Summons from CACH LLC

[amlg]

1. Who is the named plaintiff in the suit? CACH, LLC

2. What is the name of the law firm handling the suit? J.A. Cambece Law Office, P.C.

3. How much are you being sued for? $2,XXX.00 (plus "interest, court costs, and any other relief deemed reasonable and just")

4. Who is the original creditor? First Bankcard (a division of First National Bank of Omaha)

5. How do you know you are being sued? Was served a summons.

6. How were you served? In person, at home.

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? One letter received from the law office, dated 7/13/16, stating that the debt was sold to their client (CACH) and was hired by CACH to collect said debt. Basically, it looks like a standard debt collection notice.

9. What state and county do you live in? Providence County, Rhode Island

10. When is the last time you paid on this account? Last payment was around the end of May 2015 to original creditor. I have never made any payment to CACH.

11. What is the SOL on the debt? 10 years

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

14. Did you request debt validation before the suit was filed? No.

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? 20 days, 15 days left to answer. No interrogatory received.

ENTIRE SUMMONS READS:

COMPLAINT

Now comes the Plaintiff, CACH, LLC, by and through counsel, who alleges the following for its Complaint against Defendant, MY NAME.

PARTIES

1. The Plaintiff, CACH, LLC is a Colorado limited liability company with its principal place of business at  4340 S. Monaco 2nd Floor Denver, Colorado 80237 and authorized to do business in the State of Rhode Island.

2. The Defendant, MY NAME, is an individual residing at MY ADDRESS.

JURISDICTION AND VENUE

3. Pursuant to R.I.G.L. 8-8-3 the District Court has jurisdiction.

4. Pursuant to R.I.G.L. 9-4-3, venue is proper as the Defendant resides within the Court's district.

FACTS

5.On or about 06/26/2014, Defendant entered into an agreement with the original lender, First Bankcard (a division of First National Bank of Omaha), for the extension of credit through the use of a credit card or line of credit.

6. Defendant used this credit account, XXXX, for purchases, cash advances, and/or balance transfers.

7. On or about 05/29/2015, the Defendant made his/her last payment on this account.

8. A statement generated after this payment was mailed to the Defendant at his/her address in the next billing cycle.

9. No payment was received by First Bankcard (a division of First National Bank of Omaha), after this last payment referenced above.

10. On or about 1/29/2016, First Bankcard (a division of First National Bank of Omaha), charged-off the Defendant's delinquent balance in the amount of $2,XXX.00.

11. On or about 02/11/2016, the debt was sold for valuable consideration and the right to collect the same to CACH, LLC.

12. On or about 02/11/2016, the Defendant was notified that CACH, LLC was the owner and holder of the debt.

COUNT I: ACCOUNT STATED

13. The original creditor mailed to the Defendant monthly account statements after Defendant opened the said account. The statements reflected accurately, account activity and accordingly, an account was stated by virtue of the Defendant's receipt and acceptance of those monthly statements, continued use of the credit card, and Defendant's continued payments after the receipt of the monthly statements. Defendant made no objection to any matter set forth in said statements.

14. Defendant's receipt, acceptance and payments thereon of the account issued by the original creditor constitutes Defendant's assent to the correctness of the account.

15. Defendant's conduct as set forth above constitutes the acceptance of an account stated between Plaintiff and Defendant.

WHEREFORE, the Plaintiff asks this Honorable Court for:

(a) Judgement against the Defendant in the amount of $2XXX.00.

(b) Interest as provided under Rhode Island law;

(c) Court costs;

(d) And any other relief deemed reasonable and just.

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

I received an affidavit, a generic bill of sale, a redacted account list with only my information listed, and my last statement received from the original creditor.

17. Read this article:

Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

[amlg]

I'm a bit overwhelmed. I don't know how to begin formatting an answer to this because the numbers include irrelevant information (at least to me they do). Any tips for how to begin or where I should focus?

[Cliff2009]

2 hours ago, amlg said:

I'm a bit overwhelmed. I don't know how to begin formatting an answer to this because the numbers include irrelevant information (at least to me they do). Any tips for how to begin or where I should focus?

Before you start to answer it is best to take a few deep breaths, poke around this site, especially where some of us will direct you and take your time. It looks totally overwhelming at first but learning what you are up against helps. Can you scan the  "Learn How to Fight Debt Lawsuits" doc they sent you? Also, does anything mention small claims court? 

If this agreement or a similar one was valid during the time you had the card, arbitration may be in order. https://www.firstbankcard.com/common/udap/pdf/sig_varsig111_odp_35.pdf

Search for this credit card name on this site and see if others have used arbitration. Also, read this link so you can see what I am talking about. This may be the way to knock it out of court and win. 
 

 

[amlg]

1 minute ago, Cliff2009 said:

Before you start to answer it is best to take a few deep breaths, poke around this site, especially where some of us will direct you and take your time. It looks totally overwhelming at first but learning what you are up against helps. Can you scan the  "Learn How to Fight Debt Lawsuits" doc they sent you? Also, does anything mention small claims court? 

Thank you for your response. I had to contact the court directly to find out it is NOT in small claims. This case is a civil one.

[Cliff2009]

10 minutes ago, amlg said:

Thank you for your response. I had to contact the court directly to find out it is NOT in small claims. This case is a civil one.

That is fine, they should be able to direct you to a website where they have sample forms.  You will need an answer, a motion and an order. This may be a sample order.  https://www.courts.ri.gov/PublicResources/forms/District Court Forms/Order.pdf 

I would like to see others check this language in the agreement to see if you still qualify for arbitration. 

" “Ordinary Claims” are not subject to this arbitration provision and may be resolved through litigation. A Claim will be considered an “Ordinary Claim” if all three of the following are true: (1) the only remedy being sought for the Claim is monetary damages; (2) the recovery being sought for the Claim is less than $25,000, excluding interest and costs; and (3) the only parties to litigation to resolve the Claim will be you, us and/or Related Parties." Coffee_before_tea does this sound like arb is not ab option? 

If you can't there are others way to fight Junk Debt Buyers in court.  

[CCRP626]

@Cliff2009 it's got the "any" claims terminology at the top. Ambiguous contract. Also, further down it says any questions to be decided by arbitrator except the ordinary thing. Relief is not limited to monetary damages. Consumer law violations to be decided in arbitration are calculated to be greater than $25,000. There is a valid agreement to arbitrate.

 

@Coffee_before_tea @fisthardcheese

[amlg]

It's sounding like arbitration would not be in my best interest?

If it's worth anything, I believe I am considered judgement proof. I'm just not sure how can apply it to this situation other than if a judgement is entered against me.

[Cliff2009]

8 minutes ago, amlg said:

It's sounding like arbitration would not be in my best interest?

If it's worth anything, I believe I am considered judgement proof. I'm just not sure how can apply it to this situation other than if a judgement is entered against me.

@CCRP626 made some good points.  I would still go the arb route, being judgement proof may be the ace in the hole if it is denied. 

[CCRP626]

@amlg best not to get a judgment against you since I think Rhode Island allows them to run for 20 years, so if your financial status changes, they'd collect and interest may have built up as well. You can research your judgment exemptions though. 

Interesting decision here where a JDB has to be registered with the state even if hiring a Rhode Island atty to collect for them.

http://www.nationallist.com/image/cache/RI_Debt_Collection_Laws.pdf

[Coffee_before_tea]

5 hours ago, Cliff2009 said:

" “Ordinary Claims” are not subject to this arbitration provision and may be resolved through litigation. A Claim will be considered an “Ordinary Claim” if all three of the following are true: (1) the only remedy being sought for the Claim is monetary damages; (2) the recovery being sought for the Claim is less than $25,000, excluding interest and costs; and (3) the only parties to litigation to resolve the Claim will be you, us and/or Related Parties."

It appears the OP will need to have a counterclaim, such as the State UDAP & (State)TCPA (unfair and deceptive practices), that allows for a injunction, or declaratory judgment.  This will negate that paragraph in the Agreement.  Or, perhaps seek over $25K in punitive damages.

A quick search shows that the statute allows for an injunction:  http://webserver.rilin.state.ri.us/Statutes/title6/6-13.1/6-13.1-5.2.HTM

@amlg  Has their been any potential FDCPA/UDAP/TCPA violations by the attorney or JDB?  

[amlg]

36 minutes ago, Coffee_before_tea said:

Has their been any potential FDCPA/UDAP/TCPA violations by the attorney or JDB?  

No.

[CCRP626]

All three have to be met to be an ordinary claim, so take away any one of the three. "the only remedy being sought for the Claim is monetary damages"

I also only want them to communicate by mail and will be asking the arbitrator for that relief as well.

[BV80]

41 minutes ago, CCRP626 said:

I also only want them to communicate by mail and will be asking the arbitrator for that relief as well.

How would you ask the arbitrator for that relief?

[CCRP626]

Include it in the demand you file with AAA which can be changed up until arbitrator selection and with permission after. See AAA Consumer Rules for interim relief prior to an award.

[BV80]

@CCRP626

I guess I meant to ask the reason for asking for that relief. 

[fisthardcheese]

My response disappeared for a second time.  @amlg if you did not see either of my previous replies, let me know.  I'm not going to type the whole thing out a 3rd time.

[Cliff2009]

13 hours ago, fisthardcheese said:

My response disappeared for a second time.  @amlg if you did not see either of my previous replies, let me know.  I'm not going to type the whole thing out a 3rd time.

Odd I saw it, not it is gone. I did notice more outages on the site yesterday. 

[amlg]

@fisthardcheese Unfortunately, I did not see your reply.

[fisthardcheese]

38 minutes ago, amlg said:

@fisthardcheese Unfortunately, I did not see your reply.

My reply was:

I would just file the normal, simple MTC that most people here use.  I would not mention anything about the "ordinary claims" or anything else.  Maybe the JDB won't even bother reading the agreement and won't bring up this issue.  I would ONLY address these points if it is mentioned in an opposition.  If you must respond to an opposition due to the exceptions listed in the card agreement, this is how I would respond:

The "ordinary claims" exception does not apply here, because I am asking the arbitrator for several declaratory rulings.  Those being 1. That the JDB and/or OC register their card agreement's arbitration clause with the AAA as required by AAA rules when naming AAA in your contract.  2.  That the JDB and/or OC re-write or remove the portions of the arbitration provision that do no comply with the AAA consumer rules that are required to be followed when naming AAA in your contract.  3. (may not apply or may need revised according to your state law), a Declaratory ruling that the JDB willfully violated the state UDAP law and that treble damages may be sought.

All of these declaratory rulings make your claims in arbitration more than just a monetary claim and therefore, not an "ordinary claim" according to the contract.  Therefore, arbitration is appropriate.

[NormInGeorgia]

On 8/29/2016 at 2:52 PM, fisthardcheese said:

My reply was:

I would just file the normal, simple MTC that most people here use.  I would not mention anything about the "ordinary claims" or anything else.  Maybe the JDB won't even bother reading the agreement and won't bring up this issue.  I would ONLY address these points if it is mentioned in an opposition.  If you must respond to an opposition due to the exceptions listed in the card agreement, this is how I would respond:

The "ordinary claims" exception does not apply here, because I am asking the arbitrator for several declaratory rulings.  Those being 1. That the JDB and/or OC register their card agreement's arbitration clause with the AAA as required by AAA rules when naming AAA in your contract.  2.  That the JDB and/or OC re-write or remove the portions of the arbitration provision that do no comply with the AAA consumer rules that are required to be followed when naming AAA in your contract.  3. (may not apply or may need revised according to your state law), a Declaratory ruling that the JDB willfully violated the state UDAP law and that treble damages may be sought.

All of these declaratory rulings make your claims in arbitration more than just a monetary claim and therefore, not an "ordinary claim" according to the contract.  Therefore, arbitration is appropriate.

@fisthardcheese  Thanks for the great explanation!!

[debtzapper]

18 hours ago, NormInGeorgia said:

@fisthardcheese  Thanks for the great explanation!!

Firsthardcheese knows his arbitration!

[debtzapper]

18 hours ago, NormInGeorgia said:

@fisthardcheese  Thanks for the great explanation!!

@fisthardcheese knows his arbitration!

[debtzapper]

18 hours ago, NormInGeorgia said:

@fisthardcheese  Thanks for the great explanation!!

@fisthardcheeseknows his arbitration!

[NormInGeorgia]

@fisthardcheese  It just occured to me that even just asking for the CACH collection item to be removed from your credit report would be sufficient as a non-monetary declaratory ruling to overcome the "ordinary claims" issue.  Correct?

 

[fisthardcheese]

15 hours ago, NormInGeorgia said:

@fisthardcheese  It just occured to me that even just asking for the CACH collection item to be removed from your credit report would be sufficient as a non-monetary declaratory ruling to overcome the "ordinary claims" issue.  Correct?

 

Yes, I believe it would.  Nice catch!