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Cavalry/Winn Lawsuit in California

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I would appreciate any and all help offered.

I am being sued by Winn Law Group on behalf of Calvary LLC Collections and have a case management conference in Martinez, CA tomorrow. 

The original debt was a credit card through Citicards.  At the time I was in the process of trying to get my home loan modified and Citicard was the last of my concern as I thought I was going to be filing bankruptcy, which is what I told them when they called, I never heard from them again.  Eventually I was able to get my home loan modified and stay in my house.  I had spoken with several lawyers at the time who told me there really wasn't any reason to file BK because the creditors had so many people defaulting on loans they couldn't take everyone to court and that I should just wait the 5 years for the debt to be noncollectable.  That didn't make a lot of sense to me at the time, but went with the advice given especially since I didn't have the money to file bankruptcy. 

I received the notice several months ago (less than a month before the debt became noncollectable) and responded in time with denial paperwork I had a lawyer draw up for me.  I also submitted the CM100 (I believe that's what it was called) case management paperwork on time.  Although the lawyer drew up the paperwork, he has not really advised me.  He simply said a case management conference isn't a big deal and that I don't need representation since I can't afford him anyhow.  He said I could pay him again to draw up discovery paperwork after I go to the case management conference tomorrow.  Originally the denial paperwork didn't make much sense to me since I don't doubt the charges on the CC were mine, but after doing research and reading many things on this site, I now understand the denial aspect of the response and that they need to prove I owe them the debt.

I'm not positive, but I believe Calvary LLC is the 3rd company that has owned the debt (after Citicard)

I am very nervous and unsure as to what's going to transpire tomorrow and in the future, but feel a little relief after reading success stories and help offered on this site. 

Can someone please advise me of the following:

What happens at a case management conference and is there anything to be worried/stressed about?

Is it common that the companies that buy up debt are able to prove you owe the debt or do they just bank on people not responding and following through?

If they are able to prove that I owe the debt, is the dollar amount owed bargained down or is the entire amount owed?

I am unemployed and have been for 2 years due to medical issues.  My husband works and gives me money each month to pay my mortgage and a few bills.  He handles the rest of the bills and our living expenses.  We have separate bank accounts.  I deposit the money he gives me into my bank account.  All other money goes into his account, which my name is not on. 

Will they only look at my income going into my account or will they take into account all of the money earned? 

Does the amount of money you make (or don't make) play into how much that is owed if the case is lost?

I'm assuming they can't take money out of my husbands account since my name isn't on it, is that true? 

My husbands wages can't be garnished can they?

What sort of items are asked for in discovery?

Again, I would sincerely appreciate any and all help or advice.

Thanks in advance!

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Case management conference is not a big deal, it may take about 5 minutes. it is just to see how the case is going and if there has been any settlements or anything like that. nothing to worry about.

a trial date may even be scheduled if it hasn't yet.

 

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10 minutes ago, sbrown said:

 

I'm not positive, but I believe Calvary LLC is the 3rd company that has owned the debt (after Citicard)

this is something that can be figured out through discovery request. have you received any time of discovery request from Winn Law, requesting documents from you, for request for admission?

I am very nervous and unsure as to what's going to transpire tomorrow and in the future, but feel a little relief after reading success stories and help offered on this site. 

Can someone please advise me of the following:

What happens at a case management conference and is there anything to be worried/stressed about?

Winn Law is based on Fullerton, and none of their lawyers is going to drive to your court house, most likely they will sent a rent-a-lawyer to represent them, and perhaps to try to settle the debt with you prior to the hearing or after (if you are not ready to settle or can't settle simply say that you are not interested in settlement and do not discuss details of the case. if the laywer starts asking questions as if is this your debt, say that everything will be answer or has been answered through discovery. they may not send anyone and just do a phone appearance.

Is it common that the companies that buy up debt are able to prove you owe the debt or do they just bank on people not responding and following through?

in many cases they dismiss cases when they get some resistance from Defenders. to prove that they own the debt, the JDB must first bring a representative from the Original Creditor to attempt to authenticate the debt.

If they are able to prove that I owe the debt, is the dollar amount owed bargained down or is the entire amount owed?

 

I am unemployed and have been for 2 years due to medical issues.  My husband works and gives me money each month to pay my mortgage and a few bills.  He handles the rest of the bills and our living expenses.  We have separate bank accounts.  I deposit the money he gives me into my bank account.  All other money goes into his account, which my name is not on. 

Will they only look at my income going into my account or will they take into account all of the money earned? 

 

Does the amount of money you make (or don't make) play into how much that is owed if the case is lost?

no.

I'm assuming they can't take money out of my husbands account since my name isn't on it, is that true? 

if your name appears no where on the account/ not even as an authorized user, that money cannot be touched, unless your husband is a named defendant on the lawsuit.

My husbands wages can't be garnished can they?

unless he is a named defendant of the alleged card.

What sort of items are asked for in discovery?

the most common requests we demand are proof of ownership, statements, and contract

Again, I would sincerely appreciate any and all help or advice.

Thanks in advance!

 

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Thanks so much Sandica, I can't begin to tell you how much better I feel already, I sincerely appreciate it!

this is something that can be figured out through discovery request. have you received any time of discovery request from Winn Law, requesting documents from you, for request for admission?   No, all I've received from them was the original suit paperwork and a letter shortly thereafter indicating they didn't want to go to court, call them and work out a mutually beneficial arrangement.  When I called them they said to avoid going to court I could pay it off in 1 lump sum or in three months.  I did not have the money for that, told them so, gave them a $ amt I could afford and they said they would have to get approval and would contact me.  I haven't heard from them ever since.  I sent them a copy of the CM100 and although I see on the court website that they filed one, I have not received a copy.  We have not completed discovery as of yet.

in many cases they dismiss cases when they get some resistance from Defenders. to prove that they own the debt, the JDB must first bring a representative from the Original Creditor to attempt to authenticate the debt.   I would guess it's the other side, but what is a JDB?  I thought I had read somewhere they had to be able to produce the doc I signed when I got the original credit card.  I'm guessing that doesn't happen very often?  Also I thought I had read that they can't transfer over debt to a new creditor without your permission.  If I did not authorize the transfer, how am I liable for it.

 

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2 minutes ago, sbrown said:

in many cases they dismiss cases when they get some resistance from Defenders. to prove that they own the debt, the JDB must first bring a representative from the Original Creditor to attempt to authenticate the debt.   I would guess it's the other side, but what is a JDB?  I thought I had read somewhere they had to be able to produce the doc I signed when I got the original credit card. 

  Also I thought I had read that they can't transfer over debt to a new creditor without your permission.  If I did not authorize the transfer, how am I liable for it.

 

JDB stands for Junk Debt Buyer.

4 minutes ago, sbrown said:

  I thought I had read somewhere they had to be able to produce the doc I signed when I got the original credit card

Unless they are suing you for a breach of contract, they do not have to produce a singed contract. most likely the cause of action in your law suit would be Account Stated and/or Money Lent.

6 minutes ago, sbrown said:

I'm guessing that doesn't happen very often? 

I have yet to see a JDB produce a signed contract  during my time in these boards.

7 minutes ago, sbrown said:

Also I thought I had read that they can't transfer over debt to a new creditor without your permission.  If I did not authorize the transfer, how am I liable for it.

unfortunately this is not true. this is not true. they can legally sell and buy the your "ALLEGED" account many times over.

 

I would send them a Bill of Particulars, or better yet,  serve it on them tomorrow during the conference if they do send  a rent a lawyer.

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Sadinca has given you some good answers. My experience with the CMC is as described: quick - lasted a little more than 5 minutes. The CMC is a check-in with the judge; he/she will make sure that things are going smoothly and everyone is aware of what they should be. The judge might ask you what you want to do (settle, fight, etc) to make sure you are aware of your options. You won't be arguing the merits of the case at a CMC. You might get  a read on what your judge is like.

A few tips: Dress nice, it'll impress your judge. Be courteous to the contract lawyer representing the JDB, they just fill in for them and don't really have a dog in the fight. My judge was on friendly terms with my opposing laywer (they fill-in for stuff like CMCs all the time), I think he appreciated that I was courteous.

One more thing for after the CMC - you don't need to pay a lawyer to draw up discovery requests for you. They're pretty simple and there are samples here. When Winn sends you discovery requests, you'll find plenty of samples of discovery responses here as well. We'll help you out. They'll ask you for statements and correspondence, they ask you for information such as your address, your employer, etc. They'll request that you to admit to the debt. Once you find a few examples of discovery responses you'll see that you can respond without giving them much. I received about 25 different discovery requests/admissions and the only thing I gave them was confirmation of my name. You'll find they won't give you anything in their responses to your requests, either - it's the game that's played :)
 

Quote

 

My CMC:

- Judge asked me what I wanted to do. Fight.

- Judge asked if I did want to settle, did I have an offer in mind & that I could tell the rent-a-lawyer and they could pass it along. I said 10%. He smiled and said they probably wouldn't go for that.

- Judge asked rent-a-lawyer when the plaintiff wanted to go to trial. Lawyer responded 1 year, judge smiled again and said plaintiff shouldn't need that much time. Said 5 months. Asked me if the particular date would work for me, I said sure.

- Judge told me JDBs have trouble producing proper evidence to win collections lawsuits, so I should review the code & learn how to expose them on it.

- Complimented me on dressing professionally and said see you in 5 months.

 

 

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Thanks Sadonci and Ryanex.   I certainly feel much better about tomorrow than I did a few hours ago.  

After the CMC tomorrow and we go to discovery, is everything done through the mail until court or are there repeated CMC's?  I've looked around the site some and I didn't see any examples of discovery.  Since the site seems so helpful and I'm new at navigating it, I'm sure it's user error.  The thought of attempting discovery on my own seems a bit daunting right now, however, after a 3 year fight and much research I finally got Chase to modify my home so I know with guidance I'm up for the task.  Thanks for the support and encouragement!

I've done a bit of research to figure out what a Bill of Particulars is and what it's used for and will definitely be filling out one.

I've read it doesn't need to be submitted with the court, is that correct? 

If the JDB does have a lawyer present tomorrow do I just hand it to them? 

I looked around and found this, is it a suitable Bill of Particulars to fill out? 

Bill of Particulars.doc

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Is there a way to change my title to include my state, the name of the law firm as well as the collection agency?  I'm assuming I'm going to need much more help in the future, so figured Case Management wasn't going to serve me well in the future. 

Thanks a ton!

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No worries, I can edit it, but thanks for the heads up!

The name at the top is mine, correct?

I don't need to put down an address for Calvary?

If they aren't present tomorrow and I mail it to them, do I need someone to fill out the Proof of Service form?

 

 

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Name means your name, and where it says JDB you only need to put the name of plaintiff. 

If no person shoes up to represent them, then mail them with a proof or service, and keep a copy. No need to file with the court . 

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Phew, glad that is over!  The judge wasn't outright rude to me, but was rather abrupt and was not at all nice.  When I looked her up recently the only information I found on her were from child custody battles where each party was awarded 50/50 custody.  There were 15-20 reviews of her on two different websites that were terrible and everyone just slammed her.  One of the parties was seeking sole custody and/or supervised visits with evidence of drug and/ or alcohol abuse by the other parent and she did not require drug testing, etc. before splitting the custody equally, but each and every person said she was rude & full of herself along with some other not so nice things.

I'm guessing the plaintiff sent a rent-a-lawyer because someone was present. 

The judge looked at me and asked how I wanted to proceed.  I told her I wanted to proceed with discovery.  She looked surprised and asked what type of discovery I was requesting.  I answered that I had a BOP present today and would like to start with that.  The plaintiff said he was not prepared to be served today, so I said I could mail it with proof of service.  The judge told me if I'm going to discovery I have to follow all the rules and procedures outlined for discovery and asked if I was prepared to do so?  I said I was.

She said a trial would be set for Jan 20th and we agreed to the date.

The judge looked at me and told me to work this out.  She said if it goes to trial and she rules, there's a verdict and win or lose it's over.  So work it out, do you understand?  I agreed although I have to admit I was completely intimated and taken aback by her words, tone and bluntness as if she was already telling me she would rule in their favor.  Could have just been my nerves, but I did not get a good vibe off of her at all.

For the proof of service with sending the BOP, can someone in my household sign it?  I live with my son, who is of age & husband and neither are named in the suite,

After sending the BOP, how long do I wait?

After waiting for the BOP response, what is my next course of action?

Thanks a ton!  Your advice and support mean the world to me and make me feel not so alone in this!

Have a beautiful weekend!

 

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46 minutes ago, sbrown said:

The judge looked at me and asked how I wanted to proceed.  I told her I wanted to proceed with discovery.  She looked surprised and asked what type of discovery I was requesting.  I answered that I had a BOP present today and would like to start with that.  The plaintiff said he was not prepared to be served today, WTH??? can I say that next time a server shows up at my door? 

 

51 minutes ago, sbrown said:

The judge looked at me and told me to work this out.  She said if it goes to trial and she rules, there's a verdict and win or lose it's over.  So work it out, do you understand?  I agreed although I have to admit I was completely intimated and taken aback by her words, tone and bluntness as if she was already telling me she would rule in their favor.  Could have just been my nerves, but I did not get a good vibe off of her at all.

it could mean that she was throwing you a warning on how she intends to rule, or perhaps me may think of you as an unsophisticated defendant that is not aware of the rules, laws, and caselaws. however, Californian defendants have a big arsenal to use against jdb's which includes procedure codes, caselaws, rules of evidence, etc. you will learn all of that pretty soon.

some lawyers do bend over backwards in favor of JDBs, one example is our judge here in Orange County. He would present the case for plaintiff if he could. but many cases do get dismissed before ever going to trial. one example is my case against the same plaintiff you have. so there is hope. if you have time you could check the courts calendar and attend a couple of collection cases so you can have a better feel on the judge.

1 hour ago, sbrown said:

For the proof of service with sending the BOP, can someone in my household sign it?  I live with my son, who is of age & husband and neither are named in the suite,

any of them is good to sign the POS. I signed my wifes during her case and she signed mine during my case.

1 hour ago, sbrown said:

After sending the BOP, how long do I wait?

the BOP states that Plaintiff should respond to your demand within 10 days after the date of service, plus 5 days for mailing.  so you may not see anything back for approximately 20 days.

1 hour ago, sbrown said:

After waiting for the BOP response, what is my next course of action?

after the BOP, you will start discovery, which will be a request of 3 or 4 requests categories.

you should look at some of our older threats that have some very good information of what is to come. try 111calgirl, homelessincalifornia.

 

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This is a very comprehensive case, with good of great information. almost a step-by-step. it is a few years old, and now we have a couple more caselaws under our arsenal.

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now that you have decided to stand up and confront these vultures, there will be a lot of reading, typing and learning ahead of you. 

during my case, I created flashcards with objections, caselaws, and anything that would assist me during a potential trial. I didn't get to use them, but I did started early. you have 1/2 a year to learn, learn, learn. it would also be beneficial to follow other active California threats, in which you can learn from.

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Thanks immensely @Sadinca!  I've been reading many threads and have 111calgirl and homelessincalifornia saved to go through and read.  It's nice to know I'm on the right track with researching, however, there's so much lingo and legal speak it gets a bit confusing, but I'm definitely learning. 

I was also astonished he said he wasn't ready to be served.  I thought maybe that was normal, but it seemed awfully odd!

Thanks!

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Oh btw, how do I find the court calendars?  Everything I was finding yesterday just showed her dept number, but didn't have any date or time info.

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7 minutes ago, sbrown said:

Oh btw, how do I find the court calendars?  Everything I was finding yesterday just showed her dept number, but didn't have any date or time info.

I think this is some information on how to do a case search on your court website. it looks a bit more complicated than the one here in OC.

 

http://www.cc-courts.org/_data/n_0003/resources/live/cmsinstr.pdf

 

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11 minutes ago, sbrown said:

Thanks immensely @Sadinca!  I've been reading many threads and have 111calgirl and homelessincalifornia saved to go through and read.  It's nice to know I'm on the right track with researching, however, there's so much lingo and legal speak it gets a bit confusing, but I'm definitely learning. 

I was also astonished he said he wasn't ready to be served.  I thought maybe that was normal, but it seemed awfully odd!

Thanks!

anything you have a question or you don't understand do not hesitate to ask. someone will be here to assist.

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6 hours ago, sbrown said:

The judge looked at me and told me to work this out.  She said if it goes to trial and she rules, there's a verdict and win or lose it's over.  So work it out, do you understand?  I agreed although I have to admit I was completely intimated and taken aback by her words, tone and bluntness as if she was already telling me she would rule in their favor.  Could have just been my nerves, but I did not get a good vibe off of her at all

 

If you feel this judge might be unfair to you, you can have her removed from your case. CA law allows each party in a suit a one-time peremptory challenge to get rid of a judge. See CCP 170.6. You don't have to justify or explain it, you can just do it. Research some more, including the other judges in the courthouse, it might be to your benefit to exercise this right. It has to be timely though, I'm not sure what that time frame is, but if that's something you want to consider, someone here can help explain.

Of course she might have been communicating to you not to come to trial unprepared and expect to win, she might have been saying there are rules and you have to use the law & procedures correctly to get a just ruling. And it's never "over" - if you follow the procedures laid out in the law, you object properly in court, and a judge wrongly rules against you (it has happened), you still have appeals to correct it. One of our members successfully did so. That's even if you get to court, by your trial day, if you press the plaintiff the way you can, most prefer to dismiss before trial rather than risk a loss in court. The want easy wins, not tough wins and certainly not defeats.

http://www.leginfo.ca.gov/cgi-bin/displaycode?section=ccp&group=00001-01000&file=170-170.9

http://caught.net/pdf/Peremptory-Challenge.pdf

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Great point @RyanEX

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