DaisyMae

CACH docs to prove standing list different lenders

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Cach, LLC, represented by Mandarich,  sued me for breach of personal guarantee on alleged defaulted loan for $205K.  Trial is 4/16/18 and FSC is 4/10/2018.  All docs with exception of Trial Briefs have been submitted.  Trying to get them to dismiss for lack of standing that is more egregious than usual.  Here's what I wrote to their lawyer (who hasn't been a member of Cal Bar for even a year):In the Complaint CACH alleges that it is the “assignee of original creditor Bank of Internet,” but the “Bill of Sale” offered as EXHIBIT 1 to the JOINT EXHIBIT LIST states that CACH purchased some “Charged-Off Accounts” from “On Deck Capital Inc.”   In your preparation of the JOINT LIST OF STIPULATED FACTS you inserted a “slash mark” between BANK OF INTERNET AND ON DECK CAPITAL, INC., in what I believe to be a fraudulent attempt to merge the two separate entities into one, because you know that your documents not only cannot prove that CACH has a valid assignment, and therefore lacks standing to sue, but that the documents contradict each other.  You did this deliberately to mislead both the Court and me, and I believe that this is a violation of Code of Civil Procedure - CCP § 128.7.

This is his reply:   I have received your letter and understand your concerns. If you will please notice, the Loan Agreement you signed has both Bank of the Internet and OnDeck at the top of the document. As you can see on that document, Bank of Internet was the lender and OnDeck was the servicer. Thus, this was not an attempt to mislead you or the court.

I now live 3,000 miles from Santa Monica where the Trial will be held.  I'm pretty sure I can win at trial, but I would like to not have to go to the trouble and expense of flying to California. I'm waiting to hear back from Court if they will grant my request to attend the Final Status Conference on April, 10, 2018.  Also, I've told plaintiff repeatedly that I am judgment proof (I have a fee waiver) and even if they got a default judgment because I didn't appear, they couldn't get anything.  Sorry this is so long-winded!  Thanks for your help!

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BTW Court just granted my request to appear via CourtCall for the FSC, so that's good!  

2 minutes ago, Goody_Ouchless said:

So you skated on a six figure debt and have nothing they can take. Did I miss a question?

i'm trying to figure out a way to get CACH to dismiss so i don't have to travel 3000 miles to CA for the trial. I have no $ and I take care of a disabled relative, so logistically it's very difficult to travel.  Thank you!

 

 

 

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I have no idea.

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After doing a little research on Google, I see OnDeck purchases loans from Bank of Internet.  Does your agreement say it's by and between Bank of Internet and you/your business?  If so, they're the original creditor.

Even if OnDeck appears toward the top of the agreement, this doesn't make them a party to the agreement.  OnDeck would need to be written into the contract itself.

That being said...  We're talking about $250,000.  I seriously doubt they're going to back down.  They'll do whatever they can to obtain a judgment and collect on that judgment.  In California, I think judgments last ten years.

Do you have any defenses other than lack of standing?   Do you know when they allege you defaulted on the loan?

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If you have to travel 3000 miles to attend court, then it sounds like they sued you in the wrong court.   I would file a motion to dismiss for lack of jurisdiction.  And also consult a consumer attorney, to sue them for the FDCPA violation of suing you where you don't live.

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1 hour ago, nobk4me said:

If you have to travel 3000 miles to attend court, then it sounds like they sued you in the wrong court.

Don't think so.  It says that they now live 3000 miles away.  If the OP moved after being sued that is their problem not the Plaintiffs.

1 hour ago, nobk4me said:

I would file a motion to dismiss for lack of jurisdiction.

Would have had to been raised as an affirmative defense.  Now that the OP has answered and trial is in less than 2 weeks they have waived the right to challenge jurisdiction. By not asserting wrong venue and participating in the trial process they have acknowledged this is the proper venue.

1 hour ago, nobk4me said:

And also consult a consumer attorney, to sue them for the FDCPA violation of suing you where you don't live.

Even if there is an FDCPA violation the maximum award is $1000.  Do you REALLY think they care when the amount of the debt is $205,000?

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Thank you, all!  I really appreciate your comments and suggestions.  I'm hoping that after my telephonic Final Status Conference on 4/10 I will have some more info.  I submitted my trial brief yesterday and in my (not so humble) opinion, I think it's pretty good.  I basically kept saying that they have no admissible evidence to #1 prove standing, and #2 to then prove the allegations in their complaint.  It's all hearsay, and not admissible under the Business Records Exception to the Evidence code because they cannot meet all of the requirements of the qualified custodian of records.  So far they listed 4 of them that could possibly come to trial, but they all work for CACH and have no personal knowledge of the practices, etc of the original creditor.  But the biggest problem is that the "original creditor" on the complaint is "Bank of Internet" and on the Bill of Sale it's "On Deck Capital, Inc."

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On 4/5/2018 at 12:14 PM, DaisyMae said:

But the biggest problem is that the "original creditor" on the complaint is "Bank of Internet" and on the Bill of Sale it's "On Deck Capital, Inc."

I had an OnDeck loan that was paid off a couple years ago.  I was able to log into my account to view my loan document.  The first 1 1/4 pages is more of an outline of the loan details within boxed areas.  This is followed by the terms. 

The Business Loan and Security Agreement starts with an introduction that reads as follows:  "This Business Loan and Security Agreement (together with the accompanying Business Loan and Security Agreement Supplement and the accompanying Authorization Agreement for Direct Deposit (ACH Credit) and Direct Payments (ACH Debits), this "Agreement") governs your business loan ("Loan") made by [bank's name] and serviced by OnDeck Capital, Inc. ("Servicer").

As a loan servicer, OnDeck was charged with handling all the administrative and collection aspects of your loan.  Your payments were made to OnDeck, right?  It may be possible for the JDB to obtain additional documentation from the OC to clarify the relationship between the lender and the servicer.

On the bill of sale that says CACH purchased some charged-off accounts, did they include a sheet of paper that's supposed to act as the attachment to the bill of sale that shows your account was among those purchased?  This may list CACH, a loan number, your name, and the company name.  If so, what information is on this document?  You could argue this information is insufficient to establish your account was among the charged-off accounts purchased by CACH.

As an added note to anyone considering taking out a loan with OnDeck or a similar online lender, my advise is to stay clear.  These loans come at a heavy price.  You may see it as a quick way to solve a cash problem.  At the end of the day, you might find yourself in a deeper hole.  I've read stories online about people who took out additional loans to keep up with the payments for the loans that came before.  The result was an endless cycle that included thousands in interest and loan origination fees.  In my case, $67.00 automatically came out of my business checking account every weekday.  The day I made my last payment was the day a huge burden was lifted off my shoulders.

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Thank you LaneBlane.  I appreciate your suggestions.  We actually had our Final Status Conference about 10 days ago.  Judge asked plaintiff's attorney who he was going to call as a witness, and if it was going to be a third party witness (it is) judge said it won't work.  Also said he's heard similar cases recently with the same problem. Basically told plaintiff they can't win their case. Judge also said my trial brief hit every point needed for my defense - basically that plaintiff has no standing because exhibits offered as evidence are hearsay and don't qualify for hearsay exception.  He continued the case until June and ordered two more conferences in the meantime.  Needless to say I'm very encouraged by this. 

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Good news - I won.  I finally got them to dismiss (after dealing with 5 different lawyers at Mandarich. Thank you all for your support.

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