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Sued by Cavalry in Missouri


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Hello All,

Cavalry filed suit against me trial is Oct 3rd 2017

 Here are my answer to forum questions

1. Who is the named plaintiff in the suit? Cavalry SPV I, LLC

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

3. How much are you being sued for? $894

4. Who is the original creditor? (if not the Plaintiff) Synchrony Bank/Amazon.com

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

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

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

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 sent a validation request in April of 2017

9. What state and county do you live in? Jackson County, Missouri

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) May 2016

11. What is the SOL on the debt? To find out: 5 years

Statute of Limitations on Debts

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). Summons Personally Served

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. Yes

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? Must appear to answer

***********************************************************************
Petition
COUNT 1 – BREACH OF CONTRACT
COMES NOW, Plaintiff, by and through its attorney of record, XXXXXXXX, LLC and for its cause of action alleges and states as follows:
1.    That Plaintiff is duly organized and existing under
law.
2.    Plaintiff is the holder of a valid assignment of an account which originated with Synchrony Bank/Amazon.com, account number XXXXXXXXXXXXX. 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 the original creditor Synchrony Bank/Amazon.com, as issuer of the Synchrony Bank/Amazon.com credit card account to Cavalry SPV I, LLC.  Cavalry SPV I, LLC, is the sole owner of the debt at issue.
3.    Defendant is a resident of Jackson County, Missouri at
xxxxxxxxxxxx
4.    Synchrony Bank/Amazon.com and Defendant entered into a contract, whereby Synchrony Bank/Amazon.com extended credit pursuant to the terms and conditions of a credit agreement (hereinafter referred to as “Agreement”) and Defendant, in exchange for the use of the credit extended, agreed to pay Synchrony Bank/Amazon.com, for all amounts due resulting from the authorized use pursuant to the Agreement, including any finance charges and any other charges due under the terms of the Agreement.
5.    Synchrony Bank/Amazon.com fully abided by the terms and conditions as set forth in said Agreement.
6.    Defendant has not made all payments to Synchrony Bank/Amazon.com pursuant to the Agreement.
7.    Synchrony Bank/Amazon.com sent monthly statements to the Defendant.
8.    Defendant breached the Agreement by failing to pay the amount owed.
9.    As a direct and proximate result of the Defendant’s breach of the Agreement, Synchrony Bank/Amazon.com has sustained damages in the sum of $893.97.
10.    Synchrony Bank/Amazon.com has fully performed, pursuant to the terms of the Agreement or its performance has been excused due to Defendant’s breach.
11.    Synchrony Bank/Amazon.com and subsequently Plaintiff have made
demand for payment of the outstanding sum of $893.97, but Defendant has failed and refused to pay.
12.    Subsequent to charge-off, the charge-off creditor applied credits/adjustments to the account. Plaintiff is seeking recovery of the account balance for the sum of $893.97.
13.    Plaintiff made
demand on defendant for payment of that sum.

WHEREFORE Plaintiff Cavalry SPV I, LLC, prays for judgement in Count 1 against Defendant in the unpaid balance of $893.97, post judgement interest to accrue at the rate of 9.00% per annum, plus reasonable attorney fees, and for its cost herein incurred.

COUNT 2-ACCOUNT STATED
    COMES NOW, Plaintiff, and for its
alterative cause of action against Defendant, states as follows:
14.    Plaintiff restates and re-alleges each and every paragraph of Count 1 as if fully set forth herein.
15.    Defendant and Synchrony Bank/Amazon.com had previous financial transactions related to the Agreement issued to Defendant by Synchrony Bank/Amazon.com, at Defendant’s insistence and request.
16.    Pursuant to
said transaction, Synchrony Bank/Amazon.com sent  Defendant statements of account, to which Defendant did not object.
17.    Pursuant to the terms and conditions sent to Defendant in the Agreement, and governing its use, the Defendant made
and unconditional promise to pay the amount due with use of said card.
18.    The balance agreed to by the parties is $893.97
19.    The Defendant has failed to keep Defendant’s promise to pay
said balance, despite demand for same having been made.
20.    Plaintiff is the assignee of Synchrony Bank/Amazon.com to be repaid by the Defendant on the account, and it is entitled to recover from Defendant the sum of $893.97, that being the balance due
through April 6, 2017.
21.    Subsequent to charge-off, the charge-off creditor applied credits/adjustments to the account. Plaintiff is seeking recovery of the account balance for the sum of $893.97.
22.    Plaintiff made
demand on defendant for payment of that sum. 

WHEREFORE Plaintiff Cavalry SPV I, LLC, prays for judgment in Count 2 against Defendant in the sum of $893.97, post judgement interest to accrue at the rate of 9.0000% per  annum, and for its cost herein incurred.

***********************************************************************

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. 
*Amazon Credit Card agreement
SYNCHRONY BANK VARIABLE TERM ADDENDUM
Jun 2016 credit card statement
Oct 2016 credit card statement

 

I've drafted a Motion for private ARB - Please review and provide feedback

 

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 July 26, 2017, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on August 29, 2017, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

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

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

a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

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

5. 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 . . . "

 
6. 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 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , http://www.law.cornell.edu/supct-cgi/get-us-cite?546+440"] 546 U. S. 440'>"http://www.law.cornell.edu/supct-cgi/get-us-cite?489+468"] 489 U. S. 468'>"http://www.law.cornell.edu/supct-cgi/get-us-cite?489+468"] 489 U. S. 468, 478 (1989) ."

Defendants Motion to Dismiss

7. The Defendant elects private contractual arbitration to settle this dispute in lieu of civil court.

8.  Plaintiff has failed to state a claim for which relief may be granted.

9. Plaintiff has no standing to sue.

10. Plaintiff's submission of Statement of account from Synchrony Bank/Amazon is also hearsay without foundation as third parties holding files that were not prepared by them cannot claim business record exemption to the hearsay rule

Statement of facts in support defendants motion

If CMJA Financial Corp has purchased the purported account after default, then the Plaintiff is considered a debt collector regulated by the FDCPA pursuant to Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1485 (M.D.Ala. 1987). Accord, Holmes, supra, at 1293. and Holmes v. Telecredit Service Corp., 736 F. Supp. 1289, 1293 (D. Del. 1990)

Memorandum of law in support of Defendants motion 

11. Plaintiff has failed to state a prima fascia case, and has merely made conclusory statements in the complaint. See Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) 550 U.S. at 562-63. The United States Supreme Court clarified that although "detailed factual allegations" are not required at the pleading stage, "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." 550 U.S. at 555. The complaint must contain factual allegations, and they "must be enough to raise a right to relief above the speculative level." Id. There must be sufficient facts plead to state a claim to relief that is "plausible on its face." Id. at 570.


12. Plaintiff has failed to provide proof of assignment. Plaintiff allegation "Plaintiff is the holder of a valid assignment of an account which originated with Synchrony Bank/Amazon.com, account number XXXXXXXXXXXX1150. 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 the original creditor Synchrony Bank/Amazon.com, as issuer of the Synchrony Bank/Amazon.com credit card account to Cavalry SPV I, LLC.  Cavalry SPV I, LLC, is the sole owner of the debt at issue.” is merely an conclusory statement. Determining whether a party has standing is the threshold issue. Executive Bd. of Missouri Baptist Convention v. Carnahan, 170 S.W.3d 437, 445 (Mo. App. W.D. 2005). When a party lacks standing, a court has no jurisdiction to grant the relief requested and the case must be dismissed. 

The Plaintiff has not submitted the assignment records nor the ledger of accounts which would prove ownership of the purported account. 


13.  the Statement proffered by the Plaintiff is not subject to the Business exception to the hearsay rule; see Asset Acceptance v. Lodge 325 S.W. 3rd 525,528 (Mo. App. E.D. 2010)

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 August 29, 2017
X, Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.

 

_______________________________________


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:

Brandon T. Pittenger, Plaintiff's attorney
Pittenger Law Group, LLC
6900 College Blvd., Suite 325
Overland Park KS 66211


By: X, Defendant

Date:  August 29th, 2017

 

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Assuming you actually included what the Synchrony card agreement says that they provided as evidence in your Motion to Compel and did not just copy/paste the sample from this site, then it looks good to me.

I, personally, would not include the "verification by affidavit" part.  I would check my court rules and see exactly what is required.  Usually it is just a "certification" of some type stating that you certify that you provided a copy to the plaintiff's attorney.   Usually no notary is required for a motion or answer.

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