Jump to content

Sued by Cavalry SPV I, LLC in Ohio


Recommended Posts

Hello, all!

I'm new to the forums, but this will be my second time in court. The first was about 10 years ago against Midland. After our first meeting in court and my request for documents, they dropped the case. That felt great, but now I feel new again and need some help.

Cavalry has said they have purchased an old debt that was sold to them about 8 months ago. They include some old statements, a bill of sale (that just says bulk...no account numbers), an affidavit of sale (no specifics) and a blanket certificate of conformity.

I am just about ready to file my answer.

I denied most of the complaints (Denied, as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff and Defendant.).
The first complaint I admitted, as it only states that I live in the county.
I'm unsure how to answer this one, "Plaintiff is the assignee of Defendant's credit account." I initially denied it since I have no knowledge of it, but perhaps I should put something besides denied or admit?

 

Then, should I include an affirmative defense? I was thinking there was lack of standing, but keep reading that's not a good affirmative defense. 
Do I need to file anything outside of the answer? For discovery? 

 

Thank you!

Link to comment
Share on other sites

Oops. Here are the answers to the requested 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.) [edited out for privacy]

3. How much are you being sued for? $1000

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

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) Certified Mail

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? None so far

9. What state and county do you live in? [edit for privacy] Ohio

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 9/2016

11. When did you open the account (looking to establish what card agreement may be applicable)? I believe 2014

12. What is the SOL on the debt? To find out: I believe 6 years.

Statute of Limitations on Debts

13. 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). I was just served a complaint. Due soon.

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). No

16. 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? I just have a few more days.

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

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. an affidavit, bill of sale, blanket certificate

 

Link to comment
Share on other sites

11 hours ago, Bee Happy said:

Now that I've been reading more. I am wondering if I should ask for arbitration? Synchrony has a clause in its agreement. Apparently, this would be better than civil court?

Is this something I need to file at the same time that I submit my answer?

@Bee Happy Several recent CIC posters have had successful outcomes using the Synchrony arbitration clause in suits brought by junk debt buyers. I'm not familiar with your Ohio rules of civil procedure, especially on timing for motioning to compel arb; on this site, it's usually recommended to motion to compel as soon as possible to avoid waiver of the right. In reading the linked article,  it appears you must assert the existence of an agreement to arbitrate as an affirmative defense in your answer to the complaint. 

http://www.dinsmore.com/content/uploads/2017/06/responding20to20a20complaint20ohio203-578-2986.pdf

The Synchrony agreement has instructions on how to notify (in your case the JDB plaintiff via its attorney) of your demand to arbitrate the dispute. Fisthardcheese is our resident arb guru. Research his posts on this site, as well as Ohio posters to see state specific info. 

  • Like 1
Link to comment
Share on other sites

@Bee Happy We had a poster in Michigan who flat-out denied entering into an agreement with the original creditor in his answer to an account stated claim, including the denial in an affidavit, then later motioned to compel arb. The judge denied the motion, ruling the defendant couldn't enforce a contract term in a contract he denied under penalty of perjury being a party to. (Caveat: I am not a lawyer--"IANAL") If your rules of civil procedure include an answer option for claiming defendant lacks knowledge of an allegation, and therefore denies, it might be prudent to use this if there's a specific complaint allegation of you entering into a contract with Synchrony. Please do as much research as you can before your deadline to submit your answer. 

  • Like 2
Link to comment
Share on other sites

36 minutes ago, Brotherskeeper said:

@Bee Happy We had a poster in Michigan who flat-out denied entering into an agreement with the original creditor in his answer to an account stated claim, including the denial in an affidavit, then later motioned to compel arb. The judge denied the motion, ruling the defendant couldn't enforce a contract term in a contract he denied under penalty of perjury being a party to. (Caveat: I am not a lawyer--"IANAL") If your rules of civil procedure include an answer option for claiming defendant lacks knowledge of an allegation, and therefore denies, it might be prudent to use this if there's a specific complaint allegation of you entering into a contract with Synchrony. Please do as much research as you can before your deadline to submit your answer. 

Yes, I read that thread. Thought it was pretty interesting. I don't want to deny the agreement. Just deny that they have the right to collect on it. I don't see where they have proven to own the debt. 

Link to comment
Share on other sites

@Brotherskeeper Thank you for the link. Very helpful! I have a thousand tabs open with info, but hadn't come across that one yet. :)

 

Right now I am filing my answer. I would like to get that filed by tomorrow. I don't have anything for an affirmative defense. I was considering using arbitration and lack of standing. Is there a special way to word it? I can't find any info on that. 

 

Link to comment
Share on other sites

31 minutes ago, Bee Happy said:

@Brotherskeeper Thank you for the link. Very helpful! I have a thousand tabs open with info, but hadn't come across that one yet. :)

 

Right now I am filing my answer. I would like to get that filed by tomorrow. I don't have anything for an affirmative defense. I was considering using arbitration and lack of standing. Is there a special way to word it? I can't find any info on that. 

 

IANAL You need to first decide if you will pursue the arbitration strategy. If yes, then you must use An Agreement to Arbitrate as an affirmative defense in your answer. You may also use Lack of Standing and Failure to State a Claim Upon Which Relief Can Be Granted. This is a prudent course of action in case a later motion to compel arb would be denied.  In Michigan, affirmative defenses require some explanation of fact assertions. Check your court rules. Here's some more info:

http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=2255&context=clevstlrev

I haven't had time to research if, under Ohio law, you must deny that the court has subject matter jurisdiction. In Michigan, you can't use that. 

It's highly recommended that you draft an arbitration election/demand notice letter to plaintiff according to the Synchrony arb agreement, sent CMRRR, and include that you have done so in your aff. defense "An Agreement To Arbitrate." 

This thread may have some useful info/examples for Synchrony:

 

  • Like 1
Link to comment
Share on other sites

21 minutes ago, Bee Happy said:

Oh, one more question. They have my name wrong. It's an old name. Should I use that old name on the answer? Sign that old name? It's not the name I have gone by in the last couple years. 

I honestly have no idea. Sorry. Perhaps @BV80 or @Harry Seaward or @Clydesmom knows. 

Link to comment
Share on other sites

@Bee Happy

http://www.fortneylawgroup.com/faqs/Arbitration-agreements:-compelling-and-enforcing-arbitrationArbitration-agreements:-compelling-and-e.html

1.    Petition to compel arbitration

In the event that one party wishes to compel another party to arbitrate a dispute, the Ohio Revised Code offers a process to file a petition with the court to compel a party’s participation in an arbitration proceeding.  More often, courts are asked to enforce an arbitration agreement with the filing of a motion to stay a lawsuit.  

2.    The motion to stay

One party to the arbitration agreement may initiate a court action over an arbitrable dispute.  The other party to the arbitration agreement must then either:

(1) agree to the court's authority to rule on the controversy (thereby waiving its right to arbitrate the dispute); or 

(2) assert the party's right to arbitrate the dispute under the arbitration agreement.  

The assertion of the right to arbitrate the dispute is an affirmative defense.  It must be stated in the answer.  To enforce the right to arbitrate, the party must then file a motion to stay the lawsuit in favor of arbitration.  If both parties to the agreement ignore the right to arbitrate, the right is waived.

3.    Courts favor and encourage arbitration of disputes

Both Ohio statutory law and public policy favor and encourage dispute resolution through arbitration.  Ohio R.C. §2711.02; Kline v. Oak Ridge Builders, Inc. (1995), 102 Ohio App. 3d 63, 65; Gibbons-Grable Co. v. Gilbane Building Co. (1986), 34 Ohio App. 3d 170, 173.  

Ohio R.C. §2711.02 provides:

If any action is brought upon any issue referable to arbitration under an agreement in writing for arbitration, the court in which the action is pending, upon being satisfied that the issue involved in the action is referable to arbitration under an agreement in writing for arbitration, shall on application of one of the parties stay the trial of the action until the arbitration of the issue has been had in accordance with the agreement . . . .

As one court has stated, "R.C. §2711.02 requires the trial court to stay an action brought therein, upon application of one of the parties, when it is satisfied that the issue involved in the action is referable to arbitration under a written agreement between the parties to arbitrate."  Kline, 102 Ohio App. 3d at 65 (emphasis added).

Link to comment
Share on other sites

@Bee Happy

A party seeking to assert an affirmative defense pursuant to Civ.R. 8(C) is instructed by the language of the rule that the listed affirmative defenses must be “set forth affirmatively.”  Courts construing this language have determined that a party must set forth the listed affirmative defenses with specificity or else they are waived. Arthur Young & Co. v. Kelly (1993), 88 Ohio App.3d 343, 348, 623 N.E.2d 1303, 1306. 

  • Like 2
Link to comment
Share on other sites

7 hours ago, Brotherskeeper said:

@Bee Happy Several recent CIC posters have had successful outcomes using the Synchrony arbitration clause in suits brought by junk debt buyers. I'm not familiar with your Ohio rules of civil procedure, especially on timing for motioning to compel arb; on this site, it's usually recommended to motion to compel as soon as possible to avoid waiver of the right. In reading the linked article,  it appears you must assert the existence of an agreement to arbitrate as an affirmative defense in your answer to the complaint. 

http://www.dinsmore.com/content/uploads/2017/06/responding20to20a20complaint20ohio203-578-2986.pdf

The Synchrony agreement has instructions on how to notify (in your case the JDB plaintiff via its attorney) of your demand to arbitrate the dispute. Fisthardcheese is our resident arb guru. Research his posts on this site, as well as Ohio posters to see state specific info. 

@Bee Happy

@Brotherskeeper  I don't see that that arb has to be asserted as an affirmative defense, if what you were looking at was "Arbitration and Award," which I think @BV80  once said means something else.  think OP would Answer denying all allegations and asserting a claim that the court lacks jurisdiction due to the existence of a private contractual agreement. That's what @fisthardcheese usually advises.

I saw this on an Ohio attorney's website about a MTC arb:

http://www.btlaw.com/arbitration-agreement-does-not-relieve-company-of-need-to-respond-to-lawsuit-08-21-2015/

Ohio courts are required to stay litigation upon a motion to stay the litigation premised on an enforceable arbitration agreement. This motion could have been filed simultaneously with an answer. In lieu of answering the complaint, the seller could also have moved to dismiss the suit based on the arbitration agreement.

 

Link to comment
Share on other sites

8 hours ago, Bee Happy said:

I don't see where they have proven to own the debt. 

The bill of sale is evidence they own the debt.  If you argue they have not proven they own the debt, it is the same as saying they are not a party to the agreement.  You cannot have it both ways.  When they buy the debt, they 'step into the shoes' of the original creditor and assume all rights and responsibilities.  And since the agreement spells this out, you agreed to this arrangement when you opened and used the account.  This arrangement, however, cuts both ways as the agreement requires them to arbitrate if you demand it.

In response to their claim that they own the debt, I would probably say something like "Claims from paragraph #whatever calls for legal conclusion and Defendant therefore denies same."  Denying a claim in an Answer is very different than swearing under oath in an affidavit that they never purchased the debt and have no rights to collect it.

Side note: Because Synchrony is the OC, you've got on of the best credit card agreements as it relates to arbitration.  They (Cavalry) are responsible for all of the fees, including those that are usually borne by the consumer.

  • Like 1
Link to comment
Share on other sites

 

"The better rule of law 416*416 appears to be that a motion for stay of proceedings pending arbitration and a referral to arbitration may be filed after the defending party answers the complaint if (1) the application of the arbitration clause is affirmatively pled in the answer, and (2) the defending parties' conduct, based on the totality of the circumstances under Phillips, does not demonstrate a waiver of the clause."

"A statement by the court that it was unaware of the option to arbitrate the issue when it overruled Crane's motion for stay and referral to arbitration is not sound reasoning. This is true because Crane affirmatively pled the existence of an applicable arbitration clause in its answer, putting both Harsco and the trial court on notice of the arbitration clause. Based on the foregoing, we find that Crane properly preserved its right to arbitration, based on the totality of the circumstances, by asserting the right to arbitrate in its answer, by filing a motion for stay and referral to arbitration three months later, and by not conducting itself in a manner acknowledging that the trial court had jurisdiction over the dispute." Harsco v. Crane Carrier Co. (1997), 122 Ohio App.3d 406, 410, 416 701 N.E.2d 1040, 1043.   https://scholar.google.com/scholar_case?case=9431988734266081524&hl=en&as_sdt=80000006&as_vis=1

Link to comment
Share on other sites

7 minutes ago, Harry Seaward said:

Was there not a "schedule" or some sort of attachment showing line-item details of your account?

There are a couple old bills, The bill of sale for the accounts, an affidavit of sale stating that some person that works for Synchrony  is aware of the process of the sale, etc...It also states a pool of charge off accounts were sold, and last a blanket certificate of conformity for a notary. Nothing with any account info except the bill. 

Link to comment
Share on other sites

2 minutes ago, Bee Happy said:

There are a couple old bills, The bill of sale for the accounts, an affidavit of sale stating that some person that works for Synchrony  is aware of the process of the sale, etc...It also states a pool of charge off accounts were sold, and last a blanket certificate of conformity for a notary. Nothing with any account info except the bill. 

Did the affidavit reference the statements?

Link to comment
Share on other sites

12 hours ago, Brotherskeeper said:

 

This thread may have some useful info/examples for Synchrony:

 

This thread was super helpful. I haven't been able to find much about what Ohio requires and the court rules on the local court's site leave something to be desired. But I've drafted up an answer along with exhibit a (credit card agreement) and exhibit b (letter that I'm sending to the plaintiff). I'm working on the MTC now. I think I've found a good example. 

 

Thanks so much everyone!

Link to comment
Share on other sites

I would save the Lack of Standing for arbitration.  In your answer, the only affirmative defense I would use is "Lack of subject matter jurisdiction.  The contract that govorns the account from which Plaintiff's allegations arise contains a private arbitration clause.  Defendant has chosen to elect arbitration and therefore, this court lacks jurisdiction over this subject matter."

I would file the MTC Arbitration at the same time as the answer unless you are up against the deadline to answer and don't have time, but if that is the case, I would file the MTC the next day or ASAP.

When you use arbitration, just remember that you are now shifting the entire case and flipping things on Cavalry.  As far as court goes, no longer does it even matter if they can prove ownership or any amount owed.  You are now only arguing that the arbitration clause is valid and what laws and authority allow the court to stay this case and order the parties into arbitration per the card agreement.  These are the only arguments and laws that now matter.  Anything actually referencing the account is moot until which time an arbitration case is opened and an arbitrator is selected.  Do not let Cavalry redirect the court or yourself back to issues regarding THEIR case about an alleged debt.  You must force them to first only deal with YOUR case of going to arbitration.

Link to comment
Share on other sites

7 hours ago, fisthardcheese said:

I would save the Lack of Standing for arbitration.  In your answer, the only affirmative defense I would use is "Lack of subject matter jurisdiction.  The contract that govorns the account from which Plaintiff's allegations arise contains a private arbitration clause.  Defendant has chosen to elect arbitration and therefore, this court lacks jurisdiction over this subject matter."

I would file the MTC Arbitration at the same time as the answer unless you are up against the deadline to answer and don't have time, but if that is the case, I would file the MTC the next day or ASAP.

When you use arbitration, just remember that you are now shifting the entire case and flipping things on Cavalry.  As far as court goes, no longer does it even matter if they can prove ownership or any amount owed.  You are now only arguing that the arbitration clause is valid and what laws and authority allow the court to stay this case and order the parties into arbitration per the card agreement.  These are the only arguments and laws that now matter.  Anything actually referencing the account is moot until which time an arbitration case is opened and an arbitrator is selected.  Do not let Cavalry redirect the court or yourself back to issues regarding THEIR case about an alleged debt.  You must force them to first only deal with YOUR case of going to arbitration.

Thanks, @fisthardcheese that's exactly what I'm doing. Off to mail and file things now! 

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.