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Here is my questionnaire info.

 

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

Cavalry SPV I

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

 

3. How much are you being sued for?

 

 

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

Citibank, N.A

 

5. How do you know you are being sued? (You were served, right?)

Served summons

 

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

In person, via process server at home

 

7. Was the service legal as required by your state?

Yes

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

 

9. What state and county do you live in?

Arkansas, Pulaski County

 

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

2013

 

11. What is the SOL on the debt? To find out:

Not positive but I think 3 years

 

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).

Waiting for Plaintiff to respond to my discovery requests.

  • Complaint filed early May 2015
  • I was served late May 2015
  • Answer filed early June 2015 (within the 30 days)(served with Plaintiff and filed with court)
  • Received Plaintiff's RFA, interrogatories,  and request for documents mid June; replied three weeks later (responses served with Plaintiff and filed with court)
  • Served my RFA, interrogatories. and request for documents late July; response time will expire this week - no responses yet (served with Plaintiff; RFA filed with court)
  • Served an amended Answer early in August (served with Plaintiff and filed with court)
  • Served a Motion to Strike Affidavit/Exhibits early in August; the 10 day time period for Plaintiff to respond has expired (served with Plaintiff and filed with court)

Court has not yet set any hearings or trial date.  No action on my motions yet.

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

OC never listed debt with CRA; plaintiff did.  Disputed.

 

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; they never sent me anything prior to filing the lawsuit

 

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?

My answer, amended answer, and responses to RFA/discovery have all been filed timely

 

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

Affidavit of Claim notarized March 2017, Assignment/Bill of Sale dated September 2016, an account statement dated April 2014, and terms and conditions dated May 2016

 

I really appreciate any guidance on how to proceed.  Since the time has expired for the Plaintiff to respond to my Motion to Strike, should I expect the court to rule on this within in 30 days?

Also, should I file a Motion to Admit my RFA if I don't receive a response within the 30 days allowed by Arkansas Rules of Civil Procedure? 

The response to my other discover is due the same date as the response to my RFA.  If I understand it, I need to show good faith effort to resolve the discovery request prior to filing a Motion to Compel; should I send a separate letter after 30 days, asking for a response, and then file a Motion to Compel after a few weeks?

I am expecting no Plaintiff response to my discovery requests.

If it is helpful, I can post heavily redacted versions of my various pleadings and motions.

 

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Update.  Plaintiff replied today opposing my Motion to Strike Affidavit because they were not submitting it as evidence but as documentation to establish a prima facie claim in compliance with A.C.A. Sec 16-45-104.

Basically, they said I was holding the affidavit and exhibits sent with the initial claim to a standard of admissible evidence, which I cannot do at this point

I have 5 days to respond.  Should I?  And what should I say?  Thank you

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The statute you referenced is pretty standard when lobbyists for the collection industry write laws. My reading of the statute is that the burden switches back to them  if you swear under oath that the this is a case of ID Theft, or that the plaintiff forged their entire case and decided to sue you out of spite. If the account really isn't yours, I assume you would have been yelling that in your first post. 

Only you can decide whether to falsely wear under oath to something with the risk that plaintiff will bring every CC statement and subpoena your bank records to prove you used and paid on the account.

With this much litigation already under the bridge arbitration is probably off the table. I'm afraid the only thing between them and 10K is bankruptcy.

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Thank you for your post. i'm not ready to throw the towel in yet.   Call me an optimist.

 I probably jumped the gun with the motion to strike their affidavit and exhibits they attached with the original complaint;  however, as other people in this forum have noted, I did make them work a little. 

it will be interesting to see if and how they respond to my discovery requests. The information they provided with the original complaint does not establish standing, proper assignment of the dead from the original  creditor, and/or that they filed their action before the statute limitations ran out. I guess that's why went after the affidavit because it was so poorly written and the other exhibits were equally weak.

 I sincerely appreciate any assistance, comments, or advice. Thank you very much 

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@wernda1234, I would not do anything else regarding the Motion to Strike -- you will lose that one.  Many of your reasons for filing the motion should be saved, and incorporated in a later 'Motion to Dismiss.'  But, remember, with every argument you make, back it up with case law from Arkansas primarily, but other states if needed.

You're right though, it did cause them to have to answer it -- so, no harm, no foul.  Also, these 'junk debt' scum do NOT have to be members of the Arkansas Board of Collections.  They used to, until an Arkansas Supreme Court ruling forced them all to register as 'Foreign' companies with the Ark Secretary of State.

I've been sued a couple of times over the years by JDBs, and in the end, they have always dismissed the case.  Hopefully they will just dismiss your case, and go after the lower hanging fruit -- those they can win by default by defendant never answering.

The complaints the JDBs send out are always tweaked, as they learn from their mistakes, but bottom line is:  No matter hard they try, if argued properly, they can never stitch together the 'Bills of Sale,' 'Affidavits,' etc, into a cohesive argument that the signers of said materials have no idea if the amount you allegedly owe is correct.  Even the 'Forward Flow' agreement, which is what they need to send you, straight out says that 'Citibank does not guarentee the amounts or collectablilty of the accounts they are selling.'  The JDB tries very hard to avoid sending it.   If/when the time comes, demand it.

Finally, I saved a very favorable appeals court ruling for the defendant.  The court stitched together everything that was lacking in the JDBs case.  PM me and I'll send it to you if you want.

Good luck!  We never let fellow Arkansans lose as long as they come to this site.

-Jimmy

Little Rock

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19 hours ago, wernda1234 said:
Call me an optimist.

... however, as other people in this forum have noted, I did make them work a little. 

 

I don't know if I'd use word "optimist," but it's your time.

Debt collection cases are pretty boring, on the whole, so the plaintiff would probably thank you for giving him something to do - he's at the office getting paid, anyway, so you aren't costing them anything. 

10K is pretty big, as debt buyer cases go, but I've had them drop the ball for same amount. Watching this one with interest.

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Most JDBs will send out their 'boilerplate' request for admissions, and request for production of documents -- and they are all word-for-word, just with YOUR info filled in.  Will they make an extra effort because your alleged debt is more than $10k -- maybe.

If the Plaintiff attorney really is in Kentucky, are they going to bother coming to LR for a case they don't even know if they can win?  Likely not.  They WILL, however try their best to screw you up by filing motions, in the hopes that stumble.

Just stay on them, and keep us up to date with anything you receive from them.

-Jimmy

 

midland-v-stimpson_appellate_decision_12162014.pdf

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1 hour ago, Jimmy E said:

If the Plaintiff attorney really is in Kentucky, are they going to bother coming to LR for a case they don't even know if they can win?  Likely not. 

This is a classic mistake.  Assuming the firm that filed will be the one that shows up.  Since they are banking on the default judgment it isn't uncommon for the JDB to use a large out of state firm to file thousands of cases and simply farm out the actual trial date to a local yokel who shows up to represent them in the default.  

The OP could get lucky that the law firm doesn't or forgets to hire a local counsel but I would not assume.

1 hour ago, Jimmy E said:

They WILL, however try their best to screw you up by filing motions, in the hopes that stumble.

Not likely either.  They will file the motions they believe will move them to a summary judgment or induce the Defendant to agree to a consent judgment.  A debt for five figures is likely in state or district court which means a pro-se is highly unlikely to know the rules of civil procedure and will trip up on their own with no help from the Plaintiff or their counsel.

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@Clydesmom, agreed to the 'farming out' of attorneys.  In this case there is a 'named' attorney with big law firm in KY.  Unless a 'local yokel' as you put it was subsequently tasked with the case, would the 'local' attorney have to work for the same firm?  Otherwise, would there not be motions to change representation?  I'm asking... I seriously do not know.

To clarify, I meant the RFA and RPD they file is where they hope you stumble.  The only actual MOTION they are likely to file is one for summary judgment.  But, I could be wrong.

Good luck!

-J

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I second everything that @CM said.

The statute about affidavits requiring sworn testimony to dispute tells me that AR is "creditor friendly," in the extreme. AZ tried to impose such a statute and it encountered resistance that watered it down - yet virtually every CC case here results in MSJ for Plaintiff. This really eviscerates leveraging any logistical angles (such as making out of state lawyer travel), and technical motion-games. 

Never lose sight of the "facts" in any case. The facts here, as we all know, is that the debt is valid and the plaintiff owns it. It will take an awful lot of magic to blind judge to those facts.

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Very little is required for filing on an account.  In this beginning phase, the proper response to the affidavit would not have been a motion to strike, but a denial under oath.

"In a suit on account, the affidavit of the Plaintiff, duly taken and certified, that the account is just and correct shall be sufficient to establish the account unless the defendant denies under oath the correctness of the account, in which case the Plaintiff must prove the account by other evidence."  Mille v. Transamerica Commercial Finance Corporation, 74 Ark. App. 237, 47 S.W. 3d 288; also see, Ark §16-45-104 (revised July, 2011)."

Debt is valid and Plaintiff owns it, until properly argued in front of a judge MANY other FACTS!

-J

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5 hours ago, Jimmy E said:

In this case there is a 'named' attorney with big law firm in KY.  Unless a 'local yokel' as you put it was subsequently tasked with the case, would the 'local' attorney have to work for the same firm?

No.  The local attorney does not have to work for that firm full time.  What the out of state firm does is subcontract the work out to an independent attorney for the  day/week or they have an associate relationship with a local firm where the local attorneys may appear on their behalf.

5 hours ago, Jimmy E said:

Otherwise, would there not be motions to change representation?

This motion would only be necessary if the original attorney/firm were completely backing out of the case.

 

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16 hours ago, wernda1234 said:

I assume a denial under oath would be an affidavit from me?  Too late?  If not, suggested format?

Thanks everyone!

 

Yes, it would be an affidavit from you, but one that states you know NOTHING at all about this account -- you've been a victim of identity theft, etc.  That is not your case, and that's okay.  Based on your answers, a denial under oath could actually get you in a lot of trouble.

-J

 

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Agreed, not the case and not interested in trouble.

BTW, I did get Plaintiff's responses to my RFA and other discovery;  it will take me a day or so to review.  Nothing new provided beyond denying most of my RFA and providing the same affidavit and exhibits included with the original response.

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Ok, just waiting for the court to deny my Motion to Strike; understood that was the wrong motion.

I have reviewed their response to my discovery.

 

 

This all came as one document.  They also included the same documents they provided with the original complaint:

 

They also included two letters I have never seen before.

 

So what happens next?  I believe my main defenses are statue of limitations under AR 16-56-105 and the fact that they haven't provided anything that proves the debt was properly assigned to them.

I admit that my discovery requests were not so great; can/should I submit a second round, more targeted than the first?

Thank you for advice and suggestions

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SOL is a non-starter, as it appears to be five years for CC debt in AR. 

As for "standing," the affidavit and bill-of-sale provided are sufficient to win in most jurisdictions. Best hope may be a rookie judge that has never seen a case like this and demands more paperwork.

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@wernda1234, it wouldn't hurt to find a 'typical' Forward Flow agreement -- the one where OC sells accounts to Cavalry's subsidiary.  The OC will clearly state on that agreement, that it (the OC) cannot gaurantee amounts due are accurate or 'collectible' (or some such wording). 

How can a JDB win their case, when even the OC denies accuracy?!  Clearly, this would have to be pointed out to the judge, either at trial, or more likely in a brief to a 'Motion to Dismiss WITH Prejudice.'

Having said all of this, the bottom line is it will depend on the judge.  I've seen JDB cases and pro se in court many times.  On one occassion, the judge looked at some credit card statements, and asked defendant:  "Did you purchase 'X' product at 'X' store on 'X' date?'  The defendant said 'YES,' then judge immediately ruled for JDB Plaintiff.  Case over (unless appealed).  This judge did not take time to give a critical review of everythng submitted on both sides.  He just assumed if defendant made purchase, he must be a deadbeat comsumer, and simply sided with JDB.

That is why IF a case makes it to court, you have to be ready to appeal the case.  In doing so, an appealate judge will actually review what was submitted to find out if the original judge made a LEGAL error.  It's generally at this point where the judge will see the huge disconnect between the OC and JDB, along with chain of custody of documents.  In other words, your arguments in a brief at this point will actually be read -- giving you a MUCH better chance of getting the original decision overturned.

Personally, I would not expect it to go this far.  Just saying, be prepared.  If it does make it in front of a judge, be ready to speak up with legal arguments that show the disconnect between the OC and the JDB -- from the Forward Flow agreement, to the hearsay documents that follow.

-J

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Thanks everyone!  I am fairly sure is I submit a second discovery request for production of their FFA I will not get it.

What if I tried this:  I file a second RFA (I only used 17 so far) with one RFA asked them to admit that whatever document(s) they are using as the FFA contains language that the OC did not guarantee the accuracy of any account assigned?  (May need help on wording).  If they admit, then I can move to dismiss.  If they deny, I file discovery for the document.  And if they ignore, it is admitted after 30 days, and then I file to dismiss.

As an update, no action to date on the case.  Court has not yet denied (most likely option) my mistimed Request to Strike.

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The OC will clearly state on that agreement, that it (the OC) cannot gaurantee amounts due are accurate or 'collectible' (or some such wording). 

Very big difference from saying "these accounts were lost in a flood and are totally inaccurate." A simple "no implied warranty" has proven to carry little to no weight with judges.

 

 

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