Dearlew

Sued By Cavalry in Georgia, could be SOL?

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Was served in person with paperwork on December 18th.  I'm wondering if the SOL applies here which from what I've read in the forums would be  4 years in Georgia?  Here are my answers to the "questions to answer":

1. Plantiff: Cavalry SPV as assignee of Citibank

2. Lawfirm: just lists the names of two attorneys, both with the same last name

3. amount owed: $5,xxx

4. Orignal creditor: Citibank

5. Was served in person on Dec 18th

8. I received a few collection letters from Cavalry which i ignored and unfortunately did not keep track of these, so may not have them

9. I live in Georgia, Gwinnett county

10. last payment was April 2011

11.  I believed the SOL for Georgia is 4 years, however i signed up for this card back in 1995 in Indiana

12. The summons says I have 30 days to respond, the claims are as follows:

Defendant entered into a credit card agreement with Citibank N.A. and in the usual course of business, said account was ultimately assigned to Cavalry SPV 1, LLC.  Said account is in default

Exhibit A is a copy of a bill of sale from Citibank to Cavalry of the debt and a copy of my credit card statement from Nov 2011.

 

So i'm now wondering what to do next.  Do i have a chance of beating this because of the SOL or any other reason?  Should I fight it or just accept default judgement?  I would greatly appreciate help/advice.  Thanks!!

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Unfortunately, in Hill v. American Express (2008), the GA Court of Appeals ruled that a credit card debt is "a simple contract in writing" that is subject to the 6-year SOL. (OCGA § 9-3-24)

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As @BV80 said the SOL in GA is 6 years.  They are well within it to sue.

You should fight this.  Gwinnett is run by actual lawyers and Judges who do not take kindly to spurious documentation to pursue a debt case.  

Magistrate Court does not allow discovery so you do not need to worry about that.  Simply check off on the form you deny their allegation and wish to defend then get it to the clerk.  The court will set a trial in the next 30 days.  Type up  a motion to compel arbitration and a motion to dismiss with prejudice.  I would even mail a copy of the MTC arbitration to the lawyers listed and a letter CMRR stating that you are electing arbitration per the terms of the agreement that governs the account in question.  That may cause them to fold before trial.

On the day of trial the Magistrate will send you to the hallway to negotiate with the rent-a-lawyer that gets the case.  Your only move is to steadfastly refuse to discuss any payment or admit to ANYTHING.  You simply keep stating that you want arbitration per the terms of the card agreement the Plaintiff alleges applies to the account in question or a dismissal if they don't wish to arbitrate.  If they haven't dismissed prior to the trial date they most likely will at that point or shortly after.  

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Thank you so much for your responses.  I am completely new to this site and this entire process so please forgive my ignorance.  I have the form to deny and plan to drop off at the court today.  I'm not familiar with the MTC and CMRR.  Is there somewhere on this site where I can find these or an example?  Also do I need to try and locate any other paperwork relating to my old citibank account?  Perhaps the agreement terms?  

Thanks again!

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MTC = Motion to Compel an action by the other party in your case arbitration.

CMRR = Certified Mail Return Receipt this is what gets you proof they received your communication

Don't worry about being clueless most consumers who end up being sued have little knowledge about the laws available to help them.  Just keep studying and educating yourself.

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A Motion to Compel Private Arbitratoin would look something like this:

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND
DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING
ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name typed), Defendant, pro se


 

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Wow!  Thanks, fisthardcheese. That really helps.  I'll definitely use that if that's ok.  Waiting to get the hearing date in the mail from the court.  And trying to educate myself about this whole process.  Want to learn more about exactly what arbitration is even though i'm hoping it doesn't get that far.   

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Hello I am new to this site but I see there a some good work is being done here.  I have to answer a bill of particulars :

Plaintiff by counsel states the following as it Bill of Particulars:

1 At the defendant's request a revolving credit card account was established with the Plaintiff predecessor in interest, Citibank/drivers edge(hereinafter "the assignor".

2. The defendant defaulted on the above account by failing to honor the defendant's payment obligations with respect to the above account.

3. the account was subsequently assigned to plaintiff for good and valuable consideration.

4. That the defendant id indebted to the plaintiff for the principal sum. of $3004.85 representing the balance due owing on the aforementioned credit card account.  See statement

of account attached as plaintiff's exhibit A.

 

Wherefore plaintiff request that the judgment be entered in its favor in the amount prayed for in it warrant in debt, less credits .

I am being sued by Cavalry Spc1 llc  I need to know how to answer 1 & 2 the SOL has expired and I don't I was told to answer every statement isthis correct Help new to file by Friday 01/22/2016

Thanks

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@SueSausagehead

It would better if you start your own thread.   In your new thread, please copy and answer the questions in the following link:

 

 

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@SueSausagehead

No problem.  Believe me, I understand. 

Go almost to the top of this page and look on the right.  You'll see a greenish-colored box that says "Reply to this topic".   Just to left of that box is "Start new topic".  

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Thanks again for everyones help with this case.  I have turned in my denial to the court and my court date is a couple weeks out still.  I'm currently drafting a letter to send to their attorney.  Just to clarify what @Clydesmom said, am I just simply informing them that I plan to file a MTC arbitration?  Is there any specific wording that I need to include? 

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I would send nothing until and unless I file the motion with the court.  If I am going to file the motion ahead of my court date (in Magistrate you don't HAVE to, but you can), then I would take 3 copies in total.  One I give to the clerk to file with my case, the other two I ask the clerk to stamp for me.  One I keep for myself as proof I filed and the second stamped copy I send to their attorney.

My letter would say "Please see the attached motion filed in this case".  That's all.

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Ok thanks, so i guess my next question would be, is there any benefit in filing the motion before the court date?  I think Clydesmom was saying that I could lead to the plaintiff dropping the case before we even get to court.  

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6 hours ago, Dearlew said:

Ok thanks, so i guess my next question would be, is there any benefit in filing the motion before the court date?  I think Clydesmom was saying that I could lead to the plaintiff dropping the case before we even get to court.  

I've never seen a collections case get dropped before a magistrate court date.  Even if you filed your motion and sent it to them to "scare them off", they are still going to be in court that day for the 450 other collection cases they filed the same day as yours.  They won't care about your motion because they are expecting that you won't even show up to court like 98% of all their other cases. Maybe your car will break down - who knows.  Or if you do show up, they believe they can scare you and intimidate you into making a payment arrangement with them on a consent judgement.  In fact, when you do show up and had filed your motion ahead of time, it would be very rare if the attorney even KNOWS that you filed a motion or will even have a copy of it even though you mailed it ahead of time to them.

Now, even though I just said all of that, yes, I would file the motion and send a copy to them before the court date.  Not because I think they will drop the case, because they won't.  But just to make things a tad easier on myself.  But I will also be prepared to show the motion to the attorney when he starts up his speech about making a payment plan - and I will be prepared for him to act shocked and pretend you are severely mental for even bringing up arbitration.  But that's just all part of the fun of it.  :)

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13 hours ago, fisthardcheese said:

But that's just all part of the fun of it.  :)

I just want to say again how much i appreciate your help on this.  Your experience, confidence and the levity that you add really helps ease the anxiety that comes from being new in dealing with these legal issues.  

I plan to use the motion example you provided and to file before the court date.  One question specifically referring to the motion:

On 1/9/2016 at 9:08 PM, fisthardcheese said:

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

Do I need to take this part out of the motion before filing?  Or is it still ok to send notice to the Plaintiff's attorney after I file the motion?   And would i put a date here that is after the date that I filed the motion?  I just don't want to mess this process up by doing something out of order.  

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On 1/9/2016 at 9:08 PM, fisthardcheese said:

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.
 

Currently preparing a MTC to file before my court date next week.  Are these points (a-e) specific to a particular card agreement or general?  Reading thru the citibank card agreement and it definitely has language very similar to this.  Do I need to change these to relate to the specific wording of my citibank agreement? 

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6 hours ago, Dearlew said:

Currently preparing a MTC to file before my court date next week.  Are these points (a-e) specific to a particular card agreement or general?  Reading thru the citibank card agreement and it definitely has language very similar to this.  Do I need to change these to relate to the specific wording of my citibank agreement? 

Yes, change it.  Never just copy/paste something from the internet - even this site - and take it to court.  That is asking for trouble.  The Motions and other things I and others post here are a guide only.  You need to do your own work and figure out how or if each section of the motion applies to your specific case and specific card agreement.  Type up your own motion using your own words and quoting the pertinent parts of your own contract.  Most importantly, you need to understand what it says.  You need to know what your are putting in your motion and exactly what you are saying and asking of the court.  If you don't, you will look even more foolish when questioned by the Judge as to why your motion doesn't match what your case or contract says and you can't answer him because you don't know what your motion even says.

This message applies to everyone, I'm not just picking on the Op.

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Once again, great info, thank you!  I have rewritten the motion using specific wording from my card agreement.  Is it ok to use paragraphs 5 and 6 the way they are written here?

 

On 1/9/2016 at 9:08 PM, fisthardcheese said:

5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

 

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Had my court date.  Filed the MTC arbitration beforehand and brought 3 copies along with 3 copies of the card agreement.  Was called out to the hallway to speak with the attorney.   He started into his speech, but he seemed almost apologetic about it.  Didn't seem that knowledgable about the case really.  Said we could probably work out some sort of payment arrangement.  So I then informed him that I had already filed an MTC arbitration, which he seemed surprised about and of course did not have the copy I had already mailed.  So i handed him a copy along with the card agreement.  He said that he thought he had seen something like this before and we'll just see what the judge says.  That was it.  Went back into the courtroom and had to wait until all the other cases were finished.  I was the only one there that was even contesting.  

So  was called up to the bench with the attorney.  He explained to the judge that I had filed a MTC and the judge looks through her paperwork and finds it.  Skims through it along with the card agreement.  Says it seems to be legitimate.  Asks the attorney if it's the correct card agreement.  He says yes.  The only thing the attorney said about it was that if the judge were to dismiss the case then, there would be no incentive for me to continue with the arbitration.  It was here that I felt my ignorance and inexperience as I was expecting to get a dismissal.  So I tell the judge that although I'm not exactly sure how this works it would seem that the wording of the card agreement is pretty clear.  She agrees but also agrees with the attorney that if she just dismisses the case now there would be no reason to continue to arbitration.  She also comments that I may find that getting what i'm asking for here is not what I want.  Says that in her experience arbitration can be  very expensive.  She says that she looked into one time herself and it was like $1500 just to start the process.  So she grants my motion with this note:

"Case to be suspended for 60 days to allow defendant to initiate arbitration.  Defendant must file documents showing arbitration has been initiated or case returns to calendar."

To clarify, she says i just need to file some kind of proof that I have initiated arbitration, payment receipt,  documentation, etc., with the court clerk and then the case would be dismissed.  

So now I'm not sure exactly what my next move should be?  Do I file for arbitration to get the case dismissed in the hopes that Cavalry won't follow thru with it and actually go to arbitration?  And is it actually $1500 to file?  

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1 hour ago, Dearlew said:

So now I'm not sure exactly what my next move should be?

You file the case with JAMS and pay the $250 fee to initiate arbitration.  YOUR fee is capped at $250.  THEIR fee is $1500. 

Then file copies of all the paper work with the court and the dismissal.

1 hour ago, Dearlew said:

 Says that in her experience arbitration can be  very expensive

It is.  FOR THE PLAINTIFF.  That is a standard statement to use to try and get you to back down.  You didn't fall for it. 

File in JAMS and wait for them to decline to follow you into arbitration when they get the bill for their portion.

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The attorney was asking to dismiss the case and you did not just say you agree to a dismissal?  Wasn't that your objective?

It seems you must now file.  Does your agreement list JAMS or AAA?   When you fill out the Demand for Arbitration forms make sure to retain copies of everything you send in so you can file it with the court.  Once I get confirmation and a case number from with either AAA or JAMS, I will print that email and submit it with my filing papers to the court as well.

You may be able to get away with not sending in a payment right now if this is JAMS.  What does your agreement say about paying the filing fee for arb?

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