Being sued by Calvary/Winn in California...do I use Doctrine of Laches when responding?

[navy joy]

Hi, I've been reading over several threads that are similar to my situation but am still feeling confused and a bit overwhelmed. I'm wondering what my affirmative defenses should be, including Doctrine of Laches?  Here are my details:

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

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

 

3. How much are you being sued for?  $1419.90, however, my credit report pulled on 10/23/17 has the balance charged off listed as "$464". Then, under that where Calvary took over the balance claimed is "$1420 with an original balance of $1450"

 

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?) Yes, yesterday at end of Super Bowl (2/4/17; Sunday)

 

6. How were you served? (Mail, In person, Notice on door) In person; still need to serve me (they filed against both my husband and me and "Does 1-10" as it was a joint account

 

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? debt "validation" packet including a Bill of Sale (with two dates on it - July 16, 2014 and Dec. 26, 2014), and 3 or 4 statements (dated 12/14, 6/14, 5/14); Notice of Intent to File lawsuit October 2017.

9. What state and county do you live in? Sacramento, California

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) April 14, 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). Suit served. I have 30 days to answer 

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes because on some credit reports they are listing their account as a separate account from the OC making it look like I owe both the OC AND the JDB

 

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.  Bill of sale, a spread sheet type thing with all of my account info and ~ 4 months worth of statements.

 

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?  30 days to respond

1.Account Stated 
2. money lent

 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exihibit “A” ~ monthly statement from 4/14, listing last payment made on 4/14/14

 

My questions are these:

1) Can I use the Doctrine of Laches since they are filing so close to the SOL? When does the SOL start counting - when last payment was made or when first payment missed?  Either way, my guess is that by the time a CMC is set the SOL will be up on this account.

2) The credit report dated 10/23/17 states clearly from the OC that the last balance was $464 and the "charge off balance" was $464.  I think this might be a typo on either the OC or credit bureau's part but none the less it is stated clear as day on my report print out. Do I use this?

3) I'm overwhelmed because of the two actions listed there are 12 line items before it even gets to the first action of "Account Stated" and the second cause of action "Money Lent" with a total of 22 line items. I'm not sure how to respond to them and some even seem duplicates. They actually state in the second cause of action "19. Plantiff repeats and repleads and incorporates by reference the allegations made in Paragraphs 1 through 18 of this complaint.  So do I have to respond to the 1-18 again, line by line?

4) Any help would be most appreciated!

Here is the gist of their line items:

1. True names of Does 1 to 10 are unknown to Plaintiff (there are no other people on this account; just me and my husband)

2. All times, Defendants were the agents, servants and employees of each other (???)

3. Plaintiff is and was a LLC, authorized to do business in California

4. Plaintiff is a debt buyer - section 1788.50 of CA Civil Code 

5. Section 1788.50 applies to this debt because it was purchased after January 1, 2014

6. Plaintiff is in compliance with Section 1788.52 - attached is Exibit A (which is a monthly billing statement dated 4/2014) "which demonstrates the debt was incurred by the Defendant"

7. Nature of debt is credit card agreement entered into by the charge off creditor and Defendant. Defendant obtained credit to use for the purchase of certain goods and services.

8. Name of Charge off creditor is Synchrony Bank FKA GE Capital and address listed along with charge off account number.

9. Name and last known address of Defendant is listed

10. Name of "all entities" that purchased the debt after charge off are: Calvary SPV I, LLC and address in NY

11. Plaintiff believes Defendants reside in city of Sacramento, state CA

12. Plaintiff informed Defendant in writing that it intended to file this action

13.Plaintiff repeats and repleads and incorporates paragraphs 1-12

14. the account was charged off at 1459.90

15. On Nov. 12, 2014, defendants were indebted to the charge-off creditor, synchrony bank, in amount of $1419.90. Defendant billed monthly and failed to dispute as required under FFBA

16. The date of last transaction or payment made on account was April 14, 2014

17. Prior to filing this complaint, all right title and interest in the account (acct number listed), was sold and assigned by Synchrony Bank to Calvary SPV and is the sole owner of the debt at issue

18. Plaintiff made demand on defendants for payment of that sum but no part of that sum has been made to plaintiff

19. Plaintiff repeats and repleads allegations made in paragraphs 1-18 (Second cause of action begins: MONEY LENT)

20. the account was charged off with balance of $1459.90

21. Within the last four years, Defendant became indebted to charge off debtor, Synchrony Bank in amount of $1419.90

22. The date of last payment made on account was April 14, 2014

23. Neither the whole or any part of the above charged off sum has been paid, although, payment has been demanded, owing to Plaintiff in the principal amount of $1419.90 and costs of suit

Then, they list "For First Cause of Action":

1) Principal of damages in sum$1419.90

2) Costs of suit and;

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

For the Second Cause of Action:

1) Principal damages in the sum of $1419.90

2) Costs of suit and;

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

 

[Goody_Ouchless]

If the amounts are really "off," it may be worth requesting credit reporting agencies to verify the amounts. They then go to Cavalry to confirm numbers are correct. If they confirm numbers as "correct" that are wrong,  you may have an FCRA case against them. I had that happen with Cavalry. Those FCRA claims can be expensive - especially when they have to pay your lawyer.

[sadinca]

2 hours ago, navy joy said:

? When does the SOL start counting - when last payment was made or when first payment missed? 

SOL would start to count the date the last payment was due but not received. from there, the have four years to file suit. 

since your husband has already been served, he can serve a Bill of Particulars

[navy joy]

36 minutes ago, Goody_Ouchless said:

If the amounts are really "off," it may be worth requesting credit reporting agencies to verify the amounts. They then go to Cavalry to confirm numbers are correct. If they confirm numbers as "correct" that are wrong,  you may have an FCRA case against them.

 

Thank you so much, Goody_Ouchless.  How do I go about requesting the reporting agencies to verify? Is there a form, a specific request? Is this worth my time or am I just chasing a rabbit trail?

 

 

 

[navy joy]

9 minutes ago, sadinca said:

SOL would start to count the date the last payment was due but not received. from there, the have four years to file suit. 

since your husband has already been served, he can serve a Bill of Particulars

Thank you, sadinca! This is discouraging knowing, then, that the SOL doesn't hit until May of this year. Am I S.O.L (haha), then, in this case? Do I have any leg to stand on??  Is it possible to drag this out until May of 2018 and then file SOL against the case? 

I am currently drafting a BOP to serve and looking at all of the helpful examples on this forum.  Thank you for your response! I feel like my heart is going to explode I'm so stressed over this. 

[Goody_Ouchless]

26 minutes ago, navy joy said:

How do I go about requesting the reporting agencies to verify?

This is like what we used. Adjust for your particulars. In our case the amount reported and the amount sued for were very different - like they reported interest that they knew they weren't entitled to. You'd send this to all three reporting agencies. They then reach out to Cavalry. When Cavalry confirms a wrong amount, you've got them.

"re:
Cavalry Portfolio Service
Account No. xxxxxxx
Balance: $x,xxx
Dear Sir or Madam,
First of all, I dispute owing ANY DEBT to Cavalry SPV I, LLC or to Cavalry Portfolio Service. Please
delete the account in its entirety. Second, if you refuse to delete the account, please update it to show the current balance Cavalry is
claiming owed is $x,xxx. I received a letter dated XXX XX,20XX from Cavalry's lawyer (copy
attached) which states that the balance owed is $x,xxx, yet Cavalry Portfolio Service is reporting that I
owe $x,xxx. The amount claimed to be owed is incorrect. Please update or delete the account in its
entirety. Please send me the details of your investigation, and the results of your investigation of my dispute."

 

[navy joy]

Thank you, Goody_Ouchless!  Very helpful!

@sadinca Is it better for my husband and I to send separate BOPs or should we send one as combined Plaintiffs? Or does it matter? I'm trying to find good examples of language to use in previous posts (such as Gradys) but many of the links given as examples no longer work.  Might you have one to recommend?

Thank you so much!

[sadinca]

1 hour ago, navy joy said:

Thank you, sadinca! This is discouraging knowing, then, that the SOL doesn't hit until May of this year. Am I S.O.L (haha), then, in this case? Do I have any leg to stand on??  Is it possible to drag this out until May of 2018 and then file SOL against the case? I would estimate (in no scientific form) that a case in California, following a normal course of discovery would easily go over an eight month period. the bad thing, is that SOL stops running when plaintiff filed the complaint. For example, lets say that you and your husband fight the case, you go to trial in September, even though September 2018 is already over SOL, technically SOL stopped running December 2017 (in the case plaintiff filed in December 2017) because that's when in this example, when plaintiff filed  the complaint.

however, on the case you fight the case, and somewhere along the line, plaintiff decides to dismiss the case without prejudice, Lets say, in July. since by your calculations, July 2018 is already over SOL, this debt would then be OVER SOL.  plaintiff could not sue you on this debt, because it would be over SOL. if  they do, you'd have a nice case against them. 

On the other hand, (for the sake of clarification) if the SOL on this debt would expire on May 2019. you fight the case, and plaintiff decides to dismiss the case without prejudice, they could still come back and file another complaint before the SOL expires in May 2019. 

hope this makes any sense: the good news here is that in your case they only have one chance and Calvary/Winn Law is beatable. it takes work, and its nerve-wreaking, but others have done it, and you can too. 

 

I am currently drafting a BOP to serve and looking at all of the helpful examples on this forum.  Thank you for your response! I feel like my heart is going to explode I'm so stressed over this. I understand how you feel. these are very stressing times. i've been in your shoes. against the same plaintiff, no less. my wife faced a different JDB on one of her accounts. what you have in your advantage is that you are here ready to learn, there are many samples to help you along the way, and people willing to help, there's also the California laws that you can use to your advantage. 

 

 

[sadinca]

46 minutes ago, navy joy said:

Thank you, Goody_Ouchless!  Very helpful!

@sadinca Is it better for my husband and I to send separate BOPs or should we send one as combined Plaintiffs? Or does it matter? I'm trying to find good examples of language to use in previous posts (such as Gradys) but many of the links given as examples no longer work.  Might you have one to recommend?

Thank you so much!

since you havent been served, i would only have my partner serve the Bill of Particulars. 

Bill of Particulars request.doc

[sadinca]

you can file the Bill of Particulars even before you file your answer. Mark Your calendars, and make sure you file before the 30 day deadline. 

[sadinca]

here is a good detailed sample of what may be ahead. i would recommend anyone facing a lawsuit in california to read it to have some understanding of what may coming ahead. 

 

 

[navy joy]

Thank you SO much, @sadinca !

In reading other threads, it seems recommended to send the BOP with a POS and when I get that, I file a copy of it and the BOP with the court? Does that sound right? 

Since the law firm is in SoCal and I am not, do I send the BOP via certified mail? 

My other questions pertain to the LONG list of paragraphs contained in the complaint itself. 

1) Do I break out and respond to #1-12 again when in #13 it repeats and says something to the effect of "that 1-12 is relisted and applies here"? Or is there language to address this appropriately? 

2) If I file a General denial, do I then need to respond to all paragraphs individually?

3) I was looking at the fee schedule for Sacramento County Superior Court and I'm not sure what fee I should expect to pay when filing my general denial to the complaint? It's a long, confusing list and I want to be sure I'm budgeting for the right thing. Would it be the "answer" in Civil case section at a tune of $225?

I apologize for all of the questions! I spent the majority of yesterday reading through the forums (thank you for the Homeless in CA one! That was very interesting and informative!). I'm hoping they will just file for dismissal seeing we are going to fight this and that it's chump change compared to other accounts they have but I could be assuming wrong. 

I think I'm most nervous about screwing up the legal language in any of the documents! Having the wording correct seems to be pivotal and I don't want to mess that part up.

Thank you again for your help!!

 

[navy joy]

I'm reading this thread now - 

and it keeps being mentioned that a BOP can't be served when one of the causes of action is "Account Stated". Am I reading that correctly? Is there a way to get around this?? 

[navy joy]

Can I serve a BOP because they listed two causes of actions, then?  1) Account Stated and 2) Money Lent.

How do I fight against the Account Stated cause of action? 

I'm super overwhelmed now!

[sadinca]

1 hour ago, navy joy said:

o send the BOP with a POS

correct, everything you mail plaintiff has to be served by an adult, not party of the lawsuit, and mail it along with an unsigned Proof of  Service. keep a copy of the BOP and the signed POS for your records. 

[sadinca]

1 hour ago, navy joy said:

I file a copy of it and the BOP with the court?

you do not file the BOP with the court. but keep copies of everything you mail to plaintiff in case you need them for a motion. 

[sadinca]

1 hour ago, navy joy said:

do I send the BOP via certified mail? 

I would recommend sending it via Certified Mail Return Receipt Required. that way, if you ever need to file a motion they cant claim they did not receive the documents; you will have proof the documents were in fact delivered. 

[Clydesmom]

On 2/5/2018 at 12:34 PM, navy joy said:

Is it possible to drag this out until May of 2018 and then file SOL against the case? 

No.  The date they actually filed the suit is what determines if it is timely NOT the rest of the actions in the case.  The SOL is tolled while the case is active on the court dockets.  If it should be dismissed for any reason then the SOL continues to run as though the action were never brought and if that dismissal were after May 31 then you would have an expired SOL at that point.  Dismissal prior to that date in May you law low until it passes hoping they don't refile.

 

[sadinca]

1 hour ago, navy joy said:

) Do I break out and respond to #1-12 again when in #13 it repeats and says something to the effect of "that 1-12 is relisted and applies here"? Or is there language to address this appropriately? 

you dont have to address individual paragraphs, UNLESS the complaint is verified. i have yet to see a verified complaint from a JDB in these forums. 

2) If I file a General denial, do I then need to respond to all paragraphs individually?

no, the general denial, generally denies everything within the complaint. 

3) I was looking at the fee schedule for Sacramento County Superior Court and I'm not sure what fee I should expect to pay when filing my general denial to the complaint? It's a long, confusing list and I want to be sure I'm budgeting for the right thing. Would it be the "answer" in Civil case section at a tune of $225?

yes, that sounds about right. 

I apologize for all of the questions! I spent the majority of yesterday reading through the forums (thank you for the Homeless in CA one! That was very interesting and informative!). I'm hoping they will just file for dismissal seeing we are going to fight this and that it's chump change compared to other accounts they have but I could be assuming wrong. 

I think I'm most nervous about screwing up the legal language in any of the documents! Having the wording correct seems to be pivotal and I don't want to mess that part up.

you guys will do great. 

Thank you again for your help!!

 

[sadinca]

28 minutes ago, navy joy said:

I'm reading this thread now - 

and it keeps being mentioned that a BOP can't be served when one of the causes of action is "Account Stated". Am I reading that correctly? Is there a way to get around this?? 

you can "serve" a BOP without an issue. what they argue is that a BOP is not appropriate for an Account Stated cause of action because the BOP request, as you can tell, request plaintiff to break down all the charges and credits within the account, items purchases, services rendered, dates, etc. while the Account Stated theory plaintiff argues that a final bill was send to you, and that you agreed to the final amount expressed or implied, and that you expressed or implied agreed to pay the amount owed. 

after reading this you may think, but i never agreed to the amount nor implied to pay it. there is a caselaw that allows a debtor to still satisfy their claim. 

"When a statement is rendered to a debtor and no reply is made in a reasonable time, the law implies an agreement that the account is correct as rendered." Maggio Inc. v. Neal, 196 Cal. App. 3d 745, 753, 241 Cal. Rptr. 883 (1987).

this is a long answer to say: technically, a BOP is not appropriate for an account stated cause of action, but you may be able to use their answers, or lack of answers to answer the discovery question they may serve you a later time. 

Also, they still that the Money Lent cause of action, to which the BOP is applicable. 

[navy joy]

THANK YOU SO MUCH, @sadinca !! I'm wording my BOP to address the cause of action "Money Lent" but because in that action they reference this account I had between the OC and me and then the JDB and me, I'm requesting documents showing the chain of assignment and agreements. 

On a personal note, how did you fare going up against Calvary? Did they use Winn Law Group with you? Did they put up a strong fight back?

Thank you so much for further clarification, @Clydesmom ! This is such an overwhelming, confusing process where one false step or mis applying of the law OR misunderstanding of it could really cost!

[sadinca]

11 minutes ago, navy joy said:

 

THANK YOU SO MUCH, @sadinca !! I'm wording my BOP to address the cause of action "Money Lent" but because in that action they reference this account I had between the OC and me and then the JDB and me, I'm requesting documents showing the chain of assignment and agreements. 

You dont have to explicitly request that. it is implied that they should provide everthing within the account, including the chain of assignment. as a mater of fact, this BOP was drafted and approved by our famous @calawyer, a licensed lawyer that spends his precious time helping those that need help when needed most. 

also the phrase "upon which the contained is based" includes all cause of actions in the complaint, so you dont have to include that either. 

On a personal note, how did you fare going up against Calvary? Did they use Winn Law Group with you? Did they put up a strong fight back? Yes, Winn Law was the law firm handling the lawsuit, which i right on my backyard.  the evidence they provided during discovery was lacking. only 3 statements, and not even consecutive statements. so i threaten to file a motion to compel evidence. soon after that they called me to settle. mutual walk away. 

 

[navy joy]

@Clydesmom I'm thinking on what you typed up there and I want to make sure I'm understanding. So, we file this BOP and answer with a general denial within our 30 days here in CA and then, should Winn Law Group, proceed to continue they do their stuff and we respond accordingly.  Should all of this drag on after 5/31/18, I then have the SOL in my arsenal of defense? Could I then file to dismiss based on SOL? What steps would/could I take at that point?

I believe the law group is cutting it awfully close with our account since they provide evidence that the last known payment was 4/14/14.  If I'm understanding the CA law here, the SOL begins when the first payment is missed, so 5/15/18.  Do they have no claim to collect after that date due to SOL laws?

Thank you for any help you can provide!

[navy joy]

@sadinca Thank you for the clarification on wording for the BOP and, once again, for providing that template. I really appreciate your help and certainly the work and help @calawyer has provided.  

I'm still pretty nervous about the Account Stated first cause of action but I am thankful they provided the second one of "money lent", allowing then for the BOP to be filed. Whew! This is quite the process!  

Do you find that a general denial answer in response to a complaint is the best way to go or to respond to each paragraph denying and then listing affirmative defenses? Can you list affirmative defenses in a general denial? And if so, I may be back here really soon to figure out which ones would best apply to me! I thought the Doctine of Laches would apply due to the super close approach of the SOL date (5/18) but reading more on that, it sounds like a difficult thing to argue for professional lawyers, never mind a completely clueless law novice like me. I don't know if I can argue SOL if the date hasn't passed yet (which it won't in time when I need to respond to this). I wish the laws were more clear and easier to understand!

Thank you so much for your help!

[GreenArrow]

1 hour ago, navy joy said:

Should all of this drag on after 5/31/18, I then have the SOL in my arsenal of defense? Could I then file to dismiss based on SOL?

The SOL is the amount of time they have to FILE a complaint, which they have done, so a SOL defense wouldn't work. If (er…when) you win and they sell to another JDB then you can use the SOL as a defense. Please, someone correct me if I'm incorrect: The SOL begins 30 days after the first missed payment. For example in California, if your last payment was April 2014 then they would have until May 2018 to file a complaint.

I've won two cases, so far using a general denial to start. I'm currently in litigation with Cavalry and Winn too.