Miheegz

Getting sued by Cavarly SPV I in INDIANA

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Who is the named plaintiff in the suit?  Cavarly  SPV I, LLC, by counsel of LLYOD & MCDANIEL, PLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  LLYOD & MCDANIEL, PLC

3. How much are you being sued for?  $2k , lawyer and court fees

4. Who is the original creditor? (if not the Plaintiff) Citibank 

5. How do you know you are being sued? (You were served, right?) Sheriff came and tied a summons to my door.

6. How were you served? (Mail, In person, Notice on door) 
Notice of Summons delivered by sheriff on gate door.
7. Was the service legal as required by your state? 

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? 
I do not recall any correspondence. They may have been calling my cell phone but I don't pick up numbers I dont know.
9. What state and county do you live in? 
St.Josephs County in Indiana
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 
They say 02/2015. I do not believe I made any payments on it since 2013. 
11. What is the SOL on the debt? Indiana looks like it has a 6 year SOL  6 yrs. §34-11-2-7

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or    B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). 

Suit Filed October 13th 2016

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. 
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.

1. They own are the holder of an account due  and owing by me and they are an assignee of Citibank.

2.I am indebted to them in the amount $2k

3. Venue is proper with this court based on defendant residing in St. Joseph county.

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

1. Affidavit of debt from a designted agent of Cavarly SPV I, LL. It has the last 4 numbers of my account number the amount of $2k . Date of the opening of the account 2012 and last payment 02/2015 from a visa credit card of citibank

2. proof that I am not in active service

 

Please help!!!! Should I call cavarly and try to negoiate down the amount? How much do you think they would do? Or should I just answer the complaint asking for more proof ? How would I go about that? Thanks so much! 

What are the consequences of filing an answer forcing them to prove their case? or filing a motion  to dismiss on lack of standing? Will i end up paying a lot more? will it hurt my credit? Should I just call and try to negotiate? how should I approach the negotiations: starting offer?

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So what do you want to do? Try and negotiate a settlement so it is dismissed with prejudice so the debt goes away, or respond and make them show that they are entitled to collect?

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16 minutes ago, creditzar said:

So what do you want to do? Try and negotiate a settlement so it is dismissed with prejudice so the debt goes away, or respond and make them show that they are entitled to collect?

If a settlement amount is agreed upon, the OP would need to pay the amount in full in one lump sum.   Otherwise, making payments on the settlement would actually be considered a stipulated judgment.   If the OP missed one payment, a judgment would be entered against him.

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What are the consequences of filing an answer forcing them to prove their case? or filing a motion  to dismiss on lack of standing? Will i end up paying a lot more? will it hurt my credit? Should I just call and try to negotiate? how should I approach the negotiations: starting offer?

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48 minutes ago, Miheegz said:

What are the consequences of filing an answer forcing them to prove their case? or filing a motion  to dismiss on lack of standing? Will i end up paying a lot more? will it hurt my credit? Should I just call and try to negotiate? how should I approach the negotiations: starting offer?

Chances are that they would respond to a motion to dismiss for lack of standing, and the motion would be denied by the judge.  At this stage of the lawsuit, they don't have to prove they have standing to sue. 

Have the read this site's section on arbitration?   

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

Here is the link to the the Consumer Financial Protection Bureau credit card database.   Go the archives and locate your 2013 agreement in order to read the arbitration provision contained within it.  You might also want to check on the 2015 agreement to see if the provision is the same in that agreement just in case they push the 2015 last payment date.

http://www.consumerfinance.gov/credit-cards/agreements/

 

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3 hours ago, Miheegz said:

What are the consequences of filing an answer forcing them to prove their case?

You show the Plaintiff that you are clueless about the court process and they figure out they can easily steam roll you and collect a judgment.  You DO NOT try the case in your answer or demand proof.  They have to prove their case at trial.

3 hours ago, Miheegz said:

or filing a motion  to dismiss on lack of standing?

What is your legal basis they lack standing?

 

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I wasn't implying trying the case in my answer. I just meant an answer would mean going to court. Although I do have little to no knowledge on the subject. My motion to dismiss bc of lack of standing is based on the fact that they only submitted an affidviat of debt signed by an employee of cavalry as their only exhibit attached to the complaint. In indiana they require a written instrument and since the affiant has no knowledge of the original accounting or of the sale of the debt she isn't qualified to sign the affidviat. Thus the affidviat is hearsay and unadmissable. Thus the plaintiff is breaking a trial rule.  I ask the judge to force them to amend their complaint to follow trial rules aka provide proof of the validity and ownership of the debt if not to dimiss the case with prejudice.

 

This is what i came up with after researching for a couple of hours. Tell me if it has a chance or Im just blowing smoke. Please and thank you.

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34 minutes ago, Miheegz said:

My motion to dismiss bc of lack of standing is based on the fact that they only submitted an affidviat of debt signed by an employee of cavalry as their only exhibit attached to the complaint. In indiana they require a written instrument and since the affiant has no knowledge of the original accounting or of the sale of the debt she isn't qualified to sign the affidviat. Thus the affidviat is hearsay and unadmissable.

It might work if you have good solid case law to back that argument up.  However, you need to be prepared that they oppose the motion arguing those are facts to be decided at trial and therefore should not be dismissed.

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49 minutes ago, Miheegz said:

I wasn't implying trying the case in my answer. I just meant an answer would mean going to court. Although I do have little to no knowledge on the subject. My motion to dismiss bc of lack of standing is based on the fact that they only submitted an affidviat of debt signed by an employee of cavalry as their only exhibit attached to the complaint. In indiana they require a written instrument and since the affiant has no knowledge of the original accounting or of the sale of the debt she isn't qualified to sign the affidviat. Thus the affidviat is hearsay and unadmissable. Thus the plaintiff is breaking a trial rule.  I ask the judge to force them to amend their complaint to follow trial rules aka provide proof of the validity and ownership of the debt if not to dimiss the case with prejudice.

 

This is what i came up with after researching for a couple of hours. Tell me if it has a chance or Im just blowing smoke. Please and thank you.

Rule 9.2. Pleading and proof of written instruments

(A)   When instrument or copy, or an Affidavit of Debt must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.  When any pleading allowed by these rules is founded on an account, an Affidavit of Debt, in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached.

Notice the above says "OR an Affidavit of Debt must be filed."  In other words, all of the listed items are not required to be filed.  It then goes on to state that if an action is founded on an account, an Affidavit of Debt must be attached. 

Weir v. Riverwalk Holdings (IN Court of Appeals, 2014)

Weir argues that the trial court's judgment should be reversed and remanded on procedural grounds. Weir claims that under Indiana Trial Rule 9.2 when a party sues on a written agreement, a copy of that agreement must be attached to the complaint. He asserts that since Riverwalk did not do so, the matter should be remanded to the trial court for a hearing on the issue of whether the complaint should be dismissed. We disagree.

Although Indiana Trial Rule 9.2(A) provides as Weir contends, it also sets forth in pertinent part as follows:

When any pleading allowed by these rules is founded on an account, an Affidavit of Debt, in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached.

Here, the complaint was an action founded on a credit card account, and Ogeda's affidavit of debt appears to follow the form contained in Appendix A-2 of the Indiana Trial Rules.

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2 minutes ago, BV80 said:

Rule 9.2. Pleading and proof of written instruments

(A)   When instrument or copy, or an Affidavit of Debt must be filed. When any pleading allowed by these rules is founded on a written instrument, the original, or a copy thereof, must be included in or filed with the pleading. Such instrument, whether copied in the pleadings or not, shall be taken as part of the record.  When any pleading allowed by these rules is founded on an account, an Affidavit of Debt, in a form substantially similar to that which is provided in Appendix A-2 to these rules, shall be attached.

Notice the above says "OR an Affidavit of Debt must be filed."  In other words, all of the listed items are not required to be filed.  It then goes on to state that if an action is founded on an account, an Affidavit of Debt must be attached. 

Thanks for the response. I had read the rule and realize it says "or" thats why I argue that the affidvait is hearsay since the affiant was never a worker of the original creditor, present at its conception, or sale. If the affidvait is hearsay then they are in violation of Trial Rule 9.2(A)

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32 minutes ago, Clydesmom said:

It might work if you have good solid case law to back that argument up.  However, you need to be prepared that they oppose the motion arguing those are facts to be decided at trial and therefore should not be dismissed.

How do I find case law to support my position?

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2 minutes ago, Miheegz said:

Thanks for the response. I had read the rule and realize it says "or" thats why I argue that the affidvait is hearsay since the affiant was never a worker of the original creditor, present at its conception, or sale. If the affidvait is hearsay then they are in violation of Trial Rule 9.2(A)

I assume you'd file a motion to dismiss under rule 12(B)(6)?   If so,  motion to dismiss under that section does not argue the merits of the lawsuit which is what you would be doing.   All it means is that the complaint itself was deficient in some way.   Arguing the hearsay status of the affidavit goes beyond that.

 "A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief." Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006). We review de novo the trial court's grant or denial of a Trial Rule 12(B)(6) motion to dismiss. Snyder v. Town of Yorktown, 20 N.E.3d 545, 550 (Ind. Ct. App. 2014), trans. denied. When reviewing the trial court's decision, we accept as true the facts alleged in the complaint. Id. We consider the pleadings in the light most favorable to the plaintiff and draw every reasonable inference in favor of the non-moving party. Id. We will affirm a dismissal under Trial Rule 12(B)(6) only if the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id.

Also, even if the affidavit is later found to be hearsay, they didn't violate Trial Rule 9.2(A).   The rule simply says an Affidavit of Debt must be attached.   It doesn't say it must be proven to be nonhearsay at the time the lawsuit is filed.

 

 

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37 minutes ago, BV80 said:

I assume you'd file a motion to dismiss under rule 12(B)(6)?   If so,  motion to dismiss under that section does not argue the merits of the lawsuit which is what you would be doing.   All it means is that the complaint itself was deficient in some way.   Arguing the hearsay status of the affidavit goes beyond that.

 "A motion to dismiss under Rule 12(B)(6) tests the legal sufficiency of a complaint: that is, whether the allegations in the complaint establish any set of circumstances under which a plaintiff would be entitled to relief." Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130, 134 (Ind. 2006). We review de novo the trial court's grant or denial of a Trial Rule 12(B)(6) motion to dismiss. Snyder v. Town of Yorktown, 20 N.E.3d 545, 550 (Ind. Ct. App. 2014), trans. denied. When reviewing the trial court's decision, we accept as true the facts alleged in the complaint. Id. We consider the pleadings in the light most favorable to the plaintiff and draw every reasonable inference in favor of the non-moving party. Id. We will affirm a dismissal under Trial Rule 12(B)(6) only if the facts alleged in the complaint are incapable of supporting relief under any set of circumstances. Id.

Also, even if the affidavit is later found to be hearsay, they didn't violate Trial Rule 9.2(A).   The rule simply says an Affidavit of Debt must be attached.   It doesn't say it must be proven to be nonhearsay at the time the lawsuit is filed.

 

 

Ok, so could i file an answer then file for summary judgement since they do not have standing. They would have to prove ownership which i don't believe they can.

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1 hour ago, Miheegz said:

Ok, so could i file an answer then file for summary judgement since they do not have standing. They would have to prove ownership which i don't believe they can.

When you file a MSJ, it's on you to prove there's no issue of material fact and that the other can't show that one exists.  All you have right now is that you don't believe they can prove standing.   If you haven't done any research on how your courts have ruled and don't know for sure if they might have other documentation, then right now, you're shooting in the dark.

Have you looked at the arbitration thread I provided? 

Calling @fisthardcheese

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Yes, I did. Looks like I need to find my credit card agreement and see if it has JAMS or bound to a state other than indiana's laws for SOl. What if my agreement doesn't provide for JAMS. SHould I file under AAA or am I gonna get fucked.

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21 hours ago, BV80 said:

When you file a MSJ, it's on you to prove there's no issue of material fact and that the other can't show that one exists.  All you have right now is that you don't believe they can prove standing.   If you haven't done any research on how your courts have ruled and don't know for sure if they might have other documentation, then right now, you're shooting in the dark.

Have you looked at the arbitration thread I provided? 

Calling @fisthardcheese

Yes, I did. Looks like I need to find my credit card agreement and see if it has JAMS or bound to a state other than indiana's laws for SOl. What if my agreement doesn't provide for JAMS. SHould I file under AAA or am I gonna get fucked.

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10 minutes ago, Miheegz said:

Yes, I did. Looks like I need to find my credit card agreement and see if it has JAMS or bound to a state other than indiana's laws for SOl. What if my agreement doesn't provide for JAMS. SHould I file under AAA or am I gonna get fucked.

AAA would work, as well.   Hopefully, @fisthardcheese, @Harry Seaward , or @shellieh98 will pop in.

In any case, if you file a MTD or a motion for summary judgment, you might waive your right to arbitrate.

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So I found my a copy of the credit card agreement they are suing over and its says neither party nor anyone connected has the right to sue the other party but rather must go through AAA arbitration. Now this is an updated version of the CC agreement. I cannot find the 2012 one which is the year I supposedly opened it. The card is a citibank Thankyou Preferred. Any help finding the original 2012 CC agreement would be greatly appreciated! 

Also if I use this updated version and elect AAA, can I just file a motion to dismiss since the agreement says neither of us can sue? Would that be in my best interest? What kind of result can I expect from AAA? What makes it advantegous compared to court?

CC agreement updated.PNG

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You can file a motion to dismiss, but you would need to make it a motion to dismiss, and a motion to compel priviate contractual arbitration.  There are samples of this motion in this forum, need to search for it.  AAA will cost you 200.00 if you get your motion granted.  

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26 minutes ago, shellieh98 said:

You can file a motion to dismiss, but you would need to make it a motion to dismiss, and a motion to compel priviate contractual arbitration.  There are samples of this motion in this forum, need to search for it.  AAA will cost you 200.00 if you get your motion granted.  

Ok, but should I go ahead with these motions? I keep reading about JAMS and how you should choose it if its an option but no explanation as to why. What is the benfit of arbitration vs court?specifically AAA

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On 10/20/2016 at 9:09 PM, BV80 said:

When you file a MSJ, it's on you to prove there's no issue of material fact and that the other can't show that one exists.  All you have right now is that you don't believe they can prove standing.   If you haven't done any research on how your courts have ruled and don't know for sure if they might have other documentation, then right now, you're shooting in the dark.

Have you looked at the arbitration thread I provided? 

Calling @fisthardcheese

How does this motion to dismiss look?Again I am in indiana so thats where the laws are from.Also Ichecked my CC agreement and i do not give up arbitration by submitting a MTD. 

motion to dismiss.PNG

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Should my Motion to Dismiss be denied I plan on sumbitting my answer which i attached a screenshot below for comments, suggestions and any other help! Help on my motion to dismiss or answer is greatly appreciated! You guys are lifesavers seriously!@shellieh98   @BV80 @Clydesmom

 

answer.PNG

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That's not a great motion to dismiss.  They don't have to prove their entire case in the complaint, so much of what you are basing dismissal on will be rejected.

I would just stick to a standard Motion to Compel Private Arbitration and Stay the Case.

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