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CACH LLC/LENDING CLUB Served in Texas


pockets66
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Dh was served by Cach, LLC - County Court 2.  The papers were just found today underneath the front door floor mat.  I looked on the JOP website and they state they were left on 6/12/17.

We haven't received anything in the mail but the JOP website states that a conference meeting is set for Aug 2017.   I plan on filing a MTC Arbitration.  Lending Club has an arbitration agreement.  CACH, LLC included a copy with their response to the complaint I had filed with CFPB disputing the alleged account.

I want to make sure I do this right.  Does this get filed with the court and Plaintiff's lawyer?

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."     

Enclose a copy of said credit card agreement with a sworn affidavit?

Do I answer the admissions the same way?  Does the answer to admissions only go to the attorney or do you file that with the court too?

Because Cach, LLC has set up a conference meeting do I need to do anything different? 

Thanks in advance for everyone's help!

 

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

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) P SCOTT LOWERY

3. How much are you being sued for? 13900.00 TO 15000.00

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

5. How do you know you are being sued? (You were served, right?) JOP SITE SHOWS SERVED 6/21/2017 JUST FOUND IT UNDER THE FRONT DOOR FLOOR MAT 

6. How were you served? (Mail, In person, Notice on door) UNDER FLOOR MAT

7. Was the service legal as required by your state? I was properly served    

8. What was your correspondence (if any) with the people suing you before you think you were being sued?   FILED COMPLAINT WITH CPFB FOR ALLEGED DEBT ON CR

9. What state and county do you live in? TX GAL

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2014

11. What is the SOL on the debt?  4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). JOP WEBSITE STATES CONFERENCE HEARING FOR AUG 2017

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) YES

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 BUT THEY DID RESPOND TO CFPB COMPLAINT

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.  20 DAYS AFTER SERVED – JOB WEBSITE STATES 6/12/17

We need to know what the "charges" are. Please post what they are claiming. BREACH OF CONTRACT – SUIT ON DEBT/ACCOUNT STATED

Did you receive an interrogatory (questionnaire) regarding the lawsuit? YES.  I HAVE 50 DAYS FROM DATE TO SEND PLAINTIFF THE ANSWER – WILL POST BELOW

16. What evidence did they send with the summons? NOTHING WAS INCLUDED         

 

PLAINTIFF’S REQUEST FOR ADMISSIONS – ADMIT OR DENY QUESTION

Pursuant to Tex.R.Civ.P. 198.2(a), Plaintiff hereby request that defendant serve a written response to the Plaintiff within fifty (50) days after service of this Request for Admissions.  Unless an objection or an assertion of privilege is made by Defendant, the response "must admit or deny the request or explain in detail the reasons that the responding part cannot admit or deny the request" [emphasis added].

 

REQUEST 1:  Admit that you, the Defendant (hereinafter, also referred to as “you”) entered into an agreement whereby Original Creditor extended credit to you on account number xxxx (the “Account) and you agreed to repay Original Creditor for such credit plus any interest and fees charged by Original Creditor.

REQUEST 2:  Admit that you, or another with your permission, accepted the credit extended by Original Creditor and utilized such credit for the purchases of goods, wares, merchandise, services or for cash advances.

REQUEST 3:  Admit that account has not been paid, discharged, settled or otherwise compromised.

REQUEST 4:  Admit that pursuant to your agreement with Original Creditor that as of April 2017, the balance due and owing on the Account, after all payments, credit and offsets have been applied, was $xxxxx

REQUEST 5:  Admit that the above-described Account is the same Account which Plaintiff is seeking to collect in this lawsuit.

REQUEST 6:  Admit that CACH, LLC is the owner of the claims related to the Account.

REQUEST 7: Admit that Plaintiff made written demand for the sum sought in Plaintiff’s Original Petition more than 30 days before Plaintiff filed suit.

REQUEST 8:  Admit that you regularly received statements from Original Creditor informing you of all charges and credits to your account and the account balance.

REQUEST 9:  Admit that you never disputed any charge on the account statements you received for Original Creditor.

 

LENDING CLUB ARBITRATION CLAUSE: 

Included in complaint to CFPB Complaint – CACH LLC supplied 2014 arbitration agreement

I will also attach agreement from this year

18. Arbitration.

a. Either party to this Agreement, or WBK, may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section 18 (the "Arbitration Provision"(, unless you opt out as provided in section 18(b( below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you(, on the one hand, and us and/or WBK (or persons claiming through or connected with us and/or WBK(, on the other hand, relating to or arising out of this Agreement, any Note, the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of section 18(f( below( the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise(; a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counter-claims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.

 b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to LendingClub Corporation, 71 Stevenson St. Suite 300, San Francisco, CA 94105, Attention: Loan Processing Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send the opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.

c. The party initiating arbitration shall do so with the American Arbitration Association (the "AAA"( or JAMS. The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.

d. If we (or WBK( elect arbitration, we (or WBK, as the case may be( shall pay all the administrator's filing costs and administrative fees (other than hearing fees(. If you elect arbitration, filing costs and administrative fees (other than hearing fees( shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We (or WBK, as the case may be( shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we (or WBK( pay them and we agree (or WBK agrees( to do so. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.

 e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator's rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"(, and may be entered as a judgment in any court of competent jurisdiction.

 f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long as the Claim is pending only in that court. NO ARBITRATION SHALL PROCEED ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS (INCLUDING AS PRIVATE ATTORNEY GENERAL ON BEHALF OF OTHERS(, EVEN IF THE CLAIM OR CLAIMS THAT ARE THE SUBJECT OF THE ARBITRATION HAD PREVIOUSLY BEEN ASSERTED (OR COULD HAVE BEEN ASSERTED( IN A COURT AS CLASS REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT.

Unless consented to in writing by all parties to the arbitration, no party to the arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration, and shall not (a( determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b( make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section 18(f(, and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this section 18(f( shall be determined exclusively by a court and not by the administrator or any arbitrator.

 g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.

 h. This Arbitration Provision shall survive (i( suspension, termination, revocation, closure, or amendments to this Agreement and the relationship of the parties and/or WBK; (ii( the bankruptcy or insolvency of any party or other person; and (iii( any transfer of any loan or Note or any other promissory note(s( which you owe, or any amounts owed on such loans or notes, to any other person or entity. If any portion of this Arbitration Provision other than section 18(f( is deemed invalid or unenforceable, the remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class, representative, or collective basis, and the limitations on such proceedings in section 18(f( are finally adjudicated pursuant to the last sentence of section 18(f( to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.

71 Stevenson Street, Suite 300 San Francisco, CA 94105, USA

 

LENDING_CLUB_LOAN_AGREEEMNT.pdf

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30 minutes ago, texasrocker said:

 It was filed in a county court but a JP court has set a conference date?

Texasrocker:  No, I was able to access the record thru the JP site that took me to the records search - this case will be heard in Galveston, County Court at Law NO. 2.  A conference is set for August but we have never received anything about the conference and the conference was filed before he was served.

   
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6 hours ago, pockets66 said:

A conference is set for August but we have never received anything about the conference and the conference was filed before he was served.

It isn't uncommon for the court to go ahead and set calendar dates once a case is filed.  (California does it all the time) It is to keep the docket moving.  If he were never served the date would be moved until service happened.

8 hours ago, pockets66 said:

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."

You cannot use a credit card defense on a defaulted loan.  This is a suit in State Court.  They will follow ALL the rules of civil procedure and you better know them in and out or this motion will get tossed on a simple error.

8 hours ago, pockets66 said:

Enclose a copy of said credit card agreement with a sworn affidavit?

What card agreement?  You need to enclose a copy of YOUR Loan papers with the MTC arbitration.   Most of the advice you read on this forum related to Texas are for Justice Court NOT State Court.  I highly recommend you get a free consult with a good consumer attorney.  There are plenty of them in Texas.  State Court is no where near as relaxed and you cannot afford to get this wrong.

The best part is that the Plaintiff and their idiot attorney used a cut and paste lawsuit for a credit card account and yours is different.  I would get a good consumer attorney after them because clearly they don't even know what they are suing for!

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8 hours ago, Clydesmom said:
 

It isn't uncommon for the court to go ahead and set calendar dates once a case is filed.  (California does it all the time) It is to keep the docket moving.  If he were never served the date would be moved until service happened.

You cannot use a credit card defense on a defaulted loan.  This is a suit in State Court.  They will follow ALL the rules of civil procedure and you better know them in and out or this motion will get tossed on a simple error.

What card agreement?  You need to enclose a copy of YOUR Loan papers with the MTC arbitration.   Most of the advice you read on this forum related to Texas are for Justice Court NOT State Court.  I highly recommend you get a free consult with a good consumer attorney.  There are plenty of them in Texas.  State Court is no where near as relaxed and you cannot afford to get this wrong.

The best part is that the Plaintiff and their idiot attorney used a cut and paste lawsuit for a credit card account and yours is different.  I would get a good consumer attorney after them because clearly they don't even know what they are suing for!

It is not a state court, it was filed in a county court wherein you are much better off than a JP court these days.  I see no reason that this case cannot be defended as any other case filed by a JDB.   They will still lack admissible proof that they purchased the debt.  Just word everything properly, i.e. don't refer to the "borrower agreement" as a "credit card agreement."

No matter how you decide to handle it is imperative that you file your general denial immediately and learn the rules (both the TRCP and the specific court's rules and procedures.)  Here is a good place to start- https://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598392336/ref=la_B00LR58SUQ_1_2?s=books&ie=UTF8&qid=1498482531&sr=1-2

 

 

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On 6/26/2017 at 8:17 AM, texasrocker said:

It is not a state court, it was filed in a county court wherein you are much better off than a JP court these days.  I see no reason that this case cannot be defended as any other case filed by a JDB.   They will still lack admissible proof that they purchased the debt.  Just word everything properly, i.e. don't refer to the "borrower agreement" as a "credit card agreement."

No matter how you decide to handle it is imperative that you file your general denial immediately and learn the rules (both the TRCP and the specific court's rules and procedures.)  Here is a good place to start- https://www.amazon.com/OConnors-Texas-Rules-Civil-Trials/dp/1598392336/ref=la_B00LR58SUQ_1_2?s=books&ie=UTF8&qid=1498482531&sr=1-2

 

 

Thank you Clydesmom and Texasrocker!  I will read up more on the civil rules of procedure.  I have the loan agreement arbitration clause and I will be sure not to reference a "credit card agreement" - when filling out the general denial and plaintiff's request for admissions.  I will post what I have before going to the clerk.  

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