Sued by Cavalry SPV I, LLC in New York (Help Please)

[sidthekid44]

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.)

Grossman & Karaszewski PLLC

3. How much are you being sued for?

Just under $5,000

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

Citibank

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

I have not yet been served.  I have been checking each day for my name on my county's website.

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

Not yet served.  Complaint on county's website as of 04/21/18

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

Not yet served.

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?

Last summer I received a letter from Cavalry regarding the debt (and Citibank stating they sold it to Cavalry).  I sent a DV letter asking for validation, asserting I would like all disputes handled through arbitration, and they only may communicate with me via USPS.  In March I received a letter from Grossman & Karaszewski PLLC representing Cavalry.  I again sent a similar DV letter...disputed debt/arbitration/only USPS communication.  They sent me validation (credit card statements and signed affidavit that Cavalry purchased the debt.)  At that point I sent another letter to Grossman & Karaszewski PLLC reaffirming that I wanted all disputes handled through arbitration with JAMS.  In that letter I asked for both their and Cavalry's fax/email so I could complete the paperwork to file with JAMS.  I included quotes from a 2011 Citibank credit card agreement I found online (which does have a survivability clause).  I sent the last letter out 04/20/18 and saw my name on the court website on 04/23/18.

9. What state and county do you live in?

New York.  Monroe County.

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

July 2013 to Citibank

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

April 2011

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

Statute of Limitations on Debts

 

6 years (New York)

6 years (S Dakota...where Citibank is incorporated)

13. 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).

Pre-RJI.  I have not been served.  The complaint is just filed on my county's website.

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

Not with the credit bureaus, but with the JDB and their attorney.

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').

Yes to both the JDB and their attorney.

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?

20 days if I am served.  30 days if I am not served directly.

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.

Copies of credit card statements and an affidavit that they purchased the debt from Citibank.

-------------------------------------------------------------------------------------------------------------------------

My plan is to wait to be served.  At that point I will file a MTC Arbitration along with an Answer.  My hope is that because the 2011 Citibank credit card lists arbitration with JAMS and I have requested it multiple times prior the motion will be granted.  I would then file with JAMS and then hope at some point they choose to dismiss the suit based on their costs to arbitrate. 

I am being sued in Monroe County Supreme Court.  Maybe this is a dumb question, but could this be considered small claims court?  I know the Citibank card agreement has a small claims provision.  If it is small claims, would my MTC still have a chance since I requested arbitration at least three times before being served? 

I have been reading up on their rules and what I will need to do when I am served.  It seems to be a little more confusing than I thought it would be.  I am under the assumption I need to file an Answer, MTC, and RJI ($90-$95) when I am eventually served.  Does that sound correct?  File the Answer and Motion together? 

Thoughts on POTENTIAL FDCPA violations?  I do not have my "green cards" with me right this second (proof of each letter sent).  I believe the attorney's office (who is also a debt collector) received my initial validation request on 04/04/18 stating all calls were inconvenient and to only contact me via USPS.  I think they are allowed to contact me once by phone after that?  On 04/06/18 they called me two times and left me a generic voicemail on the second call.  I also did not receive the debt validation package until 04/09/18, however, the attorney signed my complaint on 04/05/18.  Do I need a reasonable time to receive their validation before they sign my complaint to sue or can they argue that the validation was already sent at that time?

I have learned a lot from reading these boards.  Thank you!  I am willing to accept any help that people have to offer.

[Guest usctrojanalum]

So I don't have much experience with the Court's that far upstate, but yes, Monroe County Supreme is a general trial court of original jurisdiction. It is not a small claims Court.  If you are going to file a motion to compel arbitration yes it will cost you $140 ($95 RJI Fee; $45 Motion Fee).  However, you do not have to file all of those documents at once.  You can file the answer (which does not come with a filing fee) and take some time to file your motion, heck maybe the the Plaintiff will quickly file the RJI and you can get away with only paying the $45 motion fee. Plus the motion will probably take you some time to get right.

 

[sidthekid44]

3 minutes ago, usctrojanalum said:

So I don't have much experience with the Court's that far upstate, but yes, Monroe County Supreme is a general trial court of original jurisdiction. It is not a small claims Court.  If you are going to file a motion to compel arbitration yes it will cost you $140 ($95 RJI Fee; $45 Motion Fee).  However, you do not have to file all of those documents at once.  You can file the answer (which does not come with a filing fee) and take some time to file your motion, heck maybe the the Plaintiff will quickly file the RJI and you can get away with only paying the $45 motion fee. Plus the motion will probably take you some time to get right.

 

At what point do I HAVE to file the MTC before I lose my right to do so?  I remember reading that I should list lack of jurisdiction? in my answer as that sets up my MTC.  I thought I read that the clerk will not accept a motion without an RJI, but I've read so much lately it is possible I misunderstood.

I have a couple other "procedure" questions if you don't mind.  I have already sent my registration to NYSCEF so I can file electronically when the time comes.  Am I able to electronically file all of my documents as long as they are accompanied by an affidavit that they were mailed to the opposing attorney?  I see that their attorney has electronically filed a "Statement of Authorization for Electronic Filing"  Not sure if I need to do that as well.  I am just trying to not get tripped up on a technicality. 

I am leaving the state for a week near the end of June.  If something is scheduled for that week is it possible to ask the court to change the date?  Thank you very much for spending your time assisting me!

[Guest usctrojanalum]

As to the timing of your MTC, the case law on that is rather cryptic.  Here is an excerpt of some law on the issue:

"where a defendant's participation in the lawsuit manifests and affirmative acceptance of the judicial forum, with whatever advantages it may offer in the particular case, his actions are then inconsistent with a later claim that only the arbitral forum is satisfactory (Stark v Molod Spitz DeSantis & Stark, P.C., 9 NY3d 59, 66-67 [2007]).

As you can see, that is kind of wishy-washy. If you follow the line of cases citing Stark, filing an answer alone will not be too much participation.

You are correct that a clerk will not accept a motion without an RJI, but the RJI only has to be filed once.  So if Plaintiff files it first, you will not have to file it if you wish to bring a motion.  If you are participating in e-filing, you do not need to mail to opposing counsel any documents or file an affidavit of service.  Service is completed by electronic means pursuant to the Rules of the Trial Courts, I think 202.5-bb(c)(1). 

You do not need to file statement authorizing electronic filing, if you click on that and read that, that is where the attorney is authorizing a third party to file on his behalf.  You will not need that as you will be filing all the docs yourself.

If by some small chance you had a court date at the end of June (which is quite unlikely) you would ask other side for adjournment first on consent, if they did not consent then you request it from the court.  Downstate it can be done via e-mail, not sure about how Monroe works though.

[sidthekid44]

UPDATE (or lack thereof) and another question

I still have not been served.  My father has told me someone came to their home (which I use as a mailing address) last week asking for me.  He told the gentleman I no longer lived there and asked if he had anything he needed him to give me.   The gentleman responded no and thanked him.  My assumption is he was not able to give the summons/complaint to my father because (I think) service can only be left with an adult at your actual residence.

 

I also received my green card back (from my intent to arbitrate letter) from the postal service.  It was received/signed for on 04/23/18.  In doing more research I came upon Article 75 of the New York Civil Practice Law and Rules.  To the best of my knowledge it states that after 20 days of being notified of an intent to arbitrate if no objection is raised they cannot later object that a valid agreement to arbitrate was not reached.  Where I run into an issue is I did not include that in the letter I sent to the attorney.  Should I resend my letter with that now included so I can use it to my advantage going forward?  I initially asked for information in order to fill out JAMS forms (please see the body of my letter copied and pasted below).  I could very well be served in the next twenty days.  If I do send an updated letter and I am served would this still apply if they do not object?  As always, thank you for your time and assistance.  It is greatly appreciated.

 

This letter is in response to your letter dated April 11, 2018.  This matter remains in dispute and my election for arbitration stands.  Regarding the collection of the account referenced above, the agreement states, “Arbitration replaces the right to go to court, including the right to a jury and the right to participate in a class action suit or similar proceeding.”  The agreement also states, “Either you or we may, without the other’s consent, elect mandatory, binding arbitration for any claim, dispute, or controversy between you and us.”

 

Pursuant to the cardholder agreement, I ELECT arbitration via JAMS to resolve our disputes.

 

In filling out the JAMS Demand for Arbitration Form, I will need some information.  Please forward an email address and fax number for your office and Calvary SPV I, LLC to my address listed above.

 

All phone calls are inconvenient, so all communication needs to be by mail.

 

 

[Guest usctrojanalum]

I wouldn't resend any letters.  Keep the letter you sent as proof of your intention to utilize the arbitration forum. 

[sidthekid44]

I (my father) was officially served on May 11th.  The same gentleman returned and told my father he had received permission to leave the summons/complaint with him.  I believe I now have 30 days (because the summons was not personally delivered to me) to answer.  My plan is still to answer the summons and also file a MTC arbitration.  Due to the cost ($140) to file the motion/RJI I am going to file the answer in the next couple of weeks and then the MTC/RJI the first week of June...unless someone believes that is a bad idea.  Given the apparent slow process of cases in Monroe County Supreme Court I assume the Plaintiff will not take any action in the short time between my answer and MTC.  I am including the summons/complaint below.  I will include my answer in a follow up post in the next couple of days.  I would appreciate any feedback anyone is willing to give on that.  Thank you!

 

Consumer Credit Transaction

Supreme Court of the County of Monroe

State of New York:  County of Monroe

Calvary SPV I, LLC

VS

Me

Plaintiff, Calvary SPV I, LLC, by its attorneys GROSSMAN & KARASZEWSKI, PLCC, complaining of the Defendant, ME, alleges the following:

1.  Plaintiff is a foreign limited liability company organized and existing by virtue of the laws of Delaware, with a principal place of business located at 500 Summit Lake Drive, Suite 400, Valhalla, New York 10595.

2.  Plaintiff is the assignee or purchaser of all the rights and privileges of certain accounts, including this account, which originated with Citibank, NA (hereinafter the "Original Creditor", which issued a consumer credit account to the Defendant (original account number ending in XXXX), which is the subject of this action.

3.  That upon information and belief, Defendant ME, was and is a natural person residing at MY ADDRESS.

AS FOR FIRST CAUSE OF ACTION

4.  On or about 06/23/2017, Plaintiff purchased certain accounts that originated with Original Creditor.  Defendant is obligated on one of those accounts, as more specifically described below.

5.  The Defendant and Original Creditor entered into an agreement wherein the Defendant received cash, merchandise, and/or credit of the consumer on the consumer credit account issued by the Original Creditor.  SEE SCHEDULE A (one of my old credit card statements).

6.  Defendant agreed to make payments for goods and services charged and/or cash advances made upon said consumer credit card account.

7.  Defendant failed to make payments due pursuant to the agreement and $XXXX.XX (just under 5k) is now due and owing from the Plaintiff to the Defendant.

8.  Payment of the defaulted balance has been duly demanded and remains unpaid.

9.  Plaintiff has suffered damages in the amount of $XXXX.XX (same as line 7), together with the costs and disbursements herein.

WHEREFORE, Plaintiff, Calvary SPV I, LLC, respectfully requests judgment against the DEFENDANT, ME, as follows:

a. On its first cause of action, the sum of $XXXX.XX (same as lines 7/9), together with interest from the date of any judgment granted or ordered; and

b.  All costs and disbursements of this action; and

c.  For such other and further relief as this Court deems just and prosper. 

 

 

[sidthekid44]

First attempt.  I just want to make sure I answer the summons/complaint in an intelligent way and do not somehow get tripped up on some technicality that will take away my right to file for arbitration.  I am not really pleased with my affirmative defenses...other than lack of subject matter jurisdiction.  The others I included primarily because in their complaint they have not proven they purchased the debt from Citibank.  I believe they can easily do this, but hopefully this will move to arbitration before that occurs.  Does the format of my answer matter at all?  I have seen many of them so I know the basic outline.  Feel free to pick this apart.  Thanks as always to everyone who offers assistance!

 

STATE OF NEW YORK

SUPREME COURT

COUNTY OF MONROE

 

Cavalry SPV I, LLC

Plaintiff,

-vs-

ME

Defendant.

Index No:  XXXXXXXXXX

 

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT ON ACCOUNT

Comes now, the DEFENDANT, Pro Se, and submits the following answers to the Plaintiff's Complaint:

 

1.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 1 of Plaintiff's Complaint.

2.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 2 of Plaintiff's Complaint.

3.  Defendant admits the allegations set forth in Paragraph 3 of Plaintiff's Complaint.

AS FOR FIRST CAUSE OF ACTION

4.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 4 of Plaintiff's Complaint.

5.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 5 of Plaintiff's Complaint. 

6.  Defendant denies the allegations set forth in Paragraph 6 of Plaintiff's Complaint and demands strict proof thereof.

7.  Defendant denies the allegations set forth in Paragraph 7 of Plaintiff's Complaint and demands strict proof thereof. 

8.  Defendant denies the allegations set forth in Paragraph 8 of Plaintiff's Complaint and demands strict proof thereof.

9.  Defendant denies the allegations set forth in Paragraph 9 of Plaintiff's Complaint and demands strict proof thereof.

 

AFFIRMATIVE DEFENSES

1.  Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

2.  Failure to state a claim upon which relief may be granted.

3.  Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

4.  Lack of standing.

5.  Failure of consideration.

6.  Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision.

Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available.

 

WHEREFORE, having fully answered Plaintiff's complaint, the Defendant prays that Plaintiff's complaint be dismissed at its costs and that this answering Defendant recovers costs, expenses, and any other relief as determined by the court.

Dated: May XX, 2018

[Guest usctrojanalum]

Answer looks good. 

[sidthekid44]

I have made a few minor changes.  Again, any comments from anyone are welcome and appreciated.  I am also doing this as a way to track things as I research/others help me.

 

@usctrojanalum am I correct that I can just efile this?  It does not have to be verified (notarized) and/or sent to their attorney?  I have reread your previous comments and where Stark is used, but I just want to double check that nothing in my answer accepts the court as the proper venue/will hurt my MTC for arbitration.  Thanks!

 

EDIT:  I see you previously answered the Efile question.  I apologize for the duplicate question.

 

STATE OF NEW YORK

SUPREME COURT

COUNTY OF MONROE

 

Cavalry SPV I, LLC

Plaintiff,

-vs-

ME

Defendant.

Index No:  XXXXXXXXXX

 

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT ON ACCOUNT

DEFENDANT, MY NAME, answering Pro Se, without waiving any affirmative defense, as and for an Answer to Plaintiff's Complaint, state the following upon information and belief:

 

1.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 1 of Plaintiff's Complaint.

2.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 2 of Plaintiff's Complaint.

3.  Defendant admits the allegations set forth in Paragraph 3 of Plaintiff's Complaint.

AS FOR FIRST CAUSE OF ACTION

4.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 4 of Plaintiff's Complaint.

5.  Defendant denies any knowledge or information sufficient to form a belief as to any of the allegations set forth in Paragraph 5 of Plaintiff's Complaint. 

6.  Defendant denies the allegations set forth in Paragraph 6 of Plaintiff's Complaint and demands strict proof thereof.

7.  Defendant denies the allegations set forth in Paragraph 7 of Plaintiff's Complaint and demands strict proof thereof. 

8.  Defendant denies the allegations set forth in Paragraph 8 of Plaintiff's Complaint and demands strict proof thereof.

9.  Defendant denies the allegations set forth in Paragraph 9 of Plaintiff's Complaint and demands strict proof thereof.

 

AFFIRMATIVE DEFENSES

1.  Lack of subject matter jurisdiction.  The underlying contract for the alleged debt contains a private arbitration clause and defendant has chosen arbitration as the forum for this dispute, therefore, this Court lacks subject matter jurisdiction.

2.  Failure to state a claim upon which relief may be granted.

3.  Defendant denies the amounts claimed by the Plaintiff.  Defendant demands Plaintiff verifies a detailed accounting of all alleged purchases, charges, and credits to the alleged account.

4.  Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

5.  Lack of standing.

6.  Failure of consideration.

7.  Plaintiff is barred under the Fair Debt Collection Practices Act, and other relevant federal and state statutes, from collecting any interest and any amount unless it is expressly authorized by the agreement creating the alleged debt or permitted by law.  Plaintiff has failed to attach proper documentation to verify such interest is permitted.

8  Defendant reserves the right to amend this answer and to assert any affirmative defenses that become known or available.

 

PRAYER FOR RELIEF

 

WHEREFORE, the defendant's pray for relief from this honorable court as follows:

A.  That the Plaintiff takes nothing by way of this Complaint,

B.  To dismiss the Complaint with prejudice based upon the admissions, denials, and defenses alleged herein,

C.  To award the Defendants' costs, and

D.  To award the Defendant such other and further relief as this Court deems just and equitable

 

Respectfully submitted

 

_____________________

ME

 

Dated: May XX, 2018

[Guest usctrojanalum]

Yep, e-file it and you're good to go.  If the complaint is verified, technically you should file a verified answer.

[sidthekid44]

@usctrojanalum I have looked at a few cases online and noticed, as you said, that process in County Supreme Court does appear to be a slow one.  For that reason I was thinking about delaying the filing of my MTC arbitration (as you also said).  I will file my answer next week.  What is the most likely step the attorney for the Plaintiff will take next?  If they file a motion themselves or request discovery or whatever I can still file my MTC at that point, correct?  It should be heard before the case moves forward?  The optimal goal still being to not participate in the case any further than my answer, but still being able to file my MTC.  Thanks as always!

[Guest usctrojanalum]

Really hard to predict what next step is.  Could be one of a million things.  But speculating, their likely next move is an RJI with a request for a preliminary conference. 

As far as the timeliness of your motion to compel, that's a mixed question of law or fact that I am not totally comfortable answering, especially when the case law is not entirely clear on what constitutes participation in the judicial forum to act as a waiver.  It is clear that filing an answer though is not enough and you can still protect your right to arbitrate. 

[sidthekid44]

@fisthardcheeseI was wondering if I could get your opinion on a possible upcoming arbitration I may have with Cavalry. 

The quick background  Cavalry bought my charged off debt from Citibank sometime in the summer of 2017.  They sent me a letter and I sent a DV letter (asked them to only contact me via USPS) and they validated the debt.  I did receive a few more calls from Cavalry, but I unfortunately did not document them.  Fast forward to this Spring, I received a letter from an attorney representing Cavalry.  I again sent the DV letter within 30 days (asking to only be contacted via USPS) and they eventually sent the validation.  They have now sued me and I have prepped an answer which I will file shortly.

So here are my questions

My DV letter to the attorney was signed for on 04/04/18.  They signed my complaint for the lawsuit on 04/05/18...obviously before they validated the debt.  The attorney's office also called me twice on 04/06/18 and left me a voicemail after the second call.  Are these FDPCA violations?  The attorney's office is representing Cavalry, but they were/are also acting as a debt collector.  They did eventually send me verification which I received 04/16/18 (their letter was dated 04/11/18).  So they signed the complaint to sue me a few days prior to even sending out the verification.  They also attempted to contact via my cellphone which I specifically asked them not to.  My hope is because Cavalry previously verified the same debt that this does not get the lawyer's office off of the hook.

 

The reason I have these questions is because my plan is to file a MTC arbitration.  I know my original statement to JAMS does not need to be specific, but if I arrive at the point I need more specifics I have backup against the lawyer's office.  Sorry if this is all confusing.  I just value your opinion from all I have read on this board from you.  Thank you for your time and help!

[fisthardcheese]

The date I would want to know is when they filed the case in court.  If the filing date was also a day (or more) after they signed for your DV letter, then yes, I would consider that a violation (just my opinion only, and I'm no attorney).  But they could have signed and dated the complaint but not filed it until after they sent the verification a week later.  So the court filing date is the key, IMO.

If you find the filing date to be after your DV but prior to their verification letter, then I would absolutely include this as part of my JAMS claims unless you want to use this to see if there is an attorney willing to take on that violation for you and save you from having to deal with this on your own.

Just make sure you are not in "small claims" court, as the Citi card agreements are problematic for that venue.

[sidthekid44]

40 minutes ago, fisthardcheese said:

The date I would want to know is when they filed the case in court.  If the filing date was also a day (or more) after they signed for your DV letter, then yes, I would consider that a violation (just my opinion only, and I'm no attorney).  But they could have signed and dated the complaint but not filed it until after they sent the verification a week later.  So the court filing date is the key, IMO.

If you find the filing date to be after your DV but prior to their verification letter, then I would absolutely include this as part of my JAMS claims unless you want to use this to see if there is an attorney willing to take on that violation for you and save you from having to deal with this on your own.

Just make sure you are not in "small claims" court, as the Citi card agreements are problematic for that venue.

@fisthardcheese Thank you for your response.  I was afraid that would be the case/your opinion.  The complaint was efiled on 04/21/18, obviously after they verified.  I cannot be sure what happened between 04/05/18 and 04/21/18.  The lawyer's office uses a third party to upload their documents.  I imagine there is some delay from filing and having documents uploaded.  That probably still would give them an out to fight that claim if it gets that far in arbitration.

My hope is we do not get to that point and agree to a mutual dismissal...but I'm getting way ahead of things.  My last question...if I need to list specifics in arbitration can I get myself into trouble including that?  Would it just be up the arbitrator to disagree that signing the complaint before the debt is validated constitutes them trying to collect the debt while it is in dispute?  I obviously am not an attorney either and not as well versed in the FDCPA as you, but I do think an argument can be made they are taking steps to collect before validation...i.e. I'm not acting in bad faith/making up unfounded claims. 

I did notice the small claims court "issue" in the card agreement.  My case was filed in County Supreme Court so I believe I should be ok there.  USCTrojanAlum also told me previously, "Monroe County Supreme is a general trial court of original jurisdiction.  It is not a small claims court"  Thank you again!

[Guest usctrojanalum]

it'd really be a stretch to have simply signing the complaint be a violation.  Signing a complaint without serving it or filing it until after verification was provided will not be considered continued collection activity. 

[sidthekid44]

Minor update:  I officially filed my Answer electronically with the court today.  I think I will hold tight for a couple of weeks while I work on my MTC arbitration...then most likely file that and RJI (if needed) in the third/fourth week of June (unless the Plaintiff takes some action first).  I have been tracking a few other cases similar to mine and have not noticed anything filed with the court for over a month after the defendant's answer. 

One odd thing I have noticed is there is still no Affirmation/Affidavit of Service filed in my case.  It is typically filed 7-10 days after service in most of the cases I have looked at.  My father was served my documents 18 days ago.

Thanks again to everyone who has offered and given me assistance with this process.  I will keep the updates coming.  Maybe my experience will help someone else down the line.

[Guest usctrojanalum]

13 minutes ago, sidthekid44 said:

One odd thing I have noticed is there is still no Affirmation/Affidavit of Service filed in my case.  It is typically filed 7-10 days after service in most of the cases I have looked at.  My father was served my documents 18 days ago.

 

Come back if over 20 days elapses after service of the summons and complaint. 

[sidthekid44]

On ‎5‎/‎29‎/‎2018 at 12:33 PM, usctrojanalum said:

Come back if over 20 days elapses after service of the summons and complaint. 

Today is day 21 and there is still no Affirmation/Affidavit of Service on file for my case.  The three documents are 1) Summons/Complaint 2) Statement of Authorization for Electronic Filing 3) Answer (did I screw myself by answering before they filed the Affidavit of Service).  Substituted service was completed to my father on May 11th...so the 12th through the 31st of May would be 20 full days.

 

I have done some research, but I am still not sure what my options are.  Motion to dismiss?  Traverse hearing?  A lot of the previous cases I have found deal with default judgments being vacated due to improper service.  There was not much of anything about a Affirmation/Affidavit of Service not being filed.  I do see that they have twenty days to file the document, but it also looks like it can be corrected or they will just sue again (and I am still about 13 months from hitting the SOL)

 

I would love to make their job more difficult if it doesn't end up being too costly for me or put me into a bad position to later motion for arbitration.  Any advice and recommendations are greatly appreciate.  There are time constraints and obligations put on me...they should need to meet theirs as well.  Thanks!

 

 

[Guest usctrojanalum]

And in researching the issue, you are right. It is correctable and not a big deal.   The filing of the affidavit of service is not jurisdictional in nature.  It is relevant only to which the time in which a defendant must answer. 

[sidthekid44]

There has been no movement by either party in my case and I have begun working on my MTC Arbitration.  I am just trying to put together a quick checklist of what I have to do to accomplish this.

1)  RJI ($95)

2) Notice of Motion

I see that I need to pick a date/time for the motion to be heard and enter it on this form.  I cannot locate online a schedule or typical dates motions are heard for Monroe County Supreme Court.  Can I just call the clerk and ask for this information?  My assumption is motions are typically heard only certain days/times.  Is there any advantage/disadvantage to selecting a date sooner or later?

3) My Motion and Affidavit/Copy of Credit Card Agreement ($45)

 

Am I missing anything?

Just to clarify, am I correct that I do not need to physically mail these forms to the Plaintiff/attorney and complete an affidavit of service?  I see reference to that, however, as we discussed previously, I believe that electronic filing counts as service for all documents.  Thank you!

 

[spilledmilk1111]

I'm in the exact same boat except I'm in Indiana! Calvalry bought my account from Citibank.  I opened my account with Citi in 2011.  The case was filed in Superior Court so I'm hoping i can do the same thing you are doing.  I have literally zero understanding of law and due to that in the past i've always given up and got screwed in the process.   Good luck and i look forward to updates!  Figure i had better make a post of my own just in case I'm missing something.  Just wanted to say thanks to op and the advice givers in this thread, you've been helpful!

[sidthekid44]

On ‎7‎/‎22‎/‎2018 at 4:17 AM, spilledmilk1111 said:

I'm in the exact same boat except I'm in Indiana! Calvalry bought my account from Citibank.  I opened my account with Citi in 2011.  The case was filed in Superior Court so I'm hoping i can do the same thing you are doing.  I have literally zero understanding of law and due to that in the past i've always given up and got screwed in the process.   Good luck and i look forward to updates!  Figure i had better make a post of my own just in case I'm missing something.  Just wanted to say thanks to op and the advice givers in this thread, you've been helpful!

I would definitely make your own post.  Start by answering the same set of questions in the first post of this thread.  People from Indiana will help you...especially with the rules/procedures for your state.  My understanding of law/procedure isn't that advanced either.  I have learned a lot from reading through different threads on this board.  Do not just roll over and let them get a judgment against you.  At the very least you can put yourself in a position to receive a better settlement.  Good luck!

[Guest usctrojanalum]

On 7/10/2018 at 11:23 AM, sidthekid44 said:

There has been no movement by either party in my case and I have begun working on my MTC Arbitration.  I am just trying to put together a quick checklist of what I have to do to accomplish this.

1)  RJI ($95)

2) Notice of Motion

I see that I need to pick a date/time for the motion to be heard and enter it on this form.  I cannot locate online a schedule or typical dates motions are heard for Monroe County Supreme Court.  Can I just call the clerk and ask for this information?  My assumption is motions are typically heard only certain days/times.  Is there any advantage/disadvantage to selecting a date sooner or later?

3) My Motion and Affidavit/Copy of Credit Card Agreement ($45)

 

Am I missing anything?

Just to clarify, am I correct that I do not need to physically mail these forms to the Plaintiff/attorney and complete an affidavit of service?  I see reference to that, however, as we discussed previously, I believe that electronic filing counts as service for all documents.  Thank you!

 

The process of filing a motion ='s

1) RJI Form filled out and signed by you - $95.00

2) Notice of Motion - $45 

You can pick any date you want at 9:30 in the morning, if the judge who is assigned does not hear motions on that date, it will simply be adjourned to the next date that the judge does. 

3) Your affidavit in support of your motion which one portion will include relevant facts (this will include exhibits); another portion will include relevant law. 

4) No need to mail physical documents, or fill out affidavit of service. However, judge will likely want a hard copy of the motion.  Judge will likely want numbered exhibit tabs.