pdxhayn68

CACH LLC vs. Oregon Consumer *Need Help

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Hello everyone. Less than a week ago was served with summons and a complaint from CACH LLC. I have researched on how to fight this and have found a lot of good info from this forum. I have yet to answer this lawsuit. I am looking for any ideas or opinions on the best way to go about fighting this. If you have any info (links, forms, examples, defenses) that I can use, I would appreciate it greatly.

 

Thank again. I can’t wait to get a conversation started and get this ball rolling.

 

1.Who is the named plaintiff in the suit?

 

CACH LLC

 

2. What is the name of the law firm handling the suit?

 

They might be watching

 

3. How much are you being sued for?

 

$7000-$8000

 

4. Who is the original creditor?

 

ELAN

 

5. How do you know you are being sued?

 

I was served

 

6. How were you served?

 

In person

 

7. Was the service legal as required by your state? Yes

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Debt Validation Letter

 

9. What state and county do you live in? Oregon/ Multhnomah

 

10. When is the last time you paid on this account? March 2011

 

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

 

12. What is the status of your case? Suit served? Motions filed?

 

Summons Served. Complaint Filed

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  

 

Yes

 

14. Did you request debt validation before the suit was filed?

 

Yes. I sent a debt validation letter (certified mail)  to CACH LLC on 1/30/15. They received it but they did not respond, however I did receive a letter two months later from the law firm that is currently filing the suit against me. This letter did not contain the information that I specifically asked for in my debt validation letter to CACH LLC.

 

 

 

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 

30 Days to respond. (Served on 3/23/16)

 

1. Breach of Contract

 

2. Account Stated

 

3. Unjust Enrichment (What would be a good defense for this?) 

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

No Evidence

 

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Have you checked your cardmember agreement for an arbitration clause?

They haven't provided anything and haven't shown they have standing and a credit card is Express Contract. Unjust Enrichment doesn't apply when there is an express contract plus it's a JDB who spent pennies on the dollar. Account Stated would mean there was an agreement that amounts were correct but you say you've disputed, so that would be a defense.

5 hours ago, pdxhayn68 said:

Yes. I sent a debt validation letter (certified mail)  to CACH LLC on 1/30/15. They received it but they did not respond, however I did receive a letter two months later from the law firm that is currently filing the suit against me. This letter did not contain the information that I specifically asked for in my debt validation letter to CACH LLC.

What was provided? They don't have to provide much but you can check against https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text#809

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@CCRP626

2 hours ago, CCRP626 said:

They haven't provided anything and haven't shown they have standing and a credit card is Express Contract. Unjust Enrichment doesn't apply when there is an express contract plus it's a JDB who spent pennies on the dollar. Account Stated would mean there was an agreement that amounts were correct but you say you've disputed, so that would be a defense.

Are you referring to the fact that the causes of action are both breach of contract and unjust enrichment?

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Double checking Oregon, Unjust Enrichment is considered quasi-contract. TILA requires an express contract for a credit card. I remember it being brought up as an additional attack angle the JDB showing what they paid for the debt.

Jaqua v. Nike, Inc., 865 P. 2d 442 - Or: Court of Appeals 1993

Free v. Wilmar J. Helric Co., 688 P. 2d 117 - Or: Court of Appeals 1984

From past posts, the idea I got was a defendant might want to head for private arbitration in Oregon if available.

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42 minutes ago, BV80 said:

Are you referring to the fact that the causes of action are both breach of contract and unjust enrichment?

 

3 minutes ago, CCRP626 said:

Double checking Oregon, Unjust Enrichment is considered quasi-contract. TILA requires an express contract for a credit card. I remember it being brought up as an additional attack angle the JDB showing what they paid for the debt.

Unjust enrichment, often characterized as "quasi-contract" (essentially, a judge-made contract) is an equitable claim, available only when there is no adequate remedy at law. If it is determined that a contract exists between the parties, then breach of contract is the only claim which would survive. If it is determined that there was no contract between the parties but it would be inequitable for the defendant to retain the benefit conferred upon him by the plaintiff, the unjust enrichment claim survives and the plaintiff recovers thereunder. Both claims cannot survive simultaneously, although they can be contemporaneously alleged. And remember, no contract, no arbitration clause. So if you want your arbitration solution, be prepared to prove there was a contract (to your ultimate detriment).

 

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Check contract for choice of law.

If action barred using choice of law, then file MTD based on shorter SOL.

Unlikely to win MTD based on lack of standing, but if action timely, worth a try.

Other possibility is to respond via MTC private contractual arbitration.

You have had full discovery at your disposal since complaint filed.

You should avoid responding to complaint via answer, as that immediately kicks the case into court mandated arbitration (informal trial).

Have a look at dunning letters. If you do answer at some point, you may have a valid FDCPA counterclaim:

https://scholar.google.com/scholar_case?case=11662263773344075501&hl=en&as_sdt=6&as_vis=1&oi=scholarr

 

 

 

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@nascar

10 minutes ago, nascar said:

 

Unjust enrichment, often characterized as "quasi-contract" (essentially, a judge-made contract) is an equitable claim, available only when there is no adequate remedy at law. If it is determined that a contract exists between the parties, then breach of contract is the only claim which would survive. If it is determined that there was no contract between the parties but it would be inequitable for the defendant to retain the benefit conferred upon him by the plaintiff, the unjust enrichment claim survives and the plaintiff recovers thereunder. Both claims cannot survive simultaneously, although they can be contemporaneously alleged. And remember, no contract, no arbitration clause. So if you want your arbitration solution, be prepared to prove there was a contract (to your ultimate detriment).

 

That's what I meant by my question.  :)

The 2 causes of action could be claimed separately and only one could survive.

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@CCRP626

28 minutes ago, CCRP626 said:

Double checking Oregon, Unjust Enrichment is considered quasi-contract. TILA requires an express contract for a credit card. I remember it being brought up as an additional attack angle the JDB showing what they paid for the debt.

Jaqua v. Nike, Inc., 865 P. 2d 442 - Or: Court of Appeals 1993

Free v. Wilmar J. Helric Co., 688 P. 2d 117 - Or: Court of Appeals 1984

From past posts, the idea I got was a defendant might want to head for private arbitration in Oregon if available.

State laws can determine whether a credit card is considered a written or unwritten contract.  That has nothing to do with the requirements in TILA per the credit card agreement.

To date, I've found no court precedent for forcing a JDB to reveal the amount it paid for a debt. 

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32 minutes ago, BV80 said:

State laws can determine whether a credit card is considered a written or unwritten contract. 

Usually if within the four corners of a single document, it's written. If multi-doc such as credit card it's unwritten. Both are express contracts. To meet TILA everything must be in writing in advance of usage. If the alleged account complies with TILA there isn't unjust enrichment.

 

49 minutes ago, nascar said:

And remember, no contract, no arbitration clause. So if you want your arbitration solution, be prepared to prove there was a contract (to your ultimate detriment).

I think there were many posts on this just last week with differing opinions. Even if you don't "want your arbitration solution", some posters have mentioned states like Oregon shove you into mandatory court supervised arbitration.

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@CCRP626

1 minute ago, CCRP626 said:

If the alleged account complies with TILA there isn't unjust enrichment.

What is your source?

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Thank you for your input everyone.

@CCRP626 - The letter that was provided contained all the required elements of the FDCP. It stated who the original creditor was, the amount owed, account # etc. This letter came from ABC Law group not CACH LLC. even though the validation letter from me was sent to CACH LLC. 

@Happybluesky - I will avoid responding via answer and will use discovery instead. 

@BV80 - If the two COA's "Breach of contract" & "Unjust enrichment" cancel each other out, should my defense be just that?

 

*As far as a contract is concerned with the credit account, I do not have access to the contract, the card member agreement, etc. The credit card was issued through West Coast Bank. They would have the application/card member agreement/ statements etc. The only problem is that West Coast Bank no longer exists.  By tracking the alleged account via my credit report. I have found many errors when comparing Trans union, Equifax, & Experian.  Dates do not match, amounts do not match, the last payment received dates do not match the last payment date they stated in the complaint. At the end of the day I need CACH LLC to send me some proof of their allegations.  

Thank You

 

 

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Now I'm curious why the need to add account stated if the mutually exclusive breach of contract or unjust enrichment will supposedly stand if the other falls? I'm guessing to back up their math for the total?
 

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@pdxhayn68

27 minutes ago, pdxhayn68 said:

@BV80 - If the two COA's "Breach of contract" & "Unjust enrichment" cancel each other out, should my defense be just that?

They don't cancel each other out.  The plaintiff can only be awarded for one or the other.  In other words, if they are awarded for breach of contract, they won't be awarded for unjust enrichment.

 

Quote

I will avoid responding via answer and will use discovery instead. 

How much time left do you have to respond to the complaint?   How much time do they have to respond to discovery?

 

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19 minutes ago, CCRP626 said:

Now I'm curious why the need to add account stated if the mutually exclusive breach of contract or unjust enrichment will supposedly stand if the other falls? I'm guessing to back up their math for the total?
 

Account stated is a third and entirely separate claim for relief, with different standard of proof than breach of contract or unjust enrichment. Under the right circumstances, an account stated claim can survive, when the other two claims fail, either from lack of proof or to an affirmative defense.

 

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4 hours ago, nascar said:

Under the right circumstances, an account stated claim can survive, when the other two claims fail, either from lack of proof or to an affirmative defense.

@nascar Interesting. Lack of proof seems like it would be failure to provide the contract. What would be an affirmative defense that would apply to meet the above?

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IMPORTANT:

OP has to respond to complaint.

Response must be answer or via motion.

Discovery is a different issue.

Don't make the mistake of requesting discovery from plaintiff in lieu of responding to complaint.

And remember, you're off to trial in court mandated arbitration if you respond to complaint with answer.

 

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2 hours ago, CCRP626 said:

Interesting. Lack of proof seems like it would be failure to provide the contract. What would be an affirmative defense that would apply to meet the above?

Forget it.

You're not in IL.

Complaint required to provide notice, that's about it.

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@pdxhayn68

14 hours ago, pdxhayn68 said:

14. Did you request debt validation before the suit was filed?

 

Yes. I sent a debt validation letter (certified mail)  to CACH LLC on 1/30/15. They received it but they did not respond, however I did receive a letter two months later from the law firm that is currently filing the suit against me. This letter did not contain the information that I specifically asked for in my debt validation letter to CACH LLC.

Please describe the circumstances.

Did you send the letter in response to an initial communication from CACH.   Their letter should have contained the 30-day notice?

Did you send the letter by certified mail?

What was stated in the letter from the law firm?

 

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@Happybluesky

4 hours ago, Happybluesky said:

Check contract for choice of law.

If action barred using choice of law, then file MTD based on shorter SOL.

If the governing law of the agreement is Delaware, the OR SOL will be applied.

 

4 hours ago, Happybluesky said:

Unlikely to win MTD based on lack of standing, but if action timely, worth a try.

Unless they are required to prove standing when they file the complaint, it's not worth a try.

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I just got done explaining that plaintiff does not have to prove standing or much of anything in complaint. The complaint just provides notice of the dispute in a general way. Alleging that there was a contract is sufficient.

If standing iffy, the time to attack is in the pre-answer stage via motion to dismiss in lieu of  the answer.

OP has to figure out whether there is a valid SOL defense. If not, and assuming there is no compelling reason to doubt plaintiff's standing, OP has to consider responding to lawsuit with MTC private contractual arbitration. OP has to first see if credit agreement had arbitration clause.

 

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4 hours ago, pdxhayn68 said:

The only problem is that West Coast Bank no longer exists.

If you want to get a cardholder agreement to get a MTC private arb (if available) going early, it looks like Columbia Bank took over West Coast. Contact them directly at https://www.columbiabank.com/ or through a CFPB complaint unless you can find the correct agreement at http://www.consumerfinance.gov/credit-cards/agreements/

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13 hours ago, CCRP626 said:

@nascar Interesting. Lack of proof seems like it would be failure to provide the contract. What would be an affirmative defense that would apply to meet the above?

For instance, defenses like failure to comply with statute of frauds, or substantial performance, or waiver may work an affirmative defense to a claim for breach of contract. And typical kitchen sink equity defenses (unclean hands, etc.) may prevail against an unjust enrichment claim. But not vice-versa. Finally, the claim of  account stated is often subject a shorter statute of limitations than one that encompasses a "written agreement," It is also susceptible to other arguments, not textbook "affirmative defenses" that would not be present in other claims, like "never agreed on the amount," or "never received a final rendering," etc. (An account stated is supposed to be based upon agreement to pay a fixed, final amount. How can a creditor, or debt buyer say you did that by attaching a monthly statement requesting an amount due less than the account balance?).

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@nascar appreciate the reply. If they're doing one of these multi-count complaints with varying statutes of limitations it looks like they'd have to commence the suit when all are within the SOL or there would be an FDCPA issue as well.

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Hello Everyone,

I am preparing my answer to CACH LLC and would appreciate some input. I will line out my plan and please let me know if Im making any critical mistakes. Also I am going with the stance that I have never done business with CACH LLC. I have never borrowed money from them, I have never had any services rendered etc.  They have yet to provide any clear cut information to me that links them as assigned to the account.  Again the causes of action that they are alleging goes as follows:

1.       Breach of Contract

2.       Account Stated

3.       Unjust Enrichment

My plan is to deny all causes of action and allegations by stating. “"Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of Plaintiff's claim, and based on that denies generally and specifically Plaintiff's claim."  - The information I needed was requested by me to CACH LLC via Debt validation letter sent in Jan of 2015. I sent it certified mail. I did not get a reply from CACH LLC. 

Next, I want to show the court that the plaintiff does not have the legal capacity to sue. I will not mention this in the answer (unless it is wise) but I will begin discovery to see if the Plaintiff has, in writing:

1.       Written proof that CACH LLC is assigned to the alleged account. I need a clear link of the alleged account changing hands from Original Creditor to CACH LLC.

2.       Written proof of the alleged contract. Credit card application

3.       Itemized account statements showing the validity and accuracy of the alleged account (how are they getting this alleged amount?)

“ 697.045 Status of accounts and claims assigned to agency; rights of assignor; appearance in small claims or justice court; registration as condition of access to courts. (1) A registered collection agency has a property right in any claim or account assigned to the agency in writing for collection. Except as may be otherwise provided in writing between the assignor of the claim or account and the registered collection agency, the registered collection agency as assignee of the claim or account, in its own name, may:

(a)   Collect the claim or account;”

More Questions

Should I motion to dismiss? I would much rather respond with a motion to dismiss based on the fact that Plaintiff has not shown they are the assignees of the original creditor.

Is it a must that I include affirmative defenses with my answer?

If they fail to provide these items during discovery, how do I prevent them from using it as evidence if we went to trial?

Thank you again for the help

 

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@pdxhayn68 you may want to consider contacting a consumer attorney about the FDCPA matter. You can see if they think you should put that as a counterclaim in your answer or how to best proceed.

Quote

Next, I want to show the court that the plaintiff does not have the legal capacity to sue. I will not mention this in the answer (unless it is wise) but I will begin discovery to see if the Plaintiff has, in writing:

For standing, check your state's civil procedure. I think you need to bring it up at the start and continue to do so or it may be considered as waived.

ORCP 21 G(2) A defense that a plaintiff has not the legal capacity to sue, that the party asserting the claim is not the real party in interest, or that the action has not been commenced within the time limited by statute, is waived if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof. Leave of court to amend a pleading to assert the defenses referred to in this subsection shall only be granted upon a showing by the party seeking to amend that such party did not know and reasonably could not have known of the existence of the defense or that other circumstances make denial of leave to amend unjust.

 

It looks like you can do a motion to dismiss in place of an answer-

ORCP 21 A

Every defense, in law or fact, to a claim for relief in any pleading, whether a complaint, counterclaim, cross-claim or third party claim, shall be asserted in the responsive pleading thereto, except that the following defenses may at the option of the pleader be made by motion to dismiss

 

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