English Major Posted June 20, 2016 Report Share Posted June 20, 2016 (edited) I am re-writing this, because I realized after some cross-referencing that this is not the same account with which I'd already dealt. Apologies for my error & for cluttering this board with a bad post. Though, I DO need help responding to this lawsuit, if anyone is willing to help. I don't remember when the last payment was made, but it has been several years. I know that I took exception to a compiling of fees and charges at some point & told them I'd not pay until they removed one (something to do with an auto-debit that failed). I think there's another $1000 of fees and interest added to get the amount claimed in this lawsuit. I have my old responses from the prior lawsuit. What are the odds they can be recycled to answer this one? Scan0004.pdf Edited June 20, 2016 by English Major Corrected original information. Added document scans. Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 @English Major Did the plaintiff (first lawsuit) voluntarily dismiss the lawsuit? BTW, who was the plaintiff? Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 They did not. They wanted me to find more documentation (receipt) on the payment, even though I told them that we'd moved twice since then, so I knew I wouldn't find it. The judge was simply unwilling to give the summary judgment. Apologies. I was confused. This lawsuit is by Cavalry, but for a different account. That was a BoA account, this is a Capital One. I need to research it better. Thank you for your response. Made me cross-reference better. Can't believe I didn't look at the original debt owner! Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 @English Major When it comes to lawsuits, we can all get flustered at times. What is the SOL in WA? When was this lawsuit filed? Quote Link to comment Share on other sites More sharing options...
CCRP626 Posted June 20, 2016 Report Share Posted June 20, 2016 @English Major this is Capital One? How long since last payment? Might be able to use Washington's borrowing statute to use Delaware's three year SOL but need to see caselaw on how that's interpreted? http://app.leg.wa.gov/RCW/default.aspx?cite=4.16.290 Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 The date at the end of both documents is May 10, 2016. I was served on either June 1 or 2 (as I was packing to leave for a two-week business trip, thanks). Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 Everywhere I looks seems to have SoL in WA as six years. I know that we'd be close to that, but I couldn't say for sure we'd be beyond that. It's very possible, but without more documentation, which I am unlikely to have, I don't know for sure. Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 6 minutes ago, English Major said: The date at the end of both documents is May 10, 2016. I was served on either June 1 or 2 (as I was packing to leave for a two-week business trip, thanks). If the complaint has not been filed or was filed after Dec. or Jan. of 2016 (6 years after the date of last payment or when a payment was due), the SOL has passed. Check with the court to see if the complaint was filed. Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 But I MUST respond to the summons and/or complaint regardless, yes? Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 8 minutes ago, CCRP626 said: @English Major this is Capital One? How long since last payment? Might be able to use Washington's borrowing statute to use Delaware's three year SOL but need to see caselaw on how that's interpreted? http://app.leg.wa.gov/RCW/default.aspx?cite=4.16.290 If the governing state is DE, the WA Court of Appeals nixed the borrowing statute in Unifund v. Sunde because the DE SOL would have been tolled due to the fact that Sunde was not in DE and could not have been served. https://scholar.google.com/scholar_case?case=6881248198285580411&q=%22Unifund+CCR+Partners+v.+Sunde%22&hl=en&scisbd=2&as_sdt=4,48 Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 How can I know if the governing state is DE or WA, though? If it's DE, it's definitely been beyond three years. I just don't know if it's been quite six. It's close, but could be just shy of six. Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 1 minute ago, English Major said: But I MUST respond to the summons and/or complaint regardless, yes? Yes. For affirmative defenses, you could claim Lack of Standing (no proof that the plaintiff owns the account) and the Statute of Limitations (debt is time-barred). Just make sure the complaint has not yet been filed. If it was not filed before Jan., 2016, I'd include a counterclaim for a violation of the FDCPA for filing a lawsuit on a time-barred debt. Quote How can I know if the governing state is DE or WA, though? If it's DE, it's definitely been beyond three years. The cardmember agreement would reference the governing state. However, as I explained in another post, if the governing state is DE, the borrowing statute will not apply. Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 The May 2016 date would be the filing date, yes? I'm now fairly certain that my last payment on this was beyond six years ago. I'm going to do the "lack of standing" and also the counterclaim, because I am now certain it's outside the SoL. I still need to check whether this has actually been filed. Can you recommend any references for wording on responses, or do I need to post the language from the complaint to get help on that one? Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 and @BV80 thank you so much for the time and wisdom. I swear these people just want to catch you with your pants down. Quote Link to comment Share on other sites More sharing options...
CCRP626 Posted June 20, 2016 Report Share Posted June 20, 2016 @BV80 I got a good laugh out of that case. So, basically if you're in Washington, Nebraska, Colorado, Montana, North Dakota, Oregon and maybe Minnesota and the cardmember agreement states Delaware or you send payment there, you can never use the three year Delaware SOL because you can't be served there. The Delaware SOL according to them is infinite so the only thing they can do is use their own. Ohio though, you send the payment to Delaware and it's good enough to give you a three year SOL. Florida is pretty loose as well. Quote Link to comment Share on other sites More sharing options...
CCRP626 Posted June 20, 2016 Report Share Posted June 20, 2016 1 hour ago, English Major said: I still need to check whether this has actually been filed. Also go to the CFPB site and file a complaint for the SOL issue. Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 Anyone willing to read my response draft and give feedback? lawsuit answer anon.doc Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 1 hour ago, CCRP626 said: @BV80 I got a good laugh out of that case. So, basically if you're in Washington, Nebraska, Colorado, Montana, North Dakota, Oregon and maybe Minnesota and the cardmember agreement states Delaware or you send payment there, you can never use the three year Delaware SOL because you can't be served there. The Delaware SOL according to them is infinite so the only thing they can do is use their own. Ohio though, you send the payment to Delaware and it's good enough to give you a three year SOL. Florida is pretty loose as well. I don't understand how the court could conclude that the SOL is tolled when the defendant never lived in DE. I just don't get it. Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 1 hour ago, English Major said: Anyone willing to read my response draft and give feedback? lawsuit answer anon.doc You didn't raise the SOL as an affirmative defense. If you don't claim that the debt is beyond the WA statute of limitations and, therefore, time-barred, you waive the defense. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. They don't have to allege the above. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. All they really have to allege is that they are the assignee or current owner of the account. Defendants invoke the Doctrine of Unclean Hands as the Defendants allege that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case. Can you prove the above? Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 40 minutes ago, BV80 said: You didn't raise the SOL as an affirmative defense. If you don't claim that the debt is beyond the WA statute of limitations and, therefore, time-barred, you waive the defense. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide. They don't have to allege the above. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant. All they really have to allege is that they are the assignee or current owner of the account. Defendants invoke the Doctrine of Unclean Hands as the Defendants allege that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case. Can you prove the above? Blech. Okay, forgot to add the SoL thing, so I'l add that. Drop the partial/complete thing and rights & control things? I guess I cannot prove unclean hands, but thought raising it was a way to force them to prove they have the legal standing to pursue this debt. Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 6 minutes ago, English Major said: Blech. Okay, forgot to add the SoL thing, so I'l add that. Drop the partial/complete thing and rights & control things? I guess I cannot prove unclean hands, but thought raising it was a way to force them to prove they have the legal standing to pursue this debt. Yes, drop the partial/complete thing and right & control thing. Standing boils down to the JDB proving it owns your account. If they can't prove the OC sold the debt to them, they have no right to sue you. Unclean hands means that they did something underhanded. That doesn't necessarily apply only to standing. In any case, when you raise a defense, you're the one who has to prove it, not the plaintiff. Do you mind posting the allegations in the complaint? Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 2 minutes ago, BV80 said: Yes, drop the partial/complete thing and right & control thing. Standing boils down to the JDB proving it owns your account. If they can't prove the OC sold the debt to them, they have no right to sue you. Unclean hands means that they did something underhanded. That doesn't necessarily apply only to standing. In any case, when you raise a defense, you're the one who has to prove it, not the plaintiff. Do you mind posting the allegations in the complaint? @BV80 I uploaded the summons and complaint in the original post. Rather, I attempted to do that. Let me check! Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 The scanned documents are in the original post, if you don't mind reading those. Otherwise, I'm happy to transcribe. Quote Link to comment Share on other sites More sharing options...
BV80 Posted June 20, 2016 Report Share Posted June 20, 2016 4 minutes ago, English Major said: @BV80 I uploaded the summons and complaint in the original post. Rather, I attempted to do that. Let me check! I see it. Is this the account on which the last payment was in 2009? Quote Link to comment Share on other sites More sharing options...
English Major Posted June 20, 2016 Author Report Share Posted June 20, 2016 Just now, BV80 said: I see it. Is this the account on which the last payment was in 2009? I cannot affirm a specific date for a most-recent payment, but I know for certain it was no more-recent than April 2010 and probably even a little older than that. Quote Link to comment Share on other sites More sharing options...
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