Won motion to vacate default judgement; now what?

[caffeinequeen]

I won a motion to vacate a judgement against me filed by Cavalry SPV I, and the court ordered that an answer be filed within 30 days. I assume that they mean that I have to answer the original summons & complaint. Is this correct? 

If so, I need some advice on how to go about that. The original summons & complaint says that Cavalry is the owner by assignment of the debt they are trying to collect, but does not state who the assignor is, or even an acct. # or date of alleged default. It just states an amt. owed, that payment was demanded, and payment was not received.  

How do I answer something so vague?

[Guest usctrojanalum]

Hello,

Yeah, it's pretty crazy how they write these complaints with very little details.  So you basically deny all the allegations (except if there is something like you reside in a certain county or something like that).  And list affirmative defenses, a popular being that Cavalry lacks standing.

I know good consumer attorneys in down state New York - NYC/Westchester/Long Island if you want a hand.  People that I use personally and I know have good reasonable rates for consumers.  If you went the lawyer route, I'd expect them to dismiss the case after a while. 

[Clydesmom]

1 hour ago, usctrojanalum said:

If you went the lawyer route, I'd expect them to dismiss the case after a while. 

THIS.  I read an article that approximately 70% of all consumer debt cases are voluntarily dismissed by the Plaintiff when the consumer hires legal counsel.  I would pay a good consumer attorney several grand LONG before I ever paid a junk debt buyer.

[CCRP626]

Too bad there isn't some punishment for the Plaintiff. It just sounds like "ooops, they got caught, no biggie, just act like you've been served correctly today and spend more time dealing with their mess".

@caffeinequeen this seems worth a CFPB complaint to me.

[caffeinequeen]

Just an update & thanks to those who've posted advice: I sent in an answer essentially denying their complaint because they were too vague. I received from them 2 documents. One is a Request For Admissions. There are a number of items. In summary, they ask me

1. to admit to having applied for a received an acct. #XXX from XXX;

2. admit to having agreed to pay charges on said acct;

3. admit to not having made such payments;

4. admit to having agreed to pay interest;

5. admit to having defaulted on  dateXXX;

6. admit that there is a balance owed by me to plaintiff;

7. admit that I am not entitled to any credits, offsets, or deductions;

8. admit that there are no facts which I rely upon as the basis of any defense in this action

9. admit that there are no documents, writings, letters or papers of any sort which defendant intends to use as evidence or as a basis for any defense in this action

10. admit that defendant has made or allowed to be made purchases on subject CC

11. admit that defendant has not made all payments on said CC.

How should I reply? Should I answer with my own set of interrogatories, requiring them to provide a bill of sale, details of the acct., etc? It all seems very broad. I don't want to perjure myself, but I don't want to hurt my case, either.

I also received a document called First Set of Interrogatories.  There are about 20 items listed, but basically they are asking me to provide information like who else may have used the acct., whether any charges were disputed, to provide a copy of the contract with plaintiff, a full record of any payments made, etc. With regard to the interrogatories, it seems I am being asked to assume that the debt is valid and to supply them with the evidence to prove it.  I thought that since they filed the summons and complaint, that the burden of proof is on them. If that is the case, how do I reply? They say that failure to comply will cause "sanctions under any applicable law" to be held against me.

I know this a lot. I get the sense that some of this is pure litigation by  boilerplate, but I don't want to make any mistakes. 

[CCRP626]

They're asking questions about an account they never identified to begin with? Make sure you answer those admissions with deny/insufficient information (see your discovery rules) and get them back within the time limits or they're considered to be you agreeing with them and they'll use that against you. Did you look into an attorney as mentioned earlier?

[caffeinequeen]

4 hours ago, CCRP626 said:

They're asking questions about an account they never identified to begin with? Make sure you answer those admissions with deny/insufficient information (see your discovery rules) and get them back within the time limits or they're considered to be you agreeing with them and they'll use that against you. Did you look into an attorney as mentioned earlier?

In the Request for Admissions document, they give an acct. # and claim it was purchased from BOA.

2

 

Yes, I know I have only a short time to respond. I can't afford an attorney, so I haven't really looked into that. Do you know where I could find NY rules for discovery?

Edited July 29, 2016 by caffeinequeen
left out info

[CCRP626]

@caffeinequeen check with @usctrojanalum for some atty referrals. I'm sure a payment plan could even be worked out.

Which court is this in? Maybe you can also answer these for better help.

Try this for discovery. http://public.leginfo.state.ny.us/lawssrch.cgi?NVLWO:

>>Civil Practice Law & Rules > Article 31 Disclosure

Each of the matters of which an admission is requested shall be deemed admitted unless within twenty days after service thereof or within such further time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a sworn statement either denying specifically the matters of which an admission is requested or setting forth in detail the reasons why he cannot truthfully either admit or deny those matters.

[caffeinequeen]

Thanks for your help!

[CCRP626]

Some Answer options- Admit, Deny,

*Cannot truthfully admit or deny the matters set forth in this request because defendant does not have knowledge of these matters, and despite reasonable inquiry into the matter by reviewing all of the records and information available to him, to obtain information from which the truth or falsity of the matter might be learned.

*Defendant states that after a reasonable inquiry, the information known or readily obtainable by him is insufficient to enable him to admit or deny this request.

*The request is vague, ambiguous or unintelligible.

*The request is not reasonably calculated to lead to the discovery of relevant, admissible evidence.

[CCRP626]

7 hours ago, caffeinequeen said:

Should I answer with my own set of interrogatories, requiring them to provide a bill of sale, details of the acct., etc?

Production of documents is separate from interrogatories. It's all in that set of rules linked earlier.

 

7 hours ago, caffeinequeen said:

I also received a document called First Set of Interrogatories.

you can post them if you want.

[Guest usctrojanalum]

I feel like I've read cases in New York where those type of admissions have been vacated because they go to the heart of the dispute between the parties. 

[caffeinequeen]

As admin suggested, here's the info on my case: 

1.  Named plaintiff is Cavalry SPV I, LLC

2.  Name of the law firm is Schachter, Portnoy in Valhalla, NY

3.  They are suing for approx. $5k

4.  The OC is FIA Card Services/BOA

5., 6. 7.  Plaintiff got a default judgment against me. Claims to have served me at my home, to my husband. My husband claims it never happened. I got a traverse hearing to dispute validity of service, but the judge decided that since the description of the man the process server claims to have served could match my husband, service was valid. For reasons too complicated to go into, my husband refused to go to the hearing, so it was essentially the process server's word against mine. The description he gave was so vague it could have been anyone: "male, 5 ft. 6- 5 ft. 11; average weight, bald (my husband isn't bald), wearing glasses. I brought a photo of my husband to show he's not bald. But the judge found in their favor, so service was held to be valid. But In my petition to have the default vacated, I raised a number of other defenses & the court vacated the judgment.

8.  I had no correspondence with plaintiff prior to notice of lawsuit.

9.  I live in New York State

10. Plaintiff claims last payment was August 2011

11.  SOL in New York is 6 years, but Bank of America is a North Carolina corp. and the SOL there is 3 years.  I have recently submitted my answers to their interrogatories as well as replied to a Request for Admissions. I am now working on my own set of interrogatories and Request for Admissions. They have not at any time submitted any documents showing that Cavalry SPV I purchased the acct. from BOA. Their summons & complaint pretty much said "You owe $XX, we asked you to pay it & you haven't done so, therefore  we're suing you".  

 

 

 

 

 

[caffeinequeen]

This is a question I'm not sure I can legally ask the plaintiff during discovery, but hoping someone may know. NYS has a law against "unjust enrichment", meaning someone may not collect an amt. that is far in excess of what is owed. From what I have read, JDB purchase accts. at drastically reduced $$, sometimes for $.05 or $.10 on the dollar. Since that is the case, am I allowed to ask the JDB for proof of what they paid for my acct.? And if they are asking to collect the balance due from the OC, would that constitute "unjust enrichment". I may be grasping at straws here, but I'm just waiting for replies to my first set of interrogatories and wondering what my next step should be.