New and seeking to fight Calvary SPV with your help

[Gristle]

Hello, I stumbled on to this site while researching how to fight (2) separate summons received days apart on (2) charge offs from citi ($10k combined). Winn is the firm representing the plaintiff Calvary SPV on the bases "account stated, money lent" (both summons). Last payment to OC was 46.5 months ago. In the summons was the legal jargon I have read here and only (1) exhibit; my very last payment statement from OC. I am filing my response this week to dispute and I would appreciate any and all guidance (to include obtaining legal council). My first fear is lack of knowledge and am greatful to find this site. I know without a shadow of a doubt I can beat this after researching these past few days and now finding this site. I am a quick study and driven. I would greatly appreciate any and all assistance publicly and PM as I take on this new fight against JDB.  I am willing to post any request/info pertaining to the case upon request. Thank you in advance for your valuable time. 

*Please feel free to move post to appropriate location if deemed necessary by moderators,  thank you.

 

[calawyer]

Welcome.  It would help if you gave us the basics here (i.e., there are two cases).  Let us know when you were served with the complaint so we know when your answer is due.

[sadinca]

There appears to be something wrong with the site; I see Gristle's post for only a few seconds before it disappears and gets replaced by an ad. 

[sadinca]

update: i cant see any of the original posts in any of the threats. 

[Gristle]

Good evening, I was concerned with the date of service because what was stated on the summons was a couple weeks different then the actual date of service. When I requested to sign and date something stating this was in fact the true date of service I was told I do not need to sign anything. Therefore I continued to check with the court as to the filed date of service which is case 1; Nov 20 and case 2; Nov 27 (I was in fact served at 2 separate times a week apart). The actual date I was served I believe is earlier but as I said I kept checking the court as I was still not sure this was in fact a true suit. With that said I intend to file a response Friday. I went to self help last week and they gave me a PLD-C-010 form to file my response.  So far I have claimed the following;

Defendant generally denies each statement of the complaint or cross complaint

This is what I wrote for my Affirmative defenses;

1. Defendant claims lack of privity as defendant has never entered into any contractual or debtor/creditor arrangements with plaintiff.

2. Repudiation Plantiff is not named in any alleged agreement that is purported to have been entered into between defendant and plaintiff.

3. Failure of consideration whereas no exchange of money or goods occurred between the plaintiff and defendant therefore defendant cites failure of consideration.

4. The plaintiff is required by law to trace in his statement of claim the derivation of his cause of action from his assignor so that the defendant may challenge the plaintiffs claim that he is the present owner of the cause of action.

5. Defendant demands for proof of plaintiffs ownership of alleged debt.

6. Plaintiff has failed to state a claim upon which relief may be granted.

7. Defendant is without information or knowledge sufficient to for, an opinion as to the truth or accuracy of plaintiffs claim and based on that denies generally and specifically plaintiffs claim.

8. Insufficient specificity in a pleading, respectfully request for dismissal of case.

So, not sure if that is overkill or even right. Just some of what I read researching.

Then there are blocks I had to check for affirmative defenses: contract. I checked the following;

Attorneys fees not recoverable

Lack of privity/standing

Failure to state cause of action 

plaintiff is not original creditor that I had a contract or agreement with and the plaintiff does not state in the complaint that the plaintiff has a legal right to sue me to collect this debt (I'm worried about this one cause the legal jargon in the summons says they do)

The plaintiff does not state in the complaint the specific date that the contract or agreement was entered into

Statute of limitations (not sure about this one either because suit was filed at 46.5 months after last payment but I figured if they could prove a contract there would be nothing in writing and thus be a oral agreement and then could cite statute of limitations on oral agreement???)

Breach of contract by plaintiff

the plaintiff changed the terms of the contract without my agreement (not sure about this either)

Ambiguity

Laches

Invaild and/or illegal contract because of lack of privity and violation of statute of frauds

Unclean hands

 

So that is what I have prepared please let me know if I should add or delete anything prior to filing Friday. As always any and all sound assistance it GREATLY appreciated.

 

[Gristle]

Ok after ready Ruby Tuesdays similar case I am concerned the self help gave me the wrong form to file.

Should I just use General Deniability PLD-050? If so is there a link to correctly fill out.

All help is greatly appreciated. The more I read here the better I feel.

[sadinca]

Welcome to this site, now i can read your original threat. 

were you served personally?  sounds like you were but just making sure. if you were, you have 30 days to answer the complaint from the date you were served. 

 

12 hours ago, Gristle said:

So, not sure if that is overkill or even right. Just some of what I read researching.

during my wifes case, since it was our first, we put all of those and anything we found on the books. a total of 17 whooping affirmative defenses! LOL

during my second case, i brought them down to only 5: 

First Defense: Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions. 

Second Defense: Defendant claims Lack of Privity as Defendant has never entered into any contractual or debt/creditor arrangements with Plaintiff. 

Third Defense: Defendant claims a Failure of Consideration, as there has never been any exchange or any money or item of value between the plaintiff and the defendant.

Fourth Defense: Plaintiff's complaint fails to allege that the alleged Assignor even has knowledge of this action or that the alleged Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating and unfair prejudice against the defendant. 

Fifth Defense: Defendant alleges that the Plaintiff failed to inform the Defendant in writing of intent to file action on the alleged claim prior to commencement of this action and that the legal action could result in a judgment against the Defendant. 

even some of these are unnecessary, but it helped me sleep better. lol.  one thing, in your case, since you are so close to SOL, i would claim SOL.  

 

10 hours ago, Gristle said:

Should I just use General Deniability PLD-050? If so is there a link to correctly fill out.

if non of the claims are verified (most likely they are not) you would use PLD-050

http://www.courts.ca.gov/documents/pld050.pdf

 

 

 

 

[Gristle]

Question; a verified complaint is a sworn affidavit correct?

I do not see in the complaint where any sworn testimony is given (which I believe would have to be notarized yes or no?).

[Gristle]

Ok hooked up the laptop cause computer won't scan.  here is what the summons states; Filed with Court OCT 31, 2016 (my recorded date of service at the Court is NOV 20, 2016)

Cavalry SPV I, LLC, as assignee of Citibank N.A.,

vs

Me

"Limited Liability Case"

Complaint for account stated; money lent demand amount $4,738.57

Plaintiff, Cavalry SPV I, LLC, as assignee of Citibank N.A. complains of defendants, and each of them, singularly and collectively, that;

1. the true names and capacities of defendants herein sued by the fictitious names as Does 1 to 10, inclusive, are unknown to Plaintiff, who therefore sues those defendants under, pursuant o, and in accordance wit the provision of Section 474 of the Code of Civil Procedure. Plaintiff will ask leave of Court to amend this complaint as and when the true names and capacities of defendants amend herein DOES 1 to 10 have been ascertained.

2. At all times herein mentioned, defendants, and each of them, were the agents, servants and employees of each other and every remaining defendant, and in doing the things alleged, were acting in the course and scope of said authority of such agents, servants and employees.

3. Plaintiff is now and was a all time herein mentioned a limited liability company, authorized to do business in the state of California.

4.Plaintiff is a debt buyer as defined by Section 1788.50 of the CA Civil Code.

5. Section 1788.50 of the CA Civil ode is applicable to this action as the debt subject to this lawsuit was purchased by the Plaintiff after January 1, 2014

6. Plaintiff is in compliance with Section 1788.52 of the CA Civil Code. Attached hero as Exhibit A is a true and correct copy of a monthly account statement that was sent to the defendant while the account was active, which demonstrate that the debt was incurred by the defendant.

7. the nature of the underlying debt is a credit agreement entered into between the charge-off creditor and the defendant. As part of the agreement, defendant obtained credit to use for the purchase of certain goods and services.

8. The name of the charge-off creditor is Citibank, N.A. and the address of the charge-off creditor at the time of charge of was PO Box 78045 Phoenix, AZ 85062-8045. The charge-off account number is XXXXX.

9. The name and last known address of the defendant as they appeared in the charged-off creditor's records prior to the sale of the debt was (Gristle), my current address.

10. The name and address of all entities that purchased the debt after charge-off are; Cavalry SPV I, LLC, 500 Summit Lake Drive, Suite 400, Valhala, New York 10595.

11. Plaintiff is informed and believes and thereon alleges that defendant (Gristle) I an individual who resides in (my city, County and State)

12. before commencement of this action, in those cases where recovery of costs is dependent on such notices, Plaintiff informed the defendant(s) in writing that it intended to file this action and that this action would result in a judgment against defendant(s) that would include court costs and necessary disbursements allowed by C.C.P. & 1033(b)(2)

First cause of action

Accounted stated

(Against all defendants)

13. Plaintiff repeats and repleads and incorporates by reference the allegations made in paragraphs 1 through 12 of this complaint.

14. On March 11, 2013 defendants were indebted to the charge-off creditor, Citibank, N.A. in the charge-off sum of $4,843.26 on an accounted stated in writing. This Citibank, N.A. account was for credit card purchases and/or cash advances and defendant was billed monthly and failed to dispute as required under the Federal Fair Billing Act applicable to such account (15 USC & 1666 et seq.).

15. The date of last payment or transaction was made o the account was December 14, 2012,

16. Prior to filing this complaint, all right, title and interest in the account which is the subject of this lawsuit, was sold and assigned by Citibank N.., to Calvary SPV I, LLC. Cavalry SPV I, LLC is the sole owner of the debt at issue.

17. Subsequent to charge-off, credits/adjustments were applied to the account. Plaintiff is seeking recovery of the account balance for the sum of $4,738.57

18. Plaintiff made demand on defendants for payment of that sum.

 

Second Cause of Action

Money Lent

(Against all Defendants)

19.Plaintiff repeats and repleads and incorporates by reference the allegations made in paragraphs 1 through 18 of this complaint.

20. Within the last four years, defendants became indebted to the charge- off creditor, Citibank N.A., in the charge-off sum of $4,843.26 for money lent to or paid out for the benefit of defendant at his/her request, based on defendant's use and benefit of his/her account.

21. the date of the last payment or transaction made on the account was December 14, 2012.

22. Subsequent to charge-off, credits/adjustments were applied to the account. Plaintiff is seeking recovery of the account balance for the sum of $4,738.57.

23. Neither the whole nor any part of the above sum has been paid, although payment has bee demanded, leaving a balance due, owing and unpaid to plaintiff in the principle amount of $4,738.57 and costs of suit.

Wherefore, plaintiff prays for judgment against defendants, and each of them, jointly and severally, as follows;

The First Cause of Action

(1) Principle of damages in the sum $4,738.57;

(2) Cost of Suit and;

(3) Such other relief as the Court may deem just and proper

For the Second Cause of Action

(1) Principle of damages in the sum $4,738.57

(2) Costs of suit and;

(3) Such other relief as the Court may deem just and proper.

Signed Attorney

Exhibit A

(a bill from OC where a payment of $100.00 was received on 12/14/12)

(FYSA ;Note; on said bill the account states past due with a minimum payment of $756.46 due ( I believe 2 months past due at said time of bill 12/14/12)

With that information, which form do you all recommend I should I file  Thank you for your valuable time.

 

[RyanEX]

Here's a post from calawyer explaining verification:

http://www.creditinfocenter.com/community/topic/327543-urgenthelp-plzrec-summons-capital-one-thier-attorney/#comment-1341442

Quote

 

Here is the form you will probably use to answer the complaint.  It is called a “General Denial:
http://www.courtinfo.ca.gov/forms/fillable/pld050.pdf

You can use this form if the complaint is not verified and, under certain circumstances listed on the form itself, even if it is verified. A complaint is verified when the plaintiff swears that the facts set forth in the complaint are true. The advantage of using this form (if you can) is that you don't need to go paragraph-by-paragraph through the complaint denying or admitting each one.

 

Go to the last page of the attached link and you will see a typical verification form for California complaints. As in the example, most (but not all) verified complaints say so in the caption itself: http://cluebytwelve.net/monkeys-lawsuit/complaint.pdf.

* edit: Link to above mentioned complaint, look at last page: https://drive.google.com/file/d/0BySXxIwHA4lVdVdGVW5lX0dwdmc/view?usp=sharing

There is also a procedure in California where an attorney can verify a complaint for her client if the client is outside of the County where the lawyer maintains her office. In that case, it will say the client is outside the county and the attorney is verifying on the client's behalf.

 CCP 446:  Attorney verification should say that attorney has read the pleading and that he or she is informed and believes the matters therein to be true and on that ground alleges that the matters stated therein are true.

Most Debt collection complaints are not verified, but you should check to make sure. If your complaint is not verified, you can use the very simple form above to answer.  You might also want to request a fee waiver.  If the Court grants the waiver, you will not have to pay any fee to file the answer. 

 

[Gristle]

Thanks for the quick response RyanEx!  The link of the example for typical verification didn't work, however I have read and reread the summons and there is nothing that states anything about verification or that 'the attorney has read the pleading and that he or she believes the matters therein to be true" or other examples provided.  The only time the word "true" is mentioned in the summons is items;

1. the true names and capacities of defendants herein sued by the fictitious names as Does 1 to 10, inclusive, are unknown to Plaintiff, who therefore sues those defendants under, pursuant o, and in accordance wit the provision of Section 474 of the Code of Civil Procedure. Plaintiff will ask leave of Court to amend this complaint as and when the true names and capacities of defendants amend herein DOES 1 to 10 have been ascertained.

6. Plaintiff is in compliance with Section 1788.52 of the CA Civil Code. Attached hero as Exhibit A is a true and correct copy of a monthly account statement that was sent to the defendant while the account was active, which demonstrate that the debt was incurred by the defendant.

 

Perhaps PLD-050 is the correct form to file and make them prove their claim and not go the Affirmative Defenses route as those "true" statements are hearsay (thanks to learning on this site).  

 

FYSA; plaintiffs attorney is Winn Law Group

 

 

[RyanEX]

Luckily I saved the pdf I tried to link above. Sounds like you can already tell yours isn't verified, but here it is anyway (see the last page): https://drive.google.com/file/d/0BySXxIwHA4lVdVdGVW5lX0dwdmc/view?usp=sharing

[Gristle]

Great stuff, you all are an incredible asset. I will send certified BOP tomorrow and file PLD-050 Monday (deadline Tuesday) first case that is (I will also send second case BOP tomorrow and file that one a day prior to deadline).

I will search the forum for statement on BOP (unless someone has link handy). I will keep you all posted. Please feel free to keep the great advice coming if you feel it necessary, Thanks again!

[sadinca]

I sunny have a link to the bop with me right now,. But you mention Ruby Tuesday, we both were assured by cavalry at abt same time, in Pretty sure there is a copy of the bop somewhere in his/her post. 

[calawyer]

Here is a thread that contains "everything you need to know about a BOP": 

Here is the text of a BOP you can use.  Brackets are for the causes of action in your complaint.  Delete any that do not apply:

 

To PLAINTIFF________ and [its/their] attorneys of record herein:

            DEMAND IS HEREBY MADE UPON YOU, pursuant to California Code of Civil Procedure section 454, to furnish to Defendant ________, within 10 days, a Bill of Particulars setting forth all items and details of the account on which the cause of action for [goods sold and delivered] [money had and received] [money lent or paid] [quantum meruit] of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account.

 

Dated: _________                                                                  _____________________

                                                                                                            DEFENDANT

[Gristle]

Great stuff!  Just finished my BOP using the above template and stated for the ( brackets);

"on which the cause of action for Account Stated, Money Lent, of plaintiff's"

In addition to listing the plaintiff by name, I specifically used the name of the attorney representing who signed the filing and the name of the firm.

Heading to post office now to mail CMRRR.  Ha! Should be inconvenient for them at Christmas.  I will file denial on Monday.  I will continue reading the great links and start preparing templates, that way I'm not up against a wall, I will keep you posted.  Cannot thank you all enough especially at Christmas time.  You are all a God send and I hope one day I can pay it forward.

FYSA; since I have (2) claims going 7 days apart I will use this first claim as my learning/education to respond to the second (unless I start getting confused on filing dates on the second claim at that point I will start a new thread or PM if that is good with you all).  Thanks again!

[Anon Amos]

Christmas is actually a busy time as the bottom feeders like to file lawsuits around holidays.  You're doing good, keep at it but don't burn yourself out...

[Gristle]

Back already, that was easy enough.  I think I will go enjoy the evening with my wife (thanks to you all!).

Note; for those reading this going through something similar and are at this beginning stage; I have a an Evidence expanding File and make copies of everything and note the last (4) numbers of the case at the top of the page.  As I am sending/receiving I file immediately in order sent/received so I don't forget later or have to search around for later (something I learned here).

[sadinca]

Remember proof of service. 

[sadinca]

Anon is right. At this time I get reminders of those debts out of Sol.

[Gristle]

Great point, I was going to ask Monday when I file, however I will pose the question now; 

I file PLD-050 with court

Someone other than me sends the PLD-050 to Plaintiff with proof of service PLD-030

I file proof of service PLD-030 at court 

 

Please correct if wrong....and did I say THANKS!!!!  I'm telling you the last couple weeks I was beside myself, now I am smiling as I type (far from over, but together we got this!!) 

[sadinca]

You can mail to plaintiff the general along with the proof of service (unsigned) before filling with the court.

Then you can file your general denial and your signed proof of service in court. 

Thus, saving you an extra trip to court, or postage, to file the proof of service. Hope this makes sense. 

Also, I was referring to the BOP. How you send that with its corresponding POS. If you didn't, it won't hurt to send another one with POS. 

 

PS. Enjoy the weekend with your wife. 

 

[Gristle]

Filed denial and POS today. Been researching my local court cases with Cavalry, looks very promising, 100's of cases in past 18months, lots of missing paper work and dismissal for improper service/lacking documentation. I'll post the exact verbage this week from the minutes, perhaps someone can interpret. Lots of default judgements and about 30%ish dismissal only couple went to trial. Also looked up the local attorney Winn sends on their behalf, passed the bar in 1990 so has experience. Saw one case dropped quick when attorney for the defendant requested a jury trial and it was granted. No worries, we got this, thanks again for all your help!!!!!

[Gristle]

Happy New Year, I hope everyone had a great Holiday season! I received my response to my request for Bill of Particulars and it is quite comical, similar to what others have posted here. I will post later for all to get a good laugh. In a nut shell they sent 3 random bills and stated all the "attorney client privilege" garbage. The best part as I've mentioned before I have two cases; well they responded to both in the same envelope but the laughable part is they used the exact same cover sheet for both; same case number everything. Someone at Winn must of caught it after the attorney signed it so they put 2 post-it notes over what should have been the second claim information and then used a black sharpie to cover it up lmao! They didn't even have the decency to retype a second cover sheet! Talk about Romper Room law firm lol! I am even more confident, thanks to your help of the final outcome. More to follow, thanks again!

[Gristle]

Hello everyone, still moving along.  I have a Case Management hearing on Tuesday and lo and behold this past Friday I finally received the interrogatories and special interrogatories (post marked April 3 and received April 7). They all look on par with what has been posted on other threads. I will prepare my answers using the great info here and post for review this next weekend. As I understand I have 30 days (plus 5) so if I mail it by May 1 I should be good correct?

Calvary sent 10 consecutive billing statements and a blanket contract agreement that looks like they printed off a website. The statements do not span the life of the account nor do they start with a zero balance so based on what I have learned here it is not too concerning.

Here are the interrogatories;

1. Admit to the genuineness of the documents attached hereto as Exhibit 1, monthly billing statements for Citibank N.A. with account number xxxxxxxxxxxx1234.

2. Admit to the genuineness of the documents attached hereto as Exhibit 2, "Card Agreement" for Citibank N.A. With account number xxxxxxxxxxxx1234.

3. You applied for and opened a credit card account with Citibank N.A.

4. A credit card was issued to you by Citibank N.A. with the account number xxxxxxxxxxxx1234.

5. You used the credit card and made charges and payments to the Citibank N.A. account, with account number xxxxxxxxxxxx1234.

6. Monthly billing statements, attached hereto as Exhibit 1, were mailed to you at (my address), indicating monthly debits, credit and payments made on the account xxxxx1234.

7. You were mailed and received a cardholder agreement for this Citibank N.A. account, with the account number xxxxxxxxxxxx1234.

8. The date of last payment, or transaction, occurred on December 14, 2012, on the Citibank N.A. Account, with the account number xxxxxxxxxxxx1234.

9. On April 24, 2013, you were indebted to Citibank N.A. The sum of $(amount) on an accounted stated for the charges to your Citibank N.A. account with the account number xxxxxxxxxxxx1234.

10. On March 31, 2016, you were indebted to Plantiff the sum of $(less amount then on question 9) on an accounted stated for charges to the account number xxxxxxxxxxxx1234.

11. All conditions precedent to payment of the unpaid principal balance due on your Citibank N.A. account, with the account number xxxxxxxxxxxx1234 have been performed, waived, satisfied, or extinguished.

 

Once again, all feedback is greatly appreciated!