Miheegz

Getting sued by Cavarly SPV I in INDIANA

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13 hours ago, Miheegz said:

Also I've seen elsewhere in this forum something about filing your CC agreement as an affidvait so that it is a fact before the court. Is this something I should look into?

If you submit an affidavit about the agreement, be sure that the agreement is the governing agreement.  The agreement you've been quoting from is a 2016 revision, when citibank made significant changes to the agreement.  You mentioned that the account in question was charged-off in 2013-2015.  A 2013 citibank agreement would be more similar to this one than the 2016 revision.

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On 11/5/2016 at 2:43 PM, Xerxes said:

If you submit an affidavit about the agreement, be sure that the agreement is the governing agreement.  The agreement you've been quoting from is a 2016 revision, when citibank made significant changes to the agreement.  You mentioned that the account in question was charged-off in 2013-2015.  A 2013 citibank agreement would be more similar to this one than the 2016 revision.

Whoa thanks! Where did you find this by the way? This one allows me to choose JAMS! However, I definitely have to pay the filing fee.

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@BV80 @fisthardcheese  This a draft of my motion to compel. Any words of advice?!

 

 

STATE OF INDIANA                                                IN THE ST JOSEPH CIRCUIT COURT

 

COUNTY OF ST JOSEPH

 

 

CAVALRY SPV I, LLC

                                                                        )

            Plaintiff                                              )                                  

                                                                        )

                 vs.                                                  )    Case No. ********************

                                                                        )

                                                                        )

********************                                 )

           Defendant

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING

ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about
******************** , 2016, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

a) “Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us (called “Claims”).”


B)All Claims relating to your account, a prior related account, or our relationship are subject to arbitration, including Claims regarding the application, enforceability, or interpretation of this Agreement and this arbitration provision. All Claims are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. This includes Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, thirdparty claims, interpleaders or otherwise; and Claims made independently or with other claims. A party who initiates a proceeding in court may elect arbitration with respect to any Claim advanced in that proceeding by any other party. Claims and remedies sought as part of a class action, private attorney general or other representative action are subject to arbitration on an individual (non-class, non-representative) basis, and the arbitrator may award relief only on an individual (non-class, non-representative) basis.”


c) “We and anyone to whom we assign your debt will not initiate an arbitration proceeding to collect a debt from you unless you assert a Claim against us or our assignee. We and any assignee may seek arbitration on an individual basis of any Claim asserted by you, whether in arbitration or any proceeding, including in a proceeding to collect a debt. You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt”


d) “At any time you or we may ask an appropriate court to compel arbitration of Claims, or to stay the litigation of Claims pending arbitration, even if such Claims are part of a lawsuit, unless a trial has begun or a final judgment has been entered. Even if a party fails to exercise these rights at any particular time, or in connection with any particular Claims, that party can still require arbitration at a later time or in connection with any other Claims.”

e) “This arbitration provision shall survive: (i) termination or changes in the Agreement, the account, or the relationship between you and us concerning the account; (ii) the bankruptcy of any party; and (iii) any transfer, sale or assignment of your account, or any amounts owed on your account, to any other person or entity. If any portion of this arbitration provision is deemed invalid or unenforceable, the entire arbitration provision shall not remain in force. No portion of this arbitration provision may be amended, severed or waived absent a written agreement between you and us.”


f) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC, Section provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”. 

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . " 

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a 'liberal federal policy favoring arbitration,' Moses H. Cone, supra, at 24103 S.Ct. 927, and the 'fundamental principle that arbitration is a matter of contract,' Rent-A-Center, West, Inc. v. Jackson, 561 U.S. ___, ___, 130 S.Ct. 2772, 2776, 177 L.Ed.2d 403 (2010). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts. Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 443, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), and enforce them according to their terms. Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989).

 

6. "Indiana and federal law recognize a strong policy of favoring enforcement of arbitration agreements." Safety Nat'l Cas. Co. v. Cinergy Corp., 829 N.E.2d 986, 1000 (Ind.Ct.App.2005), trans. denied. Thus, when construing arbitration agreements, every doubt is to be resolved in favor of arbitration. Green Tree Servicing, LLC v. Brough, 930 N.E.2d 1238 (Ind.Ct.App. 2010).


7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.


Respectfully submitted this day ________________, 2016


********************, Defendant, pro se


___________________________________

    Signature of Defendant

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On 11/5/2016 at 2:43 PM, Xerxes said:

If you submit an affidavit about the agreement, be sure that the agreement is the governing agreement.  The agreement you've been quoting from is a 2016 revision, when citibank made significant changes to the agreement.  You mentioned that the account in question was charged-off in 2013-2015.  A 2013 citibank agreement would be more similar to this one than the 2016 revision.

Is this a Citi ThankYou Preferred CC agreement?

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If this were me, I would eliminate sections c and e under paragraph 3.  Those sections do not further your case or add any new pertinent information about allowing arbitration.  I don't like to clutter my motions with extra stuff that make it look cluttered and take away from my main points.

I would also be looking closely for a TCPA or FDCPA claim to file against them in arbitration.  That is the only way I would want to present an arbitration claim if I were sued. I would not want to mention their debt against me up front to the arbitrator, as it is their job to bring those claims as a counter claim to your arbitration claims.

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1 hour ago, Miheegz said:

@Clydesmom @BV80 @fisthardcheese  How can I obtain a copy of my EXACT CC agreement?!? I have called citibank like 5 times attempting to. Finally someone told me they could not because my account  is under attorney control and tried to  give me the number to Cavalry SPV.

 

 

CFPB website.  They have an archive of all of them.

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On 11/7/2016 at 5:11 PM, Miheegz said:

Whoa thanks! Where did you find this by the way? This one allows me to choose JAMS! However, I definitely have to pay the filing fee.

Citibank just removed JAMS earlier this year.  If the account at issue here was charged-off in 2013,  2014, or 2015, the governing agreement for such an account definitely includes JAMS.

Are you able to narrow down the charge-off date?  The charge-off date is roughly six months after the last account activity (typically a payment).

Cavalry bought a huge portfolio of "prime" citibank accounts in June 2016.  They likely paid a prime price for these, probably 8%-10% of face value. The purchase included all of the  documentation up-front, including all statements and account agreements.  If you received a letter around July directly from citibank informing you of the sale to cavalry, your account might be part of this portfolio.  You should also have received a "welcome" letter from cavalry around the same time.

If you had sent a DV to cavalry around this time, they very likely would have included the agreement in their DV response.

Based on information, the agreement applicable to a "Thank You" card charged off in late 2013 would be 8573841Y or 8049189Y.

These two agreements are so close, having only tiny differences.  The arbitration sections are identical.  Even if you picked the wrong one, and cavalry responded with the other one, the arbitration section would be the same.

The CFPB archives are lacking.  Agreement 8573841Y isn't present in any of them, and a large percentage of the cavalry accounts (in this portfolio) are based on this agreement.  You can file a complaint with the CFPB, and even though citibank doesn't own the account anymore - they will probably still respond quickly with the agreement.  See the link "submitting a complaint" about two-thirds of the way down on this page.

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5 hours ago, Xerxes said:

Citibank just removed JAMS earlier this year.  If the account at issue here was charged-off in 2013,  2014, or 2015, the governing agreement for such an account definitely includes JAMS.

Are you able to narrow down the charge-off date?  The charge-off date is roughly six months after the last account activity (typically a payment).

Based on information, the agreement applicable to a "Thank You" card charged off in late 2013 would be 8573841Y or 8049189Y.

These two agreements are so close, having only tiny differences.  The arbitration sections are identical.  Even if you picked the wrong one, and cavalry responded with the other one, the arbitration section would be the same.

The CFPB archives are lacking.  Agreement 8573841Y isn't present in any of them, and a large percentage of the cavalry accounts (in this portfolio) are based on this agreement.  You can file a complaint with the CFPB, and even though citibank doesn't own the account anymore - they will probably still respond quickly with the agreement.  See the link "submitting a complaint" about two-thirds of the way down on this page.

The affidavait of debt they sent me in the complaint says the last payment was made on 02/24/2015 . Although I do not recall making such a payment.  I have just submitted a complaint. However, CFPB website says it did not collect agreements for 2015! 

 Should I just submitt my Motion to compel with the CC agreement you @Xerxes  sent me? Is it a Thank You preferred Agreeement? Or should I give Cavalry SPV a call and try to get the CC agreement from them?

 

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When you submit a complaint to the CFPB, they send a notice to the card issuer with a request that they mail to you the proper agreement for the specific account number that you referenced in the complaint.  This does not involve their archives or agreements they did or didn't collect.  It involves a new request sent by the CFPB to the card issuer on your behalf.

I can't recommend to anyone that they submit an affidavit about an agreement that they are not sure is the governing agreement.  I doubt that cavalry would disclose anything outside of the court process for an account that is already in active litigation.

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On 11/9/2016 at 10:12 AM, Miheegz said:

The affidavait of debt they sent me in the complaint says the last payment was made on 02/24/2015 . Although I do not recall making such a payment.  I have just submitted a complaint. However, CFPB website says it did not collect agreements for 2015! 

When you allegedly made that payment, was the account still in good standing?  Or was it already in default and/or charged off? 

If the account was already charged off, go with the agreement that was in effect when the account was still in good standing.

Oh, and about that payment...check your bank records.

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@BV80 @Clydesmom @fisthardcheese @Xerxes I just got a letter in the mail saying there is a hearing set on my motion to dismiss due to lack of standing. This is the motion I posted on this post before. I did not expect a hearing! I thought the judge would decide from my motion and their response. I have no clue howto prepare!

1) Does this mean there is a chance it is dismissed or is it a formality? I'm in st. joseph county Indiana

2) How do I prepare for this hearing?

3) Should I have a motion to compel arbritration ready to present in case the suit isn't dismissed from my first MTD? or just file it regularly?

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32 minutes ago, Miheegz said:

I did not expect a hearing! I thought the judge would decide from my motion and their response. I have no clue howto prepare!

Never assume.   You must always prepare for any eventuality.

37 minutes ago, Miheegz said:

1) Does this mean there is a chance it is dismissed or is it a formality? I'm in st. joseph county Indiana

The lawsuit is not dismissed.   The hearing is on your motion.  If the plaintiff doesn't show up, it might be dismissed. 

38 minutes ago, Miheegz said:

2) How do I prepare for this hearing?

You will have to support your motion with applicable court rules, statute, and/or court rulings.   What court rule, statute, or ruling supports that an affidavit filed with a complaint must meet the criteria in your MTD in order to survive the motion?

38 minutes ago, Miheegz said:

3) Should I have a motion to compel arbritration ready to present in case the suit isn't dismissed from my first MTD? or just file it regularly?

You need to read your rules on motions and service.  Usually, a motion must be served on the other party.   If your rules allow, you could serve it at the hearing.   Note, that a motion usually has to be filed with the court and a party has a right to a certain amount of time to respond to a motion, so the judge probably wouldn't hear the motion that day.  Well, I suppose he could if the other party agreed to it, but they probably wouldn't agree.

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@Miheegz

If you live near a law school library,  you may want to do research there.   Most law librarians are also lawyers, and although they can't give legal advice about your case, they can give you legal information and research guidance.   If there is no law school nearby, some county courthouses have good law libraries.

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Had a hearing on my Motion to Dismiss. As predicted by everyone here it got denied. However, the judge wasn't pissed off for wasting his time. He was fairly impressed with my <-(read you guys') legal knowledge.  He said I raised valid arguments about the affidavit but this was not the time to raise them.

So I am out of ideas on how to procure my 2012 or 2013 Citibank ThankYou Preferred cc agreement! I have called citibank and they refused to give me any info bc they sold the account to Cavarly.

I filed a complaint with the CFPB but they haven't got back to me. And when I called they said Citibank has 15 intial days and can demand another 50 days before handing it over. I have looked all over the CFPB database. The archived databases have thousands of cc agreements but they are all named "creditcard agreement_xxxx" with the xxxx being replaced by a number. I have no idea how these relate to the card issuer or type of card so I can search the database. I called CFPB twice and neither operator seemed to have a clue. I mean LITERALLY not a clue. I had to guide them to their own website database. 

Can anyone think of a way to find this CC agreement?  2012 or 2013 Citibank ThankYou  Preferred  . I would love you forever and ever!

I want to file a motion to compel arbitratrtion as my next  step but I need my CC agreement so I can quote it and attach it as an exhibit. Could I file a motion to compel without quoting my CC agreement? I know it includes JAWS and AAA but i do not know the language since I no longer have it. Thanks again everyone for all you time, help and advice!

 

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2 hours ago, fisthardcheese said:

Thanks! I am obviously an idiot! I'd like to say I did do my own research before posting I wasn't just expecting you guys to do my work for me. I had already seen this link but I couldn't find anywhere on the PDF where it mentioned thankyou preffered so I moved along.

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Most banks issue the same agreement for many types of cards with the only difference being things like reward points/miles or other minor issues.  If they challenge this card agreement in court, just ask them to provide what they believe the correct agreement is.  They won't, and if they do and you challenge it, they will need to provide a witness from the OC to testify to it's accuracy. But you have to hold them to it, the judge just won't make them do it unless you object and raise questions.  And even if they actually do all of that and get their own agreement submitted as the "correct" one, it won't matter because any card agreement they present will contain arbitration.  So you still file the MTC and ask for arb. 

The link I provided is from Citi's website.  Therefore, if this is me and it is asked where I got this, I say this is the agreement Citi provided to me.  I would include an affidavit with my MTC stating that to the best of my knowledge and belief, this card agreement is a true and correct copy of the agreement that governed the disputed account at the time of the alleged default.

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On 11/20/2016 at 11:42 AM, fisthardcheese said:

Most banks issue the same agreement for many types of cards with the only difference being things like reward points/miles or other minor issues.  If they challenge this card agreement in court, just ask them to provide what they believe the correct agreement is.  They won't, and if they do and you challenge it, they will need to provide a witness from the OC to testify to it's accuracy. But you have to hold them to it, the judge just won't make them do it unless you object and raise questions.  And even if they actually do all of that and get their own agreement submitted as the "correct" one, it won't matter because any card agreement they present will contain arbitration.  So you still file the MTC and ask for arb. 

The link I provided is from Citi's website.  Therefore, if this is me and it is asked where I got this, I say this is the agreement Citi provided to me.  I would include an affidavit with my MTC stating that to the best of my knowledge and belief, this card agreement is a true and correct copy of the agreement that governed the disputed account at the time of the alleged default.

Thank You! I am going ahead and filing my my motion to compel! I am attaching a judges order to it. Should I say dismissed with prejudice so they can't sue me again or will the judge not sign one with predjudice and so I should stick to WITHOUT prejudice???

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The exact language you use really doesn't matter; the judge will rule according to what he thinks the law and the facts require.  But go ahead and ask for with prejudice.   I hope you are doing all the reading and research that you were advised to do.  Also, if you have time, go to court and try to sit in on a civil case (a collection case would be great, but most are just default hearings) to get familiar with the courtroom, the clerks, the judge, etc.  

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1 hour ago, debtzapper said:

The exact language you use really doesn't matter; the judge will rule according to what he thinks the law and the facts require.  But go ahead and ask for with prejudice.   I hope you are doing all the reading and research that you were advised to do.  Also, if you have time, go to court and try to sit in on a civil case (a collection case would be great, but most are just default hearings) to get familiar with the courtroom, the clerks, the judge, etc.  

Ok, thank you! That simplifies things. For some reason I thought there was a technacalitiy where the judge couldn't rule on something you didn't ask for aka if I ask for dismissal with prejudice he could nly rule on that and not dismiss it without prejudice.

I have done a lot of research on debt collection lawsuits. I feel pretty decent on pleadings thanks to you guys and I have participated in a hearing on a motion to dismiss. However, it wasn't much of a hearing since the opposing counsel just said they felt they laid out their argument well enough in their response. I've read the thread on arbitration on this forum. Is there anything else you think I should be researching?

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@fisthardcheese @BV80 @shellieh98 @Clydesmom

Thanks so much for all the help! Seriously, I couldn't hae made it through this without all of your knowledge and patience!

After my motion to compel private arbitration/ dimiss with prejudice, I got a letter from their attorney saying they agree to a dismissal with prejudice if I agree with a mutual release. I was expecting them to back down but not this much. I'm afraid the release has some sneaky language in it that would be bad for me in the long run. The language concerning their effort in removing the debt from the credit bureaus raised some concern. Could you guys look over it for me and see if there are any red flags to you!? I have attached the release. 

Thanks again guys! Can't believe I am almost free of this!

 

Edited by Miheegz
DELTED PICS OF MUTUAL RELEASE
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That is the power arbitration has over a JDB.  They want nothing to do with it.  Many people don't get lucky enough to get the dismissal before their MTC hearing, but ultimately Calvary knew they were just going to be wasting time and money by continuing.

It is standard settlement language.  The most important aspect are the two items: Dismissed with Prejudice and "unconditionally released of all liability".  This is very good for you.

The stuff about credit reporting is just to cover them and say they can't control what the CRA's ultimately do.  It will very likely be removed, but if not, you can just leverage the dismissal with prejudice against the CRA and take THEM to arbitration down the road if they don't comply.

 

Congrats and very nice work!

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