.

9. What state and county do you live in? Defendant: York County, Maine.

                                                             Co-Signer: Cumberland County, Maine.

                                                                 Complaint filed in Penobscot County.

10. When is the last time you paid on this account? 2007. Though they're account records mention a partial payment made in 2013.

11. What is the SOL on the debt? 6 years

12. What is the status of your case? Suit served? Motions filed? I advised the defendant to send their answer promptly. We did research and found affirmative defenses. Unfortunately it was before I found this forum. So now I feel their answers could have been stronger. Didn't file a motion to dismiss in the answer. Also haven't filed a motion to strike the affidavit. Currently tied up in a motion to transfer to the proper county so we have no new case no. to do anything with. I'm worried we're running out of time. But does a motion to transfer start a new scheduling order? We never received any discovery from the plaintiff either.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.  If only I knew better then

14. Did you request debt validation before the suit was filed? No

15. How long do you have to respond to the suit? Did you receive an interrogatory (questionnaire) regarding the lawsuit? Currently waiting on new information regarding the motion to transfer. Haven't heard anything from the plaintiff since August but the court says the transfer was approved. Have not received any interrogatory.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? Unfortunately, a lot. Although this may be the usual case as well. I feel a debt of this much is the holy grail for JDB, so they would pull out all the stops. Evidence:

 

Affidavit of Claim from employee of Cavalry Portfolio Services (a company that performs collections services for Cavalry SPV). Stating they were an authorized employee to make the claim for the plaintiff. That they are familiar with the manner and method by which their company and the plaintiff create and maintain business records. That they acquired this account 'on or about' a certain date. The usual stuff I've seen other people see in their affidavits of claim. It states the name at the top, but the signature is completely illegible. It also says it was notarized a full year after the affiant claims the account was acquired.

 

Note Disclosure Statement: I'm worried this is bad.  It's a copy of the original loan agreement from UFSB. With the loan amount, interest rate, and final amount that would be repaid. As well as the terms and conditions, but those are listed on an empty application.

 

Account Summary: This is on Cavalry letterhead. It states an account number, defendant and co-signer names, name of original creditor, the wrong address,total balance (which is higher than the amount being sued for), a principal balance (the amount being sued for), and the original loan amount (less than the amount being sued for). It claims the default date was in 2010.

 

Acknowledgment of Transfer: There are a few of these. None of them say any specific account numbers or names. Just that multiple accounts were transferred to new companys. It appears to have changed hands from USFB, to it's subsidiary within 3 months of the original disbursement date. From there when USFB and it's subsidiary closed up shop, it transferred again, and then again to Cavalry. Again none of these have any specifics to the defendents account itself.

 

 

PHEW! So I think I answered all those questions! So now I should explain the defendants answer. They denied the debt and claimed the plaintiff has no personal relationship with the original creditor, claiming hearsay on the evidence in the complaint. Also for other defenses they listed lack of personal jurisdiction, standing, statute of limitations, also the fact that USFB never had a license to distribute online loans in Maine from the office in Rhode Island. They didn't make it fancy like the ones I've seen. And didn't reserve the right to add more affirmative defenses later.

 

So now I'm stuck and don't know where to research further! Like I said they moved to have it transferred and we were told there was nothing we could do until we a new docket no. The original court had ruled for discovery but then the clerk said we needed to wait for the motion to transfer. So does that give us another chance for discovery? Can we ask for that from the new judge? Is anyone still reading this? :-P

 

Sorry this is so unbelievably long winded. I didn't intend for it to be. I just wanted to be thorough and maybe catch the heavy hitters' attention on here! Thanks again everyone and keep posting the great advice!

Share this post


Link to post
Share on other sites

How long has the defendant resided in York County?    If they sued your friend in the wrong county, she may have a FDCPA claim against Calvary, for which she should consult a consumer lawyer. Go to www.consumeradvocates.org.   That said, $18K is a lot of money.  Calvary will pursue this aggressively. A consultation with a consumer lawyer is free and is advisable

Share this post


Link to post
Share on other sites

This is what Maine courts require for a plaintiff to win a collection case:

 

 

 

Regarding assigned debts, the Maine Supreme Judicial Court issued a decision in 2011 regarding the 
documentation required to prove an assigned debt case. In the case of CACH, LLC v. Kulas, 2011 ME 
70, 21 A.3d 1015, the court held that an affidavit from the original credit grantor on a credit card debt 
stating that the credit card account had been sold and assigned to CACH, LLC was insufficient to 
establish CACH’s ownership of the account. The affidavit in question failed to have attached to it sworn or 
certified copies of the actual assignment documents. In addition, the CACH court also held that a 
separate affidavit executed by a CACH, LLC employee that alleged the amount due on the account was 
defective, because the original credit card agreement was destroyed, and therefore there was no 
evidence of the terms, conditions, and interest rates associated with debtor's account. 2011 ME 70, 21 
A.3d 1015, 1019.
 
In another assigned credit card debt case, the Maine Supreme Judicial Court further elaborated on the 
documentation required to prove an assigned debt case. In the case of Arrow Financial Services, LLC v. 
Guiliani, 2011 ME 135, 32 A.3d 1055, the court held that a bill of sale attached to an affidavit of an 
employee of the plaintiff was insufficient to prove ownership of the account, because the bill of sale 
referenced an account schedule that was not attached. In addition, as in the CACH case, the plaintiff did 
not submit the original contract between the original creditor and the debtor. Lastly, the Arrow Financialcourt held that the plaintiff did not properly prove the amount due on the account, because it provided no 
records showing a breakdown of the principal, interest and other charges due on the account, and it did 
not provide a schedule of payments made on the account

Share this post


Link to post
Share on other sites

Thanks debtzapper!

For some reason I couldn't find anything from previous cases in Maine.

She's lived in York for 7 years now.

While waiting for the new case no is this a good time to get ready to have the affidavit dismissed? I'm not sure how to file it as it's essentially in limbo right now.

Those cases said the jdb didn't have a contract from OC but in this case, they do. But the bill of sale and affidavit are as irrelevant as the other examples. BOS says they acquired accounts, but not that any of these accounts were the one in question and why they're suing for the amount they're suing for.

Share this post


Link to post
Share on other sites

You say the affidavit states the affiant is familiar as to how the business records were kept and maintained for Calvary and USFB? What about all the ones in Between? What other companies touched this account? They need someone from all of them too.

How is she familiar with USFB, the way they kept and maintained their records, did she work for them? Did she say she had personal knowledge? It is full of holes.

Next. What is this partial payment? Why would anyone pay a partial payment 5 years after a default? Was it really made, or did the account show some type of a credit to the account?

Did she assert the account is time barred in her affirmative defenses?

She should have motioned ti dismiss instead of a motion to move venue, I don't know if it is to late for that now,

She needs to file counter claims against Calvary

1. Suing in the wrong venue

2. Suing on a time barred debt.

3. Abusive collection practices ( you say they called her a bad person, etc)

I'm sure there are other counters in there.

Is your friend the co signer, or defendant? Are both the signer and co signer being sued? Are they separate cases? And was this a car loan, or credit card, what type of account was it?

Making them prove that partial payment will be key.

I would run this by a consumer attorney, there are numerous consumer violations not just from the FDCPA, but I would also suspect from other consumer agencies such as the TILA, maybe the FCRA, and any state specific statues.

Share this post


Link to post
Share on other sites

You guys are so great. Seriously. This is exactly the advice I needed.

My friend is the defendant. Though the co-signer is also in the same complaint.

Cavalry's affidavit only said that employee had knowledge of cavalry's practices. Not UFSB. And the bill of sale they attached doesn't mention a specific account, only that several accounts were attached. But that wasn't included. The date has also been whited out and changed by hand in the photocopy to reflect the affidavit. Though that could be coincidence.

Other companies were a subsidiary of UFSB, then Citibank, and then Cavalry. It may not matter. But the transfer agreement between UFSB and it's subsidiary First Marblehead, are all signed by the same person as buyer and seller. And not just signed but a clear photocopied signature.

So it may not be too late to file a counterclaim? I'll call the court today and see if she can amend her answer with a motion to dismiss on all those counts too.

This was for a UFSB private unsecured student loan. One she actually defaulted on immediately when she left school. I know student loans are an iffy subject in debt. But everything I've read said they were just an online entity and the loan is essentially the same as any other unsecured loan.

Share this post


Link to post
Share on other sites

Also she's worried the payment may have been made from the co-signer while they were harassing and threatening her. But the dates on everything are all over the place. It doesn't say how the payment was made either.

I don't want to sound overly polite. But thank you again. Lol

Share this post


Link to post
Share on other sites

One more thing. Haha.

Can you counterclaim on the harassment when really it's just her word against theirs? The cosigner does have witness that they called repeatedly at her work even after they were told to stop. She works in the ER at a hospital.

Share this post


Link to post
Share on other sites

Yes. An affidavit from her co worker would serve as proof, if they didn't mind being dragged in. Discovery she could compel them for their recordings. I would really find a NACA ATTORNEY ( not just any ole attorney) to consult with first before I did anything. If she had enough violations, they may do everything for her on contingency.

Share this post


Link to post
Share on other sites

Thanks shellieh! She is a bit nervous of contacting an attorney and not being able to afford one or potentially losing either way.

I've reached out to the only naca attorney listed in my area and I'm waiting to hear back. In the meantime, is it possible to file for discovery before we get information on the new venue? Or do we indeed have to wait? Same question for the motion to strike their evidence. Do we wait?

My worry is that we haven't heard from the plaintiff since the motion to change venue. And that they're attempting a summary judgement already or something. Or that we'll get the papers for the new case no and it will be a matter of days before the hearing with no time to do these things.

Share this post


Link to post
Share on other sites

Another question I would have is how does the order of these proceedings go? We haven't gone to court yet. So is the first date the retrial? The hearing?

Again. Sorry for sounding so poorly informed on the matter. But I've been reading any article I can on this forum. There are just a few specifics questions I haven't found an answer to yet.

Share this post


Link to post
Share on other sites

Most debt attorneys will do an initial consult for free. If he sees a lot of violations, he may take the case on contingency.....meaning he will get paid through the plaintiff, no charge to her.

I don't know how far the motion to change venue has got, but she may be able to withdraw that motion, and file a motion to dismiss instead. She would have to withdraw that motion, then file an amended answer that asks for dismissal due to improper venue.

If granted, the plaintif would have to refile in the proper venue, start over, and she could answer that one with the correct defenses, and counterclaims.

If she does that I would make sure and assert defenses such as debt is time barred as a defense in case they denied the dismissal, and only changed the venue.

I don't know marines rules of civil procedure, but most states have things in common like this, but rules vary state to state. I would have her consult with the attorney first, well worth it. I doubt the NACA attorney will consult with you about her case, they like to talk directly to the one being sued, as they are the only ones with any authority to hire, and know the facts.

Share this post


Link to post
Share on other sites

I believe the motion to change venue was already signed. We're just waiting on the new date.

She spoke with an attorney just recently, finally. He said she would have to prove the allegations for a counter claim. Lol. She doesn't want a counter claim to be able to get money. She only wants one in hopes an attorney will help her for contingency.

Does their bill of sale have to explicitly say that is was HER account that was sold? Or does them having the original contract basically prove they have it?

Share this post


Link to post
Share on other sites

I have to say getting responses from all the heavy hitters here is like getting a response from a celebrity. So thank you all again.

They did provide a copy of the contract unfortunately. The loan itself was a 5 year loan. Though cavalry said it defaulted in 2010. The contract says the loan will default with the first missed payment though. According to the contract the first payment is due 30-60 days after the debtor graduates or leaves school. In this case, she left school for family reasons almost immediately after she started.

Is it applicable at all that the OC now doesn't exist?

Share this post


Link to post
Share on other sites

@RandomHero

 

I suppose the contract shows your signature?

 

I would say that the applicability of the OC's nonexistence might depend upon the evidence provided by the JDB.  In other words, what else could they get from the OC if the OC no longer exists?  For instance, the affidavit of claim includes that the affiant knows how the JDB creates and maintains records.  They didn't create the contract.

 

Now, third party business records can be incorporated into another business's records, but according to Maine case law, the records custodian for the other business (in this case, JDB) must have knowledge of the regular practices of BOTH businesses.

 

In Beneficial Maine Inc. v. Carter, the ME Supreme Court ruled that the affidavit submitted to authenticate business records was insufficient because the affiant was an employee of Beneficial's servicer (HSBC).  While she claimed to have knowledge of HSBC's record-keeping methods, she did NOT claim knowledge of Beneficial's methods.

 

"Although it is possible that an employee of HSBC—perhaps even Richmond herself—may have personal knowledge of both entities' practices for creating, maintaining, and transmitting the records, the affidavit does not report the basis for Richmond's knowledge of (1) Beneficial's practices for creating, maintaining, and transmitting the records at issue; (2) HSBC's practices in obtaining and maintaining the bank's records for HSBC's own use; or (3) HSBC's integration of the bank's records into HSBC's own records."

 

"Richmond did not, therefore, establish that she was a "custodian or other qualified witness" who could provide trustworthy and reliable information about the regularity of the creation, transmission, and retention of the records offered. M.R. Evid. 803(6). Because Richmond's affidavit could not establish the foundation for the records' admissibility, the court could not properly consider those records on summary judgment."

 

 

HOWEVER, my first order of business would be to contact the co-signer to see if he/she made the 2013 payment.

Share this post


Link to post
Share on other sites

Oh wow. Thank you. That's a great find! On that case.

Unfortunately the contract does hold the signatures. But is the contract enough without the acknowledgement of transfers specifying this specific account? Or the bill of sale failing for doing the same for that matter.

Contacted the co-signer and she said she didn't make payments even when they were slandering both parties. So this payment of $100 came from somewhere. Is it possible to request proof of it? The only place that mentions the payment is on cavalry letterhead with account information on it. There's no attached payments or statements on the OC account.

How do I get this affidavit gone and force them to bring witnesses?

Thank you guys again!

Share this post


Link to post
Share on other sites

@RandomHero

 

Definitely go to http://www.consumeradvocates.org/as suggested by @debtzapper.   While the violations committed by the JDB would only result in a maximum award of $1000 for the defendant, the fact that neither the defendant nor you made a payment should result in a favorable ruling for your friend.

 

Even if an attorney didn't want to represent your friend on a contingency basis, the attorney might be able to answer whether or not your friend file an amended answer to include the SOL.  Also, ask about a counterclaim for violations of the FDCPA (venue and SOL). 

 

BTW, does the contract contain an arbitration provision?

Share this post


Link to post
Share on other sites

The only attorney listed for my area on the site was the one we spoke with. He was prompt to answer but said if they have the contract we'd likely lose. And that it would be hard to prove a counterclaim. I asked him a few more questions but he hasn't gotten back to me yet.

I believe it she defaulted before they say it defaulted. But how to I see otherwise? I thought we had room to breathe with a defense in standing. But with the contract I'm unsure a judge would immediately judge the validity in their favor.

Share this post


Link to post
Share on other sites

There are some nation-wide consumer law firms that are licensed in Maine.  Google "Attorneys for consumers.com"  "Krohnandmoss.com and lemberglaw.com  I think at least one is licensed in Maine.  

Share this post


Link to post
Share on other sites

Check out these Maine lawyers.  They say they practice "consumer law," but that doesn't necessarily mean collection defense or FDCPA litigation.  Just contact them and find out.  Finding the right lawyer is like finding the right doctor.  You have to get several opinions.

 

 

https://www.justia.com/lawyers/consumer-law/maine

Share this post


Link to post
Share on other sites

Thank you so much! I'm contacting them right now. Hopefully someone will take notice.

With them having the original contract, does that negate the idea she could make them further prove they own the debt?

Thanks again!

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.